Israel Reflections 2015–Day Four: Mount of the Beatitudes

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First thing on Tuesday morning, we headed to the Mount of the Beatitudes. While the grounds were among the smallest we visited, the impact the Church of the Beatitudes on the students was among the largest.  Student Natalie Schiferl writes:

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Archbishop Explains the Pope’s Approach to Opposing Abortion

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Category: Public, Religion & Law, Speakers at Marquette
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Milwaukee Archbishop Jerome Listecki says, “Until I die, I will be supportive of pro-life efforts.” But does he understand what Pope Francis meant when he said that the Catholic Church was obsessed with issues such as abortion?

Yes, he said, during an “On the Issues with Mike Gousha” program at Eckstein Hall on Monday. The pope, he said, was not talking about the “rightness of the issue” and the church’s opposition to abortion. He was talking about how you spread the church’s message and bring people in.

Speaking of those who are particularly intent on the church’s fighting abortion, Listecki told Gousha, Marquette Law School’s distinguished fellow in law and public policy, “These are my friends. Do they sometimes give me heartburn? Yes, they do.” The way the church’s position is articulated by some can push people away, and that was what Pope Francis meant, the archbishop said.  Read more »

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Calls for Doing Better Set Tone for Catholic Schools Conference

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Category: Marquette Law School, Marquette Law School Poll, Milwaukee, Public, Religion & Law, Speakers at Marquette
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Perhaps Kathleen Cepelka effectively summed up a half-day conference Wednesday on the future of Catholic kindergarten through twelfth grade schools simply by describing the state of the schools in the Archdiocese of Milwaukee.

Cepelka, the superintendent of schools in the archdiocese, told the full-house audience in the Appellate Courtroom of Eckstein Hall about the strengths of schools in Milwaukee, about positive developments in enrollment, and about the many praiseworthy people and organizations involved in making the schools as good as they are.

But, she said, the quality of some of the schools isn’t what it needs to be and there are weak levels of achievement among students in some schools.  “We are not satisfied,” she said.

That mix — loyalty and pride in Catholic schools with an understanding of the pressing need to improve —  was voiced frequently during the conference, “The Future of Catholic K-12 Education: National and Milwaukee Perspectives,” sponsored by Marquette Law School and the Marquette College of Education.  Maybe “we are not satisfied” could have been the slogan for the event.   Read more »

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Supreme Court Roundup Part Two: Burwell v. Hobby Lobby Stores, Inc.

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Category: Business Regulation, Constitutional Law, Corporate Law, First Amendment, Health Care, Public, Religion & Law, U.S. Supreme Court
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the bosses of senateOn October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and sharing his perspective with the students.

This is the second of three blog posts on the presentation.  Readers can find the first post here.  What follows are my prepared remarks on Burwell v. Hobby Lobby.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

The legal issue in Burwell v. Hobby Lobby Stores can be described simply.  Under the provisions of the Affordable Care Act, the Department of Health and Human Services requires employers to provide health insurance plans making contraception available to their female employees at no cost.  In the NFIB v. Sebelius decision in 2012, the Supreme Court upheld Congress’ power to pass the Affordable Care Act as an exercise of its taxing power.  But even if Congress has the power to pass the law, can a for profit corporation nonetheless avoid following the law by arguing that the contraception provisions burden the corporation’s free exercise of religion in violation of the Religious Freedom Restoration Act (RFRA)?

The rights of the individual shareholders that own the corporation were not at issue.  The law does not act on the individuals, and does not require these human beings to do anything.  The only legal requirement imposed by the law is imposed on the corporate entity.

So what did Congress intend to do when it passed RFRA in 1993?  As I will explain, the Hobby Lobby case presents two opposing views as to what Congress attempted to accomplish by passing that law.  The dissent by Justice Ginsburg argues that the intent of RFRA was to create a statutory remedy for burdens on religious expression that adopted the standard for evaluating First Amendment violations prior to the 1990 Employment Division v. Smith case. The majority opinion by Justice Alito argues that by passing RFRA Congress created a statutory remedy that protected more “persons” than the pre-Smith caselaw protected and that granted them greater protections than the pre-Smith caselaw granted. Read more »

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Chevron and the Hobby Lobby Decision

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Category: Business Regulation, Public, Religion & Law, U.S. Supreme Court
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Hobby Lobby logoThe majority opinion in the Supreme Court’s decision in the Hobby Lobby case is founded on the Religious Freedom Restoration Act (RFRA) and the restrictions it places on the Secretary of Health and Human Services (HHS) when she regulates and enforces the Affordable Care Act (ACA). While the issues raised by Justice Ruth Bader Ginsburg’s dissenting opinion as to the battle of interests protected by the Constitution are significant, an important practical legal issue that was not addressed in the Hobby Lobby case is the power of HHS to interpret the meaning of the ACA. Considering the majority’s reliance on two terms that go undefined by the Court — “sincere religious belief” and “closely held corporation” [see page 29 of the slip opinion and footnote 28] — and the fact that none of the other Hobby Lobby opinions address the meaning of these terms, it is essential that these terms be defined as they fit into the ACA context.

The Court’s failure to address how HHS might interpret the meaning of these terms is reasonable considering that HHS has not acted to interpret the meaning of a “sincere religious belief” or a “closely held corporation” in the context of the ACA. In fact, the majority states explicitly that courts will be able to separate those with “sincere religious beliefs” from those who do not. However, despite the majority’s reference to the ability, and impliedly the power, of courts to interpret the terms “sincere religious beliefs” and “closely held corporations,” terms such as these have been regularly interpreted by federal agencies as they apply to the statutes these agencies enforce. Read more »

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The Sources of Anti-Gay Sentiment in Uganda

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Category: International Law & Diplomacy, Popular Culture & Law, Public, Religion & Law
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American politicians and journalists have sharply criticized Uganda’s apparent hostility toward gay men and lesbians. When in February Uganda’s President Yoweri Museveni signed into law a bill imposing harsh criminal penalties for homosexual acts, U.S. Secretary of State John Kerry criticized the Ugandan law as a violation of international human rights. When a tabloid in Kampala, the nation’s largest city, published a list of “Uganda’s 200 Top Gays,” American newspapers reported that this mass “outing” led those on the list to fear for their lives and to seek desperately to flee the country.

In response to this criticism, the Ugandan government characterized the political comments and journalistic reports as disturbingly arrogant. Once again, the U.S. seemed to be trying to control Ugandan lawmaking and public opinion, the government said. Museveni himself insisted “outsiders” should leave his nation alone and vowed he would not give in. “If the West does not want to work with us because of homosexuals,” Museveni said, “then we have enough space to ourselves here.”

Is the dispute simply a matter of American support for gay rights colliding with Ugandan homophobia? As is usually the case in an international dispute of this sort, the controversy involves more than the purported enlightenment of the West on the one hand and the narrow-mindedness in the developing world on the other. There is ample evidence that American evangelical Christians heavily influenced Uganda’s political and religious leaders, who as a result of this influence turned on the nation’s gay men and lesbians. Read more »

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Zelinsky: Use of HSAs and HRAs as Compromise to ACA Contraceptive Mandate Dispute

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Category: First Amendment, Health Care, Labor & Employment Law, Public, Religion & Law
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stethoscopeEd Zelinsky (Cardozo) has an interesting post on his OUP blog discussing a possible compromise in the on-going dispute between for-profit religious corporations, like Hobby Lobby, and the Obama administration’s Affordable Care Act’s (ACA’s) contraceptive coverage mandate.

Here’s a taste:

This entire controversy is unnecessary. The tax law contains devices for reconciling the religious concerns of employers like Hobby Lobby with the policy of expanding medical coverage: health savings accounts (HSAs) and health reimbursement arrangements (HRAs). The current regulatory exemption from the contraception mandate should be amended to include for-profit employers and to exempt from the federal contraception mandate employers (both non-profit and profit-making) who maintain HSAs or HRAs for their respective employees. Compromise along these lines would respect the genuinely-held views of religious minorities while implementing the federal policy of broadening access to health care.

An HSA/HRA compromise would eliminate the complicity of religious employers in the provision of contraception methods to which they object while enabling such employers’ employees to obtain on a pre-tax basis any medicines or devices such employees want, including contraception to which their employers object. Employers’ payments into their employees’ HSAs and HRAs would be the equivalent of the cash wages paid to such employees, wages which the employees are free to spend as they choose.

Personally, I do not see a RFRA or free exercise problem with ACA’s mandate because it is not a law that targets religion or otherwise substantially burdens religious rights of individuals. Read more »

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Religious Objections to Autopsies—A Virtual Solution?

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Category: Constitutional Law, Criminal Law & Process, First Amendment, Public, Religion & Law
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“[I]n this world,” wrote Benjamin Franklin famously, “nothing can be said to be certain, except death and taxes.” Were we to add a third certainty to the list, it might be that law will have something to say about the other two. To be sure, the law has quite a bit to say about death, including a mandate, under certain circumstances, to determine the cause of one’s demise.

Often such determinations entail autopsies or postmortem examinations, but sometimes these examinations are offensive to the decedent’s religious beliefs or to those of surviving family members. In such situations, it has frequently been the case that the religious beliefs have had to yield to the interests of the government or the public.

A few years ago, Kelly McAndrews (MU Law 2010) and I gave a presentation on religious objections to autopsies at a conference of the Wisconsin Coroners and Medical Examiners Association. (At the time, Kelly was the Medical Examiner for Washington County, Wisconsin.) We noted that, among other groups in Wisconsin, the Hmong and Orthodox Jews would likely have strong objections to autopsies, while that the Old Order Amish, Hindus, and some Muslims, American Indians, and Christian Scientists may have objections ranging from minor to moderate in their intensity.

Potential bases for objection, varying by religion, include: concerns about delay in the preparation and burial of the body as prescribed by religious law or tradition; concerns about the mutilation, desecration, or disturbance of the body (e.g., the body belongs to God and should not be altered, the body is needed intact for successful passage to the afterlife, or the body is needed intact in the afterlife itself); and concerns about spiritual harm to the surviving relatives for failing to take care of the decedent in a religiously proper manner. Read more »

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We Are All Sikhs

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Category: Family Law, Public, Religion & Law
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The day after the dreadful attacks of September 11, 2001, the French newspaper Le Monde published an editorial under the headline “Nous Sommes Tous Américains” (“We Are All Americans”).  The headline was meant to convey not only that the French people stood behind Americans in our desperate hour, but also that they shared our vulnerability as well as our responsibility in an increasingly dangerous world.  The editorial warned that modern technology enables suicidal warriors of all ideological stripes to do more damage than ever before, and the writer emphasized that all leaders need to act to discourage ordinary people from joining the murderous aims of warmongers like those who wreaked havoc on September 11th.

On Sunday, a smaller — but no less terrible — act of carnage occurred in Oak Creek, when a lone gunman killed six people and wounded three others before he was shot and killed by a police officer.  Deaths by violence are always terrible, but this was also an attack against an entire religious community that resides among us.

I first began to learn about Sikhism a few years ago when one of my students, herself a Sikh, kindly gave me a book about her religion.  The religion was founded in the 15th century and has over 20 million followers throughout the world.  Sikhs believe in one God, Whom they believe is the same Supreme Being worshipped by followers of other religions.  To quote from the website www.Sikhs.org, “Sikhism preaches that people of different races, religions, or sex are all equal in the eyes of God.  It teaches the full equality of men and women.”  The Sikh religion also emphasizes tolerance, honesty, community service, and sharing with those in need.

It is beyond ironic that members of a group devoted to peace, equality and tolerance were violently slaughtered in what the FBI is investigating as an act of domestic terrorism. Read more »

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Cats and Dogs, Libertarians and Social Conservatives

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Category: Political Processes & Rhetoric, Public, Religion & Law
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There’s been an interesting exchange among libertarians in response to the Catholic Church’s kick-off of a campaign against application of the HHS mandate on contraception and “morning after” pills to certain religious institutions without an adequate conscience exception.

Jay Carney, writing in the Washington Examiner, began the conversation by suggesting that social conservatives recognize big government as an enemy of religion and calling on libertarians to reassess their political alliances. Walter Olson of Cato responds, observing that libertarians have been out front in opposing state impositions on religion, but pointing out that there are limitations to co-operation between libertarians and social conservatives to the extent that the latter support state intervention as an instrument of the culture war. Walter’s Cato colleague, David Boaz, argues that social conservatives have often called for impositions on liberty to advance a particular moral view, citing a number of historic examples.

Two things.  First, it is always heartening to see libertarians understand that freedom requires resistance to impositions on voluntary associations as well as restrictions of individuals.   Read more »

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Restricting Liberty in the Name of Equality

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Category: Civil Rights, Constitutional Interpretation, Constitutional Law, First Amendment, Public, Religion & Law
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Robust equality is a relatively recent part of the American constitutional landscape, rooted in a limited way in the Declaration of Independence and then formally embraced in the Constitution’s 14th Amendment, ratified in 1868, though it took another near century to buttress that guarantee with meaningful legal force. By contrast, liberty—e.g., of religious exercise, of speech, and of the press—and its attendant guarantee of non-deprivation without due process of law, go back to the nation’s founding if not decades and in some cases centuries before.

In recent years, however, with great domestic and international dynamics at work, there has ascended into prominence and influence a norm of equality or nondiscrimination, or an unabashedly pursued equality of outcome, effectively supplanting the centrality of individual or group liberty as the citizen’s core constitutional guarantees.

Part of this has been achieved by legitimate historical and other academic research and theorizing, though it should be noted that at times the neutrality of those undertaking such efforts may rightly be questioned. Part of this sea change, though, has come from a public and university-sanctioned tolerance for the suppression of viewpoints that conflict with the modern ethos of equality, variously defined. Many of these developments, moreover, have resulted from outside pressures—from interest groups to like-minded accrediting organizations—that seemingly leave the institutions with little choice but to comply with their dictates.

As repeatedly documented by, among others groups, the Foundation for Individual Rights in Education and the Center for Campus Free Speech, colleges and universities ironically have sometimes been the most egregious censors of speech under the banner of equality (or of perceived equal treatment), which perversely betrays a subordination of the time-honored values of truth-seeking and knowledge propagation to relatively fleeting interest-group pressures and ideological expediency.

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Seventh Circuit Affirms Money-Laundering, Conspiracy Convictions of Car Dealers for Cash Sales to Drug Traffickers

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Category: Criminal Law & Process, Federal Criminal Law & Process, Public, Race & Law, Religion & Law, Seventh Circuit
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Amir Hosseini and Hossein Obaei, who operated three Chicago-area automobile dealerships, sold many luxury cars to drug dealers over a ten-year period. Hosseini and Obaei were apparently popular with this market segment because of their willingness to take large cash payments in small bills. Eventually, federal prosecutors caught up with them, and, following a five-week trial, they were convicted by a jury on 97 counts of conspiracy, money laundering, mail fraud, illegal transaction structuring, bank fraud, and aiding and abetting a drug conspiracy. The Seventh Circuit has now affirmed these convictions and the 15- and 20-year sentences that went along with them.

Had it been properly preserved, the most substantial legal issue on appeal would have been the question left open by United States v. Santos, 553 U.S. 507 (2008): whether, in a traditional money-laundering prosecution, the government must prove that the allegedly laundered proceeds are net profits, as opposed to gross receipts, of the underlying crime. (See my blog post about Santos here). However, since the Santos issue was raised for the first time on appeal, the court used plain-error review and found that the defendants could not satisfy the standard given the “unsettled state of the law.” (2)

Hosseini and Obaei also raised an interesting voir dire issue.

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