A Study in Slanted Legal Argumentation

By 

Walter M. Weber

|
May 6, 2016

8 min read

Religious Liberty

A

A

Prof. Leslie C. Griffin of the UNLV Boyd School of Law wrote an article for a SCOTUSblog symposium on the Little Sisters of the Poor case currently before the Supreme Court. Prof. Griffin’s article is a classic example of propaganda masquerading as legal argument. It may be helpful to fully dissect the piece to see how Prof. Griffin attempts to manipulate her readers.

Below are portions of her article (in block quotes) complete with my analysis below each portion uncovering just how very flawed it is:

The missing interest in the contraceptive mandate cases – Catholic women

The headline teases the reader into thinking this article will present a Catholic, female perspective on the case. In fact, the article will argue for women who reject Catholic teaching on birth control. A more accurate title would have referred to "The missing interest in the contraceptive mandate cases women who reject the Church's teaching."

The Little Sisters of the Poor, who generously provide care to the elderly poor, have appeared as the most sympathetic of the thirty-six religious nonprofit petitioners in seven consolidated Supreme Court cases challenging the contraceptive mandate of the Affordable Care Act (ACA). The plaintiffs’ lawyers and some commentators have presented a sad portrait of the good Little Sisters hounded to violate their deepest moral convictions by the big bad federal government. Indeed, former Solicitor General Paul Clement made the pseudo-feminist argument in the Sisters’ cert. petition that the government had unfairly exempted male-run parishes from the mandate while forcing the nuns to comply.

Laughing off the threat: The piece opens with apparent sympathy for the heroic work of the Little Sisters, but quickly devolves into a mocking comparison of the Little Sisters to the Three Little Pigs: the description of the massive, powerful force of the Obama Administration crushing the "good Little Sisters" (so cute!) is silly, Griffin suggests, as the notion of "the big bad federal government," like the "big bad wolf," is a fairy tale.

Focusing on the weakest supposed arguments: Griffin skips over the many powerful legal arguments of the Little Sisters to lead with reference to a "pseudo-feminist" argument that is not a significant feature of the case.

These legal arguments have focused on the wrong women, completely ignoring the interests of Catholic female employees. The majority of Catholic women have used artificial contraception since the pill became available in the 1960s. Those Catholic women’s interests, not the Sisters’, should tip the scale toward the government in Zubik v. Burwell.

Everyone is doing it: Here’s the crux of Griffin’s argument: Since most Catholic women reject, in practice, the Church teaching on artificial birth control, the interests of these dissenters should prevail over an institution that is attempting to remain true to Catholic teachings. Of course, phrasing the argument this way shows how ridiculous it is. But it is important to point out that Griffin here is taking sides on a matter of religious doctrine (which the Supreme Court is not permitted to do) and is in effect endorsing the notion that majority vote should dictate a church's ability to adhere to its teachings. (Would Griffin apply the same rule to questions of capital punishment or gun control?)

The Bishops’ opposition to the mandate
Our nation’s Roman Catholic bishops first publicly announced their opposition to any and all artificial contraceptive use – by Catholics and non-Catholics alike – in a 1919 pastoral letter. Nearly a century later, the same arguments resurfaced when the Department of Health and Human Services (HHS) first considered what types of health care should qualify as “preventive services” covered by the ACA. The bishops released comments arguing that contraception is not a “preventive service” (because pregnancy is not a disease) and is, moreover, harmful to women’s health.

Blame the bishops: It is a standard tactic of the opponents of the Catholic Church to point to the bishops as the supposed meanies behind some challenged rule, whether on abortion or birth control. Never mind that the Popes have taught the same thing. Never mind that many other religions hold similar views. Never mind that when the bishops promulgate something appealing to those same opponents, it then becomes "heroic leadership" (on poverty programs, or universal health care, or abolition of the death penalty or nuclear weapons, etc.)

If the other side's argument is accurate, just state it and move on, as if everyone knows it's silly: Does Griffin think pregnancy is in fact a disease? That physical harms and even deaths resulting from birth control drugs and devices (e.g., blood clots, deaths, and higher fatality rates) are not harms to women's health? Or are the bishops' arguments too inconveniently accurate to deal with?

After HHS adopted the Institute of Medicine’s recommendation that twenty contraceptives approved by the Food and Drug Administration (FDA) become part of preventive health care, the bishops successfully directed the national policy debate away from women’s health care and toward their own religious liberty.

Blame the bishops (again): Griffin credits the bishops with "successfully direct[ing] the national policy debate" (ignoring the role of many other public policy and religious liberty groups). Also, the implication is that pursuit of a fallback position (having lost on the definition of "preventive services," the church leaders at least wish to pursue refuge for the flock against a coercive mandate) is somehow suspect.

As part of that religious liberty debate, the Obama administration completely exempted “churches, their integrated auxiliaries, and conventions or associations of churches” from the mandate. The government’s rationale for the exemption was that “[h]ouses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan” (emphasis added).

This reasoning demonstrates that the exemption was flawed ab initio. Catholic women do not share their hierarchy’s views on contraception. The exemption harmed Catholic women’s religious liberty to make their own decisions about contraceptive access and placed the government on the hierarchy’s side of the religious liberty debate, even though the hierarchy argued that contraception is unimportant to women’s health. 

Paint the coercion as too mild: It's easier to defend coercion if it is not as bad as it could have been. So instead of portraying the Obama Administration as reasonable for exempting churches, Griffin charges that even churches should have been forced to provide coverage for practices they deem sinful. Again, it is the majority of those who do not follow church teaching that, according to Griffin, should control a church's ability to follow its own teaching.

False equivalence: Griffin labels the dissenters' point of view as "religious liberty," though she gives no reason to believe that dissenters use birth control for religious reasons, as opposed to using it for personal reasons and simply discounting or disregarding contrary Church teaching. 

Demote doctrine to official "views": She labels settled Church teaching as the "hierarchy's views." Catholics, however, believe that the Church faithfully hands down the teaching of Jesus Christ Himself, not just "views." Anyone is free to disagree, of course, but that makes one a Protestant or some other religion. Griffin shows no understanding of the Catholic perspective, despite her purported attempt to advocate for Catholic women.

The accommodation
The bishops believed the exemption did not extend far enough, arguing that their massive network of religious non-profit schools, universities, hospitals, and social service agencies, as well as for-profit businesses and any individuals morally opposed to contraception, should be exempt. (The individuals would be exempt from participating in an insurance plan that provided contraception to their fellow employees.)

Vilify by overstating your adversary's power: The Catholic Church's many charitable institutions are, according to Griffin, the "massive network" of the "bishops." Griffin does not explain why this "massive network" was so ineffectual in opposing the "big bad federal government" on this issue that it had to go to court as a last resort.

The bishops’ strategy to gain the exemption was multi-faceted. Calling attention to their representation of the nation’s “68 million Catholic Americans,” they submitted public comments against the administration’s proposals. They lobbied Congress for a legislative exemption. They began a vigorous public relations campaign against the Obama administration, asserting that the president had declared war on religious liberty by forcing religious employers to insure their employees. Finally, they gave their approval to forty-three lawsuits filed by Catholic non-profits around the country that desired to be completely exempt from the contraceptive mandate.

Keep blaming the bishops: One would not know from Griffin's account that there are many other players, including a variety of non-Catholic institutions, on the side of religious liberty in this battle.

Although there has never been any evidence that the bishops can deliver the Catholic vote, the administration succumbed to the political pressure.

After meeting with the then-president of the United States Conference of Catholic bishops (Archbishop Timothy Dolan of New York), President Barack Obama and HHS announced an accommodation to the bishops’ objection. Under the first version of the accommodation, religious non-profits had to inform their insurance carriers of their opposition to contraception. The insurers would then issue separate contraceptive insurance policies for the employees, thus breaking any link between the religious non-profits and the provision of contraception. Under litigation pressure, the government later changed the accommodation to require objecting employers to send a notification form with the insurer’s name and address directly to HHS. That HHS accommodation is the one being litigated in the Supreme Court.

Vilify by deprecating your adversary's power: Consistency of tactics is not a requirement in propaganda. Having depicted the bishops as directing a powerful network of institutions and controlling the terms of public policy debate, Griffin shifts gears and disparages the bishops as incapable of "deliver[ing] the Catholic vote." As if the only reason a President would or should pay any heed to a group's concern would be if that group could deliver votes.

Hide key details: The Administration modified its approach "under litigation pressure"? That would be a Supreme Court stay order that halted enforcement of the HHS mandate as written.

The accommodation attempted to protect female employees by requiring the insurance companies to give women contraceptive access. Many Catholic women, including the Leadership Conference of Women Religious, expressed satisfaction with the government’s accommodation of both religious freedom and reproductive liberty. The government hoped the accommodation would put an end to the non-profits’ litigation.

Use newspeak: The question is not "contraceptive access" unless one redefines "access" to mean "having someone else pay for it". Under that definition, countless parents are denied "access" to private educational options, and most everyone is denied "access" to home computers.

Cite the collaborators: Griffin invokes the Leadership Conference of Women Religious. That's the group, the Vatican's investigation of found "serious doctrinal problems.” No surprise they gave aid and comfort to the Administration's efforts to coerce faithful Catholic entities.

Dolan, however, would settle for nothing but the complete exemption, and the forty-three Catholic plaintiffs continued their appeal of the accommodation. The archbishop characterized those court filings as a “compelling display of the unity of the church in defense of religious liberty,” even though only twelve of the nation’s 194 dioceses had sued, and only a “handful” of two hundred Catholic colleges and universities participated in the litigation. The “united front” presented by the joint filings of forty-three lawsuits was intentional; the bishops wanted a show of force to counter the voices of those Catholics, especially Catholic religious women, who were satisfied with the accommodation.

Paint the adversary as extreme: Bishop Dolan "would settle for nothing but the complete exemption," Griffin writes. But she could as well have written, "Bishop Dolan stood strong against the federal government's coercive efforts, rather than settling for incomplete protection of conscience." After all, it is the Administration that is forcing this mandate upon the citizenry and which claims it cannot settle for anything less than the commandeering of the health plans of religious employers.

The administration’s concessionary accommodation was foolhardy. The existence of the non-profits’ accommodation allowed for-profit businesses to win a similar accommodation in Burwell v. Hobby LobbyMoreover, the religious non-profits never met the president halfway. They argue in the Court that notifying HHS substantially burdens their religious freedom in violation of RFRA.

Paint the coercion as too mild (again): Because the Administration gave the religious nonprofits an inch, believers who ran closely held businesses also won an inch, which Griffin plainly regards as a bad thing.

Paint the adversary as extreme (again): Griffin chides the religious nonprofits for not meeting the President halfway. As if a mandate to eat pork could be met "halfway" by just eating a little bit.

The RFRA challenge to the accommodation
For RFRA to be triggered, plaintiffs must establish that they are persons whose exercise of religion is substantially burdened by the government. Once a substantial burden is established, the government must demonstrate that it has a compelling government interest and used the least restrictive means to enforce that interest.

Substantial burden

Catholic employers who oppose contraceptive insurance have always notified their insurance carriers not to include such coverage in their policies. Once the accommodation required them to do so, however, the employers argued that notifying the companies – or HHS – made them morally complicit with contraception in a manner that substantially burdened their religion.

Leave out key details (again): Before the mandate, notifying an insurer not to include birth control and abortifacients meant those things were not included. After the mandate, such notice operated as a trigger and thus meant they were included. That's why the moral complicity issue arose. Griffin simply omits the heart of the argument.

Most of the courts of appeals saw this reasoning for what it was, namely a creative effort to block women from contraceptive access. Unfortunately for the government and Catholic women, however, Roman Catholic Justice Samuel Alito included some Catholic moral theology in his substantial burden analysis in Burwell v. Hobby Lobby StoresCiting Jesuit Father Henry Davis’s Moral and Pastoral Theology (1935), Alito wrote that Hobby Lobby “implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” It is not for the Court, he concluded, to determine whether such a burden is substantial or insubstantial under RFRA; that is the moral judgment of the plaintiffs. The Court must simply defer to it, even when that moral belief may conflict with the beliefs of individual employees.

Pejorative labeling: The argument is that being forced to take action that violates one's beliefs substantially burdens one's religious exercise. Griffin calls the argument "creative."

Use newspeak (again): The question is not "contraceptive access" unless one redefines "access" to mean "having someone else pay for it". Nor does one "block" access by declining to pay for something. Under that reasoning, the state is "blocking" my "access" to a new car. 

Ad hominem: Supreme Court Justice Alito is "Roman Catholic," Griffin notes, the implication being his legal reasoning is biased. Does Griffin think it is for the Court to assess a party's moral belief? To second-guess a theological conclusion?

Use italics to convey extremity: Griffin describes the Hobby Lobby opinion as saying a court "must simply defer" to the private party's description of that party's own moral conclusions. But the Court likewise "must simply defer" to a party's choice of what religion to profess, "must simply defer" to a religious body's decision as to who is a suitable minister, etc. The reason is that religious decisions are out of bounds for a secular court under our Constitution.

The plaintiffs’ complicity argument is extreme within the history of moral theology. The bishops, for example, have never ruled that conscientious objectors to war may not apply for C.O. status. The Court should not defer to an argument when its main purpose is to block the rights of Catholic women, who have made their own decisions of conscience that contraceptive use is moral within their faith.

Label the adversary as extreme (again): It is especially peculiar that Griffin would describe a theological argument as "extreme." Preferring to die rather than eat pork (as with the Maccabees) or deny Christ (as with Christian martyrs) is "extreme." So is thinking we each can have our own planet after death. So is considering all use of force sinful. So is preferring to starve than eat a cow. Does Griffin take the view that only "non-extreme" religious beliefs are entitled to legal respect? 

Use phony analogies: A conscientious objector is not required to take an affirmative act that will result in precisely the objectionable activity (fighting in a war) being undertaken. The military will draft the number of soldiers it needs, regardless of whether that number takes into account conscientious objectors or simple no-shows. Applying for C.O. status did not trigger anything new.

Compelling government interest and least restrictive means
Even if the plaintiffs’ religion is substantially burdened under Hobby Lobby, the mandate may survive if the government demonstrates that it has a compelling government interest and used the least restrictive means to enforce that interest. Throughout the litigation, the government has repeatedly asserted its compelling interest in women’s health.

Focusing attention on the situation of Catholic women identifies another interest, namely their religious liberty to practice contraception and not to have the government take the hierarchy’s side in an internal religious dispute. The non-profits challenged the accommodation because they want the exemption, which was falsely premised on the idea that religions agree internally about morality. The accommodation strives to protect the liberty of the numerous Catholic and non-Catholic female employees who work for these institutions. If the government has an interest in accommodating the plaintiffs, it has an even more compelling interest in protecting women’s right not to be shut out of the insurance marketplace because of their employers’ religious beliefs.

False equivalence: See above.

Demote doctrine to official "side": See above. At least Griffin admits there is an "internal religious dispute" here. But that is precisely why the government should not be taking any side, much less that of those who reject Church teaching.

Pin the bad argument on the wrong party: It was the Obama Administration that "falsely premised" its original, sharply limited exemption, upon judgments about who would or would not agree with Church teaching. Griffin omits this detail. And on the topic of bad arguments, the Administration's assertion of a compelling interest in "women's health" is quite problematic. Virtually any government regulation can be defended as directly or indirectly advancing health, from office workplace regulations to food ingredient rules to abortion restrictions. Does the government get a free pass, even under the highest level of scrutiny, for all such restrictions, good or bad, sensible or overblown?

It is also hard to imagine a means less restrictive than asking the plaintiffs to do what they have always done, namely publicly assert their objection to contraception. That’s all that the HHS regulation demands and all the Little Sisters have to do to protect their 4,024 employees from losing their religious liberty.

Omit key details (yet again): If all the Little Sisters had to do was publicly assert their objection, this case would be over, as the recent supplemental briefs in the Supreme Court show. The problem has always been that with the HHS mandate the Obama Administration forces employers, not just to stay out of a practice they regard as sinful, but to do something objectionable – typically, file a form that triggers coverage of the practices viewed as sinful. The Administration has other ways to arrive at its goal of universal free birth control. Coopting the Little Sisters is entirely unnecessary, and thus illegal under the Religious Freedom Restoration Act.

In today’s age, the Supreme Court is increasingly politicized as are the legal arguments brought before it. Here’s hoping the Supreme Court follows the law, not political bias, in the Little Sisters of the Poor case. At stake is an America that truly believes in freedom and a pluralistic society in which the government doesn’t demand that you act against your conscience.