Timing Is Everything

For me, one of the most interesting things about the lawsuits filed last week against the contraception mandate was their timing. (I confess at the outset that I haven't read all of the complaints, just the one from Notre Dame.) I think the Notre Dame complaint makes some reasonable arguments about the intrusiveness of the original mandate, but I found it odd that the university was challenging a rule that everyone agrees (and the complaint acknowledges) will be superseded by a new, broader exemption before it goes into effect. Now, I think Notre Dame is right to be worried even about the new rule, because I have still not seen a clear explanation of how the new exemption will deal with self-insured religious entities, like Notre Dame. (On the other hand, I think the university undermines the broader plaintiffs' position when it says that the direct provision of contraception by the government though a tax-funded program would not violate rights of conscience.) While I was reading the complaint, though, my main reaction as a lawyer was that it would probably have been better to wait a bit longer before initiating litigation.The complaint discusses the timing issue by noting how far in advance the university has to make its insurance arrangements. But, even by their own description, Notre Dame likely could have waited a few months more without undue risk. From the tone of the complaints, larded up as they were with rhetoric clearly designed for media (rather than judicial) consumption, it seemed to me that the coordinated lawsuits were filed now, not primarily because of the plaintiffs' insurance planning needs, but as a PR prelude to the Bishops' "Fortnight of Freedom" (perhaps the most unfortunate name for a putative social movement since the ill-fated "Nanocentury Against Nukes").As if on cue, a few days ago the Christian News Service posted an article linking the lawsuits with the Fortnight andtouting what it optimistically hopes will be "the most massive campaign of civil disobedience in this country since the Civil Rights Movement of the 1950s and early 1960s." I am doubtful. The article discusses a document the Bishops plan to insert into parish bulletins next month, which makes the comparison with the civil rights movement and comes complete with quotations of the Letter from a Birmingham Jail. The mandate does not take effect for another year. And it's hard to visualize people refusing to obey a mandate to issue insurance covering contraception. It certainly doesn't have the visceral (and visual) punch of students being physically attacked or dragged off by police for refusing to leave a segregated lunch-counter. The civil disobedience the Bishops have in mind will have to be something other than refusal to obey the law they think is unjust.I have a broadly permissive attitude towards civil disobedience. Most democratic theorists do not. On almost any account of civil disobedience, though, refusing to obey a duly enacted law in a functioning democracy is a serious action that stands in need of some substantial justification. In that regard, the Letter from a Birmingham Jail is a strange document for the Bishops to cite in favor of their campaign. King was very careful to spell out the limits of appropriate disobedience in a democratic society, placed great emphasis on the political exclusion of African Americans in the pre-civil rights south, and treated disobedience as a last resort in response to even clear and grave injustice. (King also lists "self-purification" as an essential prelude to civil disobedience.) In contrast, the Bishops (who share very little with 1963 Birmingham black community in terms of their political influence) seem positively eager to kick off their new movement. What form it takes, and who will participate, remains to be seen. (HTMother Jones)

Eduardo M. Peñalver is the Allan R. Tessler Dean of the Cornell Law School. The views expressed in the piece are his own, and should not be attributed to Cornell University or Cornell Law School.

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