The United States Court of Appeals for the Seventh Circuit heard arguments this week in a case involving the University of Notre Dame and the issue of contraceptive coverage. News reports painted a picture where the three-judge panel (Judges Posner, Hamilton, and Flaum) were skeptical of the University’s arguments. Some of them even went so far as to note that Judge Posner repeatedly told counsel for the University that he couldn’t understand the University’s argument.
What many of the news reports missed, however, was the fact that the University’s attorney, Matthew Kairis of Jones Day, violated some of the most basic principles of any oral argument presented to a court. Kairis wouldn’t answer simple yes-or-no questions, leading Judge Posner to threaten at one point that he wouldn’t permit Kairis to continue his argument if he wouldn’t answer a simple question. Kairis repeatedly talked over the judges, leading Judge Posner to tell him to stop interrupting. Right out of the box, Kairis botched a simple question from the court: what relief do you want? At one point, Judge Posner said to Kairis, “Stop babbling.” Ouch.
Most lawyers know that Jones Day is a big (as in really big) law firm that hires only the brightest of the bright. Kairis’s credentials are impressive (Harvard Law), and he’s handled a lot of high profile cases. That’s why it is so surprising that Kairis didn’t conduct a better argument. Indeed, at one point Judge Posner was so frustrated with the interruptions that he made a remark suggesting that it was inconceivable that a lawyer who had done arguments in other courts didn’t know that it’s a cardinal sin to interrupt the judge. (Speaking of sins, Judge Posner stumped Kairis with the question, “Is use of contraceptives a mortal or venial sin?” After Kairis said he didn’t know, Posner said, “Well you should know. It’s a mortal sin,” and then went on to explain why Catholic theology labels it a mortal sin.)
Now, in all fairness, Judge Posner can be one of the tougher questioners from the bench. His questions can come rapid fire, and he can get testy. Still, any law student who has done a moot court argument in school learns that you don’t interrupt the court, talk while the court is talking, or irritate the judge by trying to sidestep a direct question. (Posner admonished Kairis twice, “Don’t fence with me,” after asking a yes-or-no question.) Perhaps Kairis was having a bad day, had taken some cold medicines, knew he had a weak argument and was doing the best he could, who knows. Still, if I was Notre Dame’s general counsel, I would not have been happy. Regardless, every lawyer has had an experience like Kairis had, and you can’t help but feel sympathy for him.
The news media, of course, interpreted the tough questions from the bench as a sign that Notre Dame’s case was in trouble. Experienced appellate lawyers (and even those of us who handle the occasional appeal) know that you can’t predict the outcome of a case based on oral arguments. Indeed, I once argued before Judge Posner at the Seventh Circuit. I thought he (and the rest of the bench) beat up on my opponent’s position much, much more than they did mine. When the opinion was handed down, I lost (in an opinion written by Judge Posner).
If you’d like to listen to the 90-minute oral argument, the Seventh Circuit has it posted online. The direct link to the mp3 file is here.
Third Apple 
When the Obama Administration argued in Hosanna-Tabor that Cheryl Perich was not a minister and therefore the ministerial exception did not apply, rather than argue that Cheryl Perich was a person of Faith who the Church had selected to minister to the students of Hosanna-Tabor, who had been unjustly let go due to a disability, it was clear that the Obama Administration had changed the nature of the debate in an attempt to redefine Religious Liberty by limiting the number of people who qualify as “ministers”, and are thus entitled to have their Religious Liberty secured and protected. Having failed at redefining Religious Liberty through The Hosanna-Tabor Case, the Obama Administration is attempting, through the contraception mandate that was added after the Affordable Health Care Act was passed, to redefine Religious Liberty through an Administration Agency. Not only does an Administrative Agency not have the authority to determine who is and is not religious enough to have their Right to Religious Liberty secured and protected, but this Administrative Agency has placed an obscene fine of 36,500 per employee for providing Health Insurance that does not include contraception coverage, when the fine for failing to provide Health Insurance is only 2,000 dollars per employee, clearly a violation of the principle of proportionality and thus The Eighth Amendment as well as The First.
Thank you for your comment, Nancy. I’m not familiar with the Hosanna-Tabor case, but I can give you some generally applicable rules of law with regard to religious liberty. The First Amendment creates a tension when it comes to church and state relations. We have the right to freedom of religion, but the government also must remain neutral. This creates a tightrope that can be difficult to walk.
Generally, the laws state that we have the right to believe as we wish (to be Catholics, Muslims, Bahai, or Pastafarians). The government is not permitted to enact laws that change or substantially burden what we believe. The government may, however, apply certain laws that might conflict with one’s beliefs. For example, some may have religious beliefs that oppose capital punishment, but a state execution of a convicted criminal cannot be prevented by someone claiming the execution offends their religious beliefs.
Church and state law is very, very complicated. It requires balancing the Free Exercise Clause against the Establishment Clause at times, as in the minister-qualification case you mention. Sorting out who qualifies as a member of the clergy can be tricky since there are plenty of people who might claim to be clergy in order to obtain certain favorable treatment. Often times, it will boil down to comparing what a particular person does to what we as a society generally expect a clergy member to do. For example, we would generally expect a true member of the clergy to lead worship services and lead a congregation. But would a member of the clergy teach Sunday School for children? In many congregations, those tasks are handled by lay persons. (I should point out that some true clergy might teach Sunday School in addition to their regular duties and be full time clergy, but the folks who teach only on Sundays might not be true clergy if teaching is their only work at the church.)
Finally, just one point. Everyone has the right to religious liberty, not just those who are “religious enough.”
With all due respect, if our Founding Fathers did not believe that Religious Liberty would serve to complement and thus to enhance the value of the State, they would not have secured and protected our right to Religious Liberty to begin with. There is no such right as a right to free contraception, nor is providing free contraception a tenet of any Religious Faith. It is not necessary or proper for an Administration Agency to coerce any person or group of persons into violating their Religious Liberty for the sake of free contraception, through an obscene fine that is clearly a violation of the principle of proportionality and thus the Eighth Amendment.
The University of Notre Dame’s argument is clear and compelling, unfortunately Judge Posner did not understand the nature of the debate.
Respectfully, I have to disagree. I recognize that directly providing contraception to employees offends Catholic (and other) religious teachings. There is, however, a wealth of evidence which provide a good rationale for making it a part of standard health insurance. The compromise—if paying for contraception goes against your religious organization’s tenets then the insurer itself will pay (and be reimbursed by the government)—is a fair one. But, more to the point, if you read Judge Posner’s decision that was handed down last week, you’ll better understand the University’s problem in a legal sense. The University’s religious beliefs cannot be violated if some third party is required to provide the contraceptive coverage. The analogy to the Quaker and the draft that Judge Posner uses is a good illustration. It may offend the University that its third party administrator is required to do something at its own expense, but it doesn’t mean the University’s beliefs are being stepped on. Notably, the University conceded that it would be fine if a single-payer system (“Medicare for all”) provided the coverage.
The University’s other problem is that it committed tactical error: waiting until the 11th hour to file suit. Before the suit could even be addressed, the deadline for signing the waiver/exemption hit. The University really cannot “unring the bell” at this point since the University has already complied with the law. Perhaps had the University sued during the summer months, the outcome would have been different.
Respectfully, I disagree. There is no compelling evidence that providing free contraception is necessary or proper in a Health Care Insurance Plan. Contraception is not Life-affirming or Life-sustaining, and in some cases, destroys a human life, promotes promiscuity and the sexual objectification of the human person and thus is not good for the posterity or prosperity of this Nation or the World. The Catholic Church’s teaching on contraception is grounded in respect for the inherent dignity of the human person, and her desire not to condone any act that does not respect our inherent Dignity.
It is not The University of Notre Dame that committed a tactical error. The Judge determined, before the suit could even be addressed, it was “not ripe”, even though it was certainly ripe enough to determine that there is no compelling reason to lose one’s Religious Liberty for the sake of free contraception. The Constitution does not establish an inherent right to free contraception, it does, however, serve to protect our inherent Right to Religious Liberty.
I would agree, that “a single payer system”, is not the answer. If this administration respected The University of Notre Dame’s right to Religious Liberty, to not condone an act that violates a tenet of their Faith, they would have allowed them to provide Health Insurance to their employees that did not include contraception coverage; they would not have use an excessive fine of 36,500 dollars per employee, which can only be construed as a means to “Influence the recipient” through the improper use of an excessive fine that is clearly a violation of the principle of proportionality, to violate their Right to Religious Liberty.
Yikes! I started listening to the oral arguments. If this is what we can expect from our Justice System, we are in serious trouble. According to these judges, the only way to condone an act is by supporting that act financially, thus, these judges erroneously argue, as long as The University of Notre Dame is not paying for the contraception in the Insurance Plan they provide to their employees, they are not condoning the use of contraception.
Since it is true that supporting the Faith and Mission of a particular Faith Group does not depend upon one’s ancestry, or whether one is male or female, it is not unjust discrimination to refuse to condone the contraception mentality. Title VII applies to cases where there is unjust discrimination. Not providing contraception in a Health Care Insurance Plan because it violates a tenet of Faith is not unjust discrimination.
Thank goodness, Matthew Kairis was able to keep his cool.
The beginning of wisdom is knowing which questions to ask, because the questions you ask must be relevant to the knowledge you seek. I hope these two Judges will apologize to Matthew Kairis, not only for being impolite, but because they failed to do their due diligence.