Judge Posner’s Dog Ate His Homework

And while we are talking about wrestling with other people’s consciences (see below), let us consider the case of Judge Richard Posner of the Seventh Circuit.  Last week, presiding over oral argument in the Notre Dame v. Sebelius case over the HHS mandate, Judge Posner was on display to full advantage—full of himself, but devoid of understanding.  In a colloquy with Matthew Kairis (representing Notre Dame), Posner badgered, interrupted, and demanded yes-or-no answers to questions so badly framed that they had to be either evidence of Posner’s failure to grasp the issues in the case, or of his intention to trap counsel in a corner of some kind.  You can listen to the audio here, with things beginning to heat up around the 10:30 mark.

Here is a sample of Posner’s inability to perceive what is at stake in the case:

Posner: You have no objection to . . . a single-payer system under which all health providers are required to provide all these contraceptives free.

Kairis: If Notre Dame played no role in that system. . . .

Posner: . . . [I]f Notre Dame hadn’t sent copies of the certification form to Aetna and Meritaine [third-party administrators of its health plan], but had simply written a letter to the government, you know to the Internal Revenue Service saying we’re a religious organization, and so we’re just not going to pay for any of these contraceptionves, would you have any quarrel with that?

Kairis: Well, you’re asking me to make . . .

Posner: No, no, answer my question, don’t fence with me.  You answer my question.

Kairis: I’m attempting to, Your Honor.  And you’re asking me to make a religious determination.

Posner: You answer, my question is extremely clear.  Would you have any objection simply to writing a letter to the government saying Notre Dame is a religious university, a Catholic university, and it will not make any financial contribution to contraception?

Kairis: It depends on the context and consequences of that act. . . .

Kairis is exactly right.  First of all, Posner was sketching a scenario that the law does not even allow—“writing a letter to the government” such as he describes—so what was the point of his question?  His persistence in asserting the relevance of it strongly suggested that he thought the law’s requirements amount to no more than such a letter, or could be assimilated to it.  But the HHS mandate requires an institution such as Notre Dame to fill out a form certifying its religious claim to an “accommodation,” and designating an insurer or third-party administrator (for self-insurers such as the university) to provide the contraception.  It can’t just “write a letter” and be finished with this business.  Moreover, Posner never supplied the “context and consequences” of his imaginary scenario involving such a letter, and yet he persisted in rudely demanding that Kairis answer his question yes or no.  Sorry, sometimes “it depends” is the right answer. 

On top of this, Posner kept inaccurately referring to the HHS mandate’s terms as providing an “exemption” for employers like Notre Dame.  It doesn’t.  “Religious employers” such as actual houses of worship get a complete exemption from the mandate, with no provision of contraception to their employees.  But employers like Notre Dame, or the Little Sisters of the Poor, only get a fraudulent “accommodation” in which their employees, by virtue of their employment, and as a result of a contractual relationship with the employer’s health insurer or administrator, get allegedly “free” contraceptives, abortifacients, and sterilization services (for whose costs nearly all such employers are actually still on the hook).

The oral argument went on in this miasma of Posnerian stultification for quite some time, until Judge David Hamilton pursued a more productive line of questioning, in which Kairis was permitted to make his point that the mandate places a substantial burden on Notre Dame.  When Posner returned to the fray, he wanted to know what was so “substantial.”  It looked “trivial” to him, since he seemed to think that his imaginary letter actually could be sent to the government to obtain an “exemption.”  And whatever happens, Posner, averred, the insurers would supply the contraceptives:

Posner: They’re going to do it anyway.  These women will have their free contraceptives anyway.

Kairis: No, Your Honor.

Posner: No?

Kairis: No, the third-party administrator cannot provide those services without Notre Dame relinquishing its discretion as plan administrator.  The only way that that happens is if Notre Dame takes an act.  So I think that the answer to that is no, the third-party administrator would not provide the services, unless Notre Dame, through that certification, gave the third-party administrator the power to do it.

Posner: Wait, I don’t understand that at all . . . What statute or regulation do you rely on for that strange argument?

Kairis: That is 29 CFR 2510.3-16 . . .

Posner: What is that?

Kairis: [repeats citation and adds] and ERISA 316(a)1.  It states that the self-certification will be treated as a designation of the third-party administrator as plan administrator and claims administrator for contraceptive benefits, pursuant to section 316, and shall supersede any earlier designation.

So instructed, at this point Posner fell mercifully silent for a time, until he thought of another line to pursue.  And eventually he came to this one:

Posner: Is there some sanction that Notre Dame imposes on employees or students who use contraception?

Kairis: No.

Posner: Why not?  This is a . . . well, let me ask you this.  Is use of contraception a mortal sin or a venial sin?

Kairis: Your Honor, I don’t know the answer.

Posner: Well, you should.  It’s a mortal sin if the person using contraception knows the Church forbids it.  So, if Notre Dame is really serious about this, why doesn’t it do anything about the violations, which apparently are widespread . . .

Kairis: Notre Dame has no interest in vetoing or controlling other people’s choices.  Notre Dame has an interest in controlling its own choices.

Posner: You’re kidding.  The Catholic Church is not interested in affecting other people’s choices?

Kairis: Notre Dame has no interest in . . .

Posner: Notre Dame has no interest in preventing use of contraceptives?

Kairis: That is not what it seeks to do here.  It seeks to not be part of the process.

This was followed by Posner trying to play “gotcha” about insurance information appearing on Notre Dame’s website since it bowed to the government’s coercion, but Kairis pushed back hard and effectively against this nonsense.

Forgive my lengthy quotations, dear reader, but I hope it is clear by now that Judge Posner 1) had a feeble grasp of the facts and the law in the case he was hearing last week, 2) persisted in his misunderstanding of what the government is trying to force Notre Dame to do, even after repeated and clear explanations of it by counsel, and 3) thinks he can make his own forays into the moral theology of the Catholic Church, and declare that the university’s position is not “really serious” if it doesn’t engage in an inquisition into its employees’ sexual habits and relationships.

Judge Posner has long been known for, shall we say, a strong personality on the bench, and for a very high opinion of himself.  Last week he was simply a bad judge—arrogant, rude, and uncomprehending.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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