Yesterday, while I was listening with students to the oral arguments in the Hosanna-Tabor case, I noticed something I hadn’t caught before. Here’s Leondra Kruger, Assistant to the Solicitor General, responding to a question from Chief Justice John Roberts:
The government’s interest extends in this case beyond the fact that this is a retaliation to the fact that this is not a church operating internally to promulgate and express religious belief internally. It is a church that has decided to open its doors to the public to provide the service, socially beneficial service, of educating children for a fee, in compliance with State compulsory education laws.
The reasoning here is perfectly consistent with the thought animating the narrowly-drawn exemption to the widely reviled contraceptive mandate. Whenever a church or house of worship ceases to be simply inward-looking, when it in any way engages or serves the wider public, it becomes subject to much the same sort of government regulation as any secular entity. Relgious freedom is a purely private freedom. The moment you enter the public sphere, you’re subject to regulation. The public sphere is by definition secular, not pluralistic, with its tone, terms, and limits set by governmental authority.
Now, I don’t mean to argue that religious freedom is or should be absolute, that religious organizations should never be subject to any sort of regulation. I’m at least somewhat comfortable with a compelling state interest test to justify regulation.
But here the Obama Administration seems to go further than that. The logic of its argument in these two cases is that any religious institution that is public-serving has to behave in many instances (those determined by the state) like every other public-serving organization. The religious presence in the public square can’t be distinctive except in ways the government permits.
Pursued consistently across the board (and the Obama Administration hasn’t yet done this), this approach would gravely threaten religious freedom. It’s one thing to say (as some have, though I disagree with them), that if you take public dollars, you have to be thoroughly secular in your operation. Anyone can escape the secularizing effect of public money by refusing to accept it. It’s quite another to say that if you serve the public, your religiosity can’t permeate your efforts and your organization. This would require almost every religious organization I know of to choose between reaching out at a bearer of good news and a helper of widows and orphans and remaining faithful to the very understanding that inspired its outreach. Under these circumstances, a church can’t remain a church.
Some might be tempted to regard the contraceptive mandate as a kind of one-off product of the peculiar relationship between Barack Obama, kathleen Sibelius, and the pro-choice feminist Left. But the Administration’s argument in Hosanna-Tabor shows that this secularizing mindset is much more pervasive than that. It goes without saying, then, that a retreat on the contraceptive mandate–plausible, given the complaints of the President’s erstwhile liberal Catholic asupporters–would merely be a tactical move, not a change in the general direction of the Administration.
It’s only one of the things I’d lose sleep over in a second Obama term.
February 3rd, 2012 | 1:28 pm
I think the Obama administration is crafting this argument, not because it represents their political philosophy, but because it is their strategy to marginalize religion and keep it confined to the 4 walls of our homes and churches.
It is no accident, IMO, that Hosanna-Tabor was chosen as a test case. The church acted egregiously toward it’s employee and the admin. was hoping the mistreatment would blind the Court, in it’s desire to see the employee treated justly, to the underlying religious freedom principle.
The HHS rule re: contraception was deliberately chosen to strike at the Catholic Church where it is perceived to be at it’s weakest, doctrinally speaking. The admin. is hoping that the majority of Catholics who accept contraception will yawn and say “No skin off my nose” and remain blind to the taking away of religious freedom.
February 3rd, 2012 | 2:15 pm
@Oregon Catholic
Well said! My thoughts too regarding the admin’s expectation of a unified shoulder shrug from the dissenting horde. My only hope is that our fallen-away brethren will react in a fashion similar to the abusive brother who, upon witnessing his sibling being victimized on the playground, succumbs to his fealty and defends him.
February 3rd, 2012 | 2:23 pm
Right. The atheocracy is opposed to churches remaining churches. It will only tolerate churches that do not affect worldly thinking. That is an assault on the church. It destroys one of the essential components of its mission. A very wise man once described the church that has no influence on the thinking of the world this way:
If accepting public funds and tax exempt statuses are causing the church to lose its “saltiness,” then maybe it is time for it to do without those things, rather than become something its Master doesn’t consider fit for even a dunghill.
Does the church still have “ear to hear”?
February 3rd, 2012 | 2:40 pm
Joseph Knippenberg,
Doesn’t the fact that the Supreme Court has a Catholic (and conservative) chief justice, five other Catholics, and and three Jews give you a certain amount of confidence that religious liberty is not in any grave danger, no matter how little you trust the Obama administration?
February 3rd, 2012 | 2:46 pm
“If accepting public funds and tax exempt statuses are causing the church to lose its “saltiness,” then maybe it is time for it to do without those things, rather than become something its Master doesn’t consider fit for even a dunghill.”
Amen, Harry. As Proverbs 19: 22 says, “Greed leads to a man’s shame; better to be poor than a liar.”
It may very well be time to trust that the Lord will provide for what is lost in government subsidies and funds. Why not give Him a chance to work a visible miracle and instead boast (like Paul) in our (fiscal) weakness?
February 3rd, 2012 | 2:50 pm
As an aside, I’ve been reluctant, to this point in time, to believe the talk about Obama being anti-Christian or an evil man. I just thought him incredibly arrogant and ignorant.
The way HHS and Hosanna-Tabor are going down, however, make the whiff of evil start to stink about him. Is his intent truly malicious? Is he merely a pawn, as so many other political leaders have been, of darker powers?
I really don’t know, and find myself asking those questions more often.
February 3rd, 2012 | 3:28 pm
Oregon Catholic: You are close to hitting the nail on the head. But, I believe this regulation is more pernicious than it looks. Obama is intentionally using this as a wedge issue. He is tempting the faithful to choose his policy and thereby explicitly reject their Church. He desires to seperate the Catholics in the pews from the Catholic clergy. Will he win?
February 3rd, 2012 | 3:59 pm
“It may very well be time to trust that the Lord will provide for what is lost in government subsidies and funds. Why not give Him a chance to work a visible miracle and instead boast (like Paul) in our (fiscal) weakness?”
I think that needs to be our position of last resort if all legal avenues and civil disobedience have failed. Like Artaban, I am coming to see the Obama admin. as more and more evil in it’s inclinations. I think the reason to marginalize organized religion is to replace religion. A very effective way to do that is through the control of health care and an insidious utilitarianism justified by scarcity of resources. The Catholic Church with it’s huge presence in healthcare and it’s opposition to utilitarian ‘morality’ is the single biggest obstacle to their goals.
February 3rd, 2012 | 4:30 pm
David Nickol, why sure! Who cares if it is just the President of the United States, the Secretary of Health and Welfare, and the Department of Justice that want to violate the First Amendment? We’ll get you guys next game. And how insensitive of a die-hard liberal to characterize the intelligent and complex members of the Supreme Court as six Catholics and three Jews.
February 3rd, 2012 | 4:54 pm
@LJP – As one of those “separated brethren,” I can assure you that your Protestant brothers are as angry about the HHS decision as you could hope. The Catholic Church has taken point this time around, but all Christians are with you on this one. Our Lord told us that we’d face persecution, and while it hasn’t yet come to that, and God willing won’t, I still don’t want to see the very good human thing that is the First Amendment trampled or diminished.
February 3rd, 2012 | 4:55 pm
And how insensitive of a die-hard liberal to characterize the intelligent and complex members of the Supreme Court as six Catholics and three Jews.
bobster,
Are you saying that just because all the members of the court are intelligent and complex, it is wrong to note that they are Catholics and Jews? Do you think the Catholics mind being called Catholics and the Jews mind being called Jews? I really am not sure what your point is.
By the way, separation of church and state can be violated not only by government slighting religion, but also by government favoring religion or favoring one religion over another (say, Christianity over Islam). The secular left isn’t the only threat to First Amendment freedoms. The religious right is also a threat.
February 3rd, 2012 | 5:25 pm
There’s an important difference in the way that Knippenberg understands the question and the way that the first three commenters have. Knippenberg argues that the administration understands religious liberty differently than he does. But the first three commenters see the administration as actively anti-religious. I think that Knippenberg is right and that the first three commenters grossly misunderstand the situation.
February 3rd, 2012 | 11:05 pm
David,
The religious makeup of the Court means very little- most non-Orthodox Jews have signed onto this left-wing view of religious liberty, as have many Catholics (certainly Justice Sotomayor). The secretary of HHS, the Vice President, and the House Minority Leader are also Catholic, and I don’t feel religious liberty is any safer. It didn’t stop the USCCB losing its grant nor the approval of the new mandate with the ludicrously narrow ‘exemption.’
Between the DOJ and HHS, we have a federal bureaucracy stocked with people who are viciously hostile to religious liberty. Everything possible must be done to stop this assault.
February 4th, 2012 | 5:31 am
because it is their strategy to marginalize religion and keep it confined to the 4 walls of our homes and churches.
I agree with everything you said, but I wouldn’t have said he wants to “marginalize” religion.
I think he wants to make a single religion the official theocratic religion of the state. I view his collection of beliefs, ideologies, and faith-based “answers” to the great unanswerable questions as being every bit as much a religion as Christianity, Judaism, Taoism, or Buddhism.
It’s called Unitarian Universalism, when it’s not called humanism. The only difference between the two is that one is classed as a religion and the other isn’t – allowing people who share this set of beliefs the freedom to “have it both ways” (tax breaks for their preferred activities when that is the most advantageous model, but freedom from the restrictions put on religions when that is the more important priority).
This isn’t religion vs. some neutral state. This is one religion vs. another. Humanism, aka Unitarian Universalism, is aggressively trying to establish its beliefs as a state religion.
February 4th, 2012 | 5:36 am
“Religious freedom is a purely private freedom. The moment you enter the public sphere, you’re subject to regulation.”
This formulation exploits an ambiguity. The “public sphere” can mean the sphere of the state and its administration (the state, territorial authorities, public administration, and public, that is state, services). It can also mean the domain of civil society, which is the domain not only of individuals but of groups and associations (and thus of churches and religious communities).
“No establishment” requires the exclusion of religion from the “public sphere” of the state and its administration; “free exercise” assumes a complete separation between state and civil society, between the public sphere of the state and the private domain. This is why religious freedom is at once individual (freedom of conscience) and collective (freedom of religious communities). It implies that the latter organize themselves and operate freely.
It is precisely when religious organizations act as agents or mandatories of the state in the provision of services that the distinction becomes blurred
February 4th, 2012 | 10:21 am
A little twist on Niemoller:
“They came for those who were accepting federal funds, but I stopped accepting federal funds, so it wasn’t my problem anymore and I said nothing. Then they came for…”
That is to say, it won’t stop there. The attitude is one of hostility to certain religious principles that interfere with leftist goals, not merely a careful guardianship of federal funds.
Besides, neither Hosanna-Tabor nor the HHS mandate have anything to do with accepting federal funds. They’re about doing business in the United States.
February 4th, 2012 | 11:26 am
@David Nickol: It is indeed good to have the Supreme Court as a last line of defense against an administration hostile to one of our foundational rights. It would be better not to have an administration hostile to one of our foundational rights.
February 4th, 2012 | 12:09 pm
Quote: “The public sphere is by definition secular, not pluralistic, with its tone, terms, and limits set by governmental authority.”
This position sounds pretty militant to me, but it has been around for a long time. For example, a good miltant secularist like V.I. Lenin would probably agree with this stance.
February 4th, 2012 | 1:14 pm
Here’s a great interview with Douglas Laycock, the counsel for Hosanna-Tabor, regarding the mandate:
http://www.law.virginia.edu/html/news/2012_spr/laycock_legal.htm
February 4th, 2012 | 1:37 pm
Jim says: “He desires to seperate the Catholics in the pews from the Catholic clergy. Will he win?”
If every US Bishop goes public to speak out as a leaders for their communities against this it will mean much . If all they ask is that the Catholics in their dioceses ‘write letters’ it will mean nothing. I used birth control in my young days, but I expect my Church leaders to be consistent in they stand against it and to step up and speak for Catholics as a whole.
February 4th, 2012 | 2:16 pm
Here on planet Earth radically secularized “atheocracies” are “actively anti-religious.” They acknowledge no authority above their own, irrationally claiming for themselves even the authority to sanction the killing of innocent human beings. The only thing more astoundingly irrational than that is the toleration of it by humanity, which brings the state into being primarily to protect its inalienable rights, the first of which is the right to life.
The simple fact is that our government was originally based upon theism and natural law. That government has been overthrown. It needs to be restored.
February 4th, 2012 | 3:22 pm
Mike P,
“Between the DOJ and HHS, we have a federal bureaucracy stocked with people who are viciously hostile to religious liberty.”
They are certainly hostile to certain forms of religion and to certain understandings of religious liberty, but to say that they are “viciously hostile” to religious liberty itself is alarmist and hyperbolic.
February 4th, 2012 | 3:23 pm
Ignominious,
“This position sounds pretty militant to me, but it has been around for a long time. For example, a good miltant secularist like V.I. Lenin would probably agree with this stance”
You understand, I hope, that you are quoting Knippenberg’s characterization of the administration’s position and not the administration itself. I doubt many in the administration would describe their position in this way. To mischaracterize and distort the position of those you oppose only makes the conflict worse.
February 4th, 2012 | 6:29 pm
Compare this analysis with Ross Douthat’s. http://douthat.blogs.nytimes.com/2012/02/02/liberals-and-catholic-hospitals/
February 4th, 2012 | 7:58 pm
Stephen P,
“Here’s a great interview with Douglas Laycock, the counsel for Hosanna-Tabor, regarding the mandate”
Thanks for the link. What I found interesting is that Laycock’s defense rested on the Religious Freedom Restoration Act, a 1993 law that protected Native American religion from incursions by the state. The kinds of liberals usually reviled here, like the ACLU, pushed for the law and allied themselves with conservative religious groups.
The more the Christian right pushes the idea that *all* liberals are out to destroy religion, the more you lose those liberals who are either religious or who understand the complexity of the place of religion in the public square.
February 5th, 2012 | 2:42 am
Let’s hope that Mitt Romney sees the value in touting the SCOTUS Hosanna-tabor decision and the HHS assault on the free exercise of religion.
February 5th, 2012 | 7:31 am
Harry,
“Here on planet Earth radically secularized “atheocracies” are “actively anti-religious.” They acknowledge no authority above their own, irrationally claiming for themselves even the authority to sanction the killing of innocent human beings.”
Your description of is correct if you’re describing Soviet Russia or Communist China, but to describe the United States this way is inaccurate and unhelpful.
You distort the record when you say that the Court believed that it had “the authority to sanction the killing of innocent human beings.” It believed that the state didn’t have the authority to rob women of their freedom during their first trimester of pregnancy.
I think the Court’s logic was wrong, and I think it framed the question wrong, but distorted and hyperbolic language only ruins the credibility of any group that wants to participate in the public square.
February 5th, 2012 | 10:20 am
I am just home from 8:30 mass. My priest gave a sermon about Catholics and their first amendment right to separation of church and state…the first overtly political sermon in my memory…he received a standing ovation.
Something’s brewing. We have been pushed around for a very long time. Obama’s government seems to be turning to fascist principles…a league of industry, media, and state. These people honestly do not care about the first amendment…this is getting scary.
At some point might they begin putting religious protesters in prison? Don’t laugh. Who would have guessed four years ago that the “Justice” department would begin telling Catholic hospitals what their policy on birth control must be?
February 5th, 2012 | 12:30 pm
as bad as the administration targeting of the Church (HHS has twice ruled firmly against it) what is worse is reading the responses to Douthat’s column in the NYT. The sheer ignorance and antipathy towards Catholicism, and organized religion in general, is breathtaking. I usually avoid reading them b/c they are so arrogantly liberal, but they revel an astonishing animus towards any role for faith in guiding morals or public actions. Rants interspersed with venom make for a depressing reading.
February 5th, 2012 | 1:24 pm
Hi, Michael,
There is a goodness and greatness to the United States that was never present in Soviet Russia or Communist China. It is alive and well in the U.S.A. It is why we will restore government based upon theism and natural law, the primary purpose of which is to protect the inalienable rights of humanity. That will be as astounding and exceptional as it was the first time we established such a government.
What is extremely “inaccurate and unhelpful” is to pretend the Supreme Court didn’t know exactly what they were doing when they withdrew the protection of law from the child in the womb. Just Byron White admitted as much in his dissent, characterizing the majority decision in Roe as “An exercise of raw judicial power.”
Yes, “distorted and hyperbolic language only ruins the credibility of any group that wants to participate in the public square.” That is true and is exactly why only the naive still believe the establishment news media and the propagandists who speak for them.
The atheocracy is desperate — and it should be. As Lincoln pointed out, “You can fool some of the people all of the time, and all of the people some of the time, but you cannot fool all of the people all of the time.” Americans are beginning to see that an atheocracy is being imposed upon them, one composed of mere mortals, yet still claiming for itself god-like authority over innocent human life. The rest of the world may put up with such
egomaniacal, sociopathic buffoonery. Americans won’t.
February 5th, 2012 | 4:54 pm
Michael: I doubt many in the administration would describe their position in this way.
They probably wouldn’t, at least not publicly.
In any case, it’s better to pay attention to what they do rather than what they say. In the long run, we will see what they do.
February 5th, 2012 | 10:28 pm
Michael,
The Obama DOJ took the position that there is not ministerial exception to employment laws in the Constitution, despite the fact that there is an actual clause in the Constitution that speaks to free exercise of religion, and no clause about “free association.” This position was contrary to the rulings of every circuit court in the country, and was unanimously reject by the Supreme Court. I would call that ‘viciously hostile.’
February 6th, 2012 | 5:48 am
[...] via The Obama Admininstration’s Crabbed Vision of Religious Liberty » First Thoughts | A First Things…. [...]
February 6th, 2012 | 7:25 am
Harry,
“What is extremely “inaccurate and unhelpful” is to pretend the Supreme Court didn’t know exactly what they were doing when they withdrew the protection of law from the child in the womb. Just Byron White admitted as much in his dissent, characterizing the majority decision in Roe as “An exercise of raw judicial power”
I think you are misreading White. He was complaining about the court’s lack of judicial restraint, which means that he would have been fine from a judicial standpoint with states legalizing abortion. White, in other words, wasn’t trying to protect life; he was trying to protect states’ rights and federalism. I don’t like his dissent much more than I like the majority opinion. I would have been happier if his dissent had come out in favor of protecting life.
“Americans are beginning to see that an atheocracy is being imposed upon them. There is a goodness and greatness to the United States”
One thing that makes the US great is that it refused to establish a national religion. In making that decision, it made forever complicated the relationship between religion and the state. The result is that Americans constantly have to think about where exactly the line between religion and the state is. In trying to determine where that line is, lots of courts, legislatures, executives, churches, groups, and individuals have pushed too far in one direction or another. I think Knippenberg is right that the Obama administration has pushed too far in one direction, and I think you’re dangerously mistaken to characterize the administration’s choice of where to draw the line as the imposition of an “atheocracy.”
You’ve read enough descriptions, I’m sure, of how the religious right is supposedly trying to turn the nation into a theocracy that I would think that you would think twice before committing the same kind of error.
February 6th, 2012 | 7:29 am
Mike P,
“The Obama DOJ took the position that there is not ministerial exception to employment laws in the Constitution”
I haven’t followed the case closely enough to speak authoritatively, but I think you’ve mischaracterized their position. I believe they argued that a part-time teacher was not due a ministerial exception, which is very far from arguing that there is no ministerial exceptions.
“This position was contrary to the rulings of every circuit court in the country, and was unanimously reject by the Supreme Court. I would call that ‘viciously hostile.”
And so we have a case in which liberal courts told a liberal administration that it went too far in where it was drawing the line between church and state. I would call that a victory of right-headed liberalism over wrong-headed liberalism. I don’t understand why so many here want to pretend that a complicated question is a simple one. Knippenberg doesn’t seem to think it’s a simple question, but here in the combox it is.
February 6th, 2012 | 10:34 am
“What is extremely “inaccurate and unhelpful” is to pretend the Supreme Court didn’t know exactly what they were doing when they withdrew the protection of law from the child in the womb
They didn’t.
They thought abortion would continue to be pretty much what it used to be – something that was done in emergencies, in situations where the alternative was dreadful.
I am reasonably certain that if we could travel back in time and show the judges then “abortion on demand” as it exists today, they would all concede that the critics’ anxieties were justified and then some.
February 6th, 2012 | 10:35 am
in situations where the alternative was dreadful.
I meant to say, in situations where the alternative was perceived as dreadful.
February 6th, 2012 | 10:37 am
Michael,
I have correctly characterized their position. The lawyers for the teacher argued that the exception did not apply here, but they did not dispute the existence of such an exception. DOJ’s brief (available here http://www.justice.gov/osg/briefs/2011/3mer/2mer/2010-0553.mer.aa.pdf) did do so. It was rejected by the entire Supreme Court, both liberal and conservatives judges. That is because it was so extreme. We are not talking about the ‘liberals’ on the Court; we are talking about the Obama administration’s position. And *that* position is viciously hostile. If I were concerned about religious liberty, I would not trust it to the Jacobin lawyers at the Obama DOJ. But we’ll have just have to agree to disagree.
February 6th, 2012 | 10:57 am
“@David Nickol: It is indeed good to have the Supreme Court as a last line of defense against an administration hostile to one of our foundational rights. It would be better not to have an administration hostile to one of our foundational rights.”
Litigation in general is expensive, and litigating a case to the Supreme Court is incredibly expensive. Except, of course, for the government, which gets to pay its lawyers with our tax dollars. And even when you get to the Supreme Court, the Supreme Court can decide not to hear your case.
Dan is right. The only safe thing to do is remove from office public officials who believe they can trample constitutional rights with impunity.
February 6th, 2012 | 11:05 am
“we are talking about the Obama administration’s position. And *that* position is viciously hostile.”
The conclusion is inescapable. The HHS regulations fight cannot be reasonably explained by any other motivation.
February 6th, 2012 | 11:30 am
The only safe thing to do is remove from office public officials who believe they can trample constitutional rights with impunity.
Brian English,
The contraceptive mandate is not unconstitutional until it is declared so. I can’t cite the cases right now, but it’s my understanding that the Supreme Court refused to hear two different cases involving state laws with similar contraceptive mandates. As I am sure you know, 28 states have such mandates, some with broad religious exceptions and some with few or no exceptions. Certainly Obama took into account the fact that previous cases had been rejected by the court.
I don’t suppose it bothers you when anti-abortion laws are passed and declared unconstitutional. Or when states like South Carolina and Alabama pass immigration laws that are likely to be declared unconstitutional. As I have said before, the right is at least as likely as the left to push the boundaries of constitutionality and get overruled by the courts.
February 6th, 2012 | 11:49 am
The HHS mandate is a plain violation of a federal statute (RFRA – see Laycock interview cited above) that is not applicable to state governments. This is a slam dunk even before we get to any constitutional issues. The Obama administration is either shamefully ignorant or shamefully cynical – or perhaps both.
February 6th, 2012 | 12:34 pm
David, you are the one who implied that the justices would rule based upon their religious beliefs. Personally, I want them to rule based upon the words of the Constitution. Justice Scalia has noted that, should his faith conflict with the Constitution, he would resign. If the justices would stick with that standard we would not be saddled with Roe vs. Wade.
February 6th, 2012 | 1:49 pm
David, the courts generally let liberals do whatever they want and only rarely invalidate anything they do. This is primarily because FDR scared the Court into submission, and not because liberals ‘want to do constitutional things.’ In fact, liberals generally demand that *their* preferred results be made the law of the land, whereas conservatives prefer to the have the Court remain substantively neutral (see abortion, gay marriage, etc).
In fact, nearly all state mandates have broader religious exemptions than the one HHS gave us. Also, not all states have RFRAs, whereas the federal RFRA applies to all federal laws. The mandate very likely violates RFRA.
February 6th, 2012 | 2:04 pm
David, you are the one who implied that the justices would rule based upon their religious beliefs.
bobster,
No, I did not imply (or intend to, anyway) that they would rule based on their religious beliefs. My intended point was that it is extraordinarily unlikely that six Catholics and three Jews who made it to the Supreme Court would be biased against religious freedom. I would hope that if nine atheists ever sit on the court, we can rely on them not to be hostile to religious freedom. But certainly we wouldn’t expect the current court to be biased against religious freedom.
February 6th, 2012 | 2:59 pm
David, the courts generally let liberals do whatever they want and only rarely invalidate anything they do.
Mike P.,
Are you claiming this is true of the Rhenquist and Roberts courts? Would you care to cite decisions to prove this?
February 6th, 2012 | 3:22 pm
David, and my first post was asking you why it is sufficient that the Supremes are not biased against religious freedom. Is there something wrong with expecting the President and his Cabinet to not be infected with such bias?
February 6th, 2012 | 4:26 pm
“The contraceptive mandate is not unconstitutional until it is declared so.”
Actually, the words of the constitution have meaning independent of the actions of the court. Just like “I walked to school today” means a particular thing, even if someone chooses to construe it to mean “I rode a bike to church today.” It still doesn’t mean that, and it still describes one thing, and definitely not the other.
Whether something *is* unconstitutional does not depend on whether it has been ruled so. Whether it is enforceably so is a different matter.
February 6th, 2012 | 4:39 pm
“The contraceptive mandate is not unconstitutional until it is declared so.”
Nonsense. People can argue a law is unconstitutional before a court makes a ruling.
“but it’s my understanding that the Supreme Court refused to hear two different cases involving state laws with similar contraceptive mandates.”
There are many reasons the Supreme Court does not grant review for cases. They cannot take every case. Which is why your idea that we shouldn’t worry about this Administration because the Supreme Court will fix everything is dangerous and delusional.
“As I am sure you know, 28 states have such mandates, some with broad religious exceptions and some with few or no exceptions.”
Any state legislation that reads like the HHS regulations and has the same narrow exemption is unconstitutional. Period.
“I don’t suppose it bothers you when anti-abortion laws are passed and declared unconstitutional.”
It bothers me a great deal when anti-abortion laws are declared unconstitutional.
February 6th, 2012 | 4:54 pm
[...] posting this entire blog entry, since Professor Joseph Knippenberg nails it so well. I’ll only add this, religious groups are in a lose lose situation with [...]
February 6th, 2012 | 4:57 pm
Mike P,
“The lawyers for the teacher argued that the exception did not apply here, but they did not dispute the existence of such an exception. DOJ’s brief did do so.”
The DOJ does in fact believe in the existence of the exception. It just doesn’t believe that the exception applies when the case involves “neutral, generally applicable laws that incidentally burden religious practice.” That argument is hardly “viciously hostile.”
February 6th, 2012 | 5:34 pm
Brian English,
“The conclusion is inescapable. The HHS regulations fight cannot be reasonably explained by any other motivation”
In general, there is usually more than one reasonable explanation for someone’s motivation. I encourage you to look up a column Joe Carter wrote a few months ago asking whether there really is anything that is “self-evident.” Carter is hardly a relativist, and the discussion on the thread was interesting.
February 6th, 2012 | 6:00 pm
David, and my first post was asking you why it is sufficient that the Supremes are not biased against religious freedom. Is there something wrong with expecting the President and his Cabinet to not be infected with such bias?
bobster,
I do not concede that the executive branch is biased against religious freedom. They have taken a plausible but controversial view that may or may not pass constitutional muster. I trust that if their view is as blatantly unconstitutional as many are arguing it is, it won’t stand. But whether or not something is judged to be constitutional is a tricky matter. Decisions are often 5-4.
February 6th, 2012 | 6:06 pm
regarding state health insurance legislation, according to the USCCB:
“The federal mandate is much stricter than existing state mandates. HHS chose the narrowest state-level religious exemption as the model for its own.That exemption was drafted by the ACLU and exists in only 3 states (New York, California, Oregon).Even without a religious exemption, religious employers can already avoid the contraceptive mandates in 28 states by self-insuring their prescription drug coverage, dropping that coverage altogether, or opting for regulation under a federal law (ERISA) that pre-empts state law.The HHS mandate closes off all these avenues of relief.”
February 6th, 2012 | 6:12 pm
Whether something *is* unconstitutional does not depend on whether it has been ruled so.
pentamom,
This is, it seems to me, a philosophical question. As I just pointed out, the Supreme Court often decides important cases 5-4. “I walked to school today” is a statement of fact. It is either true or not true. “The contraceptive mandate is unconstitutional” is a question of judgment. It depends not just on the constitution but on over 200 years of jurisprudence, and whether or not it is constitutional for practical purposes will be decided by the Supreme Court (if a case makes it to the court). We are all perfectly free to argue that, say, the Second Amendment really only applies to state militias, and ordinary citizens don’t have the right to bear arms. But if we start acting as if the Supreme Court decisions are not the law of the land, then we’re in trouble.
If we have any philosophers reading, I would be interested to hear what kind of statement they think “This is constitutional” is. Constitutionality, it seems to me, is not an empirical matter.
February 6th, 2012 | 6:22 pm
It bothers me a great deal when anti-abortion laws are declared unconstitutional.
Brian English,
I think your concern is more whose ideology gets the upper hand. Unless you want our whole system of jurisprudence to fall apart, once the Supreme Court has decided a question, lower courts are bound by the principles in the Supreme Court’s decisions. We all get to have opinions about what is constitutional or not, but I don’t think legislatures have the right to pass legislation that they are aware will be struck down as unconstitutional. Some people believe they do. I am no expert here, but I think the two schools are judicial supremacy (which I subscribe to) and departmentalism (which I think is a prescription for chaos). Public officials swear to uphold the constitution, but if each public official gets to have his or her own opinion about what is constitutional and what is not—and act accordingly—it seems to me everything falls apart. So, sure, it’s possible to disagree with Supreme Court decisions. But we are bound by them until the court reverses itself or the legislature with authority to do so passes a law that makes the court’s ruling irrelevant or inapplicable.
February 6th, 2012 | 6:55 pm
“Unless you want our whole system of jurisprudence to fall apart, once the Supreme Court has decided a question, lower courts are bound by the principles in the Supreme Court’s decisions.”
Of course, but the application of the law to different sets of facts is what litigation is all about. There have been laws placing restrictions on abortion that have not been found unconstitutional, so your apparent belief that any law restricting abortions runs afoul of Roe and Doe is mistaken.
“So, sure, it’s possible to disagree with Supreme Court decisions. But we are bound by them until the court reverses itself or the legislature with authority to do so passes a law that makes the court’s ruling irrelevant or inapplicable.”
You are trying to accord the HHS regulations the same authority as Supreme Court decisions. It doesn’t work that way. Petty bureaucrats are not Supreme Court Justices.
February 7th, 2012 | 5:45 am
To a legal positivist, for whom law is an empirical science, “law” is simply a prediction of what the courts will do.
On this view, the texts to which the courts appeal in justifying their decisions, in the process known as “law saying,” are sources of law, rather than “law” itself.
On this theory, “law” is what lawyers do, just as medicine is what physicians do and so on.
February 7th, 2012 | 7:42 am
Now, I don’t mean to argue that religious freedom is or should be absolute, that religious organizations should never be subject to any sort of regulation. I’m at least somewhat comfortable with a compelling state interest test to justify regulation.
Really? What types of regulations then? I assume you have no problem with the law saying a religious institution can’t, say, set fire suspected heretics on fire. That’s all well and good but the horrible Hosanna-Tabor stance you guys can’t stop complaining about wasn’t about, say, a synagogue firing a rabbi who supported same sex marriage or about the ACLU trying to force a Catholic school to hire Christopher Hitchens to teach religion. It was about a pretty thin claim that by declaring nearly all their teacher’s ‘ministers’ a school could exempt themselves from mostly uncontroversial laws prohibiting discrimination against those with disabilities. A law, BTW, which I’m unaware of any church ever opposing.
IMO your claim to religious liberty is really one of religious entitlement. It’s one where because something can attach religion to it, it can exempt itself from regulations that aren’t even about it’s core religious values but it simmply finds annoying.
As pentamom notes:
They’re about doing business in the United States.
Errr yes it is. Let’s just ask a question, suppose the Catholic Church were to buy Taco Bell. Not an absurd question. Plenty of small religious groups have owned restaurant’s and used the profits to supplement solicitiating donations, and there are businesses owned by various Catholic entitities for income purposes. Assuming the Church intends to continue running Taco Bells as restuarant’s (not turn them into thousands of mini-churches, say), will it not be subject to various regulations that its churches are not? Because the public health officer doesn’t inspect the place where Communion wafers and wine are stored should the Taco Bells be exempt? Because the Church doesn’t need a liquor licence to dispense Communion wine can it run over local liquor license authorities and start serving beer at Taco Bells all over the country? I’m sure you’re probably going to answer no to this question, unless some Church discovers they can turn the girl at the cash resgister into a minister by having her say “God bless you” instead of “Come again”, but why do you say no? Probably because you’re going to say running Taco Bell as a restaurant business is a secular endeavour and even if a religious entity decides to do it it plays by secular rules whereas if it turned all Taco Bells into little churches, religious liberty would apply.
But the next logical question is what happens when a church takes on a business that has both secular purpose and religious purpose? Hospitals, schools, colleges, even hotels can and are owned by religious groups both as part of a religious calling AND profit making (or attempting to make a profit) enterprises doing regular secular business in the US. In that case I think the logical thing to do is look at the nature of the regulation and the context of the religious liberty claim to see if it’s really a claim of religious entitlement. And I’m not opposed to granting some religious entitlements here and there, but I want it acknowledged as such otherwise when the request for an entitlement is denied it is spun as an attack on religious liberty when, in fact, it is not.
February 7th, 2012 | 8:50 am
You are trying to accord the HHS regulations the same authority as Supreme Court decisions. It doesn’t work that way. Petty bureaucrats are not Supreme Court Justices.
They’ll recognize this quick enough if their party loses the election, and the new guys want to do unto them as they’ve done unto others.
February 7th, 2012 | 8:55 am
The Supreme Court, in rejecting the principles upon which the government of the founders originally rested, which are clearly expressed in the Declaration of Independence, cut itself off from the wellspring of its authentic authority.
Governments are instituted among men, deriving their just powers from the consent of the governed, who were entitled to bring it into being according to the Laws of Nature and Nature’s God, Who has bestowed upon humanity certain inalienable rights, among which are the rights to life, liberty and the pursuit of happiness. To secure those God-given rights is the very reason the founders instituted our government.
To abruptly pretend to have the authority to withdraw the protection of law from a vast segment of the human family is exercising unrestrained, raw power over us without any legitimate authority to do so.
Even if the Supreme Court refuses to consider them, the truths enunciated in the Declaration are still true: Humanity brings the state into existence to serve us by protecting our inalienable rights. Humanity bestows upon the state the right to exist, not the other way around. Humanity’s right to exist is inalienable — the state’s is not. The state’s right to exist can and should be withdrawn by humanity when it betrays the very purpose for which humanity brought it into being. According to the founders, we are then obliged to alter or abolish it.
February 7th, 2012 | 10:09 am
You are trying to accord the HHS regulations the same authority as Supreme Court decisions. It doesn’t work that way.
Brian English,
Not at all. First, I think the Obama administration went too far in imposing the contraceptive mandate, and I believe it is not acceptable as it stands. Second, I think it is vulnerable on any number of fronts. It may violate the Religious Freedom Restoration Act. It may be declared unconstitutional by the courts. It may be overridden by congress. Or public opinion may cause the administration to backtrack.
My only point is that when the Supreme Court declares something constitutional or unconstitutional, then for practical purposes, the country is bound by that decision. People may disagree with it, and they may try in any number of ways to change or circumvent a Supreme Court decision, but if they defy it, they have challenged one of the foundational principles of American government.
Petty bureaucrats are not Supreme Court Justices.
The Secretary of Health and Human Service is not a “petty bureaucrat,” nor are any other members of the Cabinet.
February 7th, 2012 | 10:44 am
Boonton —
two problems with your Taco Bell example.
1. Churches that sell food to the public are subject to health regulations.
2. There is a compelling public interest in health regulations. There is no compelling public interest in providing free contraception specifically to employed women.
February 7th, 2012 | 10:48 am
Also, about the communion wine: the laws presumably provide for an exemption for wine *used in religious ceremonies,* and the laws are probably quite clear about that. I’m pretty sure anyone serving wine in the church hall at a wedding reception has to have a liquor license, even if the priest blesses the meal.
So there’s no blanket exemption from the liquor licensing laws “for churches.” It’s far more specific than that.
Making up scenarios still doesn’t explain why this rule *is a good idea.* You can go on all you want about how this could theoretically be legally justifiable in this or that way by reductios based on fallacies, but *it is still a horrible approach for the administration to take* both respecting religious freedom and respecting the imposition of non-essential responsibilities upon employers.
February 7th, 2012 | 11:10 am
pentamom,
Here’s what the mandate calls for:
Would you consider any of these essential for insurance coverage?
February 7th, 2012 | 1:31 pm
pentamom
Dodging the issue. Taco Bell is subject to a lot more regulation than simply being required to ensure they aren’t making people sick (although some will question whether they meet that regulation). Why not hoist the flag of ‘we’re Church owned now’ and void all those pesky regulations? But I see you already know the answer:
Also, about the communion wine: the laws presumably provide for an exemption for wine *used in religious ceremonies,* and the laws are probably quite clear about that. I’m pretty sure anyone serving wine in the church hall at a wedding reception has to have a liquor license, even if the priest blesses the meal.
Bingo, in other words it’s exactly what I said. If a Church wants to be a Church, it has very few regulations on it and what one’s it does have are usually pretty essential and compelling (i.e. fire safety and so on). If a Church wants to be a business, it has more regulation. Welcome to the club of the ‘anti-religious’….defined of course as this blog does.
2. There is a compelling public interest in health regulations. There is no compelling public interest in providing free contraception specifically to employed women.
There is in fact compelling interest in providing for uniform universal health coverage and for that coverage to cover the things that most people are accustomed to health insurance covering AND which do not require meddling in people’s privacy. There is not a compelling ‘religious liberty interest’ in exempting businesses that just happen to be owned by a church, often not even that, from laws providing for universal health coverage or preventing discrimination against the disabled…..esp. considering a special exemption on abortion was already granted and Churches themselves have a more or less blanket exemption for anything and everything they want.
If you want to argue that you’re not just demanding special favors and entitlements and defending them with convoluted rationalizations, as opposed to making a sincere argument rationally derived from first principles, you’re going to need to add something to your argument…esp. considering your attack on the college(s) that have anti-discrimination rules regarding official clubs.
February 7th, 2012 | 2:01 pm
Would you consider any of these essential for insurance coverage?
Transferring domestic violence from law enforcement over to “medical” (as if it were a medical category or something) should be lucrative for liberal pork politics.
Obama should be able to transfer lots of money away from leukemia patients, toward a new class of professional busybodies whose entire existence will revolve around judging how other people live (much nicer than actually having to wait until those people actually break a law and/or call for law enforcement to assist, no?)
I wonder which “experts” will get to define what a “healthy” relationship looks like? Will being a “victim” make you officially diseased? Will it be its own mental health category?
I would say “I wonder how long until actual violence is no longer a prerequisite for considering a situation ‘abusive’”, but unfortunately that line has already been crossed.
Of course that goes against everything we know about what actually helps couples struggling with anger management issues. Labeling, blame games, devaluing rather than honoring familial attachments, and above all the pleasures of “diagnosis” are fun for the “experts” who get to play with other peoples’ lives. Also they’re very profitable.
Plus, I’m sure “diagnosing” relationships – and helping people “escape” from “unhealthy” ones (or maybe even nudging them, if they aren’t quite bright enough to know what’s good for them) – will also be very “healthy” for Democratic party politics, too – which needs a certain level of helpless dependency from its voters, if it is to survive.
What’s really sad is that while the “medicalization” approach – the mythical “cycle of abuse” theory – spends so much time (and so many resources) on tampering with how people “ought” to live (and how they ought to think and feel and what they ought to want and what their relationship failures “mean”), the one thing this approach has consistently failed to deliver is the one thing that real domestic violence victims not only need but are entitled to, ethically speaking: meaningful protection for that small but real percentage of DV victims who are in genuine danger.
February 7th, 2012 | 2:11 pm
Blake
Transferring domestic violence from law enforcement over to “medical” (as if it were a medical category or something) should be lucrative for liberal pork politics.
Really? Wow, well the health bill is like one, two years old now? I guess you’ll stake your credibility on the assertion that since it became law no one in the entire United States has been arrested by law enforcement for domestic violence.
February 7th, 2012 | 2:29 pm
A problem with the sad Taco Bell story is that it doesn’t deal with issues of conscience or other religious belief. Health inspections and liquor licenses are not on par with abortions and sterilization.
Perhaps a better analogy would involve Chick-Fil-A, whose devout owners close up shop on Sundays in observance of the Sabbath Day. I can imagine Obama’s Secretary of Commerce ordering them to open up on Sundays because they serve (and perhaps employ) non-Christians who might want to eat there. Tough if that violates the owners’ religious beliefs. Oh, and they must give their employees premium pay, too, because they are working on the weekend.
So the USG will force them to participate in immorality and to pay for it as well.
February 7th, 2012 | 3:04 pm
A problem with the sad Taco Bell story is that it doesn’t deal with issues of conscience or other religious belief.
Nice try Peg. Except note how Hosanna-Tabor was cited here in this supposed ‘war on religious liberty’. Are you going to tell us that it’s a matter of conscience with Lutherns to discriminate against those with temporary disabilities? The decision, applauded here, went to great pains NOT to put forth any test for legitimate issues of conscience or religious belief. The assertion ends up being a matter of religious belief is whatever a church happens to say is a matter of religious belief, no matter how nonsensical or absent from actual doctrine of the religion. A church could, by this logic, own Taco Bell and declare the cash register people ministers and demand to be exempted not just from health and safety regulation but nearly all regulation such as overtime laws, anti-discrimination and so on. All you need to do is rent a 3rd rate theologian to invent some convoluted reasoning why this is all ‘required’ by the ‘consciences’ of the faithful. All very easy to do, Blake does it here all the time for free so the cost would be nearly nothing.
Perhaps a better analogy would involve Chick-Fil-A, whose devout owners close up shop on Sundays in observance of the Sabbath Day…Tough if that violates the owners’ religious beliefs.
Actually something very much like this was a famous case. Braunfeld v. Brown where PA back then had ‘blue laws’ that shut down most retail businesses on Sunday. The plaintiffs were Orthodox Jews who shut their businesses on Saturday to observe the Sabbath. They argued that having to shut two days out of the week was an unfair economic hardship. They lost.
February 7th, 2012 | 6:44 pm
They argued that having to shut two days out of the week was an unfair economic hardship. They lost.
So tell me: were the Jews were forced to keep their store open on Saturday, or else face crippling fines?
And is there any reason to believe that the blue laws were enacted specifically to force the Jews into abandoning their Jewishness, or else face punitive measures?
February 7th, 2012 | 8:36 pm
No to both. When you have a real life example of such a law or regulation please let me know and I’ll stand against it.
February 8th, 2012 | 5:08 am
Booton
The “ministerial exemption” enshrines the principle that no civil court has jurisdiction to examine into the appointment or dismissal of ministers. Otherwise, the civil courts would be, in effect, hearing appeals from church judicatories.
In the UK, the principle was well articulated in the Declaratory Articles, ratified by parliament in the Church of Scotland Act 1921:-
“This Church, as part of the Universal Church wherein the Lord Jesus Christ has appointed a government in the hands of Church office-bearers, receives from Him, its Divine King and Head, and from Him alone, the right and power subject to no civil authority to legislate, and to adjudicate finally, in all matters of doctrine, worship, government, and discipline in the Church, including the right to determine all questions concerning membership and office in the Church, the constitution and membership of its Courts, and the mode of election of its office-bearers, and to define the boundaries of the spheres of labour of its ministers and other office-bearers. Recognition by civil authority of the separate and independent government and jurisdiction of this Church in matters spiritual, in whatever manner such recognition be expressed, does not in any way affect the character of this government and jurisdiction as derived from the Divine Head of the Church alone, or give to the civil authority any right of interference with the proceedings or judgments of the Church within the sphere of its spiritual government and jurisdiction.”
February 8th, 2012 | 10:17 am
“There is in fact compelling interest in providing for uniform universal health coverage and for that coverage to cover the things that most people are accustomed to health insurance covering AND which do not require meddling in people’s privacy.”
Well, this law does not provide for uniform universal health coverage. It provides a certain benefit for women who are employed by employers who offer health insurance. It doesn’t get us whit closer to uniform or universal anything. Forcing 90% of the people to have something that does no good to the other 10% (made up exemplary numbers, BTW) does not get you to 100%.
And for the umpty-thousandth time, me not paying for something for you does not involve my meddling in your privacy in any way, shape, or form.
February 8th, 2012 | 10:18 am
“Are you going to tell us that it’s a matter of conscience with Lutherns to discriminate against those with temporary disabilities?”
Misrepresenting the facts in question in the case just makes your arguments look weaker and weaker.
February 8th, 2012 | 12:25 pm
pentamom
It doesn’t get us whit closer to uniform or universal anything. Forcing 90% of the people to have something that does no good to the other 10% (made up exemplary numbers, BTW) does not get you to 100%.
Your rhetoric is detaching from reality here. If it doesn’t increase coverage ‘one whit’ then by definition no one has anything more than what they already have now which means that no one is paying for anything more than they aren’t already paying for now. Hence the claims of harm are false. If more people are getting coverage than there were before, then it is moving closer to univesal coverage….which is a legitimate goal but aspirational in the sense that you’re never going to get absolutely perfect universal coverage barring a sigle payer system.
And for the umpty-thousandth time, me not paying for something for you does not involve my meddling in your privacy in any way, shape, or form.
Actually you aren’t paying for anything for me. You have coverage, I have coverage. If you go to the doctor seeking help having another child that’s your business, not mine. If I go seeking viagra that’s my business too. Just because we share a plan doesn’t mean we share our busines together.
But if you really want to play the game of “whose paying for what exactly here” consider that contraception is generally cheaper than abortion and abortion is generally cheaper than childbirth. A custom plan that excludes abortion and contraception is likely to be more expensive than one that includes it, not less. In essence then if your conscience argument was serious then you should be demanding the right to pay more into your health plan least you reap ‘blood money’ in the form of savings generated from the coverage of things you feel are wrong.
Misrepresenting the facts in question in the case just makes your arguments look weaker and weaker.
No misrepresentation here. The school declared just about any teacher who does a minimal amount of religious instruction is a ‘minister’ and the legal argument is a church is allowed carte blanche freedom to choose its ministers, set work rules and so on. This was not a case of the gov’t saying a Luthern Church has to give, say, an atheist like Christopher Hitchens an equal shot at getting a job as a teacher of religion. This was the court saying that even totally secular regulations that at first and even second glance seem to have nothing to do with the practice of religion can be voided by declaring ‘religious conscience’. Why couldn’t this be equally applied to Taco Bell and a host of any other businesses that a church or religious institution might consider getting involved with?
February 8th, 2012 | 1:54 pm
And for the umpty-thousandth time, me not paying for something for you does not involve my meddling in your privacy in any way, shape, or form.
Unfortunately, this tactic has worked well in the contraception (and other “culture wars”) debate: by simply ignoring the existence of any facts that disrupt the narrative, those who rely on less honest forms of “argument” have gotten away with skewing the debate.
Whether it will continue to work well depends on how we choose to respond to those who rely on such tactics.
Ultimately, the only way such an irrational approach can work is if the left can keep people so full of fear and hatred of those who are not like them, that their logic never even gets activated in the first place.
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