High Court on Big Government v. Little Sisters

Supreme Court Justices’ unanimous ruling favors the nuns.

It was sort of a non-decision, but all eight justices jointly agreed to vacate lower court rulings, call on both sides to work things out better (which was really a directive to government lawyers), and bring sanity to a long, unnecessary and costly ordeal that has run through the court system across the country over a federally mandated contraceptive delivery scheme that already exempted major corporations and millions of Americans.

Enough already. So said the ruling, in so many words.

The parties, the court said, should have another opportunity to work out a way to deliver contraceptives that doesn’t violate the religious objections of the Little Sisters and their co-plaintiffs.

Most important, the Supreme Court took away the administration’s tool for bullying: The government, it said, “may not impose taxes or penalties” on those who refuse to authorize their plans to provide the contested coverage.

It was so targeted against Catholic and other Christian groups, it had to be reconsidered.

“The Little Sisters won, but what this unanimous ruling shows is that there was never a need for anyone to lose,” said (Becket Fund for Religious Liberty legal counsel Mark) Rienzi. “The government will still be able to meet its goal of providing these free services to women who want them—not just for those with religious plans—but for the tens of millions in exempted corporate and government plans.”

The government always had that ability, was already doing it in those already exempted, and never needed to choose this controversial challenge to religious liberty in America.

…the opinion is an obvious rebuke to the Obama administration — and rightly so. The Obama administration has shown no compunction about using the full force of the federal government to coerce a group of nuns into violating their religious vows. But following oral arguments in March, the Court requested supplemental briefs from both parties addressing whether the government could provide contraception coverage without entangling religious nonprofits, and the government grudgingly admitted that it was possible. According to the Court, the “substantial clarification and refinement” of the parties’ positions suggests that a compromise satisfactory to both sides is possible.

If not for the government’s obstinacy, that would have been possible long ago. HHS had already exempted an enormous number of employers from the mandate, among them large corporations — Exxon, Pepsi, and Visa — and government entities, including New York City and the U.S. military. Tens of millions of American employees have insurance plans exempted from the mandate. Yet the Obama administration has insisted on foisting its fiat on nuns, archdioceses, Christian colleges, and the like. The liberals on the Court could have sanctioned this contemptible imposition. A 4–4 split would have left the lower courts’ rulings in place, and three of the four courts had ruled against the Little Sisters or their co-plaintiffs. The Court’s willingness to vacate those decisions suggests that, despite its left-leaning majority, this Court is not entirely hostile to religious liberty. This is, recall, largely the same Court that ruled unanimously against the Obama administration in Hosanna-Tabor when the federal government claimed for itself the power to determine who is and is not a “minister.” (Emphasis added)

Hosanna-Tabor was decided unanimously on January 11, 2012. Nine days before the federal government turned around and claimed for itself again the power to determine what a religious ministry, institution and employer was, and what it could and must do. It took four years and four months, and one fewer justice, for the Supreme Court unanimously to rule again in favor of this fundamental freedom protected by law.

In the nearly six months left before the presidential election, the parties’ and candidates’ views of religious freedom will play a more important role in debates, townhalls, and campaigns, as they should.

President Obama visits Pope Francis

That headline fires the imagination.

The visit was the long overdue, according to the protocol and history of presidents meeting with popes over the decades. Former Ambassador Francis Rooney made that point in a USA Today op-ed column last October.

The past few years have seen cordial but cooling relations between the United States and the Vatican. Since President Obama took office, he has visited the Vatican just once, and the administration has demonstrated little more than a perfunctory interest in the Holy See’s diplomatic role in the world. This is a lost opportunity at a critical time for America. U.S. foreign policy has much to gain from its relationship with the Holy See, the governing body of the Catholic Church. No institution on earth has both the international stature and the global reach of the Holy See — the “soft power” of moral influence and authority to promote religious freedom, human liberties, and related values that Americans and our allies uphold worldwide.

Ambassador Rooney was my guest on radio to talk about all this, because he has unique insights into this relationship, and he feels strongly about the importance of maintaining strong US-Vatican relations.

His commentary deserves attention.

The United States and the Holy See remain two of the most significant institutions in world history, one a beacon of democracy and progress, the other a sanctum of faith and allegiance to timeless principles. Despite these differences between the first modern democracy and the longest surviving Western monarchy, both were founded on the idea that “human persons” possess inalienable natural rights granted by God. This had been a revolutionary concept when the Catholic Church embraced it 2,000 years ago, and was equally revolutionary when the Declaration of Independence stated it 1,800 years later.

The Church is one of the leading advocates and providers for the poor in the world, fights against the scourge of human trafficking, and advances the cause of human dignity and rights more than any other organization in the world. The Holy See also plays a significant role in pursuing diplomatic solutions to international predicaments. In 2007, for example, the Holy See helped secure the release of several British sailors who had been picked up by the Iranian navy. Its long-standing bilateral relations with Iran and the lack of such relations by the British and other western governments created an opportunity for successful intervention.

And more recently, the Holy See issued its diplomatic note concerning the civil war in Syria, calling for a “concept of citizenship” in which everyone is a citizen with equal dignity. It is urging the commissions which are working on a possible future constitution and laws to ensure that Christians and representatives of all other minorities be involved. This immediately helped place a spotlight on the plight of Christians and the ongoing exodus of all non-Muslims from most Middle East countries for the last 30 years. The power and influence of the Holy See is often underestimated. A benevolent monarchy tucked into a corner of a modern democracy, the Holy See is at once a universally recognized sovereign representing more than a billion people (one-seventh of the world’s population) — and the civil government of the smallest nation-state on earth. It has no military and only a negligible economy, but it has greater reach and influence than most nations. It’s not simply the number or variety of people that the Holy See represents that gives it relevance; it’s also the moral influence of the Church, which is still considerable despite secularization and scandals.

The Holy See advocates powerfully for morality in the lives of both Catholics and non-Catholics, and in both individuals and nations. One may disagree with some of the Church’s positions and yet still recognize the value — the real and practical value — of its insistence that “right” should precede “might” in world affairs. At its core, the Catholic Church is a powerful and unique source of non-coercive “soft power” on the world stage — it moves people to do the right thing by appealing to ideals and shared values, rather than to fear and brute force. America’s foreign policy is much more likely to succeed with the support of the Holy See.

His book The Global Vatican elaborates on that, and I was interested in his recently expressed optimism at seeing the president planning a visit with Pope Francis on his travels last week. I asked how he saw that visit, given conflicting reports on what the two leaders talked about in private, but the certainty that they agreed on some mutual goals while differing on certain principles. Ambassador Rooney responded “Well, we are, after all, a people of hope.”

What did they talk about? In advance, big media speculated the two would focus on points of agreement, on economic inequality and immigration, human trafficking and humanitarian relief. But that issue agenda was laden with problems some media ignored, especially in the areas of the administration removing the US bishops’ human trafficking relief aid, and the humanitarian relief provided by the US being tied to ‘reproductive justice.’

I’m always interested in the facts and the truth and the basics, so I wanted to cut through the spin. Fortunately, we have more of an idea of what happened between the pope and the president than we could expect from such a high level, closed door meeting. Top Vatican watcher Sandro Magister wrote this:

In his meeting with Barack Obama a few days ago, Pope Francis was not silent on what divides the American administration from the Church of that country on weighty questions like “the rights to religious freedom, life, and conscientious objection.” And he stressed this in the statement issued after the discussion.

Jorge Mario Bergoglio does not like direct conflict, in public, with the powerful of the world. He lets the local episcopates take action. But he does not conceal his own disagreement, and he is careful to maintain his distance. In the photos of his official meetings he poses with a stern expression, unlike the exaggerated smiles of his counterpart of the moment, in this case the head of the world’s greatest power.

Nor could he do otherwise, given the radically critical judgment that Pope Francis fosters within himself regarding today’s worldly powers.

It is a judgment that he has never made explicit in a complete form. But he has offered many glimpses of it. For example, with his frequent references to the devil as the great adversary of the Christian presence in the world, seeing him at work behind the curtains of the political and economic powers. Or when he lashes out – as in the homily of November 18, 2013 – against the “sole form of thought” that wants to enslave all of humanity to itself, even at the price of “human sacrifices,” complete with “laws that protect them.”

Apparently, these issues came up, diplomatically, in that meeting.

In their first face-to-face meeting, Pope Francis reiterated the Catholic Church’s concerns with President Barack Obama’s policies on abortion, conscience rights, and freedom of religion.

A source familiar with the talks told LifeSiteNews that the Vatican press release on the meeting was “remarkably forthright” in emphasizing the fact that the pope raised these issues with the president.

According to the press release, the pope launched a discussion with the American president about the proper role of church and state, raising “questions of particular relevance for the [Catholic] Church in that country.” These included “the exercise of the rights to religious freedom, life, and conscientious objection,” according to the Vatican.

The 52-minute-long meeting marked Obama’s first audience with Pope Francis. The divide between the Obama administration and the Catholic Church has deepened since his meeting with Pope Benedict XVI in 2009, with broiling arguments over the president’s promotion of abortion-on-demand, same-sex “marriage,” and the HHS contraceptive/abortifacient mandate.

Just to note, a 52 minute meeting with Pope Francis by a head of state is almost half an hour longer than the usual.

Then it ended with the cordial exchange of gifts.

Pope Francis presented President Obama with a copy of his apostolic exhortation Evangelii Gaudium (“The Joy of the Gospel”), which criticizes some public figures who attempt to marginalize the pro-life message by presenting it as “ideological, obscurantist, and conservative.”

“This defense of unborn life is closely linked to the defense of each and every other human right,” Pope Francis wrote. “It involves the conviction that a human being is always sacred and inviolable, in any situation and at every stage of development.”

The president said he may look at it. “You know, I actually will probably read this when I’m in the Oval Office,” Obama responded, “when I am deeply frustrated, and I am sure it will give me strength and will calm me down.”

A source of hope.

For his part – perhaps signaling a wish for a new springtime with the church – Obama gave Francis a collection of seeds used in the White House garden. The kicker, however, was the chest they came in: custom-made and engraved with the occasion and date, the case was fashioned of wood from the US’ first cathedral, Baltimore’s Basilica of the Assumption, which the Jesuit founder-Bishop John Carroll and Benjamin Latrobe – the future architect of the Capitol – designed as a monument to religious freedom in the American experiment. Against the backdrop of the Obamacare contraceptive mandate which has roiled the Stateside church for going on three years, the significance is rather rich.

With religious freedom being at stake in the two HHS mandate lawsuits before the Supreme Court, one can only hope the president does follow through a read Evangelii Gaudium in the Oval Office or anywhere, and take to hear the message Pope Francis so incisively delivers in that document. The president admires the pope. Maybe he’ll consider his teaching.

But as Ambassador Rooney repeated by the end of an hour’s discussion of ‘The Global Vatican’ and the importance of US-Vatican relations, “we remain a people of hope.”

HHS mandate: Supreme Court begins to hear arguments

Or put bluntly, the government mandate to violate your conscience.

It’s as simple as that. No matter how much spin has been spun, and there has been much, it comes down to this.

Do Americans enjoy religious-liberty protections when they are at church, or do Americans enjoy religious-liberty protections when they are Americans?

That’s it. The Supreme Court hears oral arguments this week on that question.

Hobby Lobby is owned by a trust controlled by the Green family, observant Christians who make a point of carrying their faith into the marketplace, stocking Christian products and closing their stores on Sundays. They refuse to comply with parts of the Affordable Care Act’s contraception mandate, specifically the provision of products that they regard as actual or potential abortifacients, including intrauterine devices and the so-called morning-after pill, both of which can function to prevent an embryo from implanting in the uterus and thus surviving. Whether these products are properly regarded as abortifacients is a matter of some controversy, but the relevant question is not a technical one about the mechanisms by which these drugs and devices prevent pregnancy. Federal law protects religious liberty with no proviso that matters of conscience must be argued to the satisfaction of the American College of Obstetricians and Gynecologists before legal protections kick in.

Now here’s the money paragraph, the important explanation of the whole thing that helps understand what’s at stake in the claims to protection against government encroachment of religious freedom and conscience rights. Those claims are grounded in the Constitution and RFRA, the Religious Freedom Restoration Act.

While the issue is at heart a constitutional one, Hobby Lobby is not in this instance appealing to the First Amendment but rather to the Religious Freedom Restoration Act, which was passed by a unanimous House, a near-unanimous Senate, signed into law by President Bill Clinton, and certified as constitutional as applied to the federal government in a 2006 Supreme Court decision. The act sets a high standard that the federal government must meet when it burdens the free exercise of religion and was enacted in response to court decisions that had narrowed First Amendment protections. It is intended to reinstate the “Sherbert test,” which holds that in a case in which the involved parties hold a sincere religious belief and the federal government places a substantial burden on the exercise of that belief, then the federal government must both prove a “compelling state interest” in burdening religious exercise and — perhaps most important in this case — demonstrate that it has sought to secure that compelling interest in the least restrictive fashion.

That’s a two-pronged test the government cannot possibly pass in imposing the HHS mandate.

While it is hardly obvious that there is a compelling state interest in subsidizing access to contraception, which is widely available and inexpensive (a woman who required an emergency dose of Plan B once a quarter would still spend more annually on toothpaste), it is entirely implausible that the least restrictive way of achieving that subsidy is a nationwide legal mandate for coverage of those products at no out-of-pocket expense by every employer in the country offering health insurance — and the federal government will penalize them if they don’t offer it.

So…

Whatever the federal government might have done differently, the express purpose of the Religious Freedom Restoration Act is to prevent it from doing what it has done in the Affordable Care Act: ride roughshod over the free exercise of religion whenever doing so proves politically convenient.

The case is about more than the Green family and Hobby Lobby. There are in fact 94 related cases involving 300 plaintiffs representing nearly half the states, from Southern Baptists such as the Greens to Catholic nonprofits and Amish cabinetmakers. The objections to the ACA mandate are neither narrow nor sectarian.

Split decisions from the appellate courts all but guaranteed a Supreme Court hearing of the issue, which will begin tomorrow. The decision will be only incidentally about what kind of health insurance we have — it will be about what kind of country we have.

So here we go.

Whatever the federal government might have done differently, the express purpose of the Religious Freedom Restoration Act is to prevent it from doing what it has done in the Affordable Care Act: ride roughshod over the free exercise of religion whenever doing so proves politically convenient.

The case is about more than the Green family and Hobby Lobby. There are in fact 94 related cases involving 300 plaintiffs representing nearly half the states, from Southern Baptists such as the Greens to Catholic nonprofits and Amish cabinetmakers. The objections to the ACA mandate are neither narrow nor sectarian.

Split decisions from the appellate courts all but guaranteed a Supreme Court hearing of the issue, which will begin tomorrow. The decision will be only incidentally about what kind of health insurance we have — it will be about what kind of country we have.

This is about that, and more.

The United States is one of the most religiously diverse nations on earth. People of a vast array of traditions of faith live here in a harmony that would have been unthinkable in most of the world for most of human history.

One of the ways America has fostered and protected this diversity is by nurturing a robust understanding of religious liberty that includes granting certain exemptions to people who need them in order to be true to their religious faith. Religious exemptions protect people in situations where legislative or executive acts might otherwise unnecessarily force them to violate their consciences…

The United States is one of the most religiously diverse nations on earth. People of a vast array of traditions of faith live here in a harmony that would have been unthinkable in most of the world for most of human history.

One of the ways America has fostered and protected this diversity is by nurturing a robust understanding of religious liberty that includes granting certain exemptions to people who need them in order to be true to their religious faith. Religious exemptions protect people in situations where legislative or executive acts might otherwise unnecessarily force them to violate their consciences.

In a free, representative republic, it’s hard to imagine why or how government acts would possibly force citizens to violate their consciences. Surely, that cannot stand.

The reason that government is likely to lose in the Hobby Lobby case, however, is that there are so many ways for the government to distribute these drugs—on its own exchanges, through the Title X family-planning program and by cooperating with willing distributors—that do not require the forced participation of conscientious objectors. That presumably is why an effort is now being made to cut back on the robust conception of religious freedom that once united Americans of all faiths and even unbelievers.

The Establishment Clause argument should also fail. That provision exists to prevent the establishment of a national religion or the granting of superior standing to a religion that happens to have the support of most citizens. It would be perverse for a court to use it to punish the laudable practice—dating all the way back to George Washington’s decision to excuse Quakers from his army—of accommodating the free exercise of religion by protecting people whose religious beliefs or practices are not shared by the majority from being compelled even in the absence of a compelling reason to violate their consciences.

The two-pronged test of proving a compelling government interest in pursuing an edict that requires citizens to violate their religious beliefs, and then proving that the means of doing so constitute the least restrictive means possible to do so, is a test the government cannot pass with the HHS mandate, without the help of an activist court.

Oral arguments begin. The court ruling will come later. Stay tuned.

Big Government vs. Little Sisters: a breach too far

With over ninety lawsuits in courts for over two years contesting the government’s violation of the Constitution and the Religious Freedom Restoration Act, this one may be emblematic.

The Little Sisters of the Poor, and order of nuns founded in the 1800’s to care for the elderly sick and the poor, have to go to court again to fight for the right to continue to do so. As Congressman Jeff Fortenberry told me on radio Monday, “they were already providing affordable care!” And doing so long before the president’s law by that name required compliance in providing drugs and services that violate consciences.

Understand the basics here, because the Little Sisters’ case starkly reveals them.

Under RFRA [the Religious Freedom Restoration Act], the government must establish it has a compelling interest to infringe upon the religious liberty of its citizens. The HHS mandate asserts that the government has a compelling interest to require that all employers provide health insurance that covers contraception, sterilization, and abortion-inducing drugs. The government claims such coverage is on par with preventive medical practices such as immunizations and cancer screening.

From a medical perspective this is ludicrous. Preventive medicine prevents disease and maintains health. Pregnancy is not a disease and fertility is not a disorder.

Full stop here. Because enough said. The Little Sisters – and all the other groups pursuing lawsuits to defend their right to continue doing their work and providing the healthcare coverage they were providing and applying their principles and moral beliefs to their work and services – are not trying to change what has already been easy access to birth control and morning-after pills. They’re trying to preserve their rights as they stood before the HHS mandate came out of nowhere and required coercion in a birth control delivery scheme that made these drugs part of the federal healthcare plan, masquerading as ‘women’s preventive health’.

And though this is an ‘aside’ to the main argument of government coercion to violate consciences, the HHS slipping in these drugs under that umbrella term bears scrutiny. So consider this aside:

Rather than maintaining health, contraception takes a perfectly healthy reproductive system and renders it non-functional. The methods used to achieve this state of sterility are fraught with health risks. The government’s own information page on contraceptives indicates they are associated with substantial risks including blood clots, breast cancer, cervical cancer, and liver cancer. Recent studies have demonstrated the use of hormonal contraceptives double the risk of transmission of the AIDS-inducing HIV. Women who use hormonal contraceptives increase their risk of the most aggressive form of breast cancer by at least 100 percent. The increase in breast cancer risk is greater the younger women are when they begin using hormonal contraceptives.

Some women choose to accept these risks and utilize hormonal contraception in order to be sexually active and avoid pregnancy. This is an elective lifestyle choice and not a necessary medical intervention. The government should have no more interest in whether or not women are accessing contraception to avoid pregnancy than whether or not women are using Lasik to improve their vision or using Botox to get rid of their wrinkles.

So, getting back to the two-prong test of RFRA, the first one was just addressed, that the government does not have a compelling interest to infringe on the religious liberty of its citizens.

However…

Even if we were to allow that there is some government interest in ensuring all women have access to highly risky elective medical procedures, the HHS mandate fails to meet the second demand of RFRA that the government utilize the least restrictive means to satisfy its compelling interest. Since 1970, the federal government has funded contraception through a program known as Title X. When the HHS mandate was first introduced, supporters were quick to claim that virtually every American woman utilized contraception and supported their assertions with data from the Guttmacher Institute. There were many problems with their analysis of the Guttmacher Institute statistics, especially when it concerned the number of Catholic women utilizing contraceptives, but the information did indicate that access to contraception is not a problem for American women. Title X funding of women’s health clinics is working as intended. Therefore, the push to force all insurance policies to include coverage for contraception is addressing an access problem that does not exist. The least restrictive course of action would be to continue the current Title X funding mechanism and avoid infringement upon anyone’s religious liberty.

On March 25, the U.S. Supreme Court will begin hearing oral arguments in two key cases challenging the constitutionality of the government’s HHS mandate.

In the meantime, all sorts of injunctions have been granted to employers and organizations to stave off the harsh impact of this mandate until it’s settled by the high court. That includes the New Year’s Eve injunction granted the Little Sisters by Supreme Court Justice Sonia Sotomayor. Followed by the full Supreme Court ruling continuing that relief until the 10th Circuit took up the case again.

Now the Little Sisters have gone back before the 10th Circuit Court of Appeals, seeking justice.

“We are thrilled the Supreme Court temporarily protected the Little Sisters from having to violate their conscience or pay crippling IRS fines. We are hopeful the Tenth Circuit will give them more lasting protection,” said Mark Rienzi, Senior Counsel at the Becket Fund for Religious Liberty and lead counsel for Little Sisters of the Poor. “The federal government is a massive entity that has lots of ways to deliver contraceptives to people–it doesn’t need to force the Little Sisters to participate.”

The injunction from the Supreme Court provided the Little Sisters short-term protection from being forced to sign and deliver the controversial government forms authorizing, ordering, and incentivizing their health benefits administrator to provide contraceptives, sterilization, and drugs and devices that may cause early abortions. Instead, the Little Sisters simply had to inform HHS of their religious identity and objections.

In a USA Today column in the midst of this ongoing struggle, Kirsten Powers – who believes in government mandated birth control delivery on the face of it – called on the administration to give the Little Sisters of the Poor a break.

This is a very strange case. The government has argued that signing the form is meaningless because the nuns’ insurer, the Christian Brothers Employee Benefits Trust, is exempt from the mandate. Yet it has fought the Sisters all the way to the Supreme Court to make them sign it. What’s going on?

The government’s brief to the Colorado court provides a clue. It drips with contempt. The Obama administration finds the nuns’ complaint “implausible” and alleges that the Sisters are “fighting an invisible dragon.” Oh, you silly, simple-minded nuns! Just stop imagining things and do what the government tells you.

The Sisters reject the government’s contention that the form does nothing, as did all six lower courts to consider the claim in other church plan cases. They are wise to be leery of Uncle Sam’s intentions.

The dismissive tone of the administration’s brief is consistent with its overall attitude toward religious liberty issues throughout the implementation of the contraception mandate. Health and Human Services Secretary Kathleen Sebelius never bothered to consult the Justice Department to determine whether the mandate was consistent with the Constitution and the Religious Freedom Restoration Act, despite requests from Congress.

When asked whether she consulted the U.S. Conference of Catholic Bishops over their complaints about an effort to find an “accommodation,” Sebelius said she didn’t. Considering it was the primary group complaining, why not?

These are questions I’ve been asking for the past two years, and few in big media have bothered to. I’m glad Powers asked.

The administration’s indifference to religious liberty complaints is not limited to issues arising from Obamacare. In 2011, the government made the argument in Hosanna-Tabor v. the Equal Employment Opportunity Commission that churches do not have special rights under the First Amendment but merely association rights, like unions. Justice Antonin Scalia called this “extraordinary,” and Justice Elena Kagan said it was an “amazing” claim. Another word that comes to mind is “disturbing.” A unanimous court rejected the administration’s claim.

However, nine days after that unanimous Supreme Court ruling rejected the administration’s claim to the right to infringe on religious freedom in Hosanna-Tabor, the HHS mandate was issued. This is, in a word, relentless.

Little Sisters of the Poor and Obamacare’s contraception mandate

Sir Thomas More said he was the king’s good servant, but God’s first.  This modern day version isn’t far off.

They were just minding their business serving the poor, sick and dying when the HHS mandate came down requiring them and other employers to provide healthcare coverage that supplied birth control, the ‘morning-after’ pill (both of which can cause abortion of new human life) and elective sterilization as ‘preventive medicine’ for women, free of charge to those women. Even though birth control is widely available even to women on low incomes or public aid through the Title X federal grant, among other programs.

Before the Supreme Court hears oral arguments in HHS mandate lawsuits in March, I’m planning to do a primer here on the basics, which many people still don’t know, based on a lot of uninformed remarks online and throughout the media about the truth and realities of the mandate, its impetus, its overreach, its punitive threat for non-compliance, and its violation of established law.

But the ruling Supreme Court Justice Sonia Sotomayor issued late on New Year’s Eve shed a lot of light on the controversy, and made the Little Sisters of the Poor the unlikely emblem of conscientious objection to government intrusion on basic human rights.

U.S. News & World Report published this backlash calling Sotomayor’s ruling a ‘war on women’, saying she can’t be trusted on “women’s health and human rights”. And that was only the beginning of a tirade on her and the high court, because of its Catholic justices.

HotAir.com tried to navigate that piece.

It’s difficult to pick a place to start with Jamie Stiehm’s anti-Catholic diatribe yesterday that US News’ editors somehow decided to publish as part of their opinion section. It’s such a target-rich environment that it challenges the restrictions of fair use and copyright law, but so ludicrously entertaining that it rises to must-read level. Stiehm uses the issuance of a very temporary stay by Justice Sonia Sotomayor in the case of the Little Sisters of the Poor to argue that Catholics have seized control of the Supreme Court — and really should be excluded from any position of power at all:

Et tu, Justice Sonia Sotomayor? Really, we can’t trust you on women’s health and human rights? The lady from the Bronx just dropped the ball on American women and girls as surely as she did the sparkling ball at midnight on New Year’s Eve in Times Square. Or maybe she’s just a good Catholic girl.

The Supreme Court is now best understood as the Extreme Court. One big reason why is that six out of nine Justices are Catholic. Let’s be forthright about that. (The other three are Jewish.) Sotomayor, appointed by President Obama, is a Catholic who put her religion ahead of her jurisprudence. What a surprise, but that is no small thing.
Let’s test that hypothesis. How many key decisions have been made by the Supreme Court on a 6-3, Catholic/Jewish basis? After all, if Catholicism is the deciding factor in American jurisprudence, then that’s the kind of split we’d most often see, no? Either that or nothing but 9-0 decisions, since Catholics and Jews share a common basis for faith, philosophy, and moral law.

And what has Stiehm so steamed? Not an actual decision by Sotomayor, or even an opinion. Sotomayor issued a temporary stay in enforcing the HHS contraception mandate on Catholic nuns, who would otherwise have to facilitate birth-control insurance coverage or face ruinous fines. Apparently, even an interruption in this mandate rises to the level of gender treason and theocracy.

But never mind facts. When someone is so angry they can become irrational.

Does Stiehm know that nuns are celibate and therefore don’t require birth control, free or otherwise? And that they clearly don’t want birth-control coverage? A mandate that requires nuns to sign a waiver that facilitates coverage of birth control is farcical on its face. Talk about imposing beliefs. The nuns (and other plaintiffs against the mandate with stronger cases) aren’t attempting to prevent employers from providing birth control; they’re trying to stop the government from forcing them to distribute and pay for it, directly or indirectly.

Read the whole piece, Ed Morrissey does his level best to tackle the points of the US News piece.

Elizabeth Scalia has been blogging on this, wondering if US News would issue a correction or apology or some sort of acknowledgement that their pages had allowed such an ‘unprofessional screed’. What they did issue, she contends, was an approval of the unhinged piece Stiehm originally wrote in reaction to Sotomayor’s ruling.

The long-awaited statement from U.S. News was released yesterday evening. Editor Brian Kelly has this to say, regarding Jamie Stiehm’s column dated January 7:

“…We are committed to publishing a diversity of views on a variety of topics. Jamie Stiehm’s piece is within the bounds of fair commentary. We have run letters rebutting the piece and will continue to feature a diversity of opinions on this topic and others.”

That’s weak; a very shortsighted response. Stiehm’s piece was not a standard professional commentary; it was a full-scale, blanket condemnation of a particular set of people, flavored with a strong suggestion that those sorts of people should probably be excluded from the public square.

Let’s take a second look at what Stiehm wrote, insert words other than “Catholic” into her lines, and we can wonder whether Mr. Kelly would be quite so cavalier about printing the following:

(Note: This is a thought experiment by Scalia replacing only Catholic identifiers with other identify groups, and otherwise leaving the accusations in place.)

Lesbians often try to impose their beliefs on you, me, public discourse and institutions. Especially if “you” are female.

Jews in high places of power have the most trouble, I’ve noticed, practicing the separation of church and state. The pugnacious Jewish Justice. . .is the most aggressive offender on the Court, but not the only one.

The seemingly innocent Black Sisters likely were likely not acting alone in their trouble-making. Their big brothers, the meddlesome NAACP are bound to be involved. [Blacks] seek and wield tremendous power and influence in the political sphere.

In one stroke with ominous implications, there’s no such thing as Gay justice or mercy for women on the Supreme Court, not even from GLAAD.

The Dome of the Rock refuses to budge on women’s reproductive right. . .

(Thought experiment ends here. Scalia continues:)

I am going to make a good-faith assumption that Mr. Kelly did not attempt that little exercise before handing down the statement. Had he done so, I find it very difficult to believe that he (or op-ed page Managing Editor, Robert Schlesinger) would still think it fell “within the bounds of fair commentary.”

Or, perhaps they would, and if so they need to admit it. Their readership certainly deserves to know what they stand for, and if U.S. News is going to embrace such a radical editorial policy, they might as well put it out there and say, “yes, we would be just as content with Stiehm’s column if she had expressed exactly these sentiments about Lesbians, or Jews, or African Americans, or Gay men, or Muslims, because we agree that there are some kinds of people who simply should not be trusted to participate in American governance, and it’s time to stop being so politically correct and say it.”

That would almost be refreshing, truth be told.

Until, of course, people understood that this is how jackboots are constructed.

I hope U.S. News will give it another shot. As I said in this piece, the knee-jerk habit of silencing anyone — left or right — who misspeaks or says something stupid or even vile, does not allow for education, reconciliation, enlightenment or enlarged thinking, and I have never supported it. We need to move beyond making people “go away”, because scalp-collecting begs retaliation. And too, we really do need to know what people actually think, not merely what they say. That way, there are no surprises when movements spring up.

But clarity of purpose is required, and as regards this matter, things are still murky. When I asked Schlesinger if he cared to comment further, he declined, so we still need answers: Why, precisely, does U.S. News think Stiehm’s piece fine and fair, as it is, and to what end do they defend it? Are they saying “let ‘er rip” and endorsing full-scale hate speech as something good and necessary — the inevitable corrective to thirty years of hedging language, used in service to ersatz and redefined notions of “tolerance” and “sensitivity”? If that’s what they’re intending, that might at least be interesting and some people may even applaud it; the policing of public language has left us leery of each other, flocking to echo chambers that feel “safe” but have furthered our polarization.

If U.S. News intends a correction in public dialogue, let them own it.

USA Today’s editorial board published this. Their view on ‘Obamacare overreach’: ‘Nuns and birth control don’t mix’

When the Obama administration picked a fight with Catholics and other religious groups over free birth control coverage for employees, sooner or later it was bound to end up doing battle with a group like the Little Sisters of the Poor.

And sure enough, the administration is now stuck arguing that it is justified in compelling nuns who care for the elderly poor to assist in offering health insurance that they say conflicts with their religious beliefs. Talk about a political loser…

Wisely, churches and other houses of worship are exempt from the requirement, but the administration wrote rules so narrowly that they failed to exempt Catholic and other religiously affiliated hospitals, colleges and charities. Its position was constitutionally suspect, politically foolish and ultimately unproductive. The number of women affected is likely so small that the administration could find some less divisive way to provide the coverage.

Instead, the administration is battling Catholic bishops and nuns, Southern Baptists, Christ-centered colleges and assorted religious non-profits that filed challenges across the country. The lawsuits stem from an “accommodation” President Obama offered after his too-narrow religious exemption caused an uproar in 2012.

The accommodation is more of a fig leaf than a fix: Although religiously affiliated non-profits do not have to supply birth control coverage themselves, they must sign a certification that allows their insurance companies to provide it instead. Some non-profits have acquiesced, but not the Little Sisters and others who argue that this makes them complicit in an act that violates a tenet of their faith. If the non-profits refuse to sign, they face ruinous fines — $4.5 million a year for just two of the Little Sisters’ 30 homes.

So far, the government is on a losing streak. In 19 of 20 cases, including the Little Sisters’, judges have granted preliminary relief to the non-profits, allowing them to press their claims. The administration should take the hint.

In several cases, even if the government wins, the whole exercise will not result in a single woman getting a single free contraceptive, because under a different law, the insurers themselves are exempt. So what exactly does the administration hope to gain?

Finally, some good questions and attempts at more thorough reporting on the issues surrounding the HHS mandate .

Evangelical leader Dr. Timothy George published this thoughtful piece in First Things Monday.

It is not surprising that abortion extremists have blasted the justice [Sotomayor] for “selling out the sisterhood” and for being “just a good Catholic girl” who “put her religion ahead of her jurisprudence.”

Earlier on the same day, Archbishop Joseph E. Kurtz, president of the United States Conference of Catholic Bishops, sent a letter to President Obama on behalf of his fellow bishops. He asked the president to use his executive authority to broaden the religious exemption to provide relief to many Catholics and other Christians in non-profit institutions affected by the mandate. In particular, he appealed on behalf of those whose religiously informed conscience will not allow them to provide—or to “designate” others to provide for them—sterilization, contraception, and abortifacients. Of course, such things are legally available at moderate costs in this country and could readily be given to all without forcing the Little Sisters and others to go through this conscience-crushing exercise. The situation could also be ameliorated by the government’s simply recognizing the Little Sisters as a “religious employer” which, by any commonsense definition, they clearly are. The Kurtz letter urged the president to offer “temporary relief from this mandate, as you have for so many other individuals and groups facing other requirements under the ACA.” To my knowledge, His Excellency has yet to receive a response.

How did a modest order of women religious—only 2,700 members worldwide—with a mission to care for the elderly poor become the center of a raging social and political controversy?

Dr. George examines the history of the Little Sisters of the Poor and the legacy of their founder.

Jeanne Jugan, who was canonized by Pope Benedict XVI in 2009, has been called the Mother Teresa of her times…

So why are the Little Sisters caught up in the mandate madness? Why can’t they just get on with their good works and forget about their conscientious scruples? Or, as has been suggested, why won’t they just sign a piece of paper and let someone else do their dirty work—surrogate soldiers and contract killings are quite common in some circles.

The answer is quite simple: They actually believe all that stuff they claim to believe. Just like the early Christians who refused to place a pinch of incense on the altar of the imperial deity in order to escape reprisals and recrimination, the Little Sisters of the Poor know, as St. Paul wrote to the Christians at Corinth, that they are not their own, that they do not belong to themselves, that they have been bought with a price (1 Cor. 6:19-20). The Little Sisters will not violate their core values for the sake of expediency. Among those values is this one: “Reverence for the sacredness of human life and for the uniqueness of each person, especially those who are poorest and/or weakest. This is reflected in care that is holistic and person-centered.”

On April 8, 2013, the Little Sisters responded to the “Notice of Proposed Rulemaking” from the Department of Health and Human Services by stating that “the federal government should not force us to counteract through the health benefits for our employees the very same Gospel of Life that we attempt to live out in communion and solidarity with the needy elderly.”

This should be self-evident.

George concludes with this anecdote.

On New Year’s Eve, as Americans first heard about Justice Sotomayor’s ruling—some cheering, some bemoaning—the delightful and spontaneous Pope Francis in Rome picked up the phone to make a surprise call, as he is wont to do. He was trying to reach a group of Carmelite nuns in Spain in order to wish them a Happy New Year. Instead, he got that most annoying of modern contrivances, the answering machine. In the message he left, the pope wondered what the good sisters were doing on New Year’s Eve that they could not answer the phone (in fact, they were praying). He promised to call them back, which he did.

I can think of no group that better exemplifies the mission and heart of Pope Francis with his winsome call for mercy and ministry to the poor, the neglected, the least wanted in our society than the Little Sisters of the Poor. Abortion and contraception are not the central concerns of their day-to-day ministry and work. But their consciences have been well formed on these issues by the best of Catholic teaching, including this statement by Pope Francis last August, often reiterated before and since, that “human life must always be defended from its beginning in the womb.” Wouldn’t it be wonderful if the Holy Father, prompted by the Spirit, would be led to call the Little Sisters of the Poor? I believe they would answer the phone.

Religious freedom as antidote to terrorism

It’s an idea that hasn’t been tried and found wanting, to say the least.

Robert P. George, new Chair of the U.S. Commission on International Religious Freedom, published this proposal on CNN’s news site on September 11.

A dozen years ago today, the 9/11 attacks brutally awakened the American people to the global reality of terrorism – of lethal groups like al Qaeda and the Taliban, which manipulate religion in violent pursuit of totalitarian aims.
In the ensuing years, the nation rightly focused on these groups, and especially on the regions of South Asia – including Afghanistan and Pakistan – and the Middle East.

Yet in many ways, an overlooked story of the past few years has been the disturbing rise of like-minded organizations elsewhere, particularly in Africa. As the U.S. Commission on International Religious Freedom (USCIRF) has documented, the forces of violent religious extremism have gained footholds on the continent, terrorizing populations, violating fundamental rights including religious freedom, and posing a serious security threat to the region and potentially beyond.

Prof. George goes on to detail some accounts of such violence in Nigeria, Somalia and Mali, and the whole piece should be read and deeply appreciated in its entirety. He continues:

The question for the United States and its allies remains how best to counter such forces no matter where they appear. For years, the answer has been to employ a wide array of tools, from intelligence gathering to police work to military action. But if the fight is to succeed, it also must include efforts to promote freedom of religion or belief. This is a battle of ideas as much as brawn, and environments that promote freedom of thought and belief empower moderate ideas and voices to denounce extremist hatred and violence.

(emphasis added)

Central to this effort is understanding two things. First, extremist groups seek to capitalize on the fact that religion plays a critical role in the lives of billions. Nearly 84 percent of the world’s population has some religious affiliation. In many areas of the world, including the African continent, religion matters greatly.

Second, people across Africa (and elsewhere), Muslim and non-Muslim alike, are rejecting the hijacking of religion by these extremists. For some, this rejection has come from bitter personal experience.

Pay attention to this.

Wherever violent religious extremist groups have held sway, be it central Somalia or elsewhere, they have penetrated every nook and cranny of human endeavor, imposing their will on families and communities in horrific ways. In many instances, they have banned routine activities such as listening to music and watching television. They have crushed all forms of religious expression other than their own, even seeking to destroy historic Islamic religious sites. They have imposed barbaric punishments on dissenters, from floggings and stonings to beheadings and amputations.

As a result, especially in places where these forces operate, people want an alternative: They want the right to honor their own beliefs and act peacefully on them. And as a number of scholars in recent years have shown, societies where this right to religious freedom is recognized and protected are more peaceful, prosperous, and free of destabilizing terror.

(emphasis added)

Countries plagued by violent religious extremist forces have options which, while difficult, can be taken…

In other words, in a world where religion matters, a key answer to violent religious extremism in the post-9/11 era is for governments to act in such ways to affirm and protect freedom of religion. It is not only a moral imperative – it is a practical necessity, empowering people everywhere to choose a better way.

Ideas and ideologies have consequences. The time to apply this idea has arrived.

US Independence Day weekend 2013

What’s the state of the union built on the freedoms we celebrate this weekend? In a word, threatened.

Especially religious freedom, our first, most cherished liberty. Aside from threats to our privacy and freedom of speech, exposed in a new way by ongoing government scandals involving the IRS and Justice Department, the violation of conscience required by the HHS mandate is still unchanged by this administration and still challenged in courts across the country by private employers and institutions most threatened by it.

About the unchanged final ruling:

Still using words like “houses of worship” and pretending to carve out religious-liberty accommodations for some religiously affiliated non-profits, the Department of Health and Human Services issued its final abortion-drug, contraception, (female) sterilization employer insurance mandate today.

It appears that the Obama administration’s disregard for Americans’ conscience rights has been formalized by the rule.

Which is why a huge coalition of religious leaders issued an open letter calling on the administration and Congress to respect conscience rights and religious freedom, a battle those leaders engaged over a year and a half ago when the HHS mandate was first issued.

“We are pleased to stand with so many partners from other faith traditions in raising continued awareness over the religious liberty concerns and the HHS Mandate,” Archbishop William Lori of Baltimore said at a press conference announcing the open letter. “Those present today and the statement we have signed underscores that this is about the religious freedom enjoyed by people of all faiths and even no faith at all, something we hold dear as Americans, and something most worthy of defending and preserving.”

“The government has given us word games and accounting tricks that amount to the same mandate, over and over again,” added Russell Moore, president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention, the nation’s largest Protestant denomination. “We are not so easily hypnotized by bureaucratic parlor tricks. Our government has treated free exercise of religion as though it were a tattered house standing in the way of a government construction of a railroad, there to be bought off or plowed out of the way, in the name of progress. We dissent.”

The letter was also signed by several Catholic college presidents, as well as by Mormon, Scientology, and Krishna Consciousness officials.

And they join the larger coalition that has included atheists in the past year, resisting not only the government’s unconstitutional intrusion on free exercise of religion, but the human right to conscience itself. Which predates the State.

We used to take these things for granted. The upshot of such imposing threats is that we no longer can. Guaranteed rights are no longer guaranteed. And complacency is not an option. Freedom has always required vigilance.

HHS ‘compromise’: “80 pages of nothing new”

The basic mandate that employers with religious objections to the HHS contraceptive coverage still have to comply or pay punitive fines still stands. The latest fig leaf changes little, but it took a few days to wade through the dense and convoluted legalese the government issued to essentially say ‘we’re not willing to budge, more than an inch.’

There is nothing new about the administration deciding who gets exemptions and who doesn’t, and that’s the main point.

After nearly a year, the Obama administration released, on February 1, its latest version of a “compromise” with the employers who object, on religious grounds, to the Health and Human Services (HHS) mandate that their health plans cover no-cost access to sterilization services and contraceptives, including those that can act as abortifacients, destroying the early-stage embryo.

As many observers have already remarked, there is nothing substantively new in the administration’s proposal, which only formalizes and fills in details of a proposal it first floated last March, and continues to be based on the same dubious science.

Now facing more than forty lawsuits initiated by colleges, charities, and other religious nonprofits, as well as by for-profit companies whose owners have religiously informed moral objections, the Obama administration may hope that its latest gambit will persuade some credulous judges to toss some of the litigants’ cases.

But in truth, it has only revealed its own blinkered and tyrannical understanding of religious freedom, which it would sacrifice to a goal of “gender equality” that is at best only tenuously related to its free-contraception-for-all policy. And, if the judges attend closely to its arguments, it may even have severely weakened its case.

Well that’s interesting.

Matt Franck makes a good presentation there at Public Discourse on what this alleged compromise actually does. And he wraps it up with a challenge to the reader to do this thought exercise:

Given its stated hostility to any serious understanding of our first freedom, the right not just to worship but to live one’s faith in all one’s daily work, on what understanding of our remaining constitutional freedoms can the administration assure us that any of these other liberties still stands on a firm foundation?

Good question.

Also at Public Discourse was this well-reasoned and extraordinarily well presented analysis.

With last Friday’s rules, the government is claiming that after a year of a mostly losing record of religious freedom lawsuits, it has struck the perfect balance between two urgent goals: getting contraception into the hands of as many American women and girls as possible, and protecting Americans’ religious freedom.

The truth of the matter is quite different.

There are myriad problems inherent in the new rules. They still fail to protect the legally guaranteed religious freedom of religious institutions, for-profit employers, insurers, non-religious non-profit organizations, and individuals. Religious liberty is protected not only by the First Amendment of our Constitution, but also by the Religious Freedom Restoration Act.

They fail to understand the full nature of the free exercise of religion—that religion, whether practiced individually or by a group, requires being able to integrate one’s actions with one’s religious beliefs, especially when these don’t attack but advance the common good—here, the health and well-being of women and girls.

They trample on parents’ constitutionally-protected right to direct the upbringing of their daughters. And they reveal, still, an irrational zeal for a narrow category of drugs and devices, thus evincing a narrow and harmful understanding of women’s freedom as coincident with sexual expression.

Moreover, while the government tries to make us think that the new rules are hospitable to religious freedom, we shouldn’t overlook its continued failure to admit the bankruptcy of the mandate’s grounding “medical” claim: that unintended pregnancy is a kind of health crisis properly resolved with free contraception and early abortions.

Thank you, Helen Alvare, for such a sound argument.

Cardinal Timothy Dolan, president of the US bishops conference, said this latest attempt for cover is still unacceptable.

The Administration’s proposal maintains its inaccurate distinction among religious ministries. It appears to offer second-class status to our first-class institutions in Catholic health care, Catholic education, and Catholic charities. HHS offers what it calls an “accommodation,” rather than accepting the fact that these ministries are integral to our Church and worthy of the same exemption as our Catholic churches. And finally, it seems to take away something that we had previously—the ability of an exempt employer (such as a diocese) to extend its coverage to the employees of a ministry outside the exemption.

(The bishops’ document) United for Religious Freedom explained that the religious ministries not deemed “religious employers” would suffer the severe consequence of “be[ing] forced by government to violate their own teachings within their very own institutions.”After Friday, it appears that the government would require all employees in our “accommodated” ministries to have the illicit coverage—they may not opt out, nor even opt out for their children—under a separate policy.In part because of gaps in the proposed regulations, it is still unclear how directly these separate policies would be funded by objecting ministries, and what precise role those ministries would have in arranging for these separate policies.Thus, there remains the possibility that ministries may yet be forced to fund and facilitate such morally illicit activities…

 the bishops explained that the “HHS mandate creates still a third class, those with no conscience protection at all:individuals who, in their daily lives, strive constantly to act in accordance with their faith and moral values.”This includes employers sponsoring and subsidizing the coverage, insurers writing it, and beneficiaries paying individual premiums for it.Friday’s action confirms that HHS has no intention to provide any exemption or accommodation at all to this “third class.”In obedience to our Judeo-Christian heritage, we have consistently taught our people to live their lives during the week to reflect the same beliefs that they proclaim on the Sabbath.We cannot now abandon them to be forced to violate their morally well-informed consciences.

Because the stakes are so high, we will not cease from our effort to assure that healthcare for all does not mean freedom for few.Throughout the past year, we have been assured by the Administration that we will not have to refer, pay for, or negotiate for the mandated coverage.We remain eager for the Administration to fulfill that pledge and to find acceptable solutions—we will affirm any genuine progress that is made, and we will redouble our efforts to overcome obstacles or setbacks.Thus, we welcome and will take seriously the Administration’s invitation to submit our concerns through formal comments, and we will do so in the hope that an acceptable solution can be found that respects the consciences of all.At the same time, we will continue to stand united with brother bishops, religious institutions, and individual citizens who seek redress in the courts for as long as this is necessary.

For now, this remains necessary.

The cases proceed through the courts, and the latest HHS proposal is likely a response to a DC Circuit Court judge who required the government to report back on what ‘accommodations’ it was making that it had promised would be forthcoming. This does not suffice, say Becket Fund attorneys representing the most cases against the federal mandate.

Today’s announcement of the Notice of Proposed Rulemaking on the HHS mandate leaves the religious liberty of millions of Americans unprotected.

“Today’s proposed rule does nothing to protect the religious freedom of millions of Americans. For instance, it does nothing to protect the rights of family businesses like Hobby Lobby,” said Kyle Duncan, General Counsel for the Becket Fund for Religious Liberty.  “The administration obviously realizes that the HHS mandate puts constitutional rights at risk.  There would have been an easy way to resolve this—expanding the exemption—but the proposed rule expressly rejects that option.”

Becket Fund Executive Director Kristina Arriaga sent out this press release:

We’re all still reeling from the Administration’s announcement on the HHS Mandate last Friday, which, as it turns out, is 80 pages of nothing new.
 
The Administration’s proposal is murky on the details – in fact, it’s not at all clear how this would work, if it could work at all; but it’s clear that it still fails to protect our nation’s 237-year guarantee of religious liberty for millions of Americans.
 
As I mentioned in my email to you last Friday when the Obama Administration released this proposal “respecting the concerns of some religious organizations,” – their words, my emphasis – the millions of American entrepreneurs who want to live their lives and run their businesses with their faith intact are not covered even a stitch by this proposal.
 
They are still forced to choose between their conscience and their livelihood.  These entrepreneurs are winning big in court – 11 wins for businesspeople of faith to just 3 for the government –  yet the Administration still refuses to accept that religious liberty is even at issue in these cases.
 
So, as far as the Becket Fund is concerned, the fight against the HHS Mandate is far from over…

The government seems to have been so intent on defining religious liberty as narrowly as possible that they’ve drafted a convoluted 80-page proposal riddled with half-baked ideas and vague accounting schemes.

And, finally, says Helen Alvare

…these proposed regulations show the government’s standing obsession with this narrow piece of the Affordable Care Act. From August 2011 to today, the White House and HHS have expended enormous amounts of time, written hundreds of pages of rules and amended rules and “safe harbor” provisions, occupied press conference time, re-election campaign ads, and delivered speeches—all to promote the notion that free contraception and early abortifacients are the near sum of women’s freedom.

It’s as clear, and offensive, as that.

Post-election ruminations

And they are revealing. Not only about what went wrong for champions of one candidate, much of one party and many advocates of important causes, but how to learn from that. High level disagreement there…

Take this Public Discourse piece.

A common trope in social policy debates is to claim that the public’s changing opinion on the policy at stake, rather than the policy’s moral or substantive justifications, merits changing the platform of one’s preferred political party. This notion seems recently to have taken root on the editorial pages of the Wall Street Journal, and several commentators have reacted.

Consider its November 8 editorial extolling referendums on marriage. The editors argue that views on “gay marriage” are changing so that “after 32 defeats at the ballot box, a gay marriage initiative was adopted by voters,” which shows that Americans are “capable of changing their views and the laws on gay marriage.” They praise the referendum process over judicial fiat, but their implicit premise seems to be that the policy change is a good one. Any substantive arguments to support this view are missing; what remains is only the claim of an inexorable shift in public opinion.

Now there’s a good point. I keep saying that we need a robust and honest public airing of different views on a number of social issues and public policies, with opposite arguments made and defended, so people can engage the fullness of the issues and the ramifications of their outcomes. You know, follow an idea through to its logical conclusion. Engage critical thinking. We’re not getting much of that in any widely accessed public forum, with few exceptions.

Ross Douthat comments on all this, and does some dot-connecting in this op-ed piece.

Liberals look at the Obama majority and see a coalition bound together by enlightened values — reason rather than superstition, tolerance rather than bigotry, equality rather than hierarchy. But it’s just as easy to see a coalition created by social disintegration and unified by economic fear.

Consider the Hispanic vote. Are Democrats winning Hispanics because they put forward a more welcoming face than Republicans do — one more in keeping with America’s tradition of assimilating migrants yearning to breathe free? Yes, up to a point. But they’re also winning recent immigrants because those immigrants often aren’t assimilating successfully — or worse, are assimilating downward, thanks to rising out-of-wedlock birthrates and high dropout rates. The Democratic edge among Hispanics depends heavily on these darker trends: the weaker that families and communities are, the more necessary government support inevitably seems.

Likewise with the growing number of unmarried Americans, especially unmarried women. Yes, social issues like abortion help explain why these voters lean Democratic. But the more important explanation is that single life is generally more insecure and chaotic than married life, and single life with children — which is now commonplace for women under 30 — is almost impossible to navigate without the support the welfare state provides.

Or consider the secular vote, which has been growing swiftly and tilts heavily toward Democrats. The liberal image of a non-churchgoing American is probably the “spiritual but not religious” seeker, or the bright young atheist reading Richard Dawkins. But the typical unchurched American is just as often an underemployed working-class man, whose secularism is less an intellectual choice than a symptom of his disconnection from community in general.

What unites all of these stories is the growing failure of America’s local associations — civic, familial, religious — to foster stability, encourage solidarity and make mobility possible…

This is a great flaw in the liberal vision, because whatever role government plays in prosperity, transfer payments are not a sufficient foundation for middle-class success. It’s not a coincidence that the economic era that many liberals pine for — the great, egalitarian post-World War II boom — was an era that social conservatives remember fondly as well: a time of leaping church attendance, rising marriage rates and birthrates, and widespread civic renewal and engagement.

No such renewal seems to be on the horizon. That isn’t a judgment on the Obama White House, necessarily. But it is a judgment on a certain kind of blithe liberal optimism, and the confidence with which many Democrats assume their newly emerged majority is a sign of progress rather than decline.

As for conservatives, they’re having a necessary and not necessarily bad wrestling match within their ranks over big ideas and changing realities and criticism both constructive and very unhelpful.

Back to that Public Discourse piece:

To the extent then that the Republican Party appears to abandon its rightward stance on social issues; to the extent that Republicans are afraid to defend their views on the value of life, on religious freedom, and on marriage, they cede back the Reagan Democrats and their children to the Democrats, and they doom themselves to minority status.

These practical realities have not been lost on conservatives, and several important commentators have sounded the alarm. At First Things Matthew Franck cogently compares the Wall Street Journal’s urgings that we abandon our social principles to the cynical political maneuvering of Stephen Douglas on the slavery issue a century and a half ago. Franck notes that had Abraham Lincoln succumbed to the apparent expediency of falling into line with Douglas’s arguments, slavery likely would have persisted…

Yesterday, today, and tomorrow, policy has worked, does work, and will work best when it is founded on moral and practical arguments. The Republican Party’s defense of freedom and dignity is based on both.

And more, because as Eric Metaxas puts it so well in so few words, logic is not enough.

Religious freedom and the Obamacare “Tax”

What impact will Chief Justice John Roberts’ decision to uphold the individual mandate as a tax have on the battle for the right to religious liberty and conscientious objection?

This piece in Public Discourse is one of the best, most thoroughly covered and fairly stated commentaries I’ve seen. It takes a little more time to get through than many articles that are short, hastily written and aimed at sound bite mentalities for people who scan quickly. There’s a lot to scan out there, but this one deserves attention.

Unfortunately for religious organizations, the tax characterization weakens their legal position and appears to arm Secretary Sebelius with a potent arrow in her quiver. The Secretary of Health and Human Services can safely claim that religious organizations are seeking an exemption from a tax, and when it comes to taxation, the Supreme Court is exceptionally reluctant to grant religious exemptions. Yet in spite of this gift to the Obama administration, there are reasons to remain sanguine that the Supreme Court will find the administration’s refusal to grant a meaningful accommodation to religious organizations to be unlawful.

Okay, let’s break this down.

First, the bad news for religious organizations: the Supreme Court has traditionally been hostile to tax exemption claims on religious grounds, even when these taxes substantially burden religion.

Read the longer explanation of that, which follows.

Yet defenders of religious liberty should take heart, for there is also good news. There are several reasonable grounds upon which the Court’s line of reasoning in the “religious liberty versus tax” cases can be distinguished. Among these is that the assessment upon those who do not secure health insurance is no ordinary tax. Unlike the Social Security tax, which is imposed uniformly upon all, the “Obamacare tax” is imposed in a highly selective fashion. Only those who refuse to purchase health insurance, with coverage for all the religiously objectionable services mandated by the Department of Health and Human Services, will find themselves paying this tax. The selective nature of the tax raises the question of whether it is truly neutral and generally applicable in its purpose or effects. While it is generally uncharitable to speculate on questions of intention, the effects of this tax are neither generally applicable nor neutral. Those who will end up paying the tax will be those who refuse to purchase the insurance for reasons of religion and conscience, as well as those who believe they will save money overall by simply forking over money to the Internal Revenue Service…

Moreover, most religious organizations do not have a religious objection to a tax that supports health services. Many have a tradition of deference to secular authority, especially in the realm of taxation, firmly committed to “Render unto Caesar.” Religious hospitals, universities, and other charitable organizations object to being forced to pay for a narrow set of services that they do not regard as legitimately part of “health” care, or else pay a “tax” that is essentially a fine.

Here’s an important distinction:

The modest nature of the exemption sought in no way threatens the overall integrity of a law that is intended to increase access to medical services. There is no conflict between the federal government and religious organizations over the end of increasing access to healthcare. The major disagreement is over the means, and even then, only as these relate to a very small subset of “health” services.

Given the modest exemption sought, one might reasonably ask why there is such reluctance—indeed, intransigence—on the part of the Obama administration to negotiate in good faith with religious organizations to find a workable compromise. No one doubts that it is within the power of the administration to do this even while they uphold the overall integrity of the Patient Protection and Affordable Care Act.

Now comes a key point, not often covered or even understood. When I raise it with top legal experts on radio, they invariably jump on the chance to clarify what is fundamentally at issue in the lawsuits against the HHS mandate.

[T]he Religious Freedom Restoration Act (1993), which is as much congressional law as the Patient Protection and Affordable Care Act, requires that the executive branch of the federal government accommodate religious minorities when a law substantially burdens their religious practice, unless the government’s interests are compelling and the least restrictive means have been imposed to further that compelling interest. Religious organizations do not believe that the provision of contraception, sterilization, and abortion-inducing drugs is a compelling interest because they do not believe that contraceptive and abortion services are part of fostering “health.”

However the Supreme Court may regard this claim, it cannot ignore that the means used by the Obama administration—refusing an exemption to religious charitable services when it has granted this exemption to churches—is not the least restrictive means. Even assuming for the sake of argument that the provision of contraception and abortion services is truly necessary to advance “health,” it is still not necessary that religious charitable organizations must pay for them for this interest to be advanced. It is sufficient that those who want these services be given access to affordable contraception or abortion services, and there are myriad ways in which the federal government can (and does) make these services affordable and accessible to those who want them, without requiring religious charitable services to pay for them.

Stay with this, one more chunk. Connect the dots.

It is also arguable that the Obama administration is acting in a rogue fashion, paying little deference to the will of Congress. Congress has the power to tax; the Obama administration does not. Congress has empowered the Secretary of Health and Human Services to define “essential health benefits,” taking into account guidelines stipulated by Congress. For all practical purposes, it is a power given to President Obama since he can dismiss Secretary Sebelius or any other member of his cabinet at will if his bidding is not done. Secretary Sebelius has exercised this power to mandate controversial “preventive services.” Yet the power to define essential benefits does not inherently include the power to tax, or to determine upon whom a “penalty” or “assessable payment” will fall. There is little indication that Congress intended to delegate this power to Secretary Sebelius, and the delegation of taxing authority to this office would be most irregular. As compared to the Internal Revenue Service, which is closely monitored by and answerable to Congress, the Secretary of Health and Human Services is not nearly so accountable. Serving at the pleasure of the president, the secretary primarily does the president’s bidding. Absent a clear indication by Congress that it intends to tax non-compliant religious minorities, taxes resulting from a failure to provide essential benefits may be illegal, since the Secretary’s delegated powers do not necessarily include the ability to designate who will pay taxes.

Ultimately, note this:

The tenets of faith are not forced upon anyone; they are accepted as matters of conscience or not at all. The same cannot be said of the federal government’s penalties and assessable payments. Contraception and abortion are established constitutional rights, accessible to all, in spite of citizens’ objections to these. To have religious citizens pay directly for services contrary to their faith or else be penalized through selective taxation is the mirror image of levying taxes upon nonbelievers in support of churches. Both are violations of the establishment clause, for they involve the state treading into matters of faith by coercing compliance. Taxing some sects to subsidize directly the beliefs and practices of other sects, including the beliefs and practices of secular humanists, is exactly what the establishment clause was intended to prevent. As we keep faith with God, there are good reasons for Americans to have faith that our political system will prevent selective taxation, and that it will not burden our charitable religious organizations in matters of faith and conscience to benefit others.

To repeat, “there are good reasons for Americans to have faith,” which my sources at the Becket Fund for Religious Liberty soundly claim, time and again.