Oct 07

Maybe it’s the vortex of the perfect storm.

God knows, marriage and family, and therefore society, have been in crisis over these past years and that cultural breakdown has wrought great damage to individuals and societies. What are the factors behind it all? How do we get marriage right and serve the fundamental institution of the family on which a healthy and thriving culture is based? Competing views of both marriage and family have been going at it for decades, and that battle (I hate the pugilistic terminology these days, but it’s more a battle than a struggle) has escalated in the past few years faster and more furiously than before. The stakes are so high. For civilization.

So we arrive at a confluence of events this week.

Pope Francis convened an Extraordinary Synod on the Family at the Vatican over the weekend, an unusual event in the life of the Catholic Church. It didn’t as much  launch as continue a multi-year concentration of energies and focus on problems and issues in modern culture that required something far bigger and more momentous than a symposium, or a written document, a declaration of sorts. Here’s why.

The social and spiritual crisis, so evident in today’s world, is becoming a pastoral challenge in the Church’s evangelizing mission concerning the family, the vital building-block of society and the ecclesial community. Never before has proclaiming the Gospel on the Family in this context been more urgent and necessary.

(emphasis added)

Concerns which were unheard of until a few years ago have arisen today as a result of different situations, from the widespread practice of cohabitation, which does not lead to marriage, and sometimes even excludes the idea of it, to same-sex unions between persons, who are, not infrequently, permitted to adopt children. The many new situations requiring the Church’s attention and pastoral care include: mixed or inter-religious marriages; the single-parent family; polygamy; marriages with the consequent problem of a dowry, sometimes understood as the purchase price of the woman; the caste system; a culture of non-commitment and a presumption that the marriage bond can be temporary; forms of feminism hostile to the Church; migration and the reformulation of the very concept of the family; relativist pluralism in the conception of marriage; the influence of the media on popular culture in its understanding of marriage and family life; underlying trends of thought in legislative proposals which devalue the idea of permanence and faithfulness in the marriage covenant; an increase in the practice of surrogate motherhood (wombs for hire); and new interpretations of what is considered a human right.

Which precisely gets to the marriage redefinition movement that has very successfully built momentum with high profile support and endorsements from celebrities in Hollywood, media, sports, politics, academia, the arts, and the culture at large. The movement to redefine marriage in law has claimed marriage as a human right, a new rendering of an ancient institution, recognized by government up to the recent past as one the State has an interest in preserving and upholding as a union of one man and one woman.

So fast forward past years of litigation in the courts, to the decision by the High Court on Monday, as the Supreme Court opened its new session. It shocked just about everyone. Its effect is being celebrated by proponents as so sweeping, it “could signal the inevitability of the right of same-sex marriage nationwide”, as the New York Times reported it. The Christian Science Monitor called it a ‘Supreme Mystery.’

Why didn’t the US Supreme Court agree to hear any of the seven petitions urging the justices to settle the contentious debate over same-sex marriage?

Speculation abounds.

The justices offered no hint of an answer in Monday’s orders list. The document unceremoniously announced that petitions from each of the cases from five different states had been denied…

It is even more puzzling because the Supreme Court had several times earlier this year issued stays to block orders by lower courts that sought to immediately allow same-sex couples to marry in states where a ban was struck down. Why would the justices seek to preserve the status quo for several months only to apparently change their mind now?

Sometimes justices who believe the court should decide a particular case will file a dissent and explain to the public why the court should take up the case. Nothing like that was presented on Monday.

And therein lies a clue as to what happened in this decision. It’s just one idea, but an insightful one, by Ed Whelan.

For what it’s worth, here’s my theory explaining yesterday’s order denying review in the SSM cases:

One or more of the three conservative justices who might most be expected to object to denial—that is, Scalia, Thomas, or Alito—instead concluded that denial was the best course. Why? Because that justice (or those justices) became convinced that Kennedy was beyond persuasion and that he was a certain fifth vote to invent a constitutional right to same-sex marriage. On that understanding, the least-worst option would be to deny review and thus (for the time being, at least) prevent the Supreme Court from placing its formal imprimatur on the developments below.

(Meaning those that came out of the lower courts, which they by necessity would have had to review and decide in the High Court.)

I think that this is the only theory that adequately explains why none of these three justices publicly registered a dissent. In particular, I don’t think that a competing theory—that the Chief Justice voted to deny but that Scalia, Thomas, and Alito all voted to grant—can explain the absence of a public dissent.

I don’t think that there’s any difficulty explaining why the four liberals would go along with the denial. Even if they’re equally confident of Kennedy, it’s much easier from their perspective to let the lower courts do the spadework and to intervene only if and when a court rules against a constitutional SSM right.

It makes sense. Whelan seems to offer the only – or best – plausible explanation for this stunning decision. There will be consequences, as we know already.

Which gets back to the Synod at the Vatican, dedicated to healing the world of hurt over ruptures in societies and civilization in this historic turning point. Vatican expert George Weigel (another EPPC scholar, like Whelan) posted a heartfelt request for a Synod of Affirmation. Weigel gets to the point, a couple of them in fact.

The collapse of marriage culture throughout the world is indisputable. More and more marriages end in divorce, even as increasing numbers of couples simply ignore marriage, cohabit, and procreate. The effort to redefine “marriage” as what we know it isn’t, and to enforce that redefinition by coercive state power, is well-advanced in the West. The contraceptive mentality has seriously damaged the marriage culture, as have well-intentioned but ultimately flawed efforts to make divorce easier. The sexual free-fire zone of the West is a place where young people find it very hard to commit to a lifelong relationship that inevitably involves sacrificing one’s “autonomy.” And just as the Christian understanding of marriage is beginning to gain traction in Africa, where it is experienced as a liberating dimension of the Gospel, European theologians from dying local churches are trying to empty marriage of its covenantal character, reducing it to another form of contract.

Rome, we have a problem.

Pope Francis understands the crisis of marriage culture in its multiple dimensions, just as he understands that the family, which begins in marriage, is a troubled institution in the post-modern world; that’s why he’s summoned two Synods on the topic of the family. And that’s why the Synod, fully aware of the gravity of the situation, should begin, continue, and end on a positive note, offering the world a pearl of great price: the Christian understanding and experience of marriage.

The Synod discussion, in other words, should take the crisis of marriage and the family as a given and then lift up Christian marriages, lived faithfully and fruitfully, as the answer to that crisis. The Synod should begin with what is good and true and beautiful about Christian marriage and Christian family life, and show, by living examples, how that truth, goodness, and beauty respond to the deepest longings of the human heart for solidarity, fidelity, and fruitful love.

It’s quite obvious that the Church faces real pastoral challenges in dealing with broken marriages and their results. But to begin the discussion of marriage and the family in the twenty-first century there is to begin at the wrong end of things. For it is only within the truth-about-marriage, which was given to the Church by the Lord himself, that compassionate and truthful solutions to those pastoral problems can be found.

This is only the middle of week one of two weeks of this Extraordinary Synod on marriage and the family. And just two days after the Supreme Court decision not to decide the marriage questions. Stay tuned, these are interesting times.

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Jul 16

How you connect the dots determines the picture that emerges.

The recent chronology of events provides a startling snapshot of abortion extremism in this country.

The Supreme Court ruled on the Hobby Lobby lawsuit on June 30th, upholding free exercise rights established in the Constitution but more specifically, the bi-partisan Religious Freedom Restoration Act of 1993.

Then Democrats in Congress reacted with outrage. And a reactionary legislative bill.

“Women across the country and men are outraged by a decision by five Supreme Court justices that all of a sudden says your boss has an opportunity to decide for you what your health care choices are,” Sen. Patty Murray, the bill’s sponsor, told MSNBC’s Andrea Mitchell on Wednesday.

“That outrage is being transmitted to everyone, and I think we have a very good chance of rewriting the law so that the justices can’t take away women’s ability to make their own health care choices.”

So wait…what?

To reset, as politicians are fond of saying, it was “all of a sudden” that this administration announced in January 2012 that the Department of Health and Human Services (HHS) mandated certain drugs and procedures to be provided by employers in their health insurance coverage, decided by government with no choice for employers.

And now that such government overreach has been found excessive and in violation of RFRA, a Supreme Court decision is going to be rewritten in law? So “the justices can’t take away women’s ability to make their own health care choices”? When was the last time something so audacious was undertaken by politicians, even after the Supreme Court wrote abortion into law and swept away the separate and enumerated power to make laws for all 50 states in one fell swoop?

This is surreal. Even the liberal Washington Post did a fact check on congressional Democrats claims and found them demonstrably false, calling it all “overheated rhetoric.”

“Really, we should be afraid of this court. The five guys who start determining what contraceptions are legal. Let’s not even go there.”

That was House Democratic Leader Nancy Pelosi, with what WaPo called “a very odd statement”, which her office tried to walk back, though foot dragging along the way.

Then the WaPo article cited this quote:

“The one thing we are going to do during this work period, sooner rather than later, is to ensure that women’s lives are not determined by virtue of five white men. This Hobby Lobby decision is outrageous, and we are going to do something about it.”

— Senate Majority Leader Harry Reid (D-Nev.), remarks to reporters, on July 8

Spoken by a white man who wields power in the Senate with potentially less considered reasoning on a daily basis than justices on the Supreme Court on occasion. And by the way…

The Hobby Lobby decision was written by Justice Samuel Alito, joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. That’s certainly five men, but Thomas is African American.

Reid’s office said he realized the mistake after he made it, and reverted to citing this decision as having been made by five men.

And so on. The fact checking goes on at the WaPo site.

Into the fray comes legal scholar Helen Alvare with her calm, clarifying and poised voice.

Prior to the 2012 HHS Mandate, there were no “runs” on birth control suppliers, nor were there demonstrations in the streets by women demanding free birth control. Nowhere was there observed a dearth of women willing to work for businesses informed by a religious conscience on matters of contraception or abortion.

This should come as a shock to those predicting the end of women’s freedom as a result of the Supreme Court’s decisions in Hobby Lobby and Conestoga Wood. It should also shock those protesters screaming about women’s ovaries on the steps of the Supreme Court. It should even shock the president of the United States, who took time away from his deliberations concerning Ukraine, Iraq, and Syria, to tweet cleverly against this win for religious freedom. And perhaps it will deliver the biggest shock to Supreme Court Justice Ruth Bader Ginsburg, whose dissent in Hobby Lobby spoke of the “harm,” the “havoc,” and the threat to women’s “ability to participate equally in the economic and social life of the nation” posed by the decision. Media reaction has been predictably similar.

Helen goes on to enumerate “myriad reasons that many women won’t be joining Justice Ginsburg in the panic room post-Hobby Lobby”, aptly describing the current environment.

One…

Justice Ginsburg, like so many feminist activists of her generation, has a tendency to claim to speak for all women when she frames a grievance on women’s behalf. But relatively few women are actually affected by the majority opinion in Hobby Lobby. Poor women, and even women at several times the poverty level, already have free or subsidized birth control available from the state. Since 1970, they have been served by the National Family Planning Program (“Title X”).

She lists other ways access to birth control has been widely available to women for low or no cost.

Also, generally speaking, the Centers for Disease Control report that cost does not even make the list of “frequently cited reasons for nonuse” among the 11 percent of sexually active women not using contraception. A Guttmacher source claimed that only 3.7 percent of the total sample of women seeking abortions listed cost as a barrier to contraceptive usage.

And then…

There is also a sizable cohort of women who dislike (or even hate) the side effects of some forms of contraception—especially those of hormonal methods such as the pill, Depo-Provera, and IUDs. Ironically, these are the more costly methods that Justice Ginsburg and other activists hope the mandate will most promote. You can find women hating hormonal birth control for decidedly nonreligious reasons in books like Holly Griggs Spall’s Sweetening the Pill, or in articles on popular news sites.

Then there is the significant group of women who have suffered some alarming health effects from their birth control. Think of the 10,000 women suing Bayer Pharmaceuticals for blood clots or strokes related to the Yaz pill (Bayer has paid more than $1.6 billion in settlements so far), or the 3,800 women suing Merck & Co. for the blood clots, strokes and heart attacks related to the Nuva-Ring. Even birth-control cheerleaders like Vanity Fair, the Washington Post, and the New York Times acknowledge the serious or fatal effects of some methods for some women, or their role in increasing AIDS/HIV transmission. Not to mention the World Health Organization or the American Cancer Society, organizations that label some forms of the pill carcinogenic to some parts of the body, while noting that some forms might mitigate the risk of cancer in others.

Click on the link to this article for all the links Helen Alvare provides for these references. It’s outstanding. Here’s more:

What about women who are just sick and tired of the obsession with contraception and abortion—women starving for concrete policies allowing them to manage the costs of education and the demands of work, and also to marry and have kids?

This adds up to a lot of women who are not nodding their heads in agreement over the “you can take my free contraception out of my cold, dead hands” tone of the Ginsburg dissent, or other frenzied post-Hobby Lobby laments.

Read the whole article. It’s brilliant. And in her professorial mind, she sums up well:

The all-too-brief summary is as follows: when birth control and abortion separate sex from kids, non-marital sexual encounters increase as the perceived “risks” (children) appear to decline. Sex easily becomes the “price” of obtaining a romantic relationship, and “shotgun weddings” following a pregnancy disappear because women have the right of access to abortion. But because there are so many more uncommitted sexual encounters, and because contraception regularly fails, and because of continuing aspirations for children and relationships, cohabitation skyrockets, nonmarital births and abortions increase, and marriage is delayed or forgone (despite women’s fertility patterns and persistent desire for children). Single parenthood by women (and therefore poverty) becomes far more common.

It wasn’t just the “technology shocks” of the pill and abortion that shaped this marketplace; the law cooperated. The feminist legal establishment of the latter part of the twentieth century argued (and the Supreme Court agreed) that children imposed serious disadvantages on women. Contraception and abortion were thus achieved as constitutional rights. At the same time, leading feminist voices glamorized paid work and failed to pursue policies harmonizing motherhood with work outside the home. They played down differences between women and men, allowed the “ideal male worker” model to dominate women’s work lives, and let birth control and abortion policy constitute nearly the entire “women’s agenda.”

In sum…

We must clearly draw attention to the nature and workings of the marketplace of relationships today. Ask women to honestly confront the question whether it is to their advantage to participate according to this market’s current terms. In particular, point out the good of renewing female solidarity toward relinking sex, commitment, and children for the benefit of women, children, and men as well. Finally, vocally offer to cooperate on public and private policies enabling women to manage the demands and costs of education and employment, in harmony with their aspirations to marry and have children.

How I wish this work were as simple as parroting the simplistic claim that Hobby Lobby harms women. It isn’t. But the alternative—allowing Ginsburg to stand unchallenged—is unacceptable if we are to be fair to women and to preserve religious freedom for both women and men.

However, the Senate stayed in the “panic room” and worked on some draconian legislation. One was a bill to overturn the Supreme Court ruling on Hobby Lobby, upholding religious freedom. That one was called the “Protect Women’s Health from Corporate Interference Act.” another was written to undo a host of state abortion laws, as many as 200 of them nationwide, laws that set common sense limits like sex-selective abortions, fetal pain limits at five months (extremely liberal even at that duration), abortion clinic health regulation ordinances for the safety of women, informed consent laws for the sake of truly informed choice, and so on. That bill was called the “Women’s Health Protection Act”, which stood for the opposite of what it was called. One was called the ‘Not My Boss’s Business Act’, which is more true than drafters realized. It’s not the business of the employer to provide no-cost birth control pills and morning-after pills and other drugs mandated by the HHS. Especially when they’re not mandated to provide essential vaccinations, or many other preventive health services.

National Review Online got it right in this editorial. Unfortunate for longtime purists, but true today.

Democrats hold one thing — and one thing only — sacred, and that is abortion. Our diplomats may be murdered abroad, the rule of law may be grossly violated at home, the First Amendment may be written off as just another roadblock on the freeway to utopia, but abortion will always have for them a uniquely holy status — even if that means employing unholy methods to facilitate it. Thus Senator Richard Blumenthal of Connecticut has introduced a bill, cosponsored by a majority of Senate Democrats, that would purport to strip states of their ability to impose even the most basic of health and safety regulations on the grisly procedure, a bill that David French has rightly suggested should be titled the Kermit Gosnell Enabling Act of 2014.

How horrifying. But how aptly named.

Senator Blumenthal proposes to apply the Philadelphia model to the nation at large. Under his bill, states would have effectively no power even to ensure that abortions are performed by licensed physicians — surely the most minimal standard of medical responsibility that there is. Laws covering grisly late-term abortions would be forcibly overturned and fetal viability would be redefined according to the subjective whim of the abortionist. While the Democrats are bemoaning a fictitious war on women, their bill would provide federal protection to sex-selective abortions — the barbaric practice under which generations of girls have been decimated in such backward jurisdictions as China and Azerbaijan, a practice The Economist describes as “gendercide.” Laws restricting taxpayer funding of abortion would be overturned. Laws protecting the consciences of physicians who choose not to perform abortions would be overturned.

So here we are. The Senate voted on one of these bills Wednesday, and it failed in this first go-round.

Senate Majority Leader Harry Reid lamented that this pro-abortion bill only gained 56 of the 60 votes needed to invoke cloture (end debate), and promised another vote “before the year is out” (read: before the November elections). In other words, Sen. Reid is signaling to his pro-abortion allies that he will make the abortion-pill mandate a central issue of the fall elections.

That’s clarifying. That they had 56 votes today on something so draconian is a warning. More Americans are self-identifying as pro-life. But they and others may not realize how comprehensive this bill is in covering “extremism we’ve never seen before”, as an Alliance Defending Freedom legal counsel explained to me today. He said, flatly, that the bill covered even physician assisted suicide drugs under the terms of its wide and mandated coverage.

From the NRO piece:

Morally literate people, including those who generally support abortion rights, understand that abortion is fundamentally unlike anything else doctors are commonly called upon to do, and that it is morally significant in a way a tonsillectomy is not. People of good will may disagree to some extent about the moral significance of what is maturing in a woman’s womb — but it is not an ingrown toenail, and all the Senate proclamations in the world will not change that fact.

Right. Let’s be clear on the proclamations and the reality. Reactionaries are reaching for the ‘war on women’ declaration again, which denigrates and demeans women. Let them speak for themselves.

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May 05

In a split decision, the majority upheld the tradition of the US since its founding.

This needs closer scrutiny.

A divided Supreme Court ruled Monday that legislative bodies such as city councils can begin their meetings with prayer, even if it plainly favors a specific religion.

The court ruled 5 to 4 that Christian prayers said before meetings of an Upstate New York town council did not violate the constitutional prohibition against government establishment of religion; the justices cited history and tradition.

“Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government,” Justice Anthony M. Kennedy wrote for the court’s conservative majority.

This was an important test, yet again (a previous one being Hosanna-Tabor) of the true provision for the free exercise of religious liberty in America by the Founders.

The ruling reflected a Supreme Court that has become more lenient on how government may accommodate religion in civic life without crossing the line into an endorsement of a particular faith. All nine justices endorsed the concept of legislative prayer, with the four dissenters agreeing that the public forum “need not become a religion-free zone,” in the words of Justice Elena Kagan.

However, since everything is so political and partisan these days, there’s a clause to follow.

But there was sharp disagreement after that, and the majority ruling could encourage public bodies to give more leeway to religious expression in their ceremonial prayers and less deference to the objections of religious minorities.

The court’s five conservatives said legislative prayers need not be stripped of references to a specific religion — the prayers at issue often invoked Jesus Christ and the resurrection — and said those given the opportunity to pray before legislative meetings should be “unfettered” by what government officials find appropriate.

“Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a particular prayer will not likely establish a constitutional violation,” Kennedy wrote.

Once again, as is usually at issue in these court cases, the complaint was that the prayers tended to be Christian. And in this case, it was alleged that the opening prayer might somehow coerce everyone in the courtroom to hold a certain belief, or prejudice or intimidate those involved in grievances up for consideration before the governing body.

Kennedy began by referring to history: The same founders who wrote the First Amendment — with its prohibition on the establishment of a government religion but also protections for religious liberty — provided money for congressional chaplains, he said.

“Legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of ‘God save the United States and this honorable Court’ at the opening of this Court’s sessions,” he wrote.

And he said there was no evidence that Greece town council members “allocated benefits and burdens based on participation in the prayer.”

The court’s majority split on how to judge whether prayers amount to coercion of nonbelievers.

“The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity,” Kennedy wrote in a part of the opinion joined only by Roberts and Alito.

Still, the religious divide was stressed in the case and the reporting of it.

“The rule announced by the Court today authorizes elected officials or clergy to give sectarian prayers in the name of Jesus, Hashem, Allah or any other deity before Congress, state legislatures, or local town boards,” the Anti-Defamation League said in a statement. “The religiously divisive implications of this new rule are troubling in any of these contexts, however it is particularly disturbing at the local level.”

But David Cortman, senior counsel for the Alliance Defending Freedom, praised the ruling.

“Opening public meetings with prayer is a cherished freedom that the authors of the Constitution themselves practiced,” he said. “Speech censors should have no power to silence volunteers who pray for their communities just as the Founders did.”

It’s most interesting to recall that the Supreme Court unanimously agreed in Hosanna-Tabor that the State has no right to interfere in long established and protected matters of religious freedom. But building to the high court’s decision on the HHS mandate severely restricting that right, a decision expected by June, this case is only adding to the drama building around that decision.

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Mar 28

In a discussion about Tuesday’s oral arguments on two cases challenging the government’s coercive mandate, one legal counsel said “it was really oral arguments“.

The courtroom was lively and the justices engaged. A couple of pieces that pinpoint key moments to light.

Kathryn Lopez aptly refers back to the ‘parade of horribles‘ to describe the women justices’ engagement of the ‘what ifs’ involved in this case. Government attorneys tried to use it in their arguments.

One of the expected themes — because it was in the Department of Justice’s brief — during the Hobby Lobby/Conestoga Wood case before the Supreme Court yesterday was the idea of a parade of horribles that would come should the companies win their religious-liberty claim. Ed Whelan has written about this here…in response to the brief. The way the argument goes is that if you let employers opt out of abortion-pill and contraception coverage next employers are going to claim religious objections to sexual-harassment laws, minimum-wage laws, Social Security taxes, and vaccine coverage.

As Ed points out:

“The fact that the Obama administration has provided an exemption from the HHS mandate for houses of worship and the so-called “accommodation” rule for religious nonprofits shows that it recognizes that the HHS mandate substantially burdens religious exercise. Nothing comparable exists for DOJ’s examples.”

The “burden” test is essential to these cases and the whole HHS birth control delivery scheme. The Religious Freedom Restoration Act (known by shorthand as RFRA) which passed with full bipartisan support under the Clinton administration, holds a two-pronged test, that government cannot restrict religious freedom unless it produces convincing evidence of a compelling reason to do so,  and it is pursuing that action by the least restrictive means possible.

The government cannot pass that test on either count on the HHS birth control delivery mandate. Their attorneys have failed to produce anything approaching convincing evidence that they can pass that test, time and again, in the many lawsuits across the country over the past two years.

But here’s the real money moments in the dramatic exchanges in the high court Tuesday. Justice Anthony Kennedy was grilling the government’s attorney on whether allowing this mandate to go forward could extend government powers to authorize the compulsion to pay for abortions on a broader scale, since government attorneys had at that point conceded that IUDs can be abortifacents, and IUDs were part of the mandated coverage. The US Solicitor General (Don Verrilli) objected, saying current law “is to the contrary.”

But Kennedy persisted, saying the government was making a legal case that would permit that.

Verrilli continued to resist Kennedy’s simple hypothetical question, treating it as though he could not answer it unless there were really such a law on the books…

And then the chief justice intervened:

Chief Justice Roberts: I’m sorry, I lost track of that. There is no law on the books that does what?

Verrilli: That makes a requirement of the kind that Justice Kennedy hypothesized. The law is the opposite.

Roberts: Well, flesh it out a little more. What—there is no law on the books that does what?

Verrilli: That requires for-profit corporations to provide abortions.

Pay attention to this line of questioning.

Justice Kennedy began to speak at this point, and Chief Justice Roberts cut him off by pursuing Verrilli like a hound who has treed a raccoon:

Roberts: Isn’t that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions. I thought that’s what we had before us.

What Kennedy treated as hypothetical, in other words, Roberts pointed out is not hypothetical at all. It’s actual. It is this case. Hobby Lobby is an abortion case (emphasis added), and at this moment in the argument, Roberts may just have sewn up Kennedy’s vote. Not because Kennedy is morally perturbed by abortion itself; I doubt he is, much. But because he is probably very concerned, and rightly, with a regulatory mandate that forces people to violate their religious beliefs about the sanctity of life by providing and paying for abortions. Roberts spoke circumspectly about the employers’ “religious beliefs” about the drugs and devices that cause abortion, and it was right for him in this context not to say more. But they do cause abortion, and so this is, in a way that should be very important to Justice Kennedy, an abortion case.

Conclusion at this point:

Yes, this is an abortion case, and a religious freedom case, and a government-overreaching-its-authority case.

The Supreme Court will rule in June.

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Mar 24

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.

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Mar 03

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.

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Jun 28

Nearly all the experts predicted it would wind up a 5-4 decision and that Anthony Kennedy would be the swing vote. They got it half right.

Nobody saw this coming.

Chief Justice John Roberts joined the Supreme Court’s four liberals Thursday to uphold the linchpin of President Barack Obama’s plan to expand health coverage to nearly all Americans, a surprise conclusion to a constitutional showdown.

The ruling clears the way for the biggest revamp of America’s health-care system since the 1960s—and sets the stage for a renewed political fight over its merits.

By a 5-4 vote, the court held the law’s mandate requiring Americans to carry health insurance or pay a penalty valid under Congress’s constitutional authority to levy taxes.

They were allegedly going to rule on whether it could be upheld under the Commerce Clause, and they did. The majority said it couldn’t. But Justice Roberts swung in another direction.

Chief Justice Roberts went on to say that the penalty for failing to carry insurance met the criteria for a tax.

Not even the White House prepared for that.

In fact, the high Court decision upholding the mandate as a taxing provision counters how President Obama has described the mandate in the past. The fact is that President Obama refused to frame the health care mandate as a tax during an interview with ABC News in 2009. The President flatly rejected the assertion that the penalty for not purchasing health care insurance should be characterized as a tax. “I absolutely reject that notion,” the President said.

So that’s likely going to be an issue in this presidential election year. A big one, given the size of this tax increase, coming from a president who has relentlessly insisted he would never raise taxes on the middle class. There’s no denying it’s a tax now.

And it may recharge the Tea Party coalition that helped Republicans take control of the House of Representatives in November 2010 on the staunch promise of not raising taxes and not compromising with anyone who proposed to for any reason. Maybe they’ll coalesce around Mitt Romney now that his election is the only way to stop the Obamacare juggernaut that will de facto tax Americans to pay for it. Who knows, this is day one and things have just changed. Dramatically.

Not only did no one see this coming, the White House, Democrats in and seeking office and the liberal media have been trying different strategies in the days and weeks leading up to the Supreme Court ruling to deflect what seemed like an inevitable setback for Obama. The New York Times ran a front page story, above the fold, on the justices dropping in public opinion polls lately, which seemed odd given that they’re the one body that doesn’t answer to the public.

Then that strategy turned to the more recent one of discounting the outcome before it happened, with news stories claiming Obamacare would still be significant reform no matter what the justices decided.

Then there was this, which was interesting. Especially read a day later.

It also was not the result some liberals and Democrats expected before the decision was unveiled this morning.

Little more than 12 hours earlier, the Senate candidate for whom Obama campaigned in Boston on Monday – fellow Democrat Elizabeth Warren – was on MSNBC saying the ruling would be a telling gauge for assessing the politicization of the Supreme Court.

“We need to use this moment to reflect on the importance of the Supreme Court and who sits on the Supreme Court,” Warren told liberal talk show host Rachel Maddow…

“The Supreme Court is wading into really deep waters, and is doing it in ways that, I think, worry us all, and I think it’s a reminder that who sits in the United States Senate, to review those nominations, to vote on those nominations, really does matter,” said Warren.

For emphasis, she added: “It will be about the Affordable Care Act tomorrow, but it will also be about the Supreme Court tomorrow.”

Yes, it sure was. About both. What are they saying now about the Supreme Court? About judicial activism, and the vetting of nominations? About the Affordable Care Act being a huge tax on Americans after all?

Stay tuned. There will be plenty. For starters, the focus moves to the Senate, where Harry Reid is asking everyone to move on now to something else.

And meanwhile, the HHS lawsuits move forward. While the Supreme Court ruling didn’t affect those suits, some justices gave dropped some loaded cues into their opinions that the tax for this healthcare still has to respect constitutional requirements, like “the free exercise of religion” to name one. More lawsuits sure to follow.

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Apr 06

The question is not whether President Obama keeps making gaffes and mis-steps lately in public policy or public statements. My question, instead, is…are they calculated and to what end?

This blogger wondered the same thing, particularly about the so-called ‘accommodation’ allegedly adjusting the HHS mandate to suit religious liberty claims.

Has this been Obama’s goal all along – to set such an extreme, unconstitutional standard to begin with that he is now able to set a still unconstitutional standard while the public believes he’s being reasonable?

He’s mis-stepping alright, but more voices are saying his steps are intentional and defiant. Like these Bloomberg News writers.

President Barack Obama has shown a willingness to campaign against the U.S. Supreme Court if the justices strike down his 2010 health-care law. It’s a strategy that’s as risky as it is rare.

With the court months away from a ruling, Obama ratcheted up the political stakes this week by saying a decision to reject the law and its requirement that Americans get insurance would be “judicial activism” by “an unelected group of people.”

Taking on the court would mean fighting an institution that polls show is historically the most admired branch of government.

He’s already made it a campaign strategy to run against Congress, alienating or at least irritating the Democratic leadership in the Senate and all members of Congress in the president’s party. Now, he seems to be running against the Court, making weirdly bad statements about the separation of powers and law precedent, for someone who lectured at the University of Chicago on constitutional law. Washington Times editors give him an F here.

For someone who once taught classes at a law school, President Obama doesn’t seem to know much about the powers of the Supreme Court.

At a press conference Monday, Mr. Obama said he did not think the high court would rule that forcing Americans to buy health insurance was unconstitutional. “Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” he said.

There’s plenty of precedent for voiding a law like Obamacare. The top justices have invalidated more than 150 federal laws in part or in whole. Nor would there be anything extraordinary about such a step, as courts frequently make these types of rulings. In fact, it would be unprecedented and extraordinary for it to let stand the unconstitutional aspects of Obamacare.

There’s also no truth to the suggestion that Obamacare passed by a “strong majority.” The vote was 219 to 212, a razor-thin margin in which 34 members of the president’s own party voted no. The margin of passage has never been a factor in the Supreme Court’s review of any law. That’s simply not a part of American jurisprudence. In fact, if Mr. Obama believes what he says, he ought to be very satisfied with the validity of the Defense of Marriage Act, which passed in 1996 by a whopping 275 margin in the House and by 71 votes in the Senate.

True, all true. But was it a blunder, or a strategy? That’s what provoked an appeals court judge to issue a testy demand the media called ‘a homework assignment’ to explain the president’s understanding of the courts, the law, judicial review and the separation of powers.

This blogger says it was a counter move that checked the president, who gets low marks on constitutional law.

What if the Supreme Court did not have the power to review laws or executive decisions, to overturn those that are “unconstitutional” – how different might life be in the United States? Until 1803, it was not a foregone conclusion that the Supreme Court of the United States would have that power, despite the fact that judicial review had its origins in early seventeen-century England and had been asserted by James Otis in the period leading up to the American Revolution. A relatively minor lawsuit led to one of the most important Supreme Court decisions in American history, Marbury v. Madison, laying the foundation for the Court’s ability to render its decisions about laws and actions. In Marbury v. Madison, the Supreme Court claimed the power to review acts of Congress and the president and deem them unconstitutional, creating a precedent for an American process of judicial review. Through the decision of Chief Justice John Marshall, then, the court assumed the powers with which it has since played such a vital role in American life.

And the president back-pedaled while DOJ complied with the appeals court judge’s demand for an explanation.

Attorney General Eric Holder made clear Thursday that the Obama administration recognizes the authority of federal courts, including the Supreme Court, to rule on whether the 2010 health care reform law or any other laws passed by Congress are constitutional.

So what did we learn and what did the president accomplish? Well, Americans now know more about Marbury vs. Madison than ever before, safe to say.

And a former Obama student, who later clerked for the particular appeals court judge who challenged the president’s remarks about judicial review, has spoken out about all the media chatter.

Imagine if you picked up your morning paper to read that one of your astronomy professors had publicly questioned whether the earth, in fact, revolves around the sun.  Or suppose that one of your economics professors was quoted as saying that consumers would purchase more gasoline if the price would simply rise.  Or maybe your high school math teacher was publicly insisting that 2 + 2 = 5.  You’d be a little embarrassed, right?  You’d worry that your colleagues and friends might begin to question your astronomical, economic, or mathematical literacy.
 
Now you know how I felt this morning when I read in the Wall Street Journal that my own constitutional law professor had stated that it would be “an unprecedented, extraordinary step” for the Supreme Court to “overturn[] a law [i.e., the Affordable Care Act] that was passed by a strong majority of a democratically elected Congress.”  Putting aside the “strong majority” nonsense (the deeply unpopular Affordable Care Act got through the Senate with the minimum number of votes needed to survive a filibuster and passed 219-212 in the House), saying that it would be “unprecedented” and “extraordinary” for the Supreme Court to strike down a law that violates the Constitution is like saying that Kansas City is the capital of Kansas.

Now this is interesting…

(Oddly enough, Prof. Obama didn’t seem too concerned about “an unelected group of people” overturning a “duly constituted and passed law” when we were discussing all those famous Fourteenth Amendment cases – Roe v. Wade, Griswold v. Connecticut, Romer v. Evans, etc.)

Exactly. The student has become the instructor (as has the appeals court judge), and this whole exercise has resulted in the transparency Obama promised in his presidential campaign, in spite of his ongoing efforts to avoid it.

Ironically, just three days before the January 20 HHS mandate was announced, Bill McGurn wrote this WSJ column on the administration’s overreach causing Americans to take a renewed interest in the Constitution. Its scrutiny has only increased since then.

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Apr 02

The individual mandate requring citizens to purchase something was challenged from the beginning in state and appellate courts, and opening argument were just heard before the US Supreme Court. The HHS mandate requiring citizens to purchase something that violates their conscience is being challenged in a first round of lawsuits with more joining by the week.

One of the new games in town during last week’s Supreme Court hearing of arguments on Obamacare has been handicapping the justices likely ruling on this case, when one comes.

But ‘the best defense is a good offense’ strategy returns as the president takes a shot at the Supreme Court, actually using the term “judicial activism” as a warning.

And President Obama is pressing the ‘activist court’ charge.

“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” Obama said at a Rose Garden news conference.

The majority he referenced was not quite that strong; Congress approved the law two years ago in hard-fought party-line votes after a divisive national debate. Republican presidential contenders say they will make sure it is repealed if the Supreme Court doesn’t throw it out first.

For a president to weigh in so forcefully about a case currently under deliberation by the Supreme Court is unusual, and it speaks to the stakes at hand.

He did, after all, write the book about audacity.

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Jan 11

The Supreme Court of the United States has been asked to hear some unusually pivotal cases in recent time, even for that increasingly political body.

In this one, theology was up for debate, as WaPo put it.

From homeland security to healthcare, the federal government now has the power to reach further than ever into American society. But so far, the feds have sensibly stayed out of the business of appointing religious leaders.

Now, in a stunning about-face, the Obama Administration has urged the Supreme Court to allow courts to decide virtually any dispute between a church and its ministers. In the administration’s view, juries and judges, not congregations and bishops, should have the final say on who is fit for religious ministry. Fundamental questions of theology would be resolved in the same way as slip-and-fall cases. Plaintiffs’ lawyers would go into a religious feeding frenzy.

The DOJ made this astounding declaration in its brief for a Supreme Court case called Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, which some observers have called the most important religious freedom case in 20 years.

The ruling came today.

The Supreme Court of the United States has ruled unanimously in favor of a church’s right to be itself, and its freedom to assign its ministries:

This is an enormous and timely victory for religious freedom:

“In a groundbreaking case, the Supreme Court on Wednesday held for the first time that religious employees of a church cannot sue for employment discrimination.

“But the court’s unanimous decision in a case from Michigan did not specify the distinction between a secular employee, who can take advantage of the government’s protection from discrimination and retaliation, and a religious employee, who can’t.

“It was, nevertheless, the first time the high court has acknowledged the existence of a “ministerial exception” to anti-discrimination laws — a doctrine developed in lower court rulings. This doctrine says the First Amendment’s guarantee of freedom of religion shields churches and their operations from the reach of such protective laws when the issue involves employees of these institutions.

Read the whole post and its links, Anchoress put it all together well. Picture Justices Scalia and Kagan jointly outraged “at the government’s constitution-shredding argument.”

Chief Justice John Roberts noted in the court’s opinion

this was the first time the high court has ever considered the “ministerial exception,”

…but likely the first among…more.

The Obama administration tested the waters with an extreme gambit. They’ve now established that this court, in its current make-up, will rule in favor of the churches against overt threats to the most fundamental of our religious freedoms. I expect that if Obama is re-elected, we’ll see continued–but measured–attempts to weaken religious freedoms, as it attempts to discern precisely where the lines are, and how they may be crossed. Chief Justice Roberts appears to acknowledge as much, in writing the opinion.

Meanwhile, this is very good–yes, reassuring–news.

For now.

Shot across the bow noted.

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