Reid: We’re not gonna let “five white men” have the last word on Hobby Lobby

Reid:We’renotgonnalet“fivewhitemen”

LouisianaSupremeCourtorderspriesttotestifyabout

Louisiana Supreme Court orders priest to testify about confession

posted at 10:01 am on July 8, 2014 by Ed Morrissey

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Many observers misunderstood the Hobby Lobby dispute and others like it as a First Amendment case, but it wasn’t. It primarily related to the Religious Freedom Restoration Act (RFRA), with an indirect reference to the constitutional freedom of religious expression. A case in Louisiana may be the real McCoy, though. The Louisiana Supreme Court has ruled that a priest must testify in a case about what he heard in a confessional — an order that would result in automatic excommunication and damnation, according to the doctrine and canon law of the Catholic Church:

The state high court’s decision, rendered in May of this year, demands that a hearing be held in 19th Judicial District Court in Baton Rouge, where the suit originated, to determine whether or not a confession was made. It reverses an earlier decision by the Louisiana First Circuit Court of Appeals dismissing the original lawsuit filed against Bayhi and the diocese.

The case stems from a claim by parents of a minor that their daughter confessed to Bayhi during the sacrament of reconciliation that she engaged in inappropriate sexual behavior with grown man who also attended their church. Court documents indicate the child was 12 years old at the time of the alleged sexual abuse.

A criminal investigation by East Feliciana Sheriff’s Office into the alleged sexual abuse was ongoing when the accused church member died suddenly in February 2009 of a heart attack.

The civil lawsuit in question, filed five months later in July 2009, names the late sexual abuse suspect, as well as Bayhi and the Baton Rouge diocese, as defendants. The suit seeks damages suffered as a result of the sexual abuse, noting that abuse continued following the alleged confessions.

The petitioners claimed Bayhi was negligent in advising the minor regarding the alleged abuse and failed his duty as a mandatory reporter in compliance with the Louisiana Children’s Code. It also holds the diocese liable for failing to properly train the priest regarding mandatory reporting of sexual abuse of minors. Defendants claimed, in addition to other points of law, that only the sexual abuse suspect was liable for the suffering the minor endured.

This case gets complicated for a couple of reasons. While the common perception has been that priests cannot be forced to testify about confessions in the US because of ministerial privilege and the First Amendment, that privilege gets defined by each state separately. In Louisiana, the privilege attaches to the person offering the confession and not the priest. Once the penitent has revealed what was said — or perhaps more to the specific point in this case, alleges to have revealed what was said — the state can subpoena the priest to confirm or deny the testimony. In that sense, it’s akin to the lawyer-client privilege, which can be broken by the client.

On the other hand, lawyers don’t face eternal disbarment for testifying once a client has waived the privilege. Priests do, and face automatic expulsion from the Catholic Church for complying. There is nothing in church doctrine that requires a penitent to keep quiet about what transpires in the confessional, but the canon law is clear on this point. Can. 983 states that “The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.” The punishment for breaking the seal is explicitly noted in Can. 1388: “A confessor who directly violates the sacramental seal incurs a latae sententiae [by the commission of the act] excommunication reserved to the Apostolic See; one who does so only indirectly is to be punished according to the gravity of the delict.”

In this case, the trap is even more complex. The court wants the priest to corroborate the girl’s testimony about the confession. Assuming the priest recalls the confession at all — it was five or more years ago, and priests hear a lot of confessions, and most of them anonymously — he’d have to violate canon law just by talking about it. Plus, if he testifies that the witness is not telling the truth about the confession, he’d be violating the seal of the confessional even more profoundly. Either way, the court would in essence force the priest into betraying his faith and violating his oath or face prison time for contempt of court.

Rod Dreher warns that this is a direct attack on religious freedom:

This is a very serious situation. I take no position on whether or not the priest handled the particular situation in the parish wisely or justly, but let there be no mistake: the seal of the confessional must be inviolable. The relationship between a priest and a penitent can only take place in the security of confidentiality given two both parties. …

Again, I’m eager to learn from lawyers who read this blog whether or not the priest here is likely to go to jail, or if he and the diocese are protected by the First Amendment. God help us all if he is not. Even if the plaintiff is telling the truth about the priest advising her in the confessional to sweep it all under the rug, which would make the priest is a scoundrel, the religious freedom principle at stake here is so important that even a scoundrel priest must be defended.

I agree. In order for Catholics to enjoy the free expression of their faith, they have to know that the confessional is inviolable no matter what issues may be at play. For that to happen, priests — who deserve the same freedom of religious expression as everyone else in the US — have to know that they do not risk jail time for the act of hearing confessions. The interest of the state in this civil lawsuit is far outweighed by the need to protect this freedom, and any restriction on privilege set up at the state level that fails to recognize this should be overturned by federal courts on the basis of the First Amendment.

Note: Hat-tip to Gabriel Malor for pointers on the issues of privilege and state law.

Update: A fair question from the comments asks a hypothetical about a priest who learns in confession about an upcoming commission of a crime. Note that this is not exactly what happened in Louisiana, but it’s still a fair hypothetical. Cathy Caridi, a canon lawyer at Catholic Exchange, explains that while a priest has some options to warn the intended victims, he still cannot reveal what was said in confession:

So what does all this mean for the priest who hears the confession of a person who admits that he intends to kill somebody, or who sexually molests children and doesn’t indicate that he will stop? Priests are faced with such difficult situations more often than we laity might think! What are they permitted to do?

Firstly, of course, a confessor can latch onto the fact that if a would-be murderer or child molester has come to confession, he presumably regrets this action and wants to amend his life. The priest can talk this through with the penitent and try to get him to see what true amendment entails. At the very least, he can explain that he cannot impart absolution if the person does not firmly intend to stop committing the sort of sin that he has confessed. Depending on the situation, he may also be able to encourage the person to turn himself in to the authorities. The priest might even offer to accompany the penitent to the police station when he does this; but in such a case he would still be forbidden to repeat the contents of the person’s confession to others. If the penitent wanted him to do so, it would be necessary for him to repeat to the priest, outside the confessional, the things which he had told him in confession. In this way the priest could discuss the penitent’s situation, yet the seal of the confessional would remain inviolate.

If the penitent is not willing to cooperate, there are sometimes situations in which priests can find ways to help the authorities without revealing the content of a person’s confession. If a penitent has indicated, for example, that he fully intends to kill or harm Person X, a priest may be able to warn the police that Person X is in danger, but without fully explaining how he obtained this information. I personally know of a case in which police received a phone call from a priest, warning them that two teenaged sisters were in danger at that very moment. The police understood that the priest was not permitted to give them more specific information, and simply located the girls, notified their parents, and made sure they were protected. It is quite likely that some horrible crime was averted by this priest’s action, yet he did not violate the sacramental seal-in fact, nobody was really sure if he had learned the information in the confessional or in a confidential conversation outside of it. Once again, such collaboration between the authorities and the clergy happens more often than we may realize.

At the same time, however, a confessor is forbidden to go to the police with specific information about a penitent which he had learned during a confession. If, for example, a person confesses that he is the serial killer who is being sought by the authorities, and the priest recognizes his identity, he cannot contact the police and reveal it. This is true even if the person indicates that he intends to commit another crime. While he may strive to lead the criminal to turn himself in, or at least to change his plans, a priest is not allowed to take this information to the police of his own accord. No matter how difficult it may be, he must keep this to himself. We can incidentally see here one more excellent reason to pray for our priests, that they be given the strength to bear such weighty burdens!

This is akin to the “ticking time bomb” hypothetical that was used extensively in the debate over interrogations of terrorists captured after 9/11. Needless to say, it’s a difficult position for priests, but Caridi lays out the options for dealing with it.

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Tags: Catholicism, confession, First Amendment, Louisiana, religious freedom

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Fireworks at Supreme Court over emergency injunction applied against “accommodation”

FireworksatSupremeCourtoveremergencyinjunctionapplied

Video: Interview with Gretchen Carlson and Persecuted

Video:InterviewwithGretchenCarlsonandPersecuted

TheothersideoftheHobbyLobbydecision

The other side of the Hobby Lobby decision

posted at 12:41 pm on July 2, 2014 by Jazz Shaw

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The team here has had plenty of great coverage since the Hobby Lobby decision came down, but there are still elements of not only the court case, but the highly vocal opposition to it which leave me puzzled. There has been plenty of analysis regarding the religious freedom aspect of the case, particularly from Ed, and that is certainly an important facet of the discussion. But I find myself even more perplexed by the arguments I’ve been seeing regarding the nature of personhood vis-à-vis corporations and how they shouldn’t be eligible for the various assurances found in the bill of rights.

One sterling example of this curious battle cry may be found in a piece from Rick Ungar at Forbes, under a title which includes the 24 Point, breathless phrase, Founding Fathers Spinning in their Graves.

However, no matter how the 5-4 majority of Supreme Court Justices wish to parse it, the Court has, this very day, destroyed the true nature of the corporate entity—a legal fiction created by government with no capacity to possess feelings, beliefs, emotions, etc. while existing solely as a piece of paper filed away in a drawer in the Secretary of State’s office in each of our 50 states.

If you doubt that this is the reality of what a corporation was intended to be versus how today’s Supreme Court decision—coupled with their Citizens United ruling — has “morphed” the nature of an American corporation, I strongly suggest you take a look at the constraints on corporations in the time of the Founders of this nation and how the Founders themselves felt about the corporate entity.

It was the “Founding Fathers” part of the article which really caught my attention, as I had no idea that G. Washington and his various associates were so bullish on business. But if you go on to read the editorial, the author proceeds to cite numerous instances where Queen Elizabeth I and her various family successors stomped on the rights of business. (Wait… didn’t we actually fight a war to abandon those crown wearing despots?) Then, after ten paragraphs of talking about the attitude of the English Monarchy toward corporations interspersed with seeming non-sequiturs mentioning the Founding Fathers, in a failed attempt to conflate the royals with America’s actual founders, he offers this:

While we know that the Founders had contempt for these corporate entities and the corruption they had produced in England’s Parliament, it appears to have never occurred to them to directly address corporations when they wrote the Constitution.

Well, okay then.

But to my original point, when did we see people – especially those in the media – blandly accepting and asserting that corporations aren’t people? Ungar himself puts forward the claim that corporations are, “a legal fiction created by government with no capacity to possess feelings, beliefs, emotions, etc. while existing solely as a piece of paper filed away in a drawer…”

Is a piece of paper capable of conducting interviews and hiring workers? Can it invent and design new things, hammer out a way to manufacture them and appeal to the mass market to buy them? Can it wrestle with the tough decisions about benefits for employees or how and when those workers will no longer have jobs if the business suffers? No, it can’t. All of those things are the actions of actual human beings… specifically the ones who start or run the business in question. And those people all have values and opinions of their own.

In the era of my father and my grandfather, businesses owned by a single person, a few partners or multiple generations of families were even more prevalent than now. And even today nearly a third of all businesses with a value of more than $1M are owned in the majority by similar small groups. And those businesses most certainly reflected the values of those people who created and operated them. Just like today, those people all enjoyed the full slate of rights enjoyed by other citizens.

So why does it strike so many people as beyond the realm of credibility that these corporate owners would have rights, including freedoms of religion, speech and all the rest? It’s possible, I suppose, that some of us have developed such an inherent mentality of entitlement that we assume that we are owed a job, and once gaining employment, that we should be able to dictate how the “faceless piece of paper in the drawer” treats us without concern for the sensibilities of those who filed the paper originally.

But that really doesn’t make sense. It’s yet another example why these various and sundry federal mandates, handed down from on high to the segment of the nation who didn’t build that simply fly in the face of what we all expect as our hope for and share of the American dream. A corporation may be a piece of paper, but it’s only a de facto invitation to business leaders to pay taxes. And the business leaders in that equation are most certainly people.

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Tags: Citizens United, Hobby Lobby, religious freedom, Supreme Court

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SupremeCourtletsstandseveralrulingsblockingenforcement

Supreme Court lets stand several rulings blocking enforcement of HHS mandate

posted at 8:01 am on July 2, 2014 by Ed Morrissey

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The mantra after the announcement of the 5-4 Hobby Lobby decision on Monday, other than the Left’s shrieking over falling skies and theocracies, has been this: It was narrowly decided. That analysis springs from Justice Samuel Alito’s mention of Hobby Lobby’s status as a closely-held corporation, and the narrow number of contraceptive methods that the retailer chose to reject. That gave some hope that other cases involving broader rejection of contraception coverage might be more problematic in later cases.

A series of orders on lower-court rulings on Tuesday suggests to the Associated Press that Hobby Lobby might not be quite as narrow as some may think:

The Supreme Court on Tuesday confirmed that its decision a day earlier extending religious rights to closely held corporations applies broadly to the contraceptive coverage requirement in the new health care law, not just the handful of methods the justices considered in their ruling. …

Tuesday’s orders apply to companies owned by Catholics who oppose all contraception. Cases involving Colorado-based Hercules Industries Inc., Illinois-based Korte & Luitjohan Contractors Inc. and Indiana-based Grote Industries Inc. were awaiting action pending resolution of the Hobby Lobby case.

The court also sent back two more cases to an appellate court that had ruled in favor of the mandate, with orders to reconsider in light of Hobby Lobby:

The justices also ordered lower courts that ruled in favor of the Obama administration to reconsider those decisions in light of Monday’s 5-4 decision.

Two Michigan-based companies, Autocam Corp. and Eden Foods Inc., both lost their cases in the lower courts. The justices ordered the 6th U.S. Circuit Court of Appeals to reconsider its decisions against the companies.

The ACLJ announced yesterday that the Court has granted a reversal for one of their cases, Gilardi v HHS, after a partial defeat in the DC Circuit:

In the wake of yesterday’s blockbuster Hobby Lobby decision striking down the HHS Mandate, today the Supreme Court granted our petition for review in the case of Gilardi, v. HHS, and denied the government’s petition in our case of Korte v. HHS.  In Gilardi, the Court vacated the decision of the D.C. Circuit Court of Appeals (see report of decision here) and sent the case back to the lower court to apply the Hobby Lobby decision to the facts of the Gilardi case.  In Korte, the Court’s action today leaves in place the resounding victory we achieved at the Seventh Circuit (see report of decision here.)

The district court refused to provide an injunction against enforcement of the mandate in Gilardi, which would have cost the business owner $14 million in penalties for refusing to prove abortifacient contraceptives to his employees (all of whom can buy them on their own, of course).

All of these orders make clear that Hobby Lobby is not just a fluke. The Supreme Court appears ready to apply the ruling on a broad basis with for-profit businesses, even those who refuse to cover any contraceptive method at all. That would suggest that any attempt to impose the mandate on explicitly religious organizations seems to have a couple of strikes against it at the Court already, even with the so-called “accommodation” offered as a compromise. The Supreme Court clearly takes the RFRA and the First Amendment seriously on this point.

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Tags: ACLJ, HHS Contraception mandate, Hobby Lobby, religious freedom, RFRA, Supreme Court

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Hobby Lobby attorney: We’d be thrilled to stay out of employees’ birth-control choices

HobbyLobbyattorney:We’dbethrilledtostay

HowwillSCOTUSruleonHobbyLobbytomorrow?

How will SCOTUS rule on Hobby Lobby tomorrow?

posted at 2:01 pm on June 29, 2014 by Jazz Shaw

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There are just two cases left to be decided in this session of the US Supreme Court and we should have both rulings tomorrow. Since many of you fall into roughly the same category of geekdom when it comes to government and public policy as many other citizens do about baseball, I’m sure you’re waiting with bated breath. Harris vs Quinn will be a big one, no doubt, since it has the potential to deal a severe blow to unions and their ability to pick the pockets of those who choose not to be members, but the one we’ve been covering here with the most intensity is Hobby Lobby.

Regular readers already know what’s at stake, (and if you don’t, you can see much of the history of it with these links) but how will the court decide this one? Will owners of a private business retain the same rights of religious freedom or does ObamaCare override all of that?

Attorney Doug Mataconis predicts that it will go Hobby Lobby’s way, but probably in a limited fashion.

In light of how the oral argument went, the expectation from most legal analysts is that tomorrow’s decision will result in a ruling in favor of Hobby Lobby and Conestoga under the Religious Freedom Restoration Act. The unanswered question at this point is how wide or narrow that ruling might be, because the implications of a ruling that provides private entities with a basis to assert the religious preferences of their owners could be quite far reaching…

Beyond birth control, there are countless other areas where a broadly expansive ruling on the RFRA’s application to this situation would have a big impact. In the employer-employee context, it would theoretically mean that an employer would have the basis to deny coverage for other medical conditions or procedures if they can put forward a credible religious objection to the same. Outside of that relationship, such a ruling would have an obvious impact on the issues that have arisen in recent years surrounding same-sex marriage and the question of whether certain businesses — such as wedding photographers and bakers — should have a right to refuse to provide service to same-sex wedding ceremonies notwithstanding any applicable law banning discrimination based on sexual orientation. Depending on how broadly the Court rules tomorrow, there would seem to me to be a strong argument in favor of such vendors being able to exempt themselves from generally applicable laws such as anti-discrimination laws. Indeed, in anticipation of this decision several states have already made moves to strenthen their own versions of the RFRA to give protection to businesses in these types of situations. In those states, obviously, it wouldn’t matter what the Supreme Court decides.

Given the recent history of this particular court, I think that’s a fairly safe bet. The Justices haven’t tended to make sweeping, precedent shifting calls on hotly contested social debates which would hold the potential to seriously alter how things operate across the entire national spectrum. More often, they have made narrowly defined decisions which essentially impact just the litigants in question or a limited class of operatives in very similar circumstance. And that’s when they choose to hear the case at all. In many others they have either punted entirely or kicked the case for a lack of standing by those bringing it without judging the underlying case on its merits.

It seems likely that this one will go the same way, with Hobby Lobby prevailing but not opening the door to some wholesale platform for individuals or businesses (outside of charitable organizations and churches) to reject all manner of federal law based on their religious convictions. I also don’t expect to see them return this one unanimously, as they almost miraculously did in 12 of the last 16. Expect most, if not all of the four liberal justices to go against Hobby Lobby. I’d be pleasantly surprised to be proven wrong on this one, but it seems doubtful.

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Tags: Hobby Lobby, ObamaCare, religious freedom

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RandPaul:ObamashouldexplaintoPopeFrancis

Rand Paul: Obama should explain to Pope Francis why he’s infringing on faith

posted at 12:01 pm on March 25, 2014 by Ed Morrissey

In two days, Barack Obama will meet with Pope Francis for the first time at the Vatican, Obama’s second trip to the Holy See. The Vatican state visit will take place as part of a tour of Europe, where Obama’s popularity has fallen considerably as a result of the NSA scandal and his foreign-policy decisions on drone warfare. Senator Rand Paul suggests that Obama could break the ice with Pope Francis by promising not to spy on him anymore, but then tells Fox News that Obama should also pledge to stop infringing on the religious freedoms of those in the business world with free-contraception mandates:

“He ought to explain to the Pope why he is telling businesses in America they can’t remain true to their faith and stay in business,” the Kentucky Republican said on Fox News’s “Fox and Friends.” …

“The ‘Hobby Lobby’ case is being discussed today, and I think it’s important that he tell the leader of the Catholic Church why he thinks that businesses owned by Catholics can’t make their own decisions with regard to health care,” Paul said.

The outspoken senator said he agreed with the Vatican chief justice, who reportedly in a recent interview said Obama’s policies are “hostile” to Christians.

“And I think is something that really should be discussed in our country,” Paul said. “Most of us, whether you’re Republican or Democrat, believe … in free exercise of your religion. But if they’re telling you that your tax dollars have to go to something you find morally reprehensible, I think that’s not free exercise of religion.”

The Vatican chief justice, Cardinal Raymond Burke, offered a strong criticism of Obama in an interview last week in the Polish news magazine Polonia Christiana. His comments went beyond specific policies and addressed an overarching hostility towards faith and liberty:

10. The policy of the President of the US towards the Christian civilisation becomes more and more aggressive. Does Your Eminence notice any symptoms of Catholic reactions against this policy? If yes, what are they, if not why?

It is true that the policies of the President of the United States of America have become progressively more hostile toward Christian civilization. He appears to be a totally secularized man who aggressively promotes anti-life and anti-family policies. Now he wants to restrict the exercise of the freedom of religion to freedom of worship, that is, he holds that one is free to act according to his conscience within the confines of his place of worship but that, once the person leaves the place of worship, the government can constrain him to act against his rightly-formed conscience, even in the most serious of moral questions. Such policies would have been unimaginable in the United States even 40 years ago. It is true that many faithful Catholics, with strong and clear leadership from their Bishops and priests, are reacting against the ever-growing religious persecution in the U.S. Sadly, one has the impression that a large part of the population is not fully aware of what is taking place. In a democracy, such a lack of awareness is deadly. It leads to the loss of the freedom which a democratic government exists to protect. It is my hope that more and more of my fellow citizens, as they realize what is happening, will insist on electing leaders who respect the truth of the moral law as it is respected in the founding principles of our nation.

In my column today for The Week, I preview the summit between Francis and Obama at the Vatican, and note that the power dynamic has reversed since Obama’s 2009 visit:

Obama met with now-Pope Emeritus Benedict XVI in the first year of his presidency, but the stakes and the calculations were much different in 2009. Benedict XVI had very little of the affection and sympathy that today’s media has showered on Francis since his succession last year. The abuse scandal weighed heavily on the Vatican at that time, as did a financial scandal involving the Vatican Bank. The sense was that the Pope’s supposed conservatism was making the Church into a figurative fortress, rather than a relevant force in the lives of the faithful. Obama, in contrast, exemplified the dynamism of secular hope and change, and had become the toast of Europe. Just a few months later, Obama would win the Nobel Peace Prize, an aspirational decision by the committee that they had reason to regret not long afterward, when Obama ramped up troop levels in Afghanistan and defended drone warfare and “kill lists.”

This time, it’s Obama who needs a boost — but it won’t come easy.

Obama has tried to invoke Francis of late in his attempt to assert his income-inequality agenda over the disastrous ObamaCare narrative dominating domestic politics, but don’t expect the Pontiff to let this opportunity pass. The Vatican has already summarily dismissed a New York Times attempt to paint Obama as an adopted son of the church, and Francis has his own agenda in mind:

The New York Times gave this history a sympathetic look this past weekend, shining a light on a little-known episode from Obama’s work before his political career began. Although not Catholic himself, Obama worked for the Diocese of Chicago in its outreach and service to black Catholics, part of the community-organizing work Obama did at the time. The Times‘ Jason Horowitz reports that the period “played a powerful role in his political formation,” and that the current director of that office credits Obama with playing a “key” role in developing the skills used to attract new members.

The timing of this article seems to be part of a charm offensive aimed at the Vatican, but so far it’s not exactly warming up his hosts. Horowitz includes a reaction from a senior official at the Holy See, who pointedly notes that the upcoming visit won’t be the love fest Obama would prefer. “We’re not in the old days of the great alliance,” Horowitz was told, a reference to Ronald Reagan and Pope John Paul II’s united front against communism. Instead, the Vatican wants to confront Obama on more recent issues — the ObamaCare contraception mandate, certainly, which has American bishops as outspoken on political issues as we have seen in quite some time, as well as the drone policies of the U.S.

Obama may have thought that this would be an easy photo op, and it will certainly provide one — but it may be that Obama will have walked into the lion’s den.

Tags: Barack Obama, HHS mandate, Pope Francis, Rand Paul, religious freedom, Vatican

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Openthread:SCOTUSandHobbyLobby/Conestoga

Open thread: SCOTUS and Hobby Lobby/Conestoga

posted at 10:01 am on March 25, 2014 by Ed Morrissey

Arguments have already gotten underway at the Supreme Court as we post this, but it’s not too late for a recap. SCOTUSblog has its own roundup, so be sure to trek there if you want the blow-by-blow. (Audio from the arguments will come out on Friday.) We’ve covered the issue for more than two years, and Hot Air readers have a clear idea what our take on the case itself will be.

National Journal’s Sam Baker outlines the three possible directions this could take:

When the Justice Department has lost on the threshold question of corporate rights, it has always lost on the underlying challenge to the contraception mandate. Any time an appeals court decided that a company or its owner could exercise religion, it went on to find that the birth-control mandate at least seems likely to violate that religious freedom. And so the only way the administration has ever won on the mandate itself is to close the door before a court even gets there—which could prove hard to do before the Supreme Court.

The biggest hurdle for the mandate’s challengers is the marquee question of whether they can practice a religion. In one of the cases before the Supreme Court this week, a cabinet-making company called Conestoga challenged the mandate as an affront to the beliefs of its owners, the Hahn family. The 3rd Circuit Court of Appeals, siding with the Justice Department, said the corporation and the people who own it are two different entities.

“Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. All responsibility for complying with the Mandate falls on Conestoga,” the court wrote.

Chief Justice John Roberts likes to keep the high court’s rulings as narrow as possible on most big issues. He looks for ways to minimize the Court’s footprint by avoiding the biggest question—which, in this case, would be whether corporations are protected by the First Amendment’s “free exercise” clause.

There’s a reasonably clear way for him to do that here: Avoid the question of whether corporations are people, and focus on whether—in these specific cases—people are their corporations.

Both Hobby Lobby and Conestoga are closely held companies, controlled entirely or almost entirely by their owners. The libertarian Cato Institute suggested in a supporting brief that because these two companies are controlled by their owners, the Court could rule in their favor without setting a broader precedent that corporations in general can practice religion.

CBS frames this as reproductive rights versus religious liberty:

For Christian conservatives, the cases represent the threat of government overreach.

“This case will decide whether a family gives up their religious freedom when they open a family business,” Lori Windham, a senior counsel for the Becket Fund, which is representing Hobby Lobby, told CBS News. “The question here is whether the Green family can be forced to do something that violates their deeply held religious conviction as a consequence of the new health care law.”

Reproductive rights advocates, meanwhile, consider the notion that some businesses could pick and choose which contraception methods to cover “out of touch [and] out of line,” Ilyse Hogue, president of NARAL Pro Choice America, told reporters.

Contraception is “integral with our economic security and our ability to hold jobs for our lifetime,” Hogue said. “We’ve had enough of this idea our reproductive health is somehow separate from our economic well being… Our bodies are not our bosses’ business.”

The two cases, however, have implications that go well beyond the so-called “wars” on women or religion. If Hobby Lobby and Conestoga prevail, it would prompt “a fundamental shift in the understanding of the First Amendment,” David Gans, the civil rights director for the Constitutional Accountability Center, told CBS News.

Both of these miss one particular point, though. For individuals or for corporations, the government can only intrude on constitutionally-protected rights for a compelling state interest. Hobby Lobby/Conestoga can point to the August 2010 CDC study that shows even without forcing employers to pick up the tab for contraception, 99% of sexually active women who wished to avoid pregnancy between 1980 and 2008 used contraception to do so. Access is such a non-issue that the CDC doesn’t even bother to address it. Furthermore, Hobby Lobby already offers coverage for 16 forms of birth control, only refusing to cover those that the owners consider abortifacients rather than contraception.

The Washington Post’s editorial board attempts to make the “compelling interest” case:

One goal was to provide adequate coverage to women. A panel of independent experts — not liberal ideologues in Congress — determined that assuring access to a range of birth control products to all women, not just those who could afford it, would convey major public health benefits. It’s true that some non-compliant plans here and there were grandfathered in — but they will phase out, making the rule comprehensive.

Under U.S. law, corporations get substantial privileges, such as limits on owners’ financial liability. Now, they have been asked to take on responsibilities, such as providing decent health-care coverage, with the aid of massive tax subsidies. Not every American of every creed will be comfortable with reasonable, general rules that extend across the marketplace — requiring vaccinations, say, or prohibiting discrimination against women in the workplace. But it’s not feasible for a corporation to easily opt out of any generally beneficial law that happens to offend its owners. That is a principle vital to maintaining a functional, pluralistic democracy.

If the goal was “assuring access,” then the CDC’s study should say mission accomplished. Thus, there is no compelling government interest in forcing businesses to provide birth control for free, no more than there is for forcing them to provide food, groceries, or heating oil for free for their personal use, either. Businesses are free to do so if they wish now, but they should be free to choose not to do so if their values oppose it.

Will the Supreme Court agree? I suspect they will, since the lack of compelling state interest is the quickest and cleanest hack through the Gordian knot of the RFRA, First Amendment, and corporate personhood this mandate creates. But that’s what we’ll see today, and what we’ll find out some time in June.

Tags: Conestoga, contraception, HHS mandate, Hobby Lobby, religious freedom, Supreme Court

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Breaking:ArizonaGov.JanBrewervetoesreligiousfreedom

Breaking: Arizona Gov. Jan Brewer vetoes religious freedom bill

posted at 8:31 pm on February 26, 2014 by Erika Johnsen

As was increasingly expected, this evening Arizona Gov. Jan Brewer nixed Senate bill 1062, which would have allowed for a religious exemption to the state’s public accommodation laws — i.e., businesses and individuals would have had legal protection in demurring from providing goods and services to certain customers on the basis of religious objections. A.k.a., gays and lesbians. Via CNN:

Brewer said she made the decision she knew was right for her state.

“I call them as I see them, despite the cheers or the boos from the crowd,” she said, calling the bill “broadly worded” and saying it could have unintended consequences.

Brewer said she’d weighed the arguments on both sides.

“To the supporters of the legislation, I want you to know that I understand that long-held norms about marriage and family are being challenged as never before. Our society is undergoing many dramatic changes,” she said. “However, I sincerely believe that Senate Bill 1062 has the potential to create more problems than it purports to solve. It could divide Arizona in ways we cannot even imagine and no one would ever want.

“Religious liberty is a core American and Arizona value, so is non-discrimination.”

Update: Allahpundit has more coming in the QOTD, but here’s another snippet from Brewer’s rationale for the veto: Let’s get back to our priorities, shall we?

Arizona governor’s signature vetoing #SB1062 in Arizona: pic.twitter.com/7PiNlM7WIz

— ABC News Politics (@ABCPolitics) February 27, 2014

Update: Aaaaand the vid:

Tags: Arizona, gay marriage, Jan Brewer, religious freedom, tolerance

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BipartisangroupofattorneysaskBrewertosign

Bipartisan group of attorneys ask Brewer to sign SB 1062

posted at 12:41 pm on February 26, 2014 by Ed Morrissey

Yesterday, I wrote about the effort by the Arizona legislature to amend their state constitution to expand religious-liberty protection in the wake of lawsuits attempting to force participation in same-sex weddings by private businesses. The reaction of some to the bill described it as the next Jim Crow, without apparently knowing that Jim Crow mandated segregation rather than allow for private decisions on commerce. That hyperbolic and uninformed reaction doesn’t mean that the bill is good, though, and the retreat by Arizona politicians that once supported it — including one of its sponsors — sends a pretty big signal that it would create a lot of unintended consequences, either legal, commercial, political, or all three.

Governor Jan Brewer is still mulling over her options, although NBC reported yesterday that she was leaning toward a veto. Brewer vetoed a similar bill earlier, with less fanfare. My friend Paul Mirengoff at Power Line has received a letter from a bipartisan group of noted legal scholars sent to Brewer today arguing that, far from a return to Jim Crow, SB 1062 simply uses a familiar statutory framework for codifying religious liberty in order to require courts to prioritize sincerely-held religious beliefs over weaker state interests. The signatories are not just a mix of Republicans and Democrats, but also a mix of same-sex marriage supporters and opponents:

Some of us are Republicans; some of us are Democrats. Some of us are religious; some of us are not. Some of us oppose same-sex marriage; some of us support it. Nine of the eleven signers of this letter believe that you should sign the bill; two are unsure. But all of us believe that many criticisms of the Arizona bill are deeply misleading.

The federal government and eighteen states have Religious Freedom Restoration Acts (RFRAs). Another twelve or thirteen states interpret their state constitutions to provide similar protections. These laws enact a uniform standard to be interpreted and applied to individual cases by courts. They say that before the government can burden a person’s religious exercise, the government has to show a compelling justification.

That standard makes sense. We should not punish people for practicing their religions unless we have a very good reason. Arizona has had a RFRA for nearly fifteen years now; the federal government has had one since 1993; and RFRA’s standard was the constitutional standard for the entire country from 1963 to 1990. …

SB1062 would amend the Arizona RFRA to address two ambiguities that have been the subject of litigation under other RFRAs. It would provide that people are covered when state or local government requires them to violate their religion in the conduct of their business, and it would provide that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion.

But nothing in the amendment would say who wins in either of these cases. The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest.

In an earlier post, Paul offered conditional support unless the language was poorly written to allow abuses in discrimination.  These legal scholars are satisfied that none exists. If this is accurate — and I’m hardly in a position to challenge a constitutional scholar like Michael McConnell or Douglas Laycock, who come down on opposite sides of the same-sex marriage argument in all other contexts– then it appears that those worries about the legal impact are misplaced. That still doesn’t necessarily address the commercial and political impact to Arizona if Brewer signs this bill, and there isn’t a politician who doesn’t take those issues in account when making decisions like these.

It would be far better if courts just took this as a common-sense application of the freedom to religious expression, without the potential backfire of using an expansion of statutes and the potential for unintended consequences that result from them. Common sense, in this case, would recognize that the right to religious liberty trumps the extremely weak state interests in the commercial industries surrounding weddings. Unfortunately, the Obama administration has been undermining that application of common sense with the HHS contraception mandate for the last two years, and courts haven’t entirely embraced the common-sense conclusion that business owners shouldn’t be compelled to provide free contraception and sterilization services when it opposes their religious principles. As I noted yesterday, if everyone took the same approach as Andrew Sullivan, there wouldn’t be a need (real or perceived) for this bill at all:

I would never want to coerce any fundamentalist to provide services for my wedding – or anything else for that matter – if it made them in any way uncomfortable. The idea of suing these businesses to force them to provide services they are clearly uncomfortable providing is anathema to me. I think it should be repellent to the gay rights movement as well.

The truth is: we’re winning this argument. We’ve made the compelling moral case that gay citizens should be treated no differently by their government than straight citizens. And the world has shifted dramatically in our direction. Inevitably, many fundamentalist Christians and Orthodox Jews and many Muslims feel threatened and bewildered by such change and feel that it inchoately affects their religious convictions. I think they’re mistaken – but we’re not talking logic here. We’re talking religious conviction. My view is that in a free and live-and-let-live society, we should give them space. As long as our government is not discriminating against us, we should be tolerant of prejudice as long as it does not truly hurt us. And finding another florist may be a bother, and even upsetting, as one reader expressed so well. But we can surely handle it. And should.

Leave the fundamentalists and bigots alone. In any marketplace in a diverse society, they will suffer economically by refusing and alienating some customers, their families and their friends. By all means stop patronizing them in both senses of the word. Let them embrace discrimination and lose revenue. Let us let them be in the name of their freedom – and ours’.

That is the definition of tolerance — not enforced participation, but allowing people to make their own personal choices free of government-imposed mandates of acceptance and participation. Speaking of which, this test case in the UK is making the e-mail rounds today, and seems on point:

Britain’s most famous surrogate gay dads have hired lawyers to sue the Church of England for the right to a full-blown religious wedding.

Barrie and Tony Drewitt-Barlow told Gay Star News it was important for them as Christians to marry in church and for their kids to see they were equal.

Under the Marriage (Same Sex Couples) Act for England and Wales, which has been signed into law but won’t be implemented until 2014, religious groups can opt in to marrying same-sex couples but don’t have to if they don’t want to.

The Church of England, the state religion, is protected by a quadruple lock to protect it from being forced to wed gay couples.

But the Drewitt-Barlows, from Essex, southeast England, attend their local parish church in the village of Danbury with their five children and want to marry there.

They told GSN: ‘We actually feel that the government has done all it can do right now to push equality for same sex marriage in the right direction.

‘However, there is still discrimination towards same-sex couples in terms of being allowed to marry in a church.["]

Before scoffing that this can’t happen here, let’s remember that ministers occupy a quasi-official state role in certifying marriages — a much more significant state interest than in bakers or photographers. It’s certainly food for thought, and don’t be surprised to see test-case lawsuits filed here in the US for the same purpose.

Tags: Arizona, Jan Brewer, religious freedom, same-sex marriage, SB 1062

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Arizonabillsponsor,supportersreversecourse;Update:

Arizona bill sponsor, supporters reverse course; Update: NBC says Brewer likely to veto

posted at 10:41 am on February 25, 2014 by Ed Morrissey

Thanks to the attempt to force same-sex marriage into the civil-rights paradigm, businesses in the wedding industry are increasingly faced with a choice between their personal religious beliefs and public-accommodation laws that could force them out of their livelihoods. Arizona’s legislature tried amending the state’s protection of religious belief, but the effort may end up backfiring. With Governor Jan Brewer contemplating whether to sign or veto the bill, a number of Republicans now want the latter — including one of the original sponsors of the legislation:

The chorus of opposition has grown each day, and on Monday, three state senators who voted in favor of the bill changed course and said they oppose it. U.S. Sen. John McCain asked Brewer to veto the measure, as did Apple Inc. and the CEO of American Airlines Group Inc.

State Sens. Bob Worsley, Adam Driggs and Steve Pierce sent their letter urging a veto just days after they joined the entire 17-member Senate GOP caucus in voting for the bill.

“I think laws are (already) on the books that we need, and have now seen the ramifications of my vote,” Worsley told The Associated Press. “I feel very bad, and it was a mistake.”

With the three GOP senators joining all 13 Senate Democrats in opposition, there would be enough votes to defeat the measure in a re-vote. But too much time has passed to allow for reconsideration, and the bill was sent to Brewer in a routine transmittal Monday that was accompanied by “boos” from Senate Democrats.

Worsely’s name is on the bill as a sponsor. Both US Senators from the state, Republicans John McCain and Jeff Flake, want a veto. So does the Arizona Chamber of Commerce, which nominally represents the business interests this bill is supposed to support, because of the fear that the legislation will result in broad discrimination not just against participation in same-sex weddings but gays and lesbians in all businesses — and result in a backlash against the state’s tourism industry. At the same time, though, Georgia’s legislature is now considering a similar bill.

In essence, what we have is a legislative sledgehammer coming in response to the abuse of another legislative sledgehammer, thanks to the redefinition of “tolerance” to “forced acceptance and participation.” In my column for The Week today, I prescribe a lot more old-school tolerance and a healthy respect for personal choice as the antidote:

Most people, including faithful Christians, would and should object to refusing service to gays and lesbians simply on the basis of their orientation and lifestyle. But there is a difference between baking a birthday cake and baking a wedding cake, or photographing a birthday party and a wedding. The latter involves participation in an event that very clearly cuts across the religious beliefs of a great number of Americans, and hardly seems unreasonable for a demurral on that basis. …

The passage of the bill has stoked hyperbolic and amusing commentary on all sides, including debates over whether Jesus would have baked a cake for a gay person. All of this misses the point by a mile, which is the need for tolerance. The religious beliefs of these vendors can and should be assumed to be sincerely held, and under the law the government is required to assume that about religious beliefs. Wedding cakes and photographers are not exactly scarce commodities, nor are they an overriding state interest in the same sense that housing might be in discrimination claims. Both sides have used the legal and legislative systems like sledgehammers, and states have been too eager to impose forced participation rather than foster tolerance and let adults figure out their options.

Tolerance does not mean acceptance or participation. It means allowing people to make their own choices about what they choose to do, and to respect the ability of their fellow citizens to do the same as long as it does no injury to them. What this contretemps shows is that America is getting a lot more intolerant the more “tolerant” we become.

Matt Lewis is on the same page at The Daily Caller:

Opponents of these bills score points when they argue that florists and bakers aren’t exactly granting their imprimatur when they make a cake or put together a flower arrangement for a gay wedding. Additionally, they are correct in assuming that most Christians, whether they agree with same-sex marriage, or not, would still bake the cake. In fact, this could be seen as an example of Christian love.

But this is another example of how this schism cannot be easily brushed aside like so many wedding cake crumbs. In recent years, libertarian-leaning conservatives have largely sided with the gay rights argument. Proud members of the “leave us alone” coalition were apt to side with a group of people who just wanted to be left alone to love the person they love (and what happens in the bedroom is nobody’s business).

At some point, however, “leave us alone” became “bake us a cake. Or else!”

And that’s a very different thing, altogether.

I’m going to avoid getting into a theological debate over the issue of participating in same-sex weddings, because it’s an unresolvable topic. Some Christians might see it as Christian love, while others who read Corinthians might see a parallel to Paul’s ruling on eating meat sacrificed to idols, or even Jesus’ forgiveness of the adulterer with the proviso to “sin no more.” The point is that Christians and those of other religions on that spectrum of belief hold those beliefs sincerely, and that should be enough to allow them to choose when and whether to participate in such events. The right of religious expression takes precedence over the state interest in forcing bakers to produce cakes for same-sex weddings, or photographers to attend them.

David Harsanyi argues that this is why social conservatives should embrace libertarianism:

Should social conservatives “commit themselves” to a political philosophy that not only strives for gay equality, but one that seeks to impel others to participate in these new norms despite religious objections? Should they commit to a philosophy that impels them to fund contraception coverage and abortions — either through direct funding or fungible dollars? A philosophy that continues to force them to send their kids to crappy public educational systems that often undermine their faith-based beliefs? A philosophy that attacks parents who seek alternative means of education, like homeschooling? Or should they be more interested in wedding themselves to a political philosophy that downgrades the importance of politics in everyday life and  allows citizens to structure their communities without interference?

The growing state, after all, not the atheist, is religion’s biggest rival. And, intentionally or not, government is crowding out parts of community life that have traditionally been taken care of by civil society. It’s draining resources once used by communities to implement services and take care of their own. And even more destructive, perhaps, is that government is becoming a source of moral authority for so many.

Admittedly, it seems counterintuitive to suggest that social conservatives embrace a laissez-faire political philosophy.  And I’m definitely not Pollyannaish about my fellow human beings. Paul is right to advocate for sentencing reform and a more judicious foreign policy, but he’s also right when he says that libertarianism doesn’t mean “do whatever you want. There is a role for government, there’s a role for family, there’s a role for marriage, there’s a role for the protection of life.” (Abortion is a debate about when life is worth protecting. Despite the misconception by many in the media, there is no single libertarian position.) As is often pointed out, Adam Smith wrote The Theory of Moral Sentiments before he wrote Wealth of Nations. One does well with the other. There is no conflict between political freedom and faith.

Leave us alone, indeed.

Update: NBC now reports that Brewer is likely to veto the bill:

Report: Arizona Gov. Jan Brewer likely to veto controversial anti-gay bill, sources say – @NBCNews

— Breaking Politics (@breakingpol) February 25, 2014

She vetoed a similar bill earlier, so this would not be a surprise, especially with Republicans switching sides now.

Tags: Arizona, gay marriage, religious freedom, same-sex marriage, tolerance

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