Author archives: Travis Weber

Blumenthal Bill: Bringing medicine back to the dark ages

by Travis Weber

July 15, 2014

S. 1696, the “Women’s Health Protection Act of 2013,” is anything but. Indeed, such a title perhaps would have been more apt (though still laughable) many years ago, before technological advancements made it possible to view, and impossible to deny, that little baby struggling for life in the womb. Now, such a title is a complete sideline, a distraction of advocates of death who grasp at straws and try to block all images from sight and mind of a helpless baby growing and grasping at life as she is about to be delivered onto its stage. No, S. 1696 is not about “health.” It is but the latest ploy in an attempt to deny what is increasingly becoming more undeniable — the life of the baby in the womb.

How does S. 1696 attempt this ploy? By trying to interfere in the regulation of the health and safety of citizens — areas of general authority constitutionally left to the states. The bill doesn’t even attempt to hide this interference, explicitly stating in its findings: “Though described by their proponents as health and safety regulations many of these abortion-specific restrictions do not advance the safety of abortion services and do nothing to protect women’s health.”

The bill would prohibit specific tests or medical procedures in connection with the provision of an abortion. It would also prohibit limits from being placed on an abortion provider’s ability to delegate tasks, ability to prescribe or dispense drugs based on her or his good-faith medical judgment, and ability to provide abortion services via telemedicine. It would also bar states and localities from determining how equipment, staffing, credentialing, privileges, and transfer arrangements would work at facilities providing abortions, and from restricting abortion training. In all these matters, state and local governments may only regulate the health and safety of their citizens regarding abortions if they do so through generally applicable regulations or also regulate medically comparable fields. In addition, S. 1696 would bar state and local governments from requiring women to “make one or more medically unnecessary visits to the provider of abortion services or to any individual or entity that does not provide abortion services” before “obtaining an abortion.” Aside from the overt intrusion into areas of power clearly left to the states, the federal government is now going to tell the states what is and isn’t “medically unnecessary.” The brashness of this power grab is hard to ignore.

As if this wasn’t enough, the bill continues: “[a] measure or action that restricts the provision of abortion services or the facilities that provide abortion services that is similar to any of the prohibited limitations or requirements described [above] shall be unlawful if such measure or action singles out abortion services or make abortions services more difficult to access and does not significantly advance women’s health or the safety of abortion services.” Well that’s nice. How is any of this defined? “[A] plaintiff shall demonstrate that the measure or action involved — (A) singles out the provision of abortion services or facilities in which abortion services are performed; or (B) impedes women’s access to abortion services based on one or more of the factors described in paragraph (3)” (emphasis mine). One such “factor” is “[w]hether the measure or action is reasonably likely to delay some women in accessing abortion services.” So a lawsuit may be brought under this bill by merely showing that it takes longer to get an abortion (please pay no attention to the state’s serious health concerns). Under this theory, one could introduce legislation mandating “immediate medical treatment” of certain conditions because the diagnosis period is “too long.” Another such “factor” is “[w]hether the measure or action requires, or is reasonably likely to have the effect of necessitating, a trip to the offices of the abortion provider that would not otherwise be required.” Who determines what is “required.”

At this point, S.1696 should just stop pretending it is not intruding into areas of state authority. Other “factors” are laid out in the bill. But the last one is a doozy: “[t]he cumulative impact of the measure or action combined with other new or existing requirements or restrictions.” Thus, according to S. 1696, a plaintiff can make out a prima facie case by showing that a law “impedes women’s health” through the “cumulative impact of the measure or action combined with other new or existing requirements or restrictions.” Obfuscate. Muddle. Then go for the power-grab. On top of all this, the bill would require a state to show there is no “less restrictive alternative measure or action” to accomplish regulation of abortion—thus clearly interfering with the rational basis standard typically used to measure state regulation of citizens’ health and welfare. If S. 1696 isn’t an attempt to rip from state control the power to regulate the health and welfare of their citizens, I don’t know what is.

Adding insult to injury, the bill’s authors pretend to care about minorities by claiming that the “harms” they claim to fix “fall especially heavily on low-income women, women of color, and women living in rural and other medically underserved areas.” If they so cared about minorities, this bill’s supporters would look to restrict abortion generally, as abortion providers have been shown time and time again to profit off killing minority babies. Such purported minority rights advocates would have come to the defense of the Arizona law banning race-based abortions, yet they were silent there. Indeed, the NAACP and others actually opposed the law and sued to have it blocked! Yet, abortion must be advanced at all costs. Such is the sentiment of S. 1696.

Discriminatory Murray Bill is anti-constitutional and anti-civil rights, anti-business, anti-religion, and anti-women

by Travis Weber

July 10, 2014

I’m not sure whether the title of the bill just introduced by Senator Murray—the “Protect Women’s Health From Corporate Interference Act of 2014”—or its stated purpose—“[t]o ensure that employers cannot interfere in their employees’ birth control and other health care decisions”—is more misleading and contrary to values Americans hold dear. Perhaps they are equally wrong. But not only is this bill misleading, it is anti-constitutional and civil rights, anti-religion, anti-business, and anti-women. In all these areas, the bill is just downright discriminatory.

Anti-constitutional and anti-civil rights

When Congress overwhelmingly passed RFRA in 1993, it demonstrated support for robust Free Exercise rights by requiring the government to meet a high threshold before burdening Americans’ exercise of religion—a civil and constitutional right. RFRA is not just a statute. RFRA enshrined in law the high standard of strict scrutiny when measuring free exercise claims. For decades, courts had applied this standard. Only recently had its application been questioned by the Court’s Smith decision. Thus Congress passed a law providing a high bar for measuring constitutional rights in this area.

Senator Murray doesn’t seem to care about any of this. If she did, she wouldn’t try to denigrate constitutional rights by trying to pass a law which lowers constitutional protections for all Americans. Instead of using her Article I powers consistent with what Article III courts have said, she ignores the Supreme Court’s guidance and flouts the checks and balances the Constitution put in place.

But even if this anti-constitutional law managed to get out of Congress, President Obama would be foolish in signing it instead of just authorizing the drugs as suggested by the Court.

And even if this law passed, it would be subject to a challenge under the Free Exercise Clause. This bill’s overt and direct discrimination against religion—which is very obvious coming right on the heels of Hobby Lobbyobb

would not be permissible under the First Amendment. Page 8 of her bill says, “[t]his Act is intended to be consistent with the Congressional intent in enacting the Religious Freedom and Restoration Act of 1993 … .” In RFRA, Congress evinced the intent to proclaim a broad and robust vision of free exercise, and clearly intended to reinstate strict scrutiny as the standard for Free Exercise claims. Senator Murray can’t have it both ways. She can’t proclaim support for the congressional intent of RFRA while gutting a protection RFRA clearly put in place.

Anti-business

In its Hobby Lobby decision, the Supreme Court made abundantly clear that businesses could not deny access to contraceptives, but only that the government had to find a less restrictive means of ensuring this access than forcing unwilling businesses into providing it themselves. One less restrictive means would be for the government to directly provide this birth control. But rather than working with the government to ensure this happens, Senator Murray and her cohorts are still trying to ram the HHS mandate down business owners’ throats, despite the fact that this was already rejected by the Court in Hobby Lobby. Senator Murray doesn’t care about access. If she did, she would follow the Supreme Court’s guidance, which would ensure quickest access to birth control. Instead, her measure will fail for numerous reasons, and will only waste time she could spend on providing birth control to women—an issue she claims to care about.

Anti-religion

Senator Murray goes out of her way to target religion in her bill. If she cared about access to contraceptives, she would work with the executive branch (which the Court explained could provide access) to provide these drugs. Instead, she has explicitly declared her antagonism to religion by opposing RFRA and the Court’s interpretation of RFRA for no reason related to “access” whatsoever—as access to these birth control methods can be provided other ways besides the HHS mandate. Instead, she wants to amend the law to achieve a result which has already been determined in violation of religious liberty by the Supreme Court. On page 6 of her bill, she claims that not covering contraceptives costs businesses more money. Why would she want to prevent businesses from incurring costs in order to remain true to their consciences? The only explanation is that she wants to force them to violate their consciences.

Anti-women

Plenty of women oppose the HHS mandate being used to stifle their religious exercise, and plenty of women judges agree that their claims have merit. 100 cases have already been filed against the HHS mandate. Many of the plaintiffs in these cases are women—women who run charities, like the Little Sisters of the Poor, but also women who run businesses. Nearly one-third of the business plaintiffs in these cases are women. In addition, women judges have voted to halt implementation of the mandate 24 times. In only 15 cases have they voted in favor of the employer mandate. Finally, more women oppose the mandate than support it in poll after poll across the United States.

How can Senator Murray and this bill’s supporters claim to be supporting women when they are directly opposing the sincere religious claims of so many American women?

Slandering the Supremes

by Travis Weber

July 3, 2014

Justice Ruth Bader Ginsburg’s dissenting opinion in the Supreme Court’s recent decision in Burwell v. Hobby Lobby is, in my view, clearly erroneous. With my colleagues at Family Research Council, I applaud the majority opinion as fully consistent with the requirements of religious liberty and the needs of women.

So, how does one get away with treating Supreme Court justices in a manner which would get any child reprimanded in elementary school? You couch your insult with humor, and engage on a politically correct topic.

The biggest question surrounding the recent song by Song A Day’s Jonathan Mann putting Justice Ginsburg’s dissent in the Hobby Lobby case to music — and in which he refers to the justices in the majority as “slut-shaming geezers” — is why no one is bothered enough by such slandering and disrespecting of Supreme Court justices to say anything. But it is what it is: Shameful.

What’s the point of these antics? Who knows … . Perhaps it’s because the writer doesn’t care to read what the decision says. Perhaps he thinks it’s more fun to mock its authors. Perhaps he does understand the decision and realizes he can’t attack the reasoning so, in a cowardly move, he attacks the authors’ integrity. Perhaps he does understand the decision but realizes he won’t acquire fame with a reasoned response so he adds incendiary words to his song. Or, perhaps, he knows he will only get people to listen to him if he adds shock value — thus he mocks justices and a decision which actually has inherent meaning he’s not bothering to understand.

There is nothing wrong with putting Justice Ginsburg’s dissent to music. The interaction of the Court with the public, although generally that of a more formal nature, can bear the casual manifestation of a song. In fact, some have shown the ability to tastefully depict the clash of ideas at work in Supreme Court rulings in formats including even opera. But what is harmful to the Court is a cultural attitude that dismisses the Court’s work by mere insults — without any basis in truth or basic comprehension of the legal principles at issue. Jonathan Mann makes his living as an entertainer, an entertainer who touts his ability to take “large amounts of complicated ideas and very quickly [transform] them into a hilarious, hummable and memorable song.” Here, he’s not bothered to even acknowledge the “complicated ideas” under question — he’s simply resorted to name calling. The Court and our country can bear lighthearted whimsy. What they can’t bear are baseless insults like this — insults, moreover, which aren’t even true.

Need we call to mind that the only thing the families behind Hobby Lobby and Conestoga ever objected to was 4 out of 20 methods of birth control they were being forced to provide, on the belief these 4 killed little babies in the womb? Yet according to Jonathan Mann, many “sluts” have been “shamed” when the justices ruled that women still must receive these 4 types of birth control. Wait, what? Yes, the justices ruled women still are to receive all their contraceptives — the government just has to provide them in a way that does not force employers with religious objections to violate their consciences by playing a part in what they view to be evil. Yes, of course, it is very obvious to see that many “sluts” were “shamed” with this ruling … .

Maybe one day if a justice (it would have to be one of the older male justices) was caught outside of the court rebuking a young woman for sleeping around too much — maybe then, he could accurately be called a “slut shaming geezer.” Even then, I’m not sure such antics would be called for. But they are hardly called for when any reading of the opinion does not justify such antagonism.

There are plenty of high court opinions I disagree with, but none over which I would attack the justices’ character. I can’t remember the last time someone mocked a liberal Supreme Court justice in this way. Yet if they did, it would be equally uncalled-for.

In the end, the name-calling (inaccurate at that) is symptomatic of a larger issue — the inability of many Americans to accurately engage on public issues and play a role in our experiment in democracy. As public engagement and living side by side in toleration of different views gives way to name-calling aimed at conformity to what is politically correct, the gears of our nation will grind to a halt. And we will all suffer for it.

Attacks and slander like that of Jonathan Mann may or may not be legal. But it is certainly shameful. People of integrity on all sides of these issues need to call this out when they see it.

We would call upon all, including those opposed to the Court’s ruling in Hobby Lobby, to denounce such baseless attacks. It would be appropriate for Justice Ginsburg to make clear she does not support such sentiments. All Americans, though they reasonably disagree on issues such as the Court faced here, should be united in opposition to Jonathan Mann’s slanderous words.

Hobby Lobby: A clear win for RFRA, and a cautious rebuke of the HHS mandate

by Travis Weber

July 1, 2014

In Burwell v. Hobby Lobby Stores, the Supreme Court held in a 5-4 decision that closely held for-profit corporations can bring claims under the Religious Freedom Restoration Act (“RFRA”), and that the HHS mandate violated these corporations’ rights under RFRA by requiring them to provide contraceptives which they believe end human life. The Court faced two issues: (1) whether for-profit corporations are “persons” for purposes of RFRA protection, and if so, (2) whether the HHS mandate violated RFRA in this case. It decided the first clearly, and the second more cautiously.

RFRA protects corporations

Holding

RFRA protects a “person’s” religious exercise. The question is whether Hobby Lobby and Conestoga are “persons.” The Court held that they are—specifically that closely held for-profit corporations like those in this case clearly fall within the meaning of “person” in RFRA.

Analysis

The Court began by noting the broad protections Congress set in place by passing RFRA, which would indicate that closely held businesses are covered. In addition, the Dictionary Act indicates that for profit corporations are covered by RFRA, and there is no context surrounding RFRA to indicate otherwise (the Court rejected the government’s argument that RFRA merely codified pre-Smith case-law). The government had conceded that a nonprofit corporation can be a person for purposes of RFRA. Thus, there is no logical reason to conclude that for profit corporations are not protected by RFRA simply because they make a profit. As the majority opinion notes: “HHS would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.” Majority op., at 17. Of course, the government has to recognize that individuals (sole proprietors) can exercise religion even though they make a profit. The government thus argued that these two elements—profit making and corporate form—added together are reason to deny Hobby Lobby and Conestoga RFRA protection. Yet the government ultimately had no sufficient basis for its argument, and the Court squarely rejected the government’s position and held that Hobby Lobby and Conestoga can bring claims under RFRA.

*NOTEResult is limited to closely held corporations: The Court expressly noted its ruling applied to closely-held for profit corporations like those in these cases. The Court did not decide clearly one way or the other whether publicly traded companies and other corporate forms are protected. Those determinations would have to be made in other cases. While this may be viewed as a “narrow” win, the Court regularly does not decide issues which are not before it, and the issue of a publicly traded company’s coverage under RFRA was not before it. Therefore, the Court was simply conducting its analysis as is typical in these cases, and the fact that it so clearly held that the businesses in this case are covered is a strong holding notwithstanding the Court’s statements limiting the holding to closely held companies. The issue of whether companies like Hobby Lobby are covered by RFRA was previously subject to dispute, but now it is settled. This significantly broadens RFRA’s reach.

RFRA claims in this case succeed

Holding

RFRA provides that the government may only substantially burden a person’s exercise of religion when the government’s action or regulation (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. The challengers had claimed that the HHS mandate violates RFRA by burdening their beliefs by requiring them to provide drugs they believe end life, all while not serving a compelling government interest and not being the least restrictive means. The government must make a showing on these elements, or the RFRA claim succeeds. The Court skipped the first question, and easily decided the second against the government because of the existence of less restrictive means. This grants the plaintiffs a win on their RFRA claims, but the Court arrived at its conclusion easily. If the legal trail had been more difficult to blaze, Hobby Lobby would not have been as assured of a win.

Analysis – religious beliefs, their sincerity, and whether they were burdened

Normally a court would determine if the religious beliefs at issue are sincere beliefs (courts never get into whether the exercise is actually in accord with the religion – that would meddle in the internal workings of religion), but the government did not dispute the plaintiffs’ sincerity in this case. Thus the first question for the court is whether there is a substantial burden to the plaintiffs’ exercise of religion. The Court looked at the fines which would be imposed and concluded the HHS mandate imposed a substantial burden, while dismissing the idea that there is no burden because the penalty is conceivably less than providing coverage for employees. The Court also rejected the government’s argument that the religious burden and HHS mandate were too attenuated, noting that the government is not to be in the business of assessing the religious belief, but only determining if it is sincerely held.

Analysis – compelling interest

The Court then assumed that the government may have a compelling interest in providing all the methods of birth control at issue—the Court simply didn’t decide whether there was a compelling government interest in this case. But the Court didn’t ultimately have to decide this issue, because it held that the government did not advance its regulation through the least restrictive means.

Analysis – least restrictive means

The Court continued by stating that even assuming the government has a compelling interest in advancing its HHS mandate, the government has not accomplished this goal through the least restrictive means. The Court rejected the argument that the ACA was akin to a scheme like social security in which it was very important for everyone to participate—the government did not have to compel employers to provide the drugs in order to advance its interests. Here, for instance, the government could directly provide the drugs in order to accomplish its goal through a less restrictive means. The Court also looked at the “accommodation” which has already been provided to other non-profits, and offered that as an example of something the government could have done to provide birth control coverage, while burdening the companies to a lesser degree. Because the government could have done this but did not, the challengers win and the HHS mandate as currently stands violates RFRA.

*NOTEApplication to other scenarios: The Court also said its ruling pertained to contraception and the ACA, and did not necessarily apply to corporate religious objections to other issues like vaccines or taxes. Other considerations on the part of the government, such as controlling the spread of infectious diseases, would affect these determinations in ways different from the considerations pertaining to the HHS mandate. The Court does not give much of an indication on how it would rule on a RFRA claim objecting to a law requiring nondiscrimination on the basis of sexual orientation. It did say religious objections regarding hiring decisions based on race would not succeed, but the race issue is pretty well settled, and such an example does not really help predict how the court would rule on the sexual orientation issue. Many, including the dissent, will decry the majority opinion as sweeping (Justice Kennedy wrote a separate concurrence just to respond to this claim). And yet contrary to this doom and gloom about all manner of religious objections to come, the court recognized RFRA claims would continue to be assessed on a case by case basis as they arise. Majority op., at 46. The “sky is falling” response is not credible in light of the Court’s opinion.

**NOTEEffect on non-profit cases: The Court specifically discussed the “accommodation” as a possible less restrictive means for the government to use, and suggested it would not violate RFRA if used in the instant case—it notes that if the government provided for an “accommodation” similar to that which it provided non-profit entities, the impact on female employees of Hobby Lobby would be zero (thus this satisfies the less restrictive means requirement) Majority op., at 3-4.Justice Alito points out “[t]he principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.” Majority op., at 44. Yet the Court expressly said it was not deciding the “non-profit cases” and would have to decide those separately. In addition, those entities will be treated differently under the law, and involve different legal considerations and claims. It remains an open question whether the “accommodation” violates RFRA in the non-profit challenges, even though it appears such an accommodation would satisfy the Court in Hobby Lobby.

Concurrence

Justice Kennedy concurred in the judgment, and authored a concurrence to respond to the dissent’s characterization of the majority’s holding as very broad and sweeping. (Justice Kennedy appears sensitive enough on that point to want to defend himself).

While the Court skipped over the question of whether a compelling government interest in the HHS mandate exists, Justice Kennedy does seem sensitive about noting he is not deciding that question here: “[i]t is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.” What explains this statement? It is possible that Justice Alito (and maybe one or more of the other justices in the majority) would have been willing to find there is no compelling government interest in the HHS mandate, but Justice Kennedy was unwilling to do so. Yet Justice Kennedy was willing to find the least restrictive means requirement unsatisfied in this case, which is enough to find for the plaintiffs. So the majority avoided the compelling interest question, and Justice Kennedy confirms this point. Reading into the opinion slightly more, the “cautious win” for Hobby Lobby on this point could be due to Justice Kennedy.

On a more positive note, Justice Kennedy appears to support a slightly broader view of freedom of religion, noting that religious exercise includes “the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.” He obviously agrees that the Greens and Hahns can exercise religion in the face of contrary arguments from the government that non-profits exercise religion while for-profits do not: “RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation.” Justice Kennedy also cited Justice Kagan’s dissent from the Town of Greece in a statement supporting the diversity of religious exercise in the United States today—while this is good to see, it must be remembered that Justice Kennedy is considering this case easily decided because the existing “accommodation” is a clearly identifiable less restrictive means to advance the HHS mandate. Cases with other issues may not have easily identifiable less restrictive means. In addition, Justice Kennedy will also likely approach cases involving other rights differently.

Dissents

Justice Ginsburg authored the primary dissent, and was joined by Justice Sotomayor in deciding that the companies were not covered by RFRA, and by Justices Sotomayor, Breyer, and Kagan in deciding that the companies’ claims would fail anyway because they are not substantially burdened, the government has a compelling interest, and has satisfied the least restrictive means requirement. Justices Breyer and Kagan wrote a separate but short dissent in which they specifically stated they would not decide whether “for-profit corporations or their owners” may bring RFRA claims, perhaps recognizing the difficulty of the government’s argument on this point. Akin to the way the majority skipped the question of compelling interest and still ruled for the challengers, Justices Breyer and Kagan skipped the question of corporate coverage and held that even if the companies were covered by RFRA, their claims against the HHS mandate would fail. Therefore, notably, there are still seven members of the Court who recognize (through either affirmatively deciding or explicitly refusing to decide the question) the idea that you do not give up religious liberty when you engage in profit making activity.

Take away and future implications

This is a win. However, it is a narrow win. The ruling clearly applies to other closely held for profit entities objecting on RFRA grounds to any drugs required by the HHS mandate. It’s likely to apply to most of the potential fines for noncompliance, though Hobby Lobby’s may be larger than others’ fines. As long as the sincerity of the religious objection is not disputed, and the fines are relatively large, other cases featuring for profit businesses bringing RFRA claims will likely be decided along the same grounds as this opinion.

It is less clear as each of these aspects changes. If the company is another type, the result becomes less clear. If the objection is to a practice in which the government has an easier time showing a compelling interest, like tax collection, the challenge becomes more difficult. The Court offered the example of eradicating racial discrimination as a compelling government interest. We do not know what it will do with sexual orientation discrimination. The dissent did, however, offer Elane Photography as hypothetical future claim which the Court will have to decide. We can assume the four dissenting justices would have a problem with Elane Photography’s claim. Nothing else in the opinion provided a clue about how it would be decided, however.

What is going on with this ruling?

Why do the justices break down in the opinions as they do? This decision is ultimately about suppressing the exercise of religion in favor of a government scheme. This is why the government tried to force for profits to pay in this case. And this is why the accommodation is unsatisfactory for the Administration. Four justices ultimately see the ACA and HHS mandate as so important and such an advance of “rights” that they will subject these businesses to it. Justice Ginsburg uses dismissive language and asks whether RFRA would allow claims “of this ilk” just after mentioning Elane Photography and other cases regarding Christian views on sexuality—which shows an animus on her part toward Christian views associated with traditional values. She also says “[o]ne can only wonder why” the Court ignores (in her view) the reasoning underlying Title VII exemptions (limiting religious activity to nonprofit “religious corporations”) in its understanding of this case. This sharply worded question implies that the majority is deciding these cases according to the justices’ religious beliefs. She and the other liberal justices are likely to be increasingly aware and responsive to this perception. For many years the liberal justices were the ones siding with the free exercise claimant challenging government action. Now the conservative justices are. Admittedly, I think this case would be a closer call for some of the justices if they were deciding individuals’ RFRA claims (as opposed to those of corporations). But we do not have the benefit of that analysis.

Proper framing of this opinion:

Let us not forget that today’s ruling featured a showdown between individual religious liberty rights (constitutional rights, as embodied in RFRA) and an overly intrusive government scheme. Americans’ objections to such schemes, and the ability to seek judicial redress for their objections, lie at the core of American constitutional and civil rights jurisprudence. Americans’ consciences must not be sacrificed on the altar of legislative (or agency) action merely because they also happen to want to make a profit.

Whether corporations engaged in social responsibility initiatives, voluntary community initiatives, or religious practices, corporations have always done much more than just “make a profit.” Whether the case features a Jewish butcher, a Muslim financier, or the Green family’s decision to see their religious beliefs reflected in their business practices, corporations have always served to reflect the beliefs of the human beings behind them. The Court’s ruling today simply recognizes this principle.

In the middle of its opinion, the Court rhetorically asks: “Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS sug­gests? Majority op., at 17. No, there is not. America has been built on the backs of small-business owning families like the Greens and the Hahns. Many of them are merely seeking to live free from government intrusion in accord with their beliefs without being forced to violate their consciences. That is not too much to ask. Thankfully the Court agreed.

McCullen v. Coakley: A Win (Somewhat) for Free Speech

by Travis Weber

June 26, 2014

Today, a unanimous Supreme Court held that a statute which limits access to traditional public forums outside abortion facilities violates the First Amendment. While the ruling is a victory for free speech rights in America’s public spaces, it’s only a halfhearted victory, and one which does not alleviate concern regarding treatment of free speech in the context of abortion.

How did we get here?

In Massachusetts, Eleanor McCullen and other women desired to stand outside of abortion clinics to be able to interact with women seeking abortions and dissuade them from having abortions. They politely shared their beliefs with the women seeking abortions. Eleanor would usually initiate a conversation with: “Good morning, may I give you my literature? Is there anything I can do for you? I’m available if you have any questions.” If a woman appeared receptive, Eleanor would provide additional information. Eleanor and other counselors believe it is important to maintain a caring demeanor, a calm tone of voice, and direct eye contact with the women considering abortions. Because their love and care is conveyed to these women, Eleanor and others claim to have persuaded hundreds to forgo abortions.

Yet many in Massachusetts did not like the fact that women were being dissuaded from having abortions. In an attempt to restrict Eleanor’s activity, the Massachusetts legislature passed a statute making it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any place, other than a hospital, where abortions are performed. Employees acting within the scope of their employment and several other groups of people are exempt from this restriction. Massachusetts claimed its statute furthered public safety and order, but the real aim was restricting pro-life speech.

Eleanor did not fall within any of the categories of people exempted from the statute’s effect. Indeed, the statute was aimed at restricting people exactly like Eleanor, because abortion providers did not like having potential customers deterred from having abortions. Eleanor and others challenged the statute on constitutional grounds.

What did the Supreme Court say?

While the Supreme Court held that the Massachusetts statute violated the First Amendment, this ruling is not a strong victory for pro-life speech. The Court held that the statute in this case was not narrowly tailored—which is required when restricting speech in a “traditional public forum” like the sidewalk areas here—but it refused to rule that the statute contained a content-based restriction in that it only discriminated against abortion-related speech. If the statute contained a content-based restriction, it would have been subjected to strict scrutiny, a desirable standard for those seeking to communicate pro-life views in the face of hostile legislatures. The Court reasoned that the statute could be violated by someone standing in the restricted area outside abortion facilities, regardless of what subject or message they conveyed. Yet such thinking overlooks the issue of who is likely to stand outside abortion facilities.

Massachusetts argued that it had an interest in promoting safety and order in these sidewalk areas, and the Court recognized that this was a significant government interest. The Court merely ruled that this statute was too broad and restricted too much speech in addition to promoting safety—the statute had to be “narrowly tailored” to address Massachusetts’s safety concerns. The statute could be constitutional if it was modified to address safety concerns without catching people like Eleanor or others within its net.

Despite its unfortunate reasoning, the majority opinion does tell us something helpful. In several places Chief Justice Roberts makes note of and seems to lend support to the style and method of the speech at issue here—that of a quiet, compassionate counselor engaging in one-on-one interactions. While loud and abrasive speech is clearly protected just like other speech (of course subject to constitutional restrictions), the Court’s apparent support (if it can be deemed that) for this type of speech could be helpful to keep in mind when future free speech issues arise in the abortion context.

Troubling Majority Opinion, but Heartening Concurrences

While this case featured a good result, the Court is wrong to not find that the restriction here was content—and even possibly viewpoint—based. As Justice Scalia (joined by Justice Thomas, and importantly, Justice Kennedy) noted in a concurring opinion, “[e]very objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion.” It is not hard to believe that clinic employees—who are exempted from this law—will speak in favor of abortion near and around clinics when speaking to clients or potential clients. The majority avoided ruling the statute was unconstitutionally content-based because there was no evidence in this case of such activity occurring. Yet the majority opinion got this wrong. Justice Scalia’s point here is valid, as it is hard to believe that clinic employees would avoid speaking approval of abortion in the course of interacting with their clients. It is even harder to believe they would speak opposition to abortion.

Justice Scalia notes that contrary to Massachusetts’ assertion that it is concerned with safety and order, Planned Parenthood itself points to certain types of speech as the problem outside clinics. Planned Parenthood claims these protestors “hold signs, try to speak to patients entering the building, and distribute literature that can be misleading.” Justice Scalia rightly observes that the “safe space” provided by the Planned Parenthood escorts is protection from that unwelcome speech. He accurately ascertains that “[t]he obvious purpose of the challenged portion of the Massachusetts Reproductive Health Care Facilities Act is to ‘protect’ prospective clients of abortion clinics from having to hear abortion-opposing speech on public streets and sidewalks.”

Justice Alito went further in his concurring opinion, stating that the statute unconstitutionally discriminated against speech based on viewpoint by permitting clinic employees (who are of course going to express pro-abortion viewpoints) in the restricted zone, while excluding counselors from the zone who may express pro-life viewpoints.

What to make of all this?

The Court’s result is pleasing, but its opinion is troubling. The reasoning in the McCullen concurring opinions is solid and much more encouraging for pro-life free speech, and indeed, for free speech in general. The Massachusetts statute clearly aims at speech regarding a certain topic, and ultimately at a certain viewpoint on that topic. It is good to see that some justices agree with these conclusions. It is even more heartening to see Justice Kennedy so supportive of pro-life free speech.

While it is not heartening to see the Court issue such a weak ruling, a decision striking down this statute on First Amendment grounds is certainly better than the alternative. Hopefully next time the Court more clearly calls out content and viewpoint based restrictions on speech when it sees them.

Sudan must redress Meriam’s new plight along with its legal system, which is already leading to other apostasy charges

by Travis Weber

June 24, 2014

Just when it looked like Sudanese mother Meriam Ibrahim and her two children would finally be free from the grip of injustice, they were snatched back into the clutches of the Sudanese authorities, who detained them when they arrived at an airport to leave Sudan today. Though it’s unclear on what basis they are being detained, we call on Sudan to immediately release Meriam and her children. In addition, the United States government, specifically Secretary of State Kerry and the U.S. Embassy in Khartoum – must pursue high level engagement on Meriam’s case. Sudan needs to know that the United States and its high level officials are watching whether Sudan pursues justice or regresses backwards into permitting the unjust detention of Meriam and her children to occur once again.

Yesterday, in a heartening turn of events, a Sudanese appeals court overturned a lower court ruling in which Meriam had been sentenced to death for apostasy and 100 lashes for adultery. According to Sudan’s official SUNA news agency (as reported by the Independent), “The appeal court ordered the release of Mariam Yahya and the cancellation of the (previous) court ruling.”

This was certainly a good bit of news, as numerous human rights organizations and governments had pressured Sudan and called on the ruling to be reversed. The U.S. government had been slow to respond, however, only recently issuing statements bearing on the matter. Numerous groups had spoken and petitioned on Meriam’s case, including the Family Research Council. And in Sudan, Meriam’s attorneys had filed appeals and vowed to fight to the end.

It is important to note that the Sudanese court ordering Meriam’s release got this issue right. Yet her re-arrest appears arbitrary – no basis for her detention has been offered – and it will be increasingly harmful to Sudan’s relations with the United States and the other countries outraged by the original charges against Meriam. Moreover, in the eyes of the many of the activists and NGOs which have spoken out on her case, Sudan’s reputation as a just and reasonable country will continue to degrade until it safely releases this family and allows them safe passage out of the country. 

Many have made their voices heard around the world on Meriam’s case. In addition, however, voices within Sudan have made it known that they wanted justice for Meriam too. Here, Muslim men (Meriam’s Sudanese attorneys) are defending a Christian woman (Meriam) in her quest for justice. These attorneys strongly believe in her case, and despite receiving death threats for defending a Christian, they vowed to fight to the end and exhaust all appeals. Furthermore, other Muslims in Sudan have been demonstrating on Meriam’s behalf.

While her attorneys and others in Sudan were on her side, not everyone was happy with Meriam’s freedom. When she was released, Meriam had to go into hiding due to threats against her life. Now, as she is trying to leave the country along with her family, she is being detained by Sudanese national security forces for an unknown reason. We call on Sudan to immediately release Meriam in accordance with the court order overturning her conviction and sentence. In addition, Secretary of State Kerry and the U.S. Embassy in Sudan must pursue high level engagement on Meriam’s case. Sudan needs to know that the United States and its high level officials are watching whether Sudan pursues justice or regresses backwards into permitting the unjust detention of Meriam and her children to occur once again. Sudan is close to bringing justice to Meriam, and must not fail her now.

We have witnessed Meriam’s attorneys and the protesting crowds expressing their support for Sudan to take ownership of this issue and be ready to handle religious freedom challenges when they inevitably arise in the future, for this issue is not going away. Indeed, it has already shown itself again: On April 2, 2014, Sudanese police arrested Faiza Abdalla near Sudan’s eastern border. Though details are scant, it appears that Abdalla, whose parents converted to evangelical Christianity before her birth and raised her in the same faith, was arrested because she has a Muslim name and yet professed Christianity. Her Catholic husband fled Sudan two years ago because of persecution, Morning Star News reported. As in the case of Meriam Ibrahim, Sudanese officials voided her marriage and accused her of apostasy when she refused to deny Christianity.[1]

There is no reason for these cases to recur—Sudan’s apostasy laws are inconsistent in light of the commitments it has made under its Constitution and international agreements, and must be repealed. Sudan’s 2005 Interim Constitution states that the government “shall respect the religious rights to … worship or assemble in connection with any religion or belief and to establish and maintain places for these purposes.”[2] Article 18 of the International Covenant on Civil and Political Rights, to which Sudan is a party, states: “[e]veryone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”[3] The African Charter on Human and Peoples’ Rights states, to which Sudan is a party, states that the “[f]reedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.”[4]

 

Sudan’s apostasy laws are in conflict and inconsistent with these legal authorities, which provide a religious freedom that includes the freedom to choose one’s beliefs. Sudan has given its word and agreed to abide by these sources of authoritative law, and yet the apostasy laws under which Meriam was jailed and Faiza is detained are still being used to work injustice in Sudan. As a matter of integrity for the Sudanese nation and its legal system, and to avoid ongoing and future injustices like Meriam’s and Faiza’s, Sudan must repeal its apostasy laws.



[1] 2nd Sudanese Woman Jailed for Her Faith, Baptist Press, May 28, 2014, http://www.bpnews.net/printerfriendly.asp?id=42656.

[2] 2005 Interim National Constitution of the Republic of Sudan, art. 6.

[3] International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), art. 18, 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976 [hereinafter ICCPR].

[4] Organization for African Unity, African Charter on Human and Peoples’ Rights, art. 8, June 27, 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982).

Meriam Ibrahim to be Freed

by Travis Weber

June 23, 2014

In a heartening turn of events, it appears a Sudanese appeals court has overturned a lower court ruling in which Sudanese mother Meriam Ibrahim had been sentenced to death for apostasy and 100 lashes for adultery. According to Sudan’s official SUNA news agency (as reported by the Independent),

The appeal court ordered the release of Mariam Yahya and the cancellation of the (previous) court ruling.”

This is certainly a good bit of news, as numerous human rights organizations and governments had pressured Sudan and called on the ruling to be reversed. The U.S. government had been slow to respond, however, only recently issuing statements bearing on the matter. Numerous groups had spoken and petitioned on the matter, including the Family Research Council. And in Sudan, Meriam’s attorneys had filed appeals and vowed to fight to the end.

Though what exactly caused the ruling to be reversed remains unclear, we are appreciative of all who spoke out against this blatant human rights violation. No one in the world today, no matter where and under what system of positive law they live, should be compelled to adhere to certain religious beliefs under threat of death or any other punishment. Thankfully, Meriam is now free.

Yet, this matter is not concluded. Though there are some in Sudan supportive of Meriam (Sudanese have demonstrated on her behalf, and her attorneys are Sudanese Muslims), there are others who are not. There have been threats to her life. Once she is freed, she will be in a position to leave Sudan. At that point, it will matter what the U.S. government has or has not done. As Family Research Council asked in its White House petition, available here - https://petitions.whitehouse.gov/petition/act-case-meriam-ibrahim-sudan-and-her-baby-and-toddler-prison/D1x1q4VG - we again call upon President Obama to heed the thousands of petitioning Americans who have asked that he grant Meriam and her two children expedited safe haven in the United States.

Churches in Denmark Forced to Perform Same-Sex “Marriages”

by Travis Weber

June 12, 2014

Just when we think things are getting bad here in the United States, we observe the Danish Parliament passing a law requiring all churches to perform same-sex “marriages.” Although with this development, religious liberty is almost non-existent in Denmark, individual ministers can still opt out of performing the wedding. In that case, the church must find another minister to perform the required duties. This is no small consolation, however, for such a law in one blow nullifies any freedom of an organization or church to define itself according to its own religious values.

Some Danes are holding strong, though:

Marriage is as old as man himself, and you can’t change something as fundamental,” … church spokesperson Christian Langballe said … . “Marriage is supposed to be between a man and a woman.”

In support of the law, one prominent businessman said “[w]e have felt a little like we were living in the Middle Ages… . I think it is positive that there is now a majority for [the law], and that there are so many priests and bishops who are in favour of it, and that the Danish population supports up about it [sic]. We have moved forward. It’s 2012.”

Notice the appeal to the idea of “majority support.” This is the very type of tyranny the Bill of Rights in the United States is meant to protect against.

While such a law would never survive a constitutional challenge in the United States, it still serves as a sober warning of forces seeking to attack a biblical worldview.

Trampling on the UN’s Noble Heritage

by Travis Weber

June 9, 2014

On October 24, 1945, the nations of the world rose from the ashes of the Holocaust to come together in the United Nations, in part to ensure that individual human rights were protected across national borders in the face of tyrannical governments, and that such genocide as had been perpetrated by the Nazis would not happen again. Coming out of the Holocaust, the United Nations and its treaty and human rights framework naturally focused heavily on the freedom of the individual to their religion and political activity. The Universal Declaration of Human Rights, the Genocide Convention, and later the International Covenant on Civil and Political Rights all focused on the individual and the individual’s civil liberties — a focus which has served as the building block for Western Civilization’s rich cultural heritage and its prosperous economies.

The United States was a leader in many of these developments. Yet in 2014, the United States finds itself in the position of having nominated an individual to be its representative to the UN’s Committee Against Torture — Felice Gaer — who openly tramples on the very rights on which the United Nations was founded. Ms. Gaer recently told the Holy See’s UN representative reporting on Vatican compliance with the Torture Convention that the Holy See was coming dangerously close to committing torture merely through its positions on abortion. Much of this was apparently driven by the Center for Reproductive Rights, which sent a letter — itself misrepresenting basic principles of international law in furtherance of its own agenda — to the UN committee overseeing implementation of Torture Convention. The flawed reasoning of this letter was then propagated upon the international scene via the Committee Against Torture.

Ms. Gaer previously served as the chair of the US Commission on International Religious Freedom, in which capacity she said that “the right [to freedom of thought, conscience, and religion] includes the freedom of every person to hold, or not to hold, any religion or belief, and to manifest his or her religion or belief either individually or in community with others.” She appears to now be directly contradicting her own views in her statement to the Holy See. More likely, she is losing a sense of proportion and reality. Representatives to such UN committees are supposed to objectively monitor country compliance with the treaties signed by those countries, in accordance with the plain meaning of the treaty, while respecting countries’ declarations and reservations — and NOT take words with an obvious meaning, twist them into something nonsensical, and ramrod them down a signatory country’s throat, all while demonstrating a blatant disregard for a country’s reservations and express conditions for its submission to a treaty’s authority.

Thankfully, the Vatican has struck back, noting that contrary to the view that regulation of abortion could constitute “torture,” the practice of late-term abortion is a much more obvious example of torture. In addition, several UN committee members have clarified they hold a more reasoned position than Ms. Gaer. Nevertheless, it’s troubling that the U.S. representative’s extreme views are being moderated by non-U.S. representatives to the committee. The United States has historically held a very grounded position with regard to international human rights. Though it has already shown cracks and signs of change, Ms. Gaer should not be permitted to further smear that position on the world stage.

Humanist “Chaplain”? — Not all Worldviews are Religions

by Travis Weber

May 30, 2014

We were heartened to see today that the Navy decided to adopt the common sense position of refusing to commission a humanist “chaplain.” Besides the failure of the chaplain under review to meet the requirements of current Department of Defense regulations, the whole notion of filling a limited number of Navy billets for individuals to counsel service members on their relationship with God with individuals who instead explicitly deny the existence of a God should strike anyone with a head on their shoulders as downright silly. As Travis mentioned in an interview on the subject, the Navy charted the proper course here, and avoided implementing an oxymoronic policy of giving a self-professed non-religious officer a religious commission.

The Navy confirmed that the humanist chaplain candidate was not offered a commission but was not able to elaborate due to privacy concerns. However, we hope the Navy simply recognized that a humanist could not by definition meet the religious and ecclesiastical qualifications for service as a military chaplain as established in DOD regulations including DOD Instruction 1304.28. When attempts were made last year in the House of Representatives to change DOD policy to allow for the service of atheist chaplains, Members of Congress rejected such proposals by a wide, bi-partisan margin, recognizing that individuals who do not believe in a God cannot fulfill the core spiritual and pastoral role of a military chaplain. Both the House and the Senate this year included report language accompanying their respective versions of the Fiscal Year 2015 National Defense Authorization Act praising the role that the military chaplaincy has played since its creation under General Washington in providing spiritual comfort to our Armed Forces and counsel to commanders on how to provide for the free exercise of religion. The Navy’s decision today ensures that the core mission of the chaplaincy will not be undermined.

Lest the perennial grumblers start to complain again about preferring one religion over another, it should be pointed out that we are absolutely for freedom of religion for all, and fully support chaplains from diverse religions. But the key word in all of this is “religion.” Religion — defining man’s relationship to God — cannot be maintained by removing God from the equation. What remains is not a religion, but only a worldview. And no one here is seeking to suppress any worldview or prevent discussion about any and all philosophical outlooks within the military ranks. But not all worldviews are automatically entitled to be deemed to meet the requirements of a military position created with an explicitly religious focus.

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