Author archives: Travis Weber

FRC Files Amicus Brief in Reed v. Town of Gilbert

by Travis Weber

September 22, 2014

Today, Family Research Council filed an amicus brief with the U.S. Supreme Court in the case of Reed v. Town of Gilbert.

In this case, a Gilbert, Arizona sign ordinance discriminated against certain signs based on the content of the signs — whether they were political, ideological, and directional. Directional signs were placed under more severe restrictions.

A local church — Good News Community Church — and its pastor — Clyde Reed – needed to announce the times and locations of their services, but because their announcement signs (which directed individuals to a public school were services were being held) were deemed directional, the church was severely hampered in getting its message out.

Pastor Reed and Good News Community Church sued to vindicate their constitutional rights. The lower courts ruled against them, so they have now taken their case to the Supreme Court.

In our brief, filed in support of Pastor Reed and Good News Community Church, we argue that the town does regulate signs differently based on their content, for politics, ideology, and directions are all matters of differing content. Well-established Supreme Court jurisprudence bars content-based restrictions on speech unless the government can meet strict scrutiny — which says that unless the government regulation advances a compelling government interest, and this is done in the least restrictive way possible – the government regulation cannot stand. We conclude that because there are content-based restrictions on speech in this case, the Supreme Court should send this case back to the district court to determine if the town can meet strict scrutiny.

A win for Pastor Reed and Good News Community Church in this case will help advance a strong interpretation of First Amendment free speech rights, which is good not only for small congregations like Good News Community Church, but for all who wish to speak free from government interference. Ensuring an open marketplace of ideas in which all voices are protected and can speak freely is what the First Amendment is all about.

Our press release is here, and our brief can be read here.

A Tale of Two…Groups Which Voluntarily Relinquished their Freedom to Associate

by Travis Weber

September 3, 2014

Several days ago, the organizers of the New York City St. Patrick’s Day Parade announced they will permit a group composed of gay NBC employees to march in their annual event with a banner identifying themselves as gay. By now, we are used to such tidbits of news. But this is significant for other reasons.

Back in the 1990’s, the U.S. Supreme Court issued an important free speech ruling in a case called Hurley v. Gay, Lesbian, and Bisexual Group of Boston. In Hurley, the Court held that private associations communicating a message (through a parade, for instance) could not be forced to include unwanted groups in their parade, for this would compel the parade organizers to communicate a message against their will and make free speech and freedom of association protections meaningless. Such forced speech cannot be accomplished even in the name of eradicating discrimination, the Court held.

The Hurley case dealt with the Boston parade, but it settled almost the same issue for the NYC parade. Thus, the NYC parade organizers are not forced by law to do what they just decided to do – include the gay group and its banner. Nevertheless, they are doing exactly that. Thus, here we see an example of cultural pressure superseding legal requirements and causing a group to do what it isn’t required by law to do.

This same phenomenon occurred in the Boy Scouts of America v. Dale case and its aftermath. There, the Supreme Court held that the scouts were protected by the freedom to associate and did not have to permit homosexual scouts or scout masters. Despite being constitutionally protected, the Scouts reversed course in permitting gay scouts (while retaining the ban on gay scout masters). Alas, another high profile entity ceded to cultural pressure that which the law does not require.

Though these are only two situations, they are high profile matters which illustrate my point: it is highly important to address cultural trends over the long-term, and the thinking that underlies them, in addition to fighting legal battles and addressing matters through the legislature. These cases are monumental constitutional rulings, and many who still wish to speak freely can rely on them. But we can win great court battles and still lose the culture (as these cases illustrate) without properly addressing these trends at the roots. The “how” of addressing these trends is more difficult. One might start by studying how those advancing “anything goes” sexuality have been so successful over the past decades, and after properly understanding the context and our opponents’ messages, we can ascertain the best long-term language to communicate the importance of religious liberty and other issues. Only when we have acquired the proper ammunition for re-shaping our culture over the long-term, can we begin to use it.

A “God” that is not God; Victoria Beeching, love and acceptance

by Travis Weber

August 21, 2014

At First Things, Professor Robert George usefully explains internal viewpoints that are shaping external issues which are shattering our culture today.

The other week, Victoria Beeching, a well-known singer in the Christian music scene, came out and announced: “I am gay and God loves me just the way I am.” Ok, got it. But one understandable response to such a statement might be: “What makes you say that?”

In his article, Professor George looks to Plato’s description of the three forms of “atheism” — the belief that there simply is no God, the belief that God exists but doesn’t really care what goes on down here, and the belief that there is a God who sees what’s going on down here, but he is malleable and makes no demands of us. This third form, Professor George argues, is the biggest threat to the West today.

I would agree. Most acknowledge some sort of god, and many appeal to his existence regarding earthly affairs. While their appeals vary widely in form and substance, they still appeal to a god in some way, and thus recognize his relevance for our lives today. These facts dispense at the outset with the first two forms of atheism mentioned above. All one has to do is look to the appeals all around us and all over social media — “Jesus is love”; “Jesus never condemned anyone”; and Ms. Beeching’s “I am gay and God loves me just the way I am” etc., etc., to get a sense of the overwhelming prevalence of the view that God won’t tell you what to do, He just wants to hang out, and He loves you regardless of your actions. This view is of course convenient for human beings to hold (as Professor George points out), and ultimately places our authority over that of God — consequently removing Him from that station of authority in our lives which defines His very existence. God is thus obliterated, and our “god” becomes our desires.

No doubt some reading this will call me a “hate-monger” or some such term, and in doing so, will only help me prove my point. Nevertheless, I will point out, as it is important to do, that my communication of these truths is done in love. Of course, God’s love is all-encompassing and greater than we can conceive, but this does not entitle us to deny His truths and objective reality. A firm distinction must be made between loving the person no matter what he or she chooses to do (and we are all called to do that), but not enabling him or her to live according to a subjective reality based on one of these forms of atheism. It is no love which ceases to act to draw people into a right relationship with God (which is my desire) — but this can only be done by presenting the truth, the whole truth, and nothing but the truth so help me God.

For once and for all, I am telling you: “Sex” means “transgender,” and it also means “gender identity.”

by Travis Weber

August 20, 2014

You had better get with it. I’m not sure why people continue to insist that your “sex” is something integral to your created being, a function of your unique biological identity and who you were born to be — what an anachronistic concept. So says the Department of Labor (DOL), in a recent directive stating that the Department will now interpret “sex discrimination” to also include discrimination on the basis of “gender identity” and “transgender” status. The DOL relies on a 2012 Equal Employment Opportunity Commission (EEOC) decision stating as much, along with other “case law principles” which supposedly support this reasoning.

One theory on which the government relies here is based on “sex stereotyping” as a form of “sex discrimination” — because a male chooses to identify as female, the theory goes, discriminating against them constitutes a form of stereotyping how males are supposed to act, and thus constitutes “sex discrimination.” Such thinking is far-fetched to begin with, but even the legal issues are not as clear cut as the government would have us believe. For while other protected classes are clearly rooted in easily-identifiable inborn characteristics, “sex stereotyping” is based on one’s actions — thus individuals are not protected based on any “gender identity” status alone if they can’t show they were stereotyped, according to this theory.

In addition, the DOL points to the EEOC’s argument that “treating a person differently because the person is transgender is by definition sex discrimination because it is ‘related to the sex of the victim.’” But a person “is transgender” based on a choice not a biological reality, unless someone is prepared to introduce a new biological third category of sex, beyond male and female. Absent such a creation, being “transgender” is still only “related” to sex as an action taken with regard to one’s sexuality.

Ultimately, it doesn’t really matter even if the “case law principles,” (as the EEOC refers to them), support the government’s wishful thinking on human sexuality here. A person’s sex is not determined on our own, but by God who crafted us distinctly as men and women. We must recognize this truth and submit our sexuality to God for the purposes and ends for which he designed it. Anything else will only produce misery for us, for our society, and for our entire human race.

Genocide in Iraq

by Travis Weber

July 31, 2014

It is hard to ignore the disturbing reports emerging from Iraq which contribute to mounting evidence of the Islamic State of Iraq and al-Sham’s (ISIS) extermination of Christians and anything reflecting the Christian religion. Congressman Frank Wolf and others have spoken persuasively and forcefully on this tragedy. Yet judging by the actions (or lack thereof) of our president and the other leaders of the free world, one wouldn’t think much was going on in Iraq. However, the available evidence shows that ISIS’s extermination of Christians is one of the clearest cases of genocide since World War II.

What little President Obama has said about preventing atrocities in foreign lands has centered on the Responsibility to Protect – a relatively recent doctrine which is not clearly established or grounded in international law. While its validity can be debated, there exist clearer grounds on which to address the plight of Iraq’s Christians  – the obligation to prevent genocide contained in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948.

After the horror of the Nazi ideology and ensuing Holocaust was fully realized, the nations of the world gathered together, formed the United Nations, and affirmed they would never let such horrors happen again. The Genocide Convention laid down into international law a binding treaty arrangement in which contracting nations agreed to “undertake to prevent and to punish” genocide. As part of this obligation, parties could “call upon the competent organs of the United Nations to take such action … as they consider appropriate for the prevention and suppression of acts of genocide.” Some argue that the “obligation to prevent” is not a clear, independent requirement of the treaty, but that argument is overcome by the clear language and purpose of the treaty, and a decision of the International Court of Justice holding that the treaty contains a clear, independent obligation to prevent genocide. Indeed, the whole point of the treaty was to prevent horrors like the Holocaust from happening again.

According to the Convention, genocide consists of “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” –

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

While only one of these acts is required to have genocide, ISIS clearly appears to have engaged in at least the first three acts listed above. It appears to have undertaken them with the “intent to destroy” Christians and Christian heritage in Iraq “in whole,” and at least “in part.” Christians are a “religious group.” If the elements of this crime are not met in this case, I’m not sure when they are.

The responsibility to prevent genocide contained in the Genocide Convention requires that the United States and other parties to the treaty act to prevent genocide when they recognize it is occurring. It is difficult to deny that genocide of Iraq’s Christians is currently underway. In other instances, nations have refrained from calling genocide “genocide” (such as in the Darfur region of Sudan several years ago, or in Rwanda in the early 1990s) out of fear of triggering their legal obligation to act to prevent genocide under the Genocide Convention. Is this the effect the treaty was intended to have? It is inconceivable that a mechanism designed to prevent future atrocities would be used as a reason to avoid denouncing those atrocities. Yet there is reason to believe nations have and will continue to operate this way.

While governments may try to craft arguments against their obligation if they do not want to address the issue, that will become more difficult as more facts come to light. The evidence from Iraq is clear – ISIS’ stated intent is to target Christians, which is a classification based on religion, one of the requirements for genocide. No nation which is a party to the Genocide Convention should be able to escape its requirement to act to prevent what ISIS is now doing to Iraq’s Christians.

Over twenty years ago, President Clinton hesitated to take decisive action to stop genocide in Rwanda. He avoided calling it genocide precisely because of the concerns expressed here – the United States would be obligated to do something if genocide was recognized. As a result, over a million lives were lost. Several years later, President Clinton went to Rwanda and admitted his error.

 

Yet this is precisely the point of the binding legal “obligation to prevent” contained in the Genocide Convention – it should not be able to be manipulated according to the shifting winds of foreign policy. It was always understood that binding obligations were necessary to prevent nations from wavering in the future when memories of the Holocaust started to fade.

The Genocide Convention was designed to prevent future horrors. Yet the nations of the world now stand by as genocide of Christians occurs before their very eyes in Iraq. All the elements of this crime are met, and we have an obligation to prevent it. What are we waiting for? That same question, which was asked of Nazi appeasers in the 1930s and President Clinton in the 1990s, will someday be asked of us about Iraq.

A Judge is Judged for Injudicious Behavior

by Travis Weber

July 16, 2014

I recently wrote about the depressing abuse of free speech in which a song writer decided to ridicule the Supreme Court justices in the Hobby Lobby majority opinion for nothing connected to the opinion whatsoever. Yes, of course. Freedom … .

Since then, a federal judge weighed in on his personal blog with his view that, instead of ruling on the issues in Hobby Lobby, the Court should “stfu” “shut the f*** up” in the parlance of some kids these days. Apparently, U.S. District Judge Richard G. Kopf of Nebraska believes the Court shouldn’t wade into issues to which he believes most Americans would react poorly. His reaction is the poor one, however. What’s worse is that it comes from a federal judge.

Therefore, I was heartened to see the news in the L.A. Times that he was being rebuked for his entirely improper behavior:

[A]fter coming under fire from fellow jurists and legal experts for writing a blistering criticism of the high court’s recent ruling in the Hobby Lobby case,” Judge Kopf was reported to comment that “[b]logging will be light while I figure this out.”

The L.A. Times is too kind, though. And imprecise. It wasn’t his “blistering criticism” of the decision that was problematic—it was his attack on other judges, his choice of words in that attack, and his crude rejection of the decision which betrayed any semblance of impartiality. Criticism of legal arguments and decisions occurs all the time and is a normal and even necessary component to our judicial system. What is not proper, however, is a personal attack. Neither is an overtly partial judge. But what is most troubling is Judge Kopf’s use of an obscenity. It has no place on the federal bench.

The judge, who also caught the attention of many earlier this year for inappropriate comments about a female attorney, apparently cut back on his recent blogging activity after receiving “a note from a lawyer he held in the highest respect who explained to him that people ‘expect judges not to be publicly profane, lewd or disrespectful.’”

Thank you, Mr. or Ms. Lawyer, whoever you are. You are a credit to the profession.

As the L.A. Times reports: “The incident raised questions about whether impartial, black-robed jurists can thrive in a blogosphere that often places high value on quick analysis and provocative comments.”

Exactly. Judges should simply refrain from blogging if they can’t resist the temptation. For now, I extend a hearty “thank you” to the attorney who took the time to explain to Judge Kopf that his behavior was indecent. Such actions preserve the integrity of the bar and the decency of our society.

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.

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