Author archives: Travis Weber

War on the Pledge: new tactics, but the same tired thinking

by Travis Weber

April 23, 2014

The American Humanist Association (AHA) recently filed suit against the Monmouth County (New Jersey) Matawan-Aberdeen Regional School District. The offending action? The school district is following a state law providing that students recite the Pledge of Allegiance each day. The thinking behind this and other suits is the same tired thinking that any such mention of God in a public body violates constitutional protections. Usually some alleged violation of the Establishment Clause is claimed.

Yet here, the AHA and its plaintiffs (who remain anonymous) have alleged that this recitation of the Pledge violates Equal Protection provisions contained in the New Jersey Constitution. No doubt this is an attempt to test a legal pathway for success in knocking the Pledge out of public life. This would be a win for the AHA, which likely cares very little for legal integrity but very much in achieving its goal. Yet the idea that the Pledge discriminates against some students is ridiculous. Students already have the right to refrain from reciting the Pledge. The AHA and its “plaintiffs” in this case want to force everyone else to stop saying it too.

While the AHA identifies itself, the offended student and parents remain unidentified. While reasons for anonymity in litigation vary from case to case, here it is likely they are afraid of the pushback they would receive should they be known as the plaintiffs in this suit. Yet pushback would be understandable, especially when one is the catalyst for a meddling organization to come in from out of state and tell local students and their parents how to live their lives day to day.

Yet the philosophy underlying this and similar claims begs a larger discussion. As courts have interpreted the Establishment Clause to eliminate even relatively minor indicia of religious expression from public life on the grounds that such mention is state “endorsement” of religion, public bodies are left to operate in a philosophical vacuum. Courts have permitted public schools to “endorse” secularism and humanist principles. The result is an “establishment” of a “state philosophy” and orthodoxy of secularism, with the full force of the government and power of law promoting these beliefs.

As a result, the courts have bought into a lie that scrubbing God from public life to “comply” with the Establishment Clause will lead to the ideal result – an even playing field in which no one view is promoted. Yet a philosophical vacuum cannot exist for long. And since indicia of religion are being eliminated from public schools, indicia of alternative belief systems (secularism and humanism) have rushed in to fill the void. The result is that we are indeed left with a state established religion – the “religion” of humanism.

Summary of Oral Arguments in Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corporation v. Sebelius

by Travis Weber

March 27, 2014

The post-oral-argument predictions in the Hobby Lobby case will continue to pour out as various entities (more or less interested in the outcome) make guesses about which way the Supreme Court will rule now that the justices have had a chance to quiz the attorneys for each side. The truth is, no one knows what will happen. Nevertheless, several things were noteworthy and other things not noteworthy, about this morning’s arguments. My review of the arguments (with emphasis on noteworthy sections) is below (page numbers are those listed on the Supreme Court’s official transcript).

Arguments began with Paul Clement, the attorney for Hobby Lobby and Conestoga, presenting his clients’ case first. After some initial questions about whether Congress meant to include corporations within the Religious Freedom Restoration Act’s (RFRA) protections (pp. 4-9), the justices’ opposition to Hobby Lobby’s position predictably centered on what other claims corporations might bring should the Court rule for the Green family and against the government. Justices wondered whether a ruling for Hobby Lobby would lead to corporations objecting on religious grounds to providing vaccinations, blood transfusions, and the like. Hobby Lobby’s attorney Paul Clement disputed this implication, pointing out that the Court could be trusted to wade through these issues under RFRA. Furthermore, if the “parade of horribles” was likely to occur, where was it? RFRA has been around since 1993. Clement pointed that none of the claims over which the justices expressed concern had been brought (or they were brought but didn’t succeed) “notwithstanding the fact that the government concedes that sole proprietorships and partnerships and nonprofit corporations are all protected by RFRA” (pp. 14-15).

Clement was then questioned about how a corporation could exercise religion (pp. 17-21), but the argument drifted off into a discussion of what costs Hobby Lobby would incur if it refused to cover the contraceptives (pp. 17-29). A discussion subsequently ensued about grandfathered health plans, and then moved to the concept of burden shifting between the objecting employer and its employees (pp. 29-38). Clement noted that exemptions are allowed in the conscience law context — if a doctor objects to providing an abortion, the woman is not prevented from obtaining the procedure, but she must go to another provider (p. 38). Clement also pointed out that the government has available to it a less restrictive alternative than the current HHS mandate — allowing employees of objecting corporations to go on the exchanges and subsidizing them like it does for employees at companies with fewer than 50 workers (p. 40).

At this point, the government’s attorney, Solicitor General Donald Verrilli, took over and opened by arguing that the requested accommodation’s impact on third parties must be examined (pp. 43-46). He was then pressed by the justices on why the government insisted on hampering for-profit corporate religious exercise but not other religious exercise (pp. 46-49). When Verrilli said the Court had never ruled that corporations had a right to exercise religion, Justice Alito asked if “there’s something about the corporate form per se that is inconsistent with [a] free exercise claim” (p. 46). He followed: “Do you agree … that for­profit corporations must do nothing but maximize profits, they cannot have other aims … including religious aims?” (p. 47) Verrilli said no, but the point was made.

Verrilli then argued that ruling for Hobby Lobby would permit other problematic claims (pp. 52-53). He was pressed about the ability of corporations to have a racial identity (which courts have held), but said such a scenario was different from this case, which involves “exercise of religion — something the courts have never recognized corporations can do (p. 54). However, neither have the courts said corporations can’t engage in religious exercise. He was then pressed by Justice Kennedy about exemptions being given by the government apart from RFRA concerns (pp. 56-58). Verrilli explained that churches were exempt (as they have always been considered special under the law), but argued that the other companies and groups that do not have to pay were not actually subject to “exemptions” but were just categorized differently under the law (pp. 58-59). He was then pressed to explain when the grandfathered plans would end (pp. 59-60) — such continual “grandfathering” with slow and piecemeal implementation demonstrates the lack of a compelling government interest in enforcing the HHS mandate.

Justice Breyer then questioned Verrilli and asked him to explain how the government might meet the contraceptive needs of women less restrictively than enforcing the HHS mandate (pp. 64-69). Justice Kennedy quizzed Verrilli and said that according to the government’s logic, it seemed that a for-profit corporation could be forced to pay for abortions. Verrilli had to admit his logic allowed such a result, but he attempted to minimize the implication by noting there was no such law mandating abortions on the books at this time (p. 75). He followed by pointing out that the federal and state laws regarding abortion don’t consider the “particular forms of contraception” at issue in this case to cause abortions (pp. 75-77).

Verrilli had trouble batting away hypotheticals from Justices Alito and Breyer showing the problems corporations may face in bringing religious exercise claims (should the government win in this case) challenging laws banning kosher or halal slaughter methods (pp. 78-81). He concluded by pointing out that companies were going into the public sphere, and this would be the first time a company could be permitted to override statutory benefits under a Free Exercise or RFRA claim (p. 81). At the last moment, Verrilli was questioned by Justice Scalia about the government’s claim that it was not drawing a distinction between for-profits and non-profits (p. 82). Justice Scalia quite rightly noticed differences with how the government was treating the two groups (p. 82).

Paul Clement then had the last word. During his few minutes of rebuttal argument, Clement pointed out that Congress has applied the abortion conscience laws to all providers, including for-profit providers. But if Congress changed those laws, the government (according to its argument today) would take the position that RFRA does not apply to protect providers objecting on conscience grounds (p. 83). Clement also reminded the Court that if the government is going to burden religious exercise, its regulation has to do so in the least restrictive way. In this regard, Title X already provides for contraception coverage, so the government could provide contraceptive coverage through Title X (pp. 83-86). He also reminded the Court of one point Hobby Lobby already made in its brief — the government could simply pay for the contraceptives (p. 86). Clement concluded by noting that Congress has already spoken in an abundantly clear manner on the issue of religious freedom when it passed RFRA, but “[h]ere the agency has decided that it’s going to accommodate a subset of the persons protected by RFRA. In a choice between what Congress has provided and what the agency has done, the answer is clear” (p. 87).

With that, the arguments were concluded. A written decision in the case is expected in June 2014.

Corporate Social Responsibility, Race-Based Companies, and Hobby Lobby

by Travis Weber

March 21, 2014

In recent years, Corporate Social Responsibility (“CSR”) has sprung up as an area of interest to a variety of business forums — they promote it, talk about it, tout their CSR “compliance” on their websites, and brag about it to whoever will listen. Many corporations have entire CSR departments. They release yearly reports documenting their CSR compliance. Law firms have even established CSR practice areas. Corporations may seek to ensure they are advancing “sustainable” practices were possible, that they are treating indigenous populations equitably, and that their suppliers are not committing human rights abuses. “Green” corporations may enact policies above and beyond regulatory requirements in order to further their goal of caring for the environment. While laws related to CSR have been enacted in various jurisdictions, much CSR corporate compliance is still voluntary. So why have companies moved toward and embraced CSR? While they would likely provide a variety of reasons, the fact remains that the driving force behind these businesses — the people who run them — think it is a good thing.

By and large, no one critiques corporate interest in CSR. Many say it is a good development. No one claims that “corporations” cannot engage in CSR-related advocacy. And most of the large corporations with CSR departments are for-profit companies.

How, then, do we arrive at the curious and odd criticism of Hobby Lobby for relying on religious beliefs in its operation? There is no good answer to this. Hobby Lobby’s religious positions are the result of the same driving force producing CSR program at other companies — its owners and operators. It is ironic that the company being criticized for its challenge to the HHS mandate has voluntarily implemented generous CSR type programs, like starting its new employees at 90% above the minimum wage. Yet Hobby

Those claiming a corporation cannot have a religious identity look to be on increasingly weak ground, however, as the U.S. Court of Appeals for the Fourth Circuit recently ruled in Carnell Construction Corportation v. Danville Redevelopment and Housing Authority, No. 13-1143 (4th Cir. Mar. 6, 2014) that a corporation can have a racial identity under federal law. If the issue is whether a corporation can have an “identity” that drives its goals and priorities, what’s the difference between a “religious” and “racial” identity?

As Matt Bowman, an attorney for Conestoga Wood Specialties Corporation (which is facing the same issue as Hobby Lobby at the Supreme Court), points out: “[a] gaggle of special interest groups supporting Obamacare’s coercion is outraged at this suggestion. They profess to be shocked — shocked! — that anyone would say a family business has religious freedom. But these same groups apparently favor a legal regime that says for-profit corporations can be racial minorities and can exercise the most intimate and private constitutional “rights” to contraception and abortion. Their outrage is withheld until families in business claim to be religious.”

Hobby Lobby’s opponents know for-profit businesses are an influential social force. Scared of the prospect of not being able to smother all of society with their pro-contraceptive and pro-abortion views, Hobby Lobby’s opponents must find some distinction upon which to rest their hat — in this case it just happens to be seeking a profit. Lacking a legitimate reason to deny American small business owners the right to exercise their faith, opponents find an easier time inferring such businesses are “bad” and entitled to less protection because they seek to make money. This claim looks increasingly desperate, however, in face of the fact that the businesses promoting the CSR practices discussed above are almost all very large, for-profit corporations. And no one takes issue with that.

Few have a problem with corporations being able to provide shoes for children, supply water for those who need it, provide special attention to their environment, and ensure their suppliers are not committing human rights abuses. Neither should there be any issue with a business being run according to the faith of its owners.

Why you should care about Elane Photography

by Travis Weber

March 19, 2014

Sometime in the next few weeks, the U.S. Supreme Court is expected to decide whether it will hear the case of Elane Photography v. Willock. The owners of Elane Photography are Christians, and their views and beliefs are reflected in how they run their business. Yet the New Mexico Supreme Court ruled that Elane Photography violated New Mexico’s anti-discrimination law provisions regarding sexual orientation when its owners refused to agree to photograph a same-sex commitment ceremony. Elane Photography’s owners are merely asking the government to not compel them to participate in actions which violate their religious beliefs. Consequently, when the government forces them to participate in the same-sex ceremony by photographing it (with the threat of a fine if they refuse), the government is forcing and compelling Elane’s owners to speak a certain message in violation of the First Amendment.

Even supporters of same-sex marriage see the danger of the government’s position and its use of anti-discrimination law in this case. Writing in the Wall Street Journal, Eugene Volokh (professor at UCLA law school) and Ilya Shapiro (with the Cato Institute) point out that a ruling against Elane Photography here sets a dangerous precedent that allows the government to compel speech in the cause of furthering equality through powerful and broad anti-discrimination laws. The next victim may be someone quite unlike Elane’s owners. It could be “a freelance writer who declines to write a press release for a religious organization with which he disagrees.” According to the New Mexico Supreme Court’s reasoning in Elane Photography, this writer has violated anti-discrimination law because his refusal to write such a press release is discrimination based on religion, just like Elane Photography’s refusal to photograph the commitment ceremony is being viewed by the government as discrimination. Yet a photographer, writer, speaker, publisher, or other artist “must have the First Amendment right to choose which speech he creates, notwithstanding any state law to the contrary.”

As Volokh and Shapiro state, “a couple that is told by a photographer that she does not want to photograph their commitment ceremony may understandably be offended. But avoiding offense is not a valid reason for restricting or compelling speech… . The First Amendment secures an important right to which all speakers are entitled — whether religious or secular, liberal or conservative, pro- or anti-gay-marriage. A commitment to legal equality can’t justify the restriction of that right.”

Elane Photography highlights an important point — individuals with different views regarding the definition of marriage can still agree that free speech must trump “forced equality.” Indeed, the freedom from such “compelled speech” is protected by the First Amendment to the U.S. Constitution. When speech motivated by religious beliefs is forced to pass muster with the government’s censors and Americans are forced to speak a certain message under the threat of fines and force of law, all who love individual liberty and free speech (regardless of personal views) must stand up and pay attention.

On the Free Exercise of Government…

by Travis Weber

March 10, 2014

Legal scholar and novelist Garrett Epps opens his recent piece in The Atlantic with the following statement: “If the conservative justices uses [sic] the same logic they have in the past, Hobby Lobby’s case against the contraceptive mandate doesn’t stand a chance.”

Mr. Epps conveniently finds praise for Supreme Court precedent, a position often either used or discarded as best serves the cultural assault on Christian ethics. Indeed, one can scarcely find lamentations about discarded precedent as district courts currently invent a federal constitutional right to same sex marriage. Here, however, Mr. Epps simply distracts from the free exercise issues in the Hobby Lobby case.

Hobby Lobby’s case centers on a free exercise claim brought under the Religious Freedom Restoration Act (RFRA). But Mr. Epps relies almost entirely on Establishment Clause cases as he attempts to argue that Hobby Lobby has no right to refuse to pay for certain contraceptives.

After laying out his arguments, he appears to receive the following special revelation: “But that’s the rub… When government directly funds religion, the Establishment Clause is violated; but when government gives benefits to individuals, and the individuals pass on the benefit to religion, no dissenter is injured, so there’s no violation.” After discussing how taxpayers should not be forced to provide money directly to churches, he asks: “Why is Hobby Lobby injured if the taxpayers in the Establishment Clause cases are not?”

I would have thought the answer is rather clear: the taxpayers are not seeking to exercise any right based on a religious objection to action compelled by the government. Exactly what “rub” Mr. Epps is talking about remains unclear. Hobby Lobby’s case is about whether the “exercise of religion” is substantially burdened under RFRA. It is not about the Establishment Clause or individuals being forced to support religion at the direction of the government.

Nevertheless, Mr. Epps continues: “[T]o assert a right to control employees’ private choice will be to hold that religious people — or, even more ominously, some favored religious people — are more easily injured than others, that their free-exercise rights trump those of their employees.” Mr. Epps does not explain what he means by “favored” religious people, but he falsely asserts that Hobby Lobby is seeking to control its employees’ choices. The Greens are not preventing their employees from obtaining the contraceptives at issue; they are merely saying: “Don’t make us violate our consciences by forcing us to use our company as the conduit for their delivery.” The Greens, like many Americans, simply want to remain free to live and work according to their beliefs. They don’t want to be forced to choose between paying crippling fines, shutting down their business, or dropping healthcare for their employees in order to avoid violating their consciences.

It remains unclear what “free exercise rights … of … employees” Mr. Epps is talking about. The reader hopes he is not suggesting that an individual’s religion requires their employer to pay for their contraception — indeed, such an idea is nonsensical. In any event, such musings are merely a distraction from reality, as Hobby Lobby’s employees have suffered no violation of their constitutional rights — they retain full access to all the contraceptives available under the employer mandate.

Furthermore, Hobby Lobby is willing to pay for 16 of the 20 contraceptives required by the mandate. The Green family only objects to 4 drugs that destroy human embryos, and does not want to be compelled to pay for the destruction of human life. In addition, Hobby Lobby is not objecting to employee access to these 4 life-destroying drugs, but merely saying it should not be compelled to cover them.

Mr. Epps’ claim that “[a]ll consciences are equal; but some are thus more equal than others” might sound catchy, but it twists the truth and clouds a proper understanding of the issue at hand. There is no conscience right to demand that others subsidize one’s birth control methods. And contrary to his assertions, RFRA does “elevate” religious claims when it forces the government to justify itself under strict scrutiny in free exercise matters. It does not merely “balance” free exercise claims against whatever law the government puts in place.

In an odd conclusion to his piece, Mr. Epps attempts to cite the Gospel of Luke for support of his anti-religious position. The parable he cites is actually in the Gospel of Matthew. But more importantly, the passage does not even support his argument. Examining the story in its full context, the laborers were actually complaining to their master about the size of their respective paychecks. The generous master (God) says he has the right to do what he wants with his own resources. This parable hardly supports the notion that Hobby Lobby’s employees should coerce it to subsidize their wages (which for beginning employees starts at 90% above the federal minimum wage) with birth control.

Hobby Lobby is not seeking to “dictate” anything to its employees. Hobby Lobby is not preventing its employees from using birth control methods. Hobby Lobby is merely saying: “Don’t force me to cover them!” The Greens are not trying to control employee choices; they simply object to being forced to subsidize acts that go against their religion.

In the end, the members of the Green family are merely seeking to exercise their religion as they run their company. Such a demand is not beyond the bounds of reasonable free exercise interpretation. RFRA makes that secure. The Court has supported even bolder free exercise claims in the past. It should support the Greens’ rather modest claim in this case.

Last month, FRC filed an amicus brief with the Supreme Court in the Hobby Lobby case that can be read here.

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