by FRC Media Office
August 28, 2014
FRC President Tony Perkins joins Megyn Kelly to discuss the persecution of Iraqi Christians & the state of religious freedom in the Middle East.
FRC President Tony Perkins joins Megyn Kelly to discuss the persecution of Iraqi Christians & the state of religious freedom in the Middle East.
Others have written about the threats posed to religious liberty by the President’s Executive Order prohibiting federal contractors from discriminating on the basis of so-called “sexual orientation” or “gender identity” and by the White House’s refusal to provide a more robust religious liberty exception. However, the administration’s interpretation of the effect of the executive order is even more troubling. In fact, the administration’s interpretation could very well turn religious liberty on its head.
In a statement, the administration insisted that religious organizations can decide to hire only members of the same religion, but cannot refuse to hire someone “who is of [their] faith who happens to be LGBT.” What about those religions that would hold that a willfully practicing, unrepentant homosexual could not be a member of that religion? If such an individual claims to share the religion of a potential employer, must the employer hire the individual? The administration’s statement sure seems to suggest that. What’s more, Travis Weber, Director of FRC’s Center for Religious Liberty, asked the administration to clarify this important matter in an online Q & A session over a week ago and the administration has so far refused to do so — the White House instead responded to softball questions and platitudes about what a great job the administration is doing on a variety of topics, many irrelevant to the actual Executive Order.
The administration’s interpretation would upend one of the most fundamental principles in religious liberty law: The government cannot decide which religious doctrines are valid and which are not. But that is what the government would do if it forced a religious organization to employ a practicing homosexual in violation of the religious beliefs of the organization simply because the practicing homosexual “is of [its] faith.” The administration is telling millions of Americans that believe that homosexual behavior is a sin and that willful, unrepentant sins necessitate removing an individual from fellowship that those beliefs are unimportant. They are telling us that the government, and not we, will decide whether an individual who violates the tenants of our faith is still a member of our religion. That has been the very antithesis of religious liberty jurisprudence for decades, if not centuries. For the government to single out some beliefs for approbation and others for reprobation is to make government the arbiter of religious belief, something completely forbidden by the Constitution.
Because of these implications of the administration’s interpretation of the executive order, virtually every court that has ever considered religious exemptions in other non-discrimination laws has concluded that they must reach to employment decisions that are religiously motivated without considering whether the employer and employee share the same faith, even when the language of the exception appears limited to only decisions based on whether the employee belongs to the employer’s religion. These courts have recognized that to examine whether an individual shares the religion of an employer would require a court to examine the relative importance of beliefs within a religion (i.e. which beliefs about conduct, if violated, are enough to kick a person out) and would necessarily entangle courts in deciding questions of religious doctrine. Unfortunately, the administration is unwilling to acknowledge this problem; instead insisting that while it is permissible to not consider an individual a member of your religion for a multitude of reasons, if your reason is that individual’s unrepentant, willful homosexual practice, then your reason isn’t really religious enough to be protected. That turns religious liberty on its head, and was wisely forbidden in the Constitution.
Pastor Jack Hibbs of Calvary Chapel Chino Hills, and a member of FRC’s National Pastors Council, appeared on Fox and Friends to discuss IRS monitoring of sermons and churches.
After a hiatus of nine months, President Obama has nominated Rabbi David Saperstein to be the next U.S. Ambassador-at-Large for International Religious Freedom, an office within our State Department.
That Rabbi Saperstein is Jewish is a blessing: It is an affirmation that the United States rebukes the anti-Semitism rising in so many countries, and that we believe Jews, Catholics, Protestants, and Orthodox can partner together in standing for the “unalienable rights” bestowed to us by our Creator, including what our Constitution affirms is our “first freedom,” religious liberty.
As he speaks and works on behalf of our country, Rabbi Saperstein will, I hope, prove to be an effective and assertive advocate for those persecuted for their faith. However, I fear he is entering his new role with his hands tied: Barack Obama has sought to cabin and diminish lived-out faith in our country. What our President and his administration fail to sustain and advance at home they cannot defend and encourage abroad.
The Rabbi’s predecessor, the Rev. Suzan Johnson Cook, left an at-best mixed legacy during her 30 months in the position, at least some of it not her fault. Dr. Tom Farr of Georgetown University, one of the nation’s most respected advocates for international religious liberty, notes that Dr. Johnson Cook was given “very few resources (by the Obama Administration) she could employ to develop strategies to advance international religious freedom.”
Additionally, Rabbi Saperstein’s well-known liberalism is troubling. For example, he criticized the Supreme Court’s decision last month in the Hobby Lobby case, endorsing the idea that the federal government has the right to tell business owners they must provide coverage of contraceptives that can cause abortion. “We believe the court was wrong in saying there are religious claims corporations can make,” he said. “Corporations don’t have souls or consciences the way that people or associations of like-minded people do.” This is nonsense: Corporations are associations of people; that they are constituted for profit makes them no less so. Thus, our legal systems recognizes their embodiment as “corpora” (bodies) – and those people who constitute corporations through direct or shareholding ownership have a right not to be coerced into providing services that conscientiously they find wrong.
Additionally, the Rabbi has been a board member of People for the American Way, whose mission statement affirms its staunch commitment to “progressive” policies. Such PAW “progressivism” includes the marginalization of faith in public life, unrestricted access to abortion-on-demand, and what it calls “dumping” the Defense of Marriage Act. Rabbi Saperstein even went out of his way to oppose the ban on “partial-birth” abortion, saying he was “dismayed” by passage of the measure in the House of Representatives.
Over the past five and one-half years, an Administration much more preoccupied with the advancement of homosexuality in law and society than concerned with protecting religious liberty, either in the United States or through American foreign policy, has failed to inspire confidence in its commitment to what Hamilton called “the sacred rights of conscience” as they are played-out in public life.
We have a deep interest in fighting for international religious liberty, as to do so advances our national security and vital interests. By standing with, and battling for, those persecuted or repressed because of their faith, we build good will toward our country in areas where such is urgently needed. That, in this case, our security and interests are coincident with our deeply cherished values makes religious liberty all the more of a priority for our diplomatic agenda.
Rabbi Saperstein once chaired the U.S. Commission on International Religious Freedom, where I briefly worked years ago. All Americans should pray that the Rabbi will be a lion for religious liberty, and with everyone of good will, I want to give him the benefit of the doubt when it comes to defending and advancing religious liberty worldwide. However, given his personal convictions and public associations, I confess to having more than a few apprehensions.
FRC President Tony Perkins speaks on Meriam Ibrahim’s recent release and arrival to Italy.
The plight of Iraq’s Jewish community, Syria’s persecuted Christian and Muslim minorities, and Egypt’s beleaguered Christian population has largely gone unnoticed by the Western world and has only occasionally been addressed by the American diplomatic corps (save onetime hashtag campaigns). The appalling case of Sudanese Christian Meriam Ibrahim, a woman married to a U.S. citizen and detained in prison for months for refusing to renounce her faith, has made the State Department’s lackluster defense of the rights of conscience internationally all the more apparent.
However, last night, the U.S. Senate took an encouraging step forward in the effort to force the State Department to prioritize the freedom of religion in diplomatic efforts globally. In a unanimous vote, the Senate cleared the Near East and South Central Asia Religious Freedom Act of 2014 (S. 653).
Sponsored by Missouri Senator Roy Blunt (R), S. 653 aims to skirt the intractable bureaucracy of the State Department and elevate the engagement of religious freedom issues in the region of the world most threatened by attacks against people of faith. S. 653 creates the new post of “Special Envoy to Promote Religious Freedom of Religious Minorities in the Near East and South Central Asia,” a position to be filled by a Presidential appointee with regional expertise and experience in the field of human rights and religious freedom.
While a companion bill (long championed by Congressman Frank Wolf of Virginia) had passed the House of Representatives almost a year ago, S. 653 has languished in the Senate. Last night’s Senate passage marked a breakthrough in negotiations, with the amended Senate bill now containing a sunset provision (unless reauthorized, the Special Envoy position will expire in 2019) to address cost concerns. Now sent back to the House, S.653 faces strong prospects of quick passage given the large bi-partisan levels of support for the Special Envoy in the House previously (H.R. 301 passed by a vote of 402-22 last year).
As entire religious communities face extinction in parts of the Middle East and South Central Asia, the urgency of articulating religious freedom principles abroad has never been starker. A Special Envoy empowered to speak on behalf of religious minorities undergoing persecution will give the U.S. greater leverage in advocating for a freedom so foundational to all others. It is vital that Congress finish consideration of S.653 and that the President sign this bi-partisan legislation into law.
It’s a sad reality that even the most expensive, precious, and invaluable of gifts sometimes receive the least appreciation, especially through the passage of time. The gift of religious freedom that we as Americans are privileged to possess is one that many beyond our shores only dream of having, yet those who are blessed to enjoy it easily forget the magnitude of this gift that we have been given.
During this month of July, when our thoughts turn to all things patriotic as we take part in various celebrations that have a reoccurring red, white, and blue theme, it is still easy to miss the most precious gift that we are given as Americans – the freedom of religion. While the freedom of the press, freedom of speech, freedom of assembly, right to bear arms, and so forth, are all extremely important, the freedom of religion is by far the most precious of all.
The longing for religious freedom was the driving force that compelled the first settlers to cross unchartered waters in search of a land where they could worship God as their conscience dictated. Yet, today, many Americans do not even give a second thought to the fact that they are able to go to church and live out their faith without retribution from the government. However, we get a taste of what other countries experience as a daily reality when we rally on the steps of our Supreme Court, praying that our business owners will not be forced by the government to violate their deeply held convictions and provide abortion-inducing drugs to their employees.
In China, demolition teams show up in the dark of night to remove any sort of Christian representation that believers have the courage to display. Iranian American Christian pastor Saeed Abedini spent his 10th anniversary of marriage behind bars, unable to see his wife and two children. Sudanese Christian believer Meriam Ibrahim was forced to give birth to her second child in a prison cell. Her crime? Being a Christian.
Because we have been given so many blessings as Americans, it is extremely easy to have an attitude of entitlement. We tend to forget that the only reason we have these freedoms is due solely to God’s blessing and all those who have given their lives so that our fundamental rights could be protected.
This holiday, ignite the fire of freedom in your own heart. Commit to defend it with everything in you. This gift is only as strong your willingness to come to its defense.
“First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.”
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
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.
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.
*NOTE – Result 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
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.
*NOTE – Application 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.
**NOTE – Effect 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.
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.
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.
The decision of the Supreme Court today in the Hobby Lobby case protects the religious liberties of the closely held for-profit corporations objecting to providing abortifacient contraceptives. However, there is much else in the decision to be concerned about for future religious liberty challenges. There are also things in some of the opinions that ought to be downright frightening to religious liberty advocates.
First, there are several aspects of the decision that are good. The Court recognized that corporations are protected by the Religious Freedom Restoration Act (RFRA). Limited for now to closely held corporations, the Court embraced the important fact that corporations exist to further the interests of their constituents, such as shareholders and officers. If for-profit corporations could not exercise religion, religious individuals would be faced with a nigh impossible “Hobson’s choice” of maintaining their religious rights and forgoing the significant advantages of the corporate form, or incorporating and giving up their religious rights.
As importantly, the Court refused to accept the government’s attempt to re-characterize and minimize the Hahn’s and Green’s religious objection. The government sought to characterize the objection as only relating to the use of abortifacient contraceptives directly, ignoring completely the religious nature of their objection to complicity in providing access to the contraceptives at issues. The Court wisely refused to accept that re-characterization, stating that it was not the Court’s job to evaluate the validity of the individual’s belief.
Those two things are rightfully a cause for celebration, but the Court’s decision leaves much else to be desired. The first thing that should cause religious liberty advocates to be concerned is the Court’s treatment of the compelling interest test. Although the majority opinion, written by Justice Alito, expressed skepticism of the idea that providing contraception coverage was a compelling state interest in the face of all the other exception, Justice Alito expressly declined to rule on that question. He assumed for the purposes of the rest of the decision that the government had a compelling interest in providing universal contraceptive coverage. That is not necessarily a problem, the Court often assumes issues without deciding them if the case can be decided on other grounds. However, what is clear from Justice Kennedy’s concurrence is the reason they assumed that answer without deciding it: Justice Kennedy believes it is compelling government interest and therefore would not have joined the majority if they had decided against the government on that question.
Justice Kennedy’s concurrence provides another cause for concern. Because he necessarily provides the fifth vote in a 5-4 decision like this, his opinion, limiting the majority’s holding, controls. Unfortunately, he bases the decision that the contraceptive mandate is not the required “least restrictive means” on the availability of the accommodation provided to religious non-profits. That is, he decided that the government’s decision to allow religious non-profits to be exempt from coverage but force the insurance company to provide the abortifacient contraceptives was sufficient for for-profit corporations as well. This foreshadows a defeat in the case by some of those religious non-profits challenging the requirement that they be complicit in arranging the alternative coverage. Even though the 11th Circuit just sustained one such challenge based on today’s ruling, it appears likely the Supreme Court will not have a majority for upholding that decision. Although the majority of the Court expressly declined to decide that question, the Kennedy’s concurrence makes it unlikely he will join with the four others in today’s majority to rule in favor of those entities in a later decision.
Justice Ginsburg’s dissent provides what is the ugliest (and most frightening) part of today’s decision. Although she was in dissent, her manifest contempt for you and I should concern us. She dismisses as “ilk” those who believe in Biblical sexual morals and lumps them in with racists. Unfortunately, the majority, in dismissing her concerns, leaves the door open to holding the government can rightfully make Biblical sexual morals illegal in the workplace. Although the majority, rightfully, responds to Justice Ginsburg’s criticism by stating today’s decision does not threaten laws prohibiting racial discrimination, the majority doesn’t defend the right of individual’s to conduct their business in accord with Biblical sexual morals.
Although today’s decision is rightfully a cause to celebrate, it also leaves a lot to be desired for protecting religious liberty in the public square.
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.
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.” 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.” 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.”
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.
 2nd Sudanese Woman Jailed for Her Faith, Baptist Press, May 28, 2014, http://www.bpnews.net/printerfriendly.asp?id=42656.
 2005 Interim National Constitution of the Republic of Sudan, art. 6.
 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].
 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).