March 31, 2014
The mere sight of a Bible in a public place prompts “controversy and division,” according to commanders at Patrick Air Force Base. To avoid any such upheaval, officials for the 45th Space Wing recently decided to remove a private organization’s memorial display containing a Bible and intended to honor missing soldiers and prisoners of war (a “Missing Man Table”) from a base dining hall.
Of particular irony is the fact that this reversal of a long history of including such memorials in dining halls occurred at the same installation where the Department of Defense’s equal opportunity agency — the Defense Equal Opportunity Management Institute — is housed. DEOMI is tasked with training military Equal Opportunity (EO) advisers on how to instill respect and tolerance for diverse viewpoints in service members. Apparently, that respect and tolerance isn’t supposed to extend to religious speech or the ability of an organization to recognize the role religious faith has played in the lives of many service members.
That position not only contradicts Supreme Court precedent that condemns the restriction of speech solely because of its message, it also does a disservice to our ability to remember the stories of American war heroes. One such service member is former Alabama Senator and Rear Admiral Jeremiah Denton, Jr., a Naval aviator who spent seven years in captivity in Vietnam and who spoke frequently of the role a deep Catholic faith played in carrying him through unspeakable prison camp horrors.
The American public best knows Rear Adm. Denton as the Vietnam captive who blinked T-O-R-T-U-R-E in Morse code, successfully communicating with American intelligence officers regarding camp practices, when forced by his captors to appear on television in 1966. Rear Adm. Denton died just three days ago, a respected veteran and public servant who had inspired many fellow captives to return “home with honor.” Faith played a part in his story, and the story of many other captives. Requiring organizations and individuals to ignore that reality not only violates legal precedent, it hollows out the heritage of many of our war heroes.
March 31, 2014
The disaster that is the Obama foreign policy continues to unfold week by week. While engaging in unilateral military disarmament, our president imitates a wrecking ball destroying decades of American alliances, relationships, and strengths. It is difficult to recall any significant Obama accomplishments, but, at the least, one could hope that he might have a “minimize the harm” operational code. Not a chance.
On March 25th in a speech at the Hague (Netherlands), President Obama made this statement: “Russia is a regional power that is threatening some of its immediate neighbors — not out of strength but out of weakness.” What a ludicrously provocative statement.
Right, Mr.President, Russiais a regional power. Unfortunately, it is a region that extends from the Bering Strait to the Baltic Sea while bordering on the Arctic Ocean, Mongolia, China, and many numerous Eurasian nations. It has a population of 142 million. Finally, thanks to you, Russia has 500 more nuclear warheads than the United States — at about 8,500. Russia is an ancient civilization noted for great scientific and artistic achievement that is anchored by a state church that traces its roots to the Byzantine Empire. Russia is no run-of-the-mill “regional power” under any serious analysis. Russia has been a major world actor for centuries, and it remains so even after 1990.
I have no sympathy for a crypto-communist sociopath like Putin, but Obama’s statement was needlessly insulting and demeaning to Putin and Russia itself. If we were trying to alienate the Russian people, could this statement have been any more effective? Probably not. It is the mark of an amateur — someone who is not a serious analyst of history and foreign policy. Underestimating an enemy is never wise.
And, this leads to Obama’s comically liberal and obtuse crack about the conquest of Crimea being the accomplishment of a weak power. The president appears to be patterning his opposition to Russia on the Black Knight in Monty Python’s Holy Grail. As the Black Knight has his limbs hacked off by King Arthur, he refuses to admit that he is being seriously injured. However, the Black Knight talks a good game, and in Obama’s world that’s all that really matters, isn’t it.
March 28, 2014
Regardless of one’s underlying position on what state marriage policy should be, most Americans agree that establishing that policy should be a process rooted in legal and democratic means. Yet, for all the present Administration’s blustering about respect and tolerance for a diversity of viewpoints on marriage, very little of that respect has been extended to existing state policy on marriage or the process by which those views have been enshrined in law.
In the latest move to ignore state marriage law, the Department of Justice (DOJ) has announced it will recognize the relationships of Michigan same-sex couples who obtained marriage licenses in the period between a federal District Court ruling striking down the state’s marriage amendment on March 21st and an emergency stay of the ruling issued by the 6th Circuit Court of Appeals on March 22nd. In the Saturday morning hours between District Judge Bernard Friedman’s Friday night ruling and the subsequent Saturday afternoon stay, several hundred couples were “wed.”
Given the murky legal status of these marriages, Michigan’s Governor Rick Snyder has said the state will not recognize the unions while the state continues its appeal of the District Court ruling at the 6th Circuit Court of Appeals. Michigan Attorney General Bill Schuette has explained repeatedly that his job, regardless of his personal beliefs, is to defend the will of the 2.7 million Michigan voters who voted in 2004 to affirm marriage as the institution it has always been understood to be: the union of one man and one woman.
That deference to the people and the law, unfortunately, has not been replicated by Attorney General Schuette’s federal counterpart. Today’s statement from U.S. Attorney General Eric Holder instead underscores the willingness of the federal government to ignore the will of voters, state law, and the limits of last summer’s Supreme Court ruling in United States v. Windsor. Indeed, Windsor required respect for state policies on marriage — not a new federal mandate for Administratively-imposed same-sex marriage recognition.
March 27, 2014
This week’s historic hearing at the Supreme Court, testing whether or not private for-profit businesses have any religious rights the federal government should respect, was a landmark event.
FRC’s Senior Fellow for Legal Studies, constitutional attorney Cathy Ruse, was in the Court listening to the arguments. Her piece in USA Today captures the key arguments well. And the Director of FRC’s Center for Religious Liberty, respected legal analyst Travis Weber, explains the stakes involved in “Not Just for Profit.”
This battle is not about contraception, reproductive rights, or women’s health. It’s about whether a company that deliberately follows biblical teachings has the right to apply those teachings to the way it does business. In other words, it’s about the very foundation of religious liberty and freedom of conscience.
Let’s pray that God will guide the justices of the Supreme Court as they weigh this critical decision. And regardless of the outcome, let’s always remember that the duty we have to obey Him in all things is primary.
Senior Vice President
Family Research Council
P.S. Sign FRC’s petition to the Air Force Academy that calls on the Academy to continue to allow its cadets to enjoy the very religious freedom they have sworn to uphold!
Human Dignity and the Sanctity of Life
Euthanasia/End of Life Issues
Stem Cells and Biotechnology
Marriage & Family
Homosexuality and Same-Sex “Marriage”
Religion in Public Life
International Religious Liberty
Other important articles
Travis Weber, J.D., LL.M.
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.
March 24, 2014
Recently, a local talk radio program here in D.C. had a caller who described his before and after insurance costs for his family of four. Before Obamacare: $3,500; after Obamacare: $10,500. His family’s disposable income has decreased by $7,000. He asserted that his family was middle class, so for someone who is not wealthy an income loss of $7,000 per annum is enormous. (And, substantial premium increases are expected in some regions of the country.)
Think of the businesses and organizations that may be hurt or “crowded out” by the implementation of this new tax: restaurants, auto companies, appliance makers, home improvement firms, decorators, book sellers, home sellers, educational programs, and charities. The list is long. One also has to have sympathy for young adults who may have substantial college debt along with this healthcare burden. Will people delay marriage and have fewer children? Probably so.
If we wish to restore economic growth and family formation and prosperity, it just seems obvious that the Affordable Care Act has to be repealed and replaced. The numbers are just too brutal.
Travis Weber, J.D., LL.M.
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.
March 20, 2014
On this first day of spring, the brilliant Avik Roy of Forbes Magazine asks two questions about the Affordable Care Act, commonly known as Obamacare:
First: how many people who have signed up for coverage were previously uninsured? Second: will the botched rollout and design flaws lead to even higher health insurance costs next year?
Roy suggests that health care premiums might soar by as much as 40 percent in 2015, and concludes by asking, “For those who already struggle to afford their health insurance bills, the worst is not yet over.” One of the sounds you do not hear is Tony the Tiger saying, “Grrrrr-eat!”
National Public Radio reports today that enrollment in Obamcare is “surging,” and is now over five million. That’s two million less than the White House’s original prediction of seven million by the end of the open-enrollment period, which comes on the 31st of this month.
Even the five million figure is in dispute, but let’s be charitable and accept that figure — and even go one better, and believe the White House that one million more people might enroll by midnight, March 31. Yet as Washington Times columnist Joseph Curl points out, we were told repeatedly by the President and his top aides that as late as last June, there were 46 million Americans without health insurance. What are the rest of them doing?
According to a January 2014 McKinsey survey of more than 4,500 Americans eligible for a “qualified health plan,” of the 28 percent of Americans who signed-up for personal health insurance in 2014, only 11 percent “reported themselves previously uninsured.” How can a dribble be mistaken for a surge?
The Administration also continues to qualify and postpone various provisions of the plan. The Galen Institute says that as of March 5, there have been at least “37 significant changes already have been made to ObamaCare: at least 20 that President Obama has made unilaterally, 15 that Congress has passed and the president has signed, and 2 by the Supreme Court.” Obamacare is, as Avik Roy notes, being made up as it goes along.
A final note: Contrary to the claims of many on the Left, Republicans have offered several comprehensive health care reform plans, alternatives to Obamacare that are market-focused and patient-driven. Included among them:
- H.R. 3121: “The American Health Care Reform Act” – U.S. Rep. Phil Roe, M.D.(R-TN) (Dr. Roe outlined his plan at FRC in November.)
- H.R. 3400: “The Empowering Patients First Act” – U.S. Rep. Tom Price, M.D. (R-GA).
- S. 1783: “Ten Steps to Transform Health Care in America Act” – U.S. Sen. Mike Enzi (R-WY).
- In process: “The Patient Choice, Affordability, Responsibility, and Empowerment Act, or the Patient CARE Act (PCA)” – U.S. Sens. Tom Coburn (R-OK), Richard Burr (R-NC) and Orrin Hatch (R-UT). A framework of the measure has been developed, and its language is now being written.
I don’t suggest that each of these measures is perfect, complete, or even affordable. Rather, when the President asserts that the GOP has no alternative to his plan, he’s wrong. He might not like what conservatives are offering but he cannot claim they have not provided encompassing, beginning-to-end medical system reform plans.
It is wearisome to debate all the motivations of those who support the Affordable Care Act. Let’s say all of them mean well for everyone (except for the unborn, whose destruction is subsidized by Obamacare). Fine. But let’s also look at reality in its cold, steely eyes: Obamacare is a mess, a fiscal and practical disaster.
There is no shortage of thoughtful and, sometimes, rightly biting commentary on Obamacare on the FRC website. I’ll let my distinguished colleague Ken Blackwell have the last word: “ObamaCare cannot be salvaged, because government-run health care cannot work better than free markets. Government safety nets work only when relatively few people are in those nets.”
March 20, 2014
My friend Frank invited me to watch the last basketball game between the University of Virginia and University of Maryland. The 61-year rivalry between the near neighbors ended earlier this month. University of Maryland is leaving the Atlantic Coast Conference (ACC) for the Big Ten. Frank and his pal Charlie are fanatical Maryland alums (are there any other kind?) Frank told me not to wear any U.Va. fan gear as we would have good seats — in the heart of Terrapin Country. “Wear your high school ring,” Frank said, “and we’ll pick you up at the IKEA parking lot in College Park. We wouldn’t want your car to get rolled over.” Are they always like this?
It was a great last game. Virginia and Maryland see-sawed throughout, but Maryland pulled it out 75-69 in overtime. The fans in the Comcast Center are perhaps the noisiest this side of the Seattle Seahawks. It’s been decades since I’ve taken in a college game of hoops. What a good-natured crowd it was, too. They booed one of the Virginia players mercilessly every time he held the ball. That’s because he committed to Maryland but changed to U.Va. after the Terps changed coaches. Seems reasonable enough for me.
Even though the Virginia Cavaliers came up short in that Maryland home game, they’ll always be winners in my book. Seems they take some guidance from a respected coach and a certain good book. Here’s a March Mildness story for this crazy month.