Author archives: James Wheeler

The Government’s Judgment of Religion

by James Wheeler

August 6, 2014

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.

Burwell v. Hobby Lobby: The Good, the Bad, and the Ugly.

by James Wheeler

June 30, 2014

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.

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