A Good Day for Religious Freedom

My plans for today’s post went out the window this morning when I learned the Supreme Court had ruled, at last, on the Hobby Lobby case. Big news!

Hobby Lobby story, photo from here

It is a 5-4 decision in favor of Hobby Lobby, ruled narrowly. In short, closely held companies, such as Hobby Lobby and Conestoga Woods, cannot be forced to pay for employees’ contraceptive methods that, in their religious view, terminate life. [Note: the case is now referred to as Burwell v. Hobby Lobby, rather than Sibelius v. Hobby Lobby; Burwell is the newly appointed head of Health and Human Services.]

These companies already pay for (and have all along) insurance coverage for many methods of birth control, but refused to pay for four specific methods that are abortifacients (terminate a fertilized egg). They will still pay for coverage of those other contraceptives. But they will not be forced to go against religious beliefs to pay for these four specific ones.

The ruling is narrow, because only closely held or family owned companies get the exception. Larger, publicly held corporations are not granted the exception—even if every member of the board has strong religious beliefs and they have always directed the corporation according to those beliefs.

The ruling is further narrowed, because it only addresses this particular religious conflict in the ACA; it does not necessarily apply to other religious conflicts with other laws.

Despite the narrowness, I accept this as a victory for religious freedom. Also despite the narrowness, Ruth Bader Ginsburg’s dissent claims it is overly expansive, and brings on a flood of so-called religious belief conflicts, which she will find annoying. She says,

Reading the Act expansively, as the Court does, raises a host of “Me, too” questions. Can an employer in business for profit opt out of coverage for blood transfusions, vaccinations, antidepressants, or medications derived from pigs, based on the employer’s sincerely held religious beliefs opposing those medical practices.

The dissent seems to be really miffed that a for-profit entity can be considered to have religious beliefs and/or rights. In other words, the concept that was defeated in this 5-4 ruling is whether trying to make a living in the marketplace means you forfeit your religious freedom rights.

Ginsburg, et al., ought to read the relevant religious beginning of the First Amendment—again:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

It doesn’t add the proviso, “unless and until a citizen chooses to participate in for-profit enterprise.” Ginsburg’s assertion that such a proviso is implied separates her from those who read and understand the law. She identifies with those who decide the law is what they believe it should be.

That battle goes on, despite today’s victory.

The ruling is based on the RFRA law; i.e., the Religious Freedom Restoration Act. It outlines specific limits the government may not cross. According to RFRA, government may have a compelling interest that could override a person’s religious belief. Alito’s majority opinion included reference to these closely held companies as “persons”:

As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends.

Government must not only show that the interest is compelling; it must show that the law is the least restrictive approach. Pushing aside the significant religious issues, Ginsburg claimed that paying $26 million or so in fines wasn’t an undue burden, since it’s only approximately equivalent to the total costs of providing health insurance (to be clear, the fines would be on top of the costs of providing insurance). However, Alito and Kennedy both pointed out that government has already found ways to accommodate organizations that qualify as religious non-profits, and those accommodations could be used to accommodate these for-profit organizations.

So today’s ruling pointed out that having religious people go against their beliefs to pay for insurance coverage of those additional four “birth control” methods was not the least restrictive approach.

The compelling government interest this is compared to is racial discrimination. The court says, "The Government has a compelling interest in providing equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal." So this ruling will not be expanded to include this issue unrelated to the ACA, so Ginsburg's fear is unfounded.

The Court fell short today of ruling whether the ACA itself violates the First Amendment. That question came up in the SCOTUS Live Blog. Since this ruling is limited to following RFRA, if RFRA were repealed (or exempted for the ACA), would that then reverse the ruling currently in Hobby Lobby’s favor?  Under those speculative conditions, the Court would eventually have to rule whether the ACA itself violates the First Amendment.

One thing about this Roberts Court, every time it rules, relating to Obamacare especially, it rules as narrowly as possible, so that little can be made of the ruling beyond the specific case. There’s some value to that. Still—we would not be in this mess if Roberts had simply ruled logically that forcing American citizens to make a purchase the government prescribes is beyond the powers granted to a limited federal government.

I believe there is still plenty of reason to hope we can get rid of Obamacare in its entirety. At least today’s ruling incrementally helped, rather than hindered, the goals of free American citizens.

Want to read more on this case? The first three are posts I wrote previously. The others are pieces I came across today.

·         Corporate Religious Freedom, 12-13-2013

·         Essential Religious Freedom, 2-6-2014

·         Fractious Fractional Argument, 3-24-2014

·         NPR report

·         IJ Review report

·         Buck Sexton on Glenn Beck Radio Monday morning

·         ACLJ (American Center for Law and Justice) report

·         SCOTUS Blog analysis by Lyle Denniston

Supreme Court Sampler

It’s that season, when all of us watch, with nailbiting expectation, to see who the winners and losers are.

No, I’m not referring to World Cup Soccer. That’s for normal households. In the Spherical Model household, we’re watching the Supreme Court rulings come in. (If I had a graphic arts team here at Spherical Model, I'd have justices in robes kicking around a soccer ball in a grand stadium. Please imagine that here.)

The biggies for this session (Hobby Lobby and others who don’t want Obamacare to force them to purchase things against their religious views) have not shown up yet. There are still a few more days.

But there are a few things that appeared so far this week.

Recess appointments--Canning v. NLRB (National Labor Relations Board)

This was a 9-0 decision, slapping the president’s hand for reaching into the power cookie jar. But it isn’t as strong a rebuke as it could have been. The Constitution expects presidential appointments to be subject to Senate approval or disapproval (advise and consent). The president doesn’t like to submit to that—even though he has a Democrat Senate, because there are enough Republicans that might bring up the inappropriateness of many of his appointees. He is not the first president to misuse the recess appointment procedure.

It’s in the law because, at the time of the founding, when the legislative branch took a break and people returned to their home districts, it could take weeks to call them back to reassemble. If a need came up during their absence, it made sense to make a temporary appointment, so work would not be held up.

It doesn’t take weeks to recall the Senate now. But the Constitution doesn’t include reasons and intentions, so presidents have used this clause for their own political purposes—more so as transportation becomes less and less an issue. The SCOTUS today ruled that, while the president can indeed appoint during breaks in session, he can’t decide that a long weekend is a break. Even 10 days is probably too short a break. The justices fell short of defining the length of the break, but clearly ruled that the president shouldn’t be doing what he’s been doing.

The more conservative members of the Court held that the rule should be when the legislature is actually not in session—probably just during their annual August break. I’m with them. My son Political Sphere suggests that they ought to have also added the requirement that the appointment be urgent, couldn’t have been made in time before the legislative session ended, or couldn’t wait until the legislative session was to meet again. And of course such appointments ought to be approved or disapproved as soon as the legislature meets again—rather than just letting the appointment stand. In other words, change the expectations for Senate approval of appointments back to what the Constitution requires. What a concept.

I heard several times today that this ruling was the 12^th (maybe 13^th) time SCOTUS has ruled unanimously against Obama’s executive power overreach.

Buffer Zones at Abortion Clinics—McCullen v. Oakley

In this Massachusetts case, there was a rule that within a 35-foot buffer zone, no one could enter the space near an abortion clinic except patients, workers, and anyone with business in the vicinity. In other words, no one could approach someone who might be going for an abortion and offer them “counseling,” or information that might sway their behavior.

This is a free speech argument. We’re talking about public sidewalks, which are traditionally places where demonstrations of speech are legal. And here the restriction is on specific speech on a specific topic—to prevent anti-abortion speech. Why that speech? Why is that targeted, but other speech could be allowed other similarly public locations? What makes the public space around an abortion clinic a non-free-speech zone?

The Obama administration supported censorship. The plaintiff asked for support of free speech rights. While there could be a safety issue to consider, the government must choose the least intrusive alternative. The Court could see that banning all free speech in a specified area, mainly to prevent speech on a specific issue, was not the least intrusive means. (A good discussion was on Hugh Hewitt's The Smart Guys segment Thursday--available by subscription.)

Here are a couple more of the rulings, with links to read further:

·         EPA Greenhouse Gas Regulation—Utility Air Regulatory Group v. Environmental Protection Agency (read here and here).

·         Cell phone searches require warrant—Riley v. California (read here and here).

Meanwhile, in the Tenth Circuit Court, the state of Utah has been disallowed to define marriage. You’ll probably read errant headlines that the state’s ban on same-sex marriage has been found unconstitutional. That’s not really accurate. The 3-judge panel of the 10^th Circuit ruled against the state, in a 2-1 split, based on the Windsor ruling of June 2013, which decided that the US DOMA law was wrong to define marriage as between one man and one woman if other entities (i.e., state governments) defined it differently. In other words, the Supreme Court was leaving the defining of marriages to the states. But every time it has come up since then, some court has decided that states do not have the right to define marriage as between one man and one woman, because it’s unconstitutional. Hmm.

So, the courts are ruling that defining a term in a contract cannot be done at the federal level nor at the state level. That is very troubling. So how can governments define terms in a contract? The way the unelected and nebulous but powerful politically correct police say they can, according to the whims of the day—of course.

In this case, Kitchen v. Herbert, the steps may include appeal to the 10^th Circuit en banq (the full panel of 10^th Circuit Court judges). That may or may not be tried or accepted. If it is, then that court will hear the case first. If not, it could go to the Supreme Court as early as this coming fall. In the meantime, the Court stayed its ruling (will not in the meantime allow same-sex “marriages” to take place while the issue isn’t ultimately settled).