Category Archives: Free exercise of religion

The SCOTUS Defers to Religious Belief

reuters-hobby-lobby-victory-photog-jonathan-ernstAs Presbyterian Blues has followed the Hobby Lobby case and others involving religious rights, special attention has been focused on, first, the core belief involved and second, the relationship of that core belief to the ultimate offense against religious sensibilities.  This is because it is not beliefs as such that are denied – the government does not say you can’t have religious beliefs about abortifacients –  but some resulting activity.  The Hobby Lobby case is not about coercing individuals to take abortifacients, but about the religious offense they undergo when others potentially use them.

This was a central issue in the SCOTUS decision, with the Alito majority opinion and the Ginsburg dissent taking different sides.  Hobby Lobby (and the other businesses) would have lost if the majority agreed with the dissent on that issue.

Simply put, the individuals in charge of the closely held corporations believe it is immoral to provide mandated coverage that enables employees to use abortifacients.  As the majority opinion describes it,

This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.

Rather than attempt to resolve this causation question, the majority opinion takes a deferential position: “it is not for us to say that their religious beliefs are mistaken or insubstantial.” It was enough that such a belief, i.e., a belief on what substantially enables others to act in an immoral way, is sincere.  And, because the belief was received as sincere, the HHS regulations had to meet a demanding test they failed to pass; Hobby Lobby wins.

The Ginsburg dissent acknowledges the sincere beliefs but goes further in exploring the connection of those beliefs to the offending activity:

.  . . the connection between the families’ reli­gious objections and the contraceptive coverage require­ment is too attenuated to rank as substantial. The requirement carries no command that Hobby Lobby or Conestoga purchase or provide the contraceptives they find objectionable. ­…“[n]o individual decision by an employee and her physi­cian—be it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense [her employ­er’s] decision or action.”

As pure reason goes, this is a strong argument. Ginsburg says beliefs themselves are not the proper subject of the court’s approval, but the connection between those beliefs and the ultimate acts that burden them is an objective matter the court may decide.

Whether the majority had the better of it as a matter of philosophical argumentation is less than clear but deference to religious beliefs is better than meddling in them. The result of the Hobby Lobby case – a fairly broad protection of religious rights – is a good result. Only time will tell if the analysis on this point will be a bulwark of religious rights or if Ginsburg’s dissent will re-surface in a majority opinion.



Filed under Courts, Free exercise of religion, Religious rights

The Broader Significance of Notre Dame v. Sebelius

Richard Posner

Richard Posner

Current litigation pitting the religious conscience against Obamacare is obviously of interest to those who follow such things from a purely legal perspective. But it can be more than that – it can provide the opportunity for people of faith to ponder how they are to live among others who do not share that faith.  The latest decision (released yesterday) invites us to consider how much separation we should or must have from those things we find objectionable.

Consider the latest scenario in the United States Court of Appeals: Notre Dame is exempt from having to provide contraceptives.  But in order to claim that exemption the institution must complete a form that substantially says

I certify that, on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization.

Notre Dame is required to give copies of the signed form to its health insurance company and the plan’s administrator. EBSA 700Notre Dame objects to this on religious grounds by asserting that, by supplying copies of this form, they are “the cause” of the provision of contraceptives. But in Notre Dame v. Sebelius Judge Richard Posner replies “not so.”

Another way to describe the central issue is whether Notre Dame serves as a “trigger” to the procurement of contraceptives by filling out the form and mailing it. Posner sets forth several reasons why they do not.  To Posner, a more substantial cause is the legal obligation:

The delivery of a copy of the form to [the administrator] reminds it of an obligation that the law, not the university, imposes on it—the obligation to pick up the ball if Notre Dame decides, as is its right, to drop it.

If there’s any joke intended by next using the Quakers to determine if Notre Dame is a “trigger” to contraceptive use, Posner never lets on.  In any case, he asks us to consider the hypothetical of a Quaker who is given exemption from military service, only to raise a religious objection that, because someone else must be drafted in his place, his religion is burdened by the mere existence of a draft.  Posner’s illustration is not entirely analogous to Notre Dame because of the paperwork, but presumably Posner would counter this objection by suggesting that even if the required paperwork is a burden, it is not a substantial burden.

Moreover, Posner points out that, even if Notre Dame were to refuse to sign the form and mail it, its employees and students would still have the right under the law to procure contraceptives through its insurer and administrator.

Generally addressing litigation like that of Notre Dame and Little Sisters , Posner sounds a bit flummoxed:

What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths.

On the one hand, individual conscience is not to be slighted. On the other hand, there are numerous religious faiths, and to accommodate them all according to their necessarily subjective consciences makes it difficult to have laws of general application. Such is the predicament of courts in this latest wave of litigation.

For case-specific reasons, it is not of great significance that Notre Dame lost this battle. More significant is whether subsequent judicial decisions will view these cases by assuming that religious objectors are burdened just because they say they are, or whether courts will analyze the relationship of legal obligations to the alleged religious burden to determine if the religious burdens are objectively substantial.

Roman coinGetting back to how we are to live in a pluralistic society, there are historic models to consider.  If we go back to New Testament times, there is the model of the Pharisees, with barriers constructed between them and the loathsome Gentiles.  Clearly that was not the model of the New Testament Christians.  Christians are not “of the world” but are called to live “in the world.”  There is a presumption that Christians are to even obey “Caesar” unless that obedience is entails disobedience to God. Does a person sin or cause sin if he sells a wedding cake for a gay marriage? For that question as well as the questions raised by Obamacare requirements, the form of Posner’s analysis is likely more helpful than jumping on any bandwagon.


Filed under Church and State, Courts, Culture Wars, Ethics, Free exercise of religion

New Proposed Rules on the Obamacare Contraception Mandate

A new Proposed Rulemaking has been issued with respect to the “Obamacare” contraception mandate.  It clarifes the obligations of three kinds of employers: religious employers, non profit religious organizations and, by omission, for-profit employers. Continue reading

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Domino’s Pizza Founder Given Injunction Against Contraceptive Mandate

In Domino’s Farms Corp. v. Sebelius, the business asking for an injunction against the contraceptive mandate is run by Thomas Monaghan, the founder of Domino’s Pizza, whose beliefs

are in line with Pope Paul VI’s 1968 encyclical Humanae Vitae, which states “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception—is a grave sin. …. Monaghan believes, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “‘[c]ausing death’ can never be considered a form of medical treatment,” but rather “runs completely counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life.” Continue reading

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Construction Company Given a Stay Against the Contraceptive Mandate

Preach-it-SistersA United States Court of Appeals has granted a temporary injunction against the “contraceptive mandate” in favor of an Illinois construction company run by Roman Catholics who have a religious objection to contraceptives.

Key to the decision is an issue we have been following here: causation, which involves an analysis of exactly how the religious conviction is impacted.  In this 2-1 decision there was a dissent which followed the analysis of the District Court whose decision was reviewed by Justice Sotomayor: Continue reading

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Causation and Religious Rights: Hobby Lobby Appeals to the Supreme Court

hobby-lobby1We have previously considered the relationship between causation and ethics then applied that analysis to a hypothetical employer being coerced to provide health insurance for contraceptives against the employer’s religious beliefs. Now the Supreme Court of the United States may consider causation as it relates to religious rights in a similar context.

The occasion is an application by Hobby Lobby, Mardel, and their owners, the Green family, for an emergency order against the so-called Obamacare or HHS (Health and Human Services) mandate that would require them to provide health insurance covering abortifacients.

The application describes how the companies operate:

Both companies monitor their merchandise, marketing, and operations to ensure they reflect Christian values. …Petitioners provide their employees voluntary and cost-free access to chaplains, spiritual counseling, and religiously-themed financial courses. … Petitioners close all of their stores on Sundays-at significant financial cost-to give employees a day of rest

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The Annual Battle Over Nativity Scenes

Of all the places for the Savior to be born, God chose not a place of kings, of the wealthy, nor of the powerful. The scene is not even one of comfort, but one which shows that neither worldly power, worldly affluence, or worldly wealth were his interest. It would not be a place a husband would choose for his wife, nor one the pregnant wife would choose for her comfort or the well-being of her child.

pbsremix-bobrossjpg-3dca534ebf24ad7cYet we have romanticized the occasion, with lyrics that speak of bright stars above, cattle lowing, the “sweet” head of the Lord Jesus, and “no crying he makes.” For a visible representation of this misapprehension, consider the standard nativity scene. It is to the biblical narrative what the PBS painter guy is to art, with a little bit of a Norman Rockwell nostalgia mixed in.51aWWLwtC6L__SL500_AA300_

That nativity scenes have become an annual source of contention is evidence not of vital Christianity but of something gone awry.

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Filed under Establishment of Religion, Free exercise of religion, Religious rights

Balancing Two Kingdoms in Chicago

Pastor Frank Teesdale

Considered strictly by its legal subject matter, Teesdale v. City of Chicago is a bit of a snoozer.  Primarily about “standing” and what constitutes a city policy, it’s hardly deserving of a headline like The High Cost of Free Speech in Chicagoland or that article’s picture of a duct-taped mouth. But its facts are compelling. The crescendo-fact is a Baptist preacher arrested while preaching on the streets of Chicago.  Amplifying the crescendo, consider one of the Court’s findings:

The district court held that the 2008 arrest did not violate Pastor Teesdale’s Fourth Amendment rights because the officers had probable cause to arrest Teesdale for disorderly conduct and were entitled to qualified immunity. Continue reading


Filed under Church and State, Courts, Free exercise of religion, Religious rights

Your Friend the Establishment Clause – the Bronx Household of Faith Decision

If you closely follow the culture wars you know that a court has ruled the Bronx Household of Faith may hold its services in a school building in New York City. Yadda, yadda, whatever – Presbyterian Blues isn’t as concerned about who wins as much as it is about why they win.  And on that note, guess what? It wasn’t the white hat Free Exercise clause that won the day but the superciliously slandered, maliciously maligned Establishment Clause that saved the day.  Check it out: Continue reading


Filed under Church and State, Free exercise of religion, Religious rights, Worship

Will it be Sin to Comply With the HHS Contraceptive Mandate?

In an earlier post we looked at the lawyer’s concept of proximate cause. We saw there is one kind of analysis that simply follows a causal chain and asks “but for X, would Y have happened?” Thus we saw a continuous chain that goes like this: Obi-wan gives the boat keys of The Force to inexperienced Luke / The Force hits and dislodges a dock / The Force and the dock drift with a tree to a narrow part of the river / the river is dammed / the river floods / distraught Leia swoons and falls off her balcony, suffering serious injury. So, “but for” Obi-Wan giving the keys to Luke, Leia would never have been injured. Accordingly, Obi-Wan’s act could be called an “actual cause” of Leia’s injury.

But something just doesn’t seem right about holding Obi-Wan accountable for Leia’s injury. We might call it equity or the light of nature, but something seems unjust about holding him responsible for her injuries. So, in order to give voice to that nagging sense of unfairness, we turn to “proximate cause.” Whereas we can say that Obi-Wan was an actual cause of Leia’s injuries we would deny that he’s their proximate cause.

But, of course, this is not tort law for the tort law’s sake. Using its concepts of causation, we looked at an application that should interest all of us: moral guilt and innocence.

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