Category Archives: Religious rights

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

How a Jehovah’s Witness Helped Hobby Lobby

P1011375.JPGIn its attempt to avoid having to choose between their religious scruples and either (1) paying about $475 million more taxes annually, or (2) paying about $26 million more in taxes and dropping employee health insurance benefits, Hobby Lobby got some help from an unlikely source.

The help came from a Jehovah’s Witness whose employer ran both a foundry and a factory. He was untroubled working for the foundry that produced sheet metal, but had religious scruples about working in the factory that produced turrets for military tanks. Accordingly he quit his factory job. The SCOTUS then had to weigh whether the denial of his unemployment benefits flowed from an improper burden on his religious rights. The JW wasn’t articulate about why there was such a difference between producing steel that might be used for military purposes and working on what was obviously a turret. It might have been tempting for the SCOTUS to decide on its own reasoning that there wasn’t a substantial difference between the two kinds of jobs. But that’s not what it did because “it is not within the judicial function and judicial competence to inquire whether the petitioner . . . correctly perceived the commands of [his] faith. Courts are not arbiters of scriptural interpretation.” Such was the Court’s reasoning in Thomas v. Review Board of the Indiana Employment Security Division .

But now let’s come back to the most recent Hobby Lobby case. The government questioned the soundness of Hobby Lobby’s religious objection to providing health benefits for abortifacients, arguing “[a]n employee’s decision to use her health coverage to pay for a particular item or service cannot properly be attributed to her employer,” and “the insurance coverage at issue is just another form of non-wage compensation—supposedly the equivalent of money—and therefore should not present problems. . .” A dissent agreed with this line of reasoning, opining that “neither an employer, nor its officers and directors, by choosing to comply with the contraceptive-coverage regulation, become a party to, or otherwise encourage, an individual employee’s decision to use a particular drug or device.”

But The United States Court of Appeals for the Tenth Circuit took a deferential approach:

Such reasoning cannot be squared with the Supreme Court’s holding in [the JW case]. The Supreme Court emphasized that when the plaintiff drew a moral line between foundry and factory work, it was not the Court’s prerogative to determine whether the line he drew “was an unreasonable one.” [citing the JW case] Just so here: Hobby Lobby and Mardel have drawn a line at providing coverage for drugs or devices they consider to induce abortions, and it is not for us to question whether the line is reasonable.

This case reminds us that protection for one kind of religious belief is often protection for another. If other circuits follow this analysis, this is very good news for employers with religious objections to the HHS Mandate. Moreover, the Tenth Circuit held that Hobby Lobby can be protected by the Religious Freedom Restoration Act notwithstanding that it is a for-profit corporation.

But there will be more litigation for Hobby Lobby, as this court concluded:

We hold that Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.


Filed under Courts, Religious rights

A Lesson for Churches in the Edouard Litigation

In Bandstra v. Edouard, defense attorneys have filed motions to dismiss on behalf of the URCNA, Covenant Reformed Church, the Consistory, and four individual elders.  The elders, who are being individually sued for making statements that express or imply moral guilt on behalf of the two female plaintiffs, filed separately.  Two arguments in their memorandum are their First Amendment defense and the “qualified privilege” defense; churches should pay close attention to the second. Continue reading


Filed under Courts, Religious rights

The ACLU is Right Again – But for Different Reasons

Should_portrait_of_Jesus_at_school_be_re_215490002_20130108073853_320_240From The Christian Post:

The Ohio chapter of the American Civil Liberties Union and the Freedom From Religion Foundation have filed suit against an Ohio school district where one school has a prominently displayed portrait of Jesus Christ.

The “portrait” is the old-fashioned print of a bearded man with long wavy hair who is looking at the horizon. Continue reading


Filed under Culture Wars, Establishment of Religion, Religious rights, Uncategorized

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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Filed under Free exercise of religion, Religious rights

Church Freedom and Church Subjection to the Court

edouard testifyingAnyone considering the Bandstra v. Edouard petition might be concerned about how much a court can tell a church what it must do.  For example, can a court second-guess a church’s hiring and supervision of its pastor?  Can a court declare an elder’s moral assessment to be defamation?  We know there is a “separation of church and state,” be we also grant that pastors can be required to obey the speed limit and churches are justly liable for on-premises injuries due to an obviously dangerous condition.  Today we’ll take a look at how two courts have drawn the line between church freedom and church subjection.

In a 1997 case that arose from sexual activity between an adult woman and a priest who was giving her marriage counseling, the Maine Supreme Court considered a suit against the Catholic Church. Continue reading


Filed under Courts, Establishment of Religion, Religious rights

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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Hobby Lobby Update

Hobby Lobby’s application was handled by Justice Sotomayor who denied their request. By appealing directly from a district court to the Supreme Court with a request that the SCOTUS stop implementation of federal law, Hobby Lobby’s application was a long shot. Among the criteria Hobby Lobby had to meet was establishing that their right to relief is “indisputably clear.” It is far from that.

The Drudgereport includes a hyperlink for Justice Sotomayor upholds free ‘morning-after’ pills under Obamacare, a misleading description. Instead, she ruled on an unusual application that was subject to meeting particular requirements, and the substance of the religious objection to supplying insurance for “morning after” pills was never addressed.

Meanwhile, Hobby Lobby intends to defy the mandate.


Filed under Courts, Religious rights

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

The Line Between Free Speech and Establishment of Religion

CEF logo

In balancing the various First Amendment clauses it is important to remember that the Establishment Clause forbids “government speech” which endorses religion, while the Free Speech and Free Exercise Clauses protect private speech endorsing religion

Child Evangelism Fellowship of Minnesota v. Minneapolis Special School District No. 1 is a story of a school district that denied CEF permission to continue to utilize the district’s after school enrichment program that is “designed to encourage social, mental, physical and creative abilities, promote leadership development and improve academic performance.” CEF had previously been involved in the program and had distributed flyers on which the district disclaimed sponsorship and endorsement. After the district denied CEF’s access to that program its attendance declined from 47 down to 5.

A district official had overheard a prayer to Jesus Christ and thereafter the district informed CEF that it would no longer have access to the program due to its “prayer and proselytizing.”

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Filed under Establishment of Religion, Religious rights