Archive for the ‘Religious Liberty’ Category

Hatred of the Cross and Confusion in the Courts

Friday, October 20th, 2017

In his First Letter to the Corinthians, St. Paul spoke plainly about the difficulty that the cross presents to those who don’t believe: “For the word of the cross is folly to those who are perishing, but to us who are being saved it is the power of God… For Jews demand signs and Greeks seek wisdom, but we preach Christ crucified, a stumbling block to Jews and folly to Gentiles” (1 Cor. 1:18, 23-24).

He might well have added that the cross is the object of hatred to some militant atheists, and incoherent confusion to some federal judges. This can be seen in the latest example of atheistic hostility to Christianity and muddled reasoning by a court faced with a lawsuit challenging the existence of a war memorial.

The memorial in question sits in an intersection in the town of Bladensburg, Maryland. It is a cross, forty feet tall, decorated prominently with the symbol of the American Legion on both sides – a large gold star with the initials “U.S” in the middle. The base is inscribed with the words “valor,” “endurance,” “courage,” and “devotion.” On the base is a large plaque with the names of soldiers who gave their lives in World War I and an inspiring quotation from Woodrow Wilson. An American flag stands nearby. According to the town, the memorial is known as the “Peace Cross”.

A group of Christophobic atheists filed a lawsuit claiming that the memorial violates the Establishment Clause of the First Amendment of the Constitution.  They claimed that they “have faced multiple instances of unwelcome contact with the Cross. Specifically, as residents they have each regularly encountered the Cross while driving in the area, believe the display of the Cross amounts to governmental affiliation with Christianity, are offended by the prominent government display of the Cross, and wish to have no further contact with it.”

Aside from their delicate sensibilities, their legal theory was that the use of the cross somehow signifies that the State of Maryland has endorsed Christianity as a preferred state religion.

The Establishment Clause states “Congress shall make no law respecting an establishment of religion.” This provision originally bound only the federal government, but the Supreme Court has also held that it applies to all levels of government. The Founders who drafted the Constitution and the public who ratified it knew that they were using a term of art that had a specific legal meaning. They all understood that the Establishment Clause meant that there could be no “established church” — namely, a church that had enjoyed special legal status, that was specifically endorsed by the state, that received unique privileges under the law, that all citizens were either required to belong to or financially support, and failure to do so would result in some kind of legal penalties.  Established churches were the norm in most European countries at that time, so everyone knew well that the Amendment was designed to prevent coercion to belong to the church favored by the government or king.

Anyone who reads the Establishment Clause and considers its original plain meaning would find this an easy case. Having a war memorial in the shape of a cross at a public intersection does nothing to create a state church, it doesn’t endorse any church or Christianity in general, it doesn’t compel anyone to believe any doctrine or participate in any religious practice or worship, and there’s nothing in such a gesture that would coerce anyone into joining or supporting any such church or would penalize anyone for not joining.

Sadly, the Supreme Court’s religion jurisprudence is such a mess that a federal Court of Appeals has ruled that the memorial cross violated the Establishment Clause.  In a similar case a few years ago, Justice Clarence Thomas, commenting on the Supreme Court’s incoherent rulings, said:

Since the inception of the endorsement test, we have learned that a creche displayed on government property violates the Establishment Clause, except when it doesn’t… Likewise, a menorah displayed on government property violates the Establishment Clause, except when it doesn’t… A display of the Ten Commandments on government property also violates the Establishment Clause, except when it doesn’t… Finally, a cross displayed on government property violates the Establishment Clause… except when it doesn’t…  Such arbitrariness is the product of an Establishment Clause jurisprudence that does nothing to constrain judicial discretion.

This kind of case, like the Ten Commandment public display cases that frequently crop up, may seem like petty and arcane bits of legal doctrine, but they are highly relevant to a central issue facing us at this time. There is a concerted effort being pursued to purge religion from the public square. Policies and laws are being pursued that effectively disqualify Christians from full participation in business and professions, nominees to public offices are being questioned with great hostility about their faith, and there are serious penalties imposed on churches and private persons who disagree with or refuse to comply with government policies based on their religious beliefs.

This latest demonstration of hostility towards the Cross provides us with a moment of clarity about the stakes that are in play. It also provides is with an opportunity to remind ourselves of the power of the Cross as a symbol of our salvation.

A Major Victory for Religious Freedom

Friday, October 6th, 2017

After years of regulatory and courtroom battling, the Government has finally recognized that it was a violation of religious liberty to impose what we have long called the “HHS Mandate” on those with religious objections to contraception, abortion-causing drugs and sterilization. That mandate was cooked out of thin air by the previous Administration under the purported authority of the Affordable Care Act. The current Administration has now issued new rules that give relief to religious and other organizations, as well as individuals.

This is a major victory, and we should express our gratitude to the President and his Administration, particularly those in the Department of Health and Human Services.

The sweep of the new rules is very broad. First, the admission that the original (and the many revised) rules violated the religious freedom of institutions and individuals (direct quotations from the new proposed rules are in italics):

  • “We have concluded that requiring certain objecting entities or individuals to choose between the Mandate, the accommodation, or penalties for noncompliance imposes a substantial burden on religious exercise under RFRA.” This corrects the error of the previous Administration, which stubbornly insisted that the Mandate did not impose a burden on religious belief.
  • “Our reconsideration of these issues has also led us to conclude… that the Mandate imposes a substantial burden on the religious beliefs of individual employees who oppose contraceptive coverage and would be able to obtain a plan that omits contraception…” Under the original Mandate, individuals with religious objections had no hope of any relief.
  • “the Departments have concluded that the application of the Mandate to entities with sincerely held religious objections to it does not serve a compelling governmental interest.”This is a huge concession, and reverses the adamant — and hardly credible — insistence by the previous Administration that riding roughshod over the religious objections served a vital public interest.
  • “In the Departments’ view, a broader exemption is a more direct, effective means of satisfying all bona fide religious objectors.” Note the new emphasis here of actually showing respect for religious objectors, instead of brushing them aside, which was the attitude of the previous Administration.

Now, the specifics, which also show a broad desire to protect religious liberty:

  • “With respect to employers that sponsor group health plans, the new language… provides exemptions for employers that object to coverage of all or a subset of contraceptives or sterilization and related patient education and counseling based on sincerely held religious beliefs.” This is the most significant provision, because it allows all employers with religious organizations to opt out of the offensive coverage without going through any bureaucratic process.
  • “Consistent with the restated exemption, exempt entities will not be required to comply with a self-certification process.” This removes one of the most objectionable provisions of the previous Mandate, which essentially required religious organizations to give a permission slip for offensive services to be provided — putting them in direct cooperation with evil.
  • “the Departments do not limit the Guidelines exemption with reference to nonprofit status… the rules extend the exemption to the plans of closely held for-profit entities. This is consistent with the Supreme Court’s ruling in Hobby Lobby… the rules extend the exemption to the plans of for-profit entities that are not closely held.” This is a huge expansion of the exemption, because it will not just be limited to organizations that are non-profit or to those for-profit entities that satisfy standards that vary from state to state to determine if they are “closely held”.
  • “These interim final rules extend the exemption… to health insurance issuers offering group or individual health insurance coverage that sincerely hold their own religious objections to providing coverage for contraceptive services.” This would also allow insurance companies with religious values to operate, providing a potential safe harbor from these and other morally offensive measures.
  • “This individual exemption allows plan sponsors and issuers that do not specifically object to contraceptive coverage to offer religiously acceptable coverage to their participants or subscribers who do object, while offering coverage that includes contraception to participants or subscribers who do not object.” Another major victory, this would permit — but not require — insurers to offer objecting individuals to opt out of the offensive coverage.

This is the result of steadfast opposition and litigation by many organizations and individuals who refused to surrender their religious principles  to over-reaching, ideologically-driven government regulation. Particuarly worthy of mention are the great defenders of religious freedom at Alliance Defending Freedom and Becket.

We can legitimately celebrate this victory, and thank God that our government has shown a new-found respect for our first and most precious freedom.

Scurrilous Accusations Against Christians

Friday, July 14th, 2017

In the current state of political discourse in the United States, it seems as if we have moved beyond the point where we can actually have rational reasonable arguments with each other. All too many people have descended back to the schoolyard, and are simply calling people names.

The cause of my reflection on this lamentable trend is the appearance of several news stories about the Attorney General speaking to the group Alliance Defending Freedom. There’s certainly nothing remarkable about a high-ranking public official who is a prominent lawyer speaking to another group of attorneys. The Attorney General is a political and social conservative and Alliance Defending Freedom is a well-known defender of traditional moral values when it comes to life, marriage and religious liberty. So it’s hard to see anything newsworthy about such a commonplace event. And, in fact, the speech itself was nothing extraordinary. It was a well-balanced defense of the role of religion in our society and the importance of religious liberty.

But nothing is so simple in our modern age. Several major news outlets covered this story before the text of the speech was released, and prominently repeated a despicable slander against ADF propagated by an advocacy organization called the Southern Poverty Law Center. The SPLC is a self-appointed watchdog over “hate groups” around the country. There certainly are many hate groups around the country who are dedicated to violent action motivated by bias, and it’s a good thing that someone is keeping an eye on them. In reality though, the SPLC is not a neutral agency like the FBI, but is instead a partisan advocacy organization for socially progressive causes, especially so-called gay rights, and a prodigious fund-raiser based on that advocacy.

Because ADF has the temerity to disagree with SPLC on those issues, the SPLC has designated them a “hate group”, and the media has now compliantly parroted the calumny. All that you need to do to qualify as a so-called “hate group” in the eyes of the SPLC is to disagree with them about issues like the effects of sexual hedonism on society, or the morality of homosexual conduct, same-sex “marriage”, and “transgender” rights. In other words, if you’re not with the progressive program you are a “hater”.

Now the SPLC can call people any name they like, since it is still a free country. But what’s really outrageous is that so-called reputable news organizations uncritically repeat the outrageous calumnies of the SPLC as if they were credible and objective, rather than the ideological name-calling that they really are.

We really shouldn’t be too surprised at this though. The Supreme Court in its decisions about homosexuality has been slandering people for years who have the nerve to hold to traditional moral values on sexuality. In 1996, the Court said that the only conceivable reason for a law passed by referendum that excluded sexual orientation from civil rights laws was “a bare . . . desire to harm a politically unpopular group” — in other words, pure malice. In 2013, the Court upped the ante when it struck down the federal Defense of Marriage Act and said that the virtually unanimous Congress and the Democratic president who signed the law we’re motivated by a “bare . . . desire to harm”, “disparage and injure”, “demean”, and “impose a stigma” on homosexual people. Justice Scalia rightly dissented from that decision and accused the court of declaring anyone opposed to same-sex “marriage” an enemy of the human race. Finally, in 2015 when the Supreme Court invented a right to same-sex “marriage”, the Court again accused those of us who believe in authentic marriage as being motivated by a desire to “demean or stigmatize” homosexuals, and even to “disparage their choices and diminish their personhood”.

When the highest court in the land says such things, then the message goes out that anyone who disagrees with the progressive agenda is irrational and bigoted, with no legitimate motivations and no opinions worthy of respect. That gives the SPLC and their allies in the media carte blanche to slander groups like ADF as “haters”. Others have barely avoided the term “hate” by using other words of disapprobation, such as “odious”, “bigoted”, “unkind”, “hurtful”, “intolerant”, and “needlessly cruel”. But the message is the same.

What the Supreme Court, the SPLC, and the media have not — yet — come out to say, however, is that what they are describing as “hate” is normal, mainstream, traditional, historical, Christian belief. By the way, that includes the beliefs contained in the Catechism of the Catholic Church, which have been held and taught by the Church since its founding.

Make no mistake about it. The supposedly “hateful” position that traditional orthodox Christians are accused of holding is the firm conviction based in Revelation, science, reason and tradition that maleness and femaleness are not accidental or arbitrary, that they have a meaning and a purpose oriented to unity of man and woman in marriage and the procreation of children, that homosexual desires and homogenital activity are incompatible with that meaning and purpose, and that a person can live a healthy and fulfilling life without acting on all of their sexual desires.

That’s not hate, that’s truth embedded deep into human nature, and it cannot be changed no matter what courts or advocacy groups say. And it doesn’t mean hating anyone – those of us who hold those beliefs still love our relatives, friends and neighbors who disagree with us.

Let me get back to ADF. I am very familiar with their work. I have been to their legal Academies, I have collaborated with their attorneys, and I have friends who are closely associated with them. I admire many of those in leadership positions there. I have found that they are an altruistic, heroic group of committed Christians who have sacrificed much to defend life, marriage, and religious liberty. They have done nothing to deserve the calumnies of the SPLC and the media. In fact they have done much to deserve the applause and support of all Americans who cherish traditional morality and decency, and the freedom to live by those values — and of those who disagree with them but defend their rights to free expression. Maybe the reason that groups like SPLC dislike ADF so much is that they’re so successful – they’ve won a number of key victories in court, including major cases in the Supreme Court.

Even in an era of debased public conversation, accusing people of “hatred” is a sign of intellectual bankruptcy, and indicates that you’ve lost the argument or that you don’t have enough confidence in your position to defend it. If you disagree with our positions on life, marriage and religious freedom, oppose us openly in the public square, legislatures and the courts. Don’t hide behind schoolyard insults.

A Religious Liberty Failure

Wednesday, May 10th, 2017

It is often difficult to know what to make of this very strange Administration. Every day seems to bring a new self-generated controversy and it is often difficult to discern what is going on and why.

Sometimes, though, it is very clear what has happened — or more accurately, what has not happened. The case in point is the alleged religious liberty executive order issued last week to great fanfare. It was a splendid photo op, with the President surrounded by Catholic prelates, the Little Sisters of the Poor, and other religious leaders. The President spoke wonderful words about how committed our government is to defending religious liberty. There were smiles all around and much applause.

The problem is that the executive order is virtually useless, it accomplishes nothing, it misses an opportunity to implement important reforms, and it delivers nothing more than vague promises of possible future actions at undefined times.

The order contains six paragraphs. The first contains hortatory language about the importance of religious liberty, which is virtually indistinguishable from proclamations issued by the prior Administration. The last two paragraphs deal with legal procedure that has no particular importance. The middle three paragraphs is where the substance is supposed to be, but isn’t.

Paragraph 2 purports to grant legal protection to the free speech of religious non-profits and churchs that are incorporated under section 501(c)(3) of the Internal Revenue Code. It directs the Treasury Department not to enforce a legal provision known as the Johnson Amendment, which prohibits those organizations from engaging in partisan political activity such as open endorsement of candidates. Opinions differ about the Johnson Amendment. I happen to think it’s a good idea but many others disagree. The problem is, though, that the government has virtually never enforced that provision and the President can’t do anything to change the law itself — it can only be repealed by an act of Congress. Future administrations could easily begin enforcing the rule at any time — which would be particularly dangerous for any organization that foolishly relies on this executive order and begins engaging in partisan politics.

So this part of the executive order is actually completely devoid of any real content. It’s merely a promise not to do something that isn’t being done, without preventing it from being done in the future. Hold your applause.

Paragraph 3 is a particularly frustrating diappointment to those of us who have been battling over religious liberty the past few years, especially over the HHS contraception and abortion mandate. That is the cause of voluminous litigation that culminated in a directive from the Supreme Court that the government find some way to accommodate the religious liberty concerns of religious non-profits who object to the mandate. This executive order directs the relevant agencies to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections”.

“Consider”? That’s all? Remember, you can’t overturn statutes or regulations with a mere executive order, so the HHS mandate and its offensive non-exemption continues to be the law of the land. But the President, with the stroke of a pen or even with a mere oral order, could easily have directed the Justice Department to immediately settle all the litigation by granting the religious non-profits the same full exemption that is enjoyed by churches, and further directing the relevant agencies to develop regulations that would formalize that settlement into law. That would have resolved the HHS mandate controversy completely and it would have established a strong precedent for further conscience protection laws and regulations.

This is a tragic missed opportunity, and it directly calls into question the Administration’s competence and/or its sincerity about protecting religious freedom. It is a complete and absolute failure to follow through on explicit campaign promises — somehave even called it a betrayal.

Paragraph 4 is hardly worth mentioning. It directs the Attorney General to “issue guidance interpreting religious liberty protections”. This won’t come any time soon, since virtually no sub-cabinet Justice Department officials have been confirmed by the Senate and there isn’t even a nominee for the head of the crucial Civil Rights Division. And in any event, “guidance” does not have the same force of law as regulations or statutes, it does not have to be accepted by the courts and it can be overturned at any time by this or any future Administration. So this is another post-dated check for something that may be delivered someday by someone. Yawn.

This much bally-hooed executive order is a major failure. It provides no actual protection for religious freedom. It does nothing to change the law. It does nothing to reverse the hostility of the prior Administration towards those with traditional religious beliefs. It does nothing to protect religious contractors from discrimination by government agencies that disapprove of their beliefs. It is such a non-starter that even the ACLU has decided that it’s not worth challenging in court.

Many people, particularly religious conservatives, supported the President because they rightly feared the consequences for religious liberty if Hillary Clinton had been elected. But the President’s executive order uttely fails to deliver on expectations for imporoved protection of religious liberty. All we can hope is that the Administration will eventually get its act together, appoint good people to crucial executive positions, and implement concrete reforms to statutes and regulations that will give genuine and lasting protection to people and organizations of faith. Meanwhile, despite all the fanfare in the Rose Garden, the very real threats to religious freedom remain.

Our Government is the Enemy of Religious Freedom

Wednesday, August 24th, 2016

Throughout American history, people have depended on our government to protect our basic liberties — our “unalienable rights”. Our Declaration of Independence was based on the premise that the purpose of government was to secure these rights, and that any government that sought to extinguish them was unjust and should be replaced. Our Constitution likewise contains numerous provisions that are specifically designed to protect individual liberties — especially the First and Fourteenth Amendments.

In recent years, it has become more and more clear that the current Administration harbors a settled hostility to religious liberty and freedom of speech, and a deep commitment to coercing compliance with their ideology of sexual liberation and gender theory. The history of the HHS contraception mandate shows the relentless commitment of the Administration to coerce all employers, including religious organizations, to offer insurance coverage for procedures and medications that are offensive to their religious beliefs, like abortifacient drugs and devices.

Earlier this year, the Supreme Court sent a very clear message to the Administration that they wanted them to come to some kind of compromise over the HHS contraception mandate. But rather than heeding that suggestion, the Administration has instead intensified its assault on religious liberty.

In May, the Department of Health and Human Services issued new regulations that are astonishing in their breadth and daring. The regulations rely on an interpretation of the term “sex” in current anti-discrimination laws, and stretch that clear term to encompass “gender identity” — which the regulation defines as a person’s “internal sense of gender, which may be male, female, neither, or a combination of male and female”, which would even include people with “non-binary gender identities”. A definition that includes so much is no definition at all — it is hopelessly broad and vague, and ultimately incoherent. But that is gender ideology at its heart.

The regs go on to require every doctor, hospital and other health care entity that receives federal funds (e.g., Medicare) — in effect, virtually every single health provider in the US —  to cover all procedures and interventions related to a person’s “gender transition”. Just to be clear, that means medical procedures like massive doses of hormones and the removal or mutilation of health body parts (i.e., hysterectomies, castration, penectomies, mastectomies, plastic surgery to create fake sex organs, etc.) — all so that a man can pretend he is a woman, and vice versa. This coercive mandate will override the medical judgment of a doctor that such acts are not medically necessary or appropriate, and they permit no exceptions based on religious or moral values.

It gets even worse. The regs also interpret the notion of “sex discrimination” to mean that a health provider cannot refuse to perform abortions, and must cover abortions and all those “gender transitioning” procedures in their health insurance plans.

All of this was done through the administrative law process, which is an arcane and undemocratic way to make law. Instead of having a bill passed by both Houses of Congress, all this requires is a regulatory agency plublishing proposed rules, allowing people to comment for a short time, and then promulgating whatever rules they wish. No public hearings are needed, so the entire process is hidden deep in the pages of a massive publication called the “Federal Register”, which no normal person can read and understand (even lawyers, who are far from normal, have a hard time). It is extremely difficult to overturn regulations, because our courts have abandoned their duty of constitutional oversight and give extreme deference to the agencies putting forth the regs.

Our government has been increasingly using this undemocratic process to impose their ideology on the nation. In fact, they go even further by issuing “guidances”, which are purportedly not binding but which in fact are just as coercive as regulations and statutes.

A lawsuit has been filed by the Becket Fund for Religious Liberty, representing a number of states, religious health institutions, and health professionals. If the government follows its previous practice, they will fight tooth and nail against any compromises, and will never concede any ground. No religious objection is ever enough for them, and no demand by gender ideologues is too much. That is the regime under which we live.

In the Declaration of Independence, the Founders stated clearly that when a government no longer secures basic rights, and instead seeks to usurp or repress them, it can only be described as a tyranny. Our government may not be comparable to the wicked despotisms around the world, but it has clearly crossed a line with its relentless attacks religious freedom.

Supreme Court to Religious Liberty — Drop Dead

Thursday, July 7th, 2016

In the last few decades, legal scholars and those interested in religious liberty have questioned whether the Free Exercise Clause of the Constitution is on its way to extinction. The question stems from the Supreme Court’s 1990 decision in the case of Employment Division v. Smith, in which it held that a neutral law of general applicability does not violate the Free Exercise Clause, even if it imposes a burden on a person’s religious beliefs or practices.

At this point, the Supreme Court has give a pretty clear answer to this question. For all intents and purposes, the Free Exercise Clause is a dead letter, with as much life to it as the Third Amendment’s ban on the quartering of troops in private houses.

Although the Smith rule appears to leave open the possibility of challenging laws, in reality it has rendered the Free Exercise Clause virtually useless in defending religious liberty. In fact, in the recent cases that have reached the Supreme Court on religious freedom during Chief Justice Roberts’ tenure (since 2005), virtually all have completely ignored the  Free Exercise Clause. Instead, the very few religion cases that have been taken by the Court were decided on other grounds, such as the Free Speech Clause, the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized Persons Act, or Title VII. The lone possible exception was an ambiguous decision regarding the ability of churches to have discretion over religious employment decisions; it isn’t clear whether it rested on the Establishment Clause or the Free Exercise Clause. In any event, it’s as if the Court doesn’t want to hear about the Free Exercise Clause.

If that weren’t clear already, the Court made it perfectly plain this term. A very significant religious freedom case was presented to the Court, involving a serious infringement upon religious freedom. But the Court didn’t think the case was even worth considering.

The case involved a small family-owned pharmacy in the State of Washington. The owners of the pharmacy, the Stormans family, are Christians, and they have religious objections to dispensing so-called “emergency contraception”, because it can cause an early abortion. Other nearby pharmacies are willing to dispense those drugs, so they are easily available to anyone who wants them.

That wasn’t good enough for the pro-abortion zealots in the Washington government. They adopted regulations that their Human Rights Commission interpreted to specifically rule out moral and religious objections to the dispensing of drugs, even though they permitted (either explicitly or by practice) a host of non-religious reasons that a pharmacy can decline to dispense a particular drug. This was the result of a concerted campaign by abortion advocates to rule out any conscience-based objections to “emergency contraception”. In fact, the Governor of Washington invited Planned Parenthood to collaborate in the drafting of the regulations. The Governor even threatened the members of the Human Rights Commission being fired, and with violations of anti-discrimination laws if they allowed conscience objections. Once the rules were adopted, Planned Parenthood targeted this pharmacy for complaints.

It would be hard to imagine a clearer case of the government using its power to punish people of faith for exercising their religious beliefs in the way they conduct their business. There is no doubt that the government of Washington was trying to enforce a pro-abortion orthodoxy, and was willing to put people out of business if they dared to dissent.

The Stormans family challenged these regulations, and were initially victorious. But the Ninth Circuit Court of Appeals — a notoriously liberal bench — overturned the lower-court decision. The Stormans then appealed to the Supreme Court. They were represented by Alliance Defending Freedom, the great defenders of religous liberty and human life. Thirty-three state pharmacy associations urged the Court to take the case. Many others — including the US Bishops Conference and forty-three members of Congress — filed briefs in support of the Stormans’ petition.

Even under the restrictive Smith rule, this should have been an easy case. There was clearly a substantial burden on religious beliefs — being forced to cooperate directly in a possible abortion. The law was far from neutral — it specifically targeted only those who had moral or religious objections, and nobody else. And it absolutely wasn’t generally applicable — all sorts of secular exceptions were permitted, and only moral or religious ones prohibited.

But on the very last day of the Court’s term, it refused to hear the Stormans’ case. Five Justices — Kennedy, Ginsberg, Breyer, Kagen and Sotomayor — didn’t think that the Stormans deserved their day in Court. (I have to add that Justice Sotomayor joining that group is a particular disgrace — she is a graduate of Cardinal Spellman High School, my alma mater, and she obviously didn’t learn the same things that I was taught about the importance of our Catholic faith.)

The three remaining Justices — Roberts, Alito, and Thomas — dissented from the denial of the appeal, and Justice Alito wrote a blistering opinion. His opening paragraphs are worth quoting at length:

This case is an ominous sign.

At issue are Washington State regulations that are likely to make a pharmacist unemployable if he or she objects on religious grounds to dispensing certain prescription medications. There are strong reasons to doubt whether the regulations were adopted for — or that they actually serve — any legitimate purpose. And there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State. Yet the Ninth Circuit held that the regulations do not violate the First Amendment, and this Court does not deem the case worthy of our time. If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.

By refusing to hear this case, the Supreme Court said to the Stormans and to the Free Exercise Clause that they can just drop dead. That is bad news for religious liberty, for the equal administration of the law, and for the health of our society. An ominous sign, indeed.

Victory for Religious Freedom

Tuesday, May 17th, 2016

Yesterday, the Supreme Court issued its long-awaited ruling on the HHS Mandate cases that involved the Little Sisters of the Poor, several Catholic dioceses, and a number of other Christian organizations. It is a bit of a disappointment that the Court didn’t rule explicitly on the merits of the religious liberty issues, and the case will linger on for a while in the lower courts. Still, given the divisions in the Court after the death of Justice Scalia, I have to consider this to be a major victory.

The Court unanimously decided to send the cases back to the Circuit Courts, which had previously issued split decisions on the cases. The Supreme Court instructed the lower courts to work out a resolution that would ensure that the religious non-profits would not have to do anything to facilitate the provision of morally offensive services beyond contracting with their insurance company for a policy that excludes them. That will then permit the government to come up with a way to ensure that the services are still offered to the employees of the non-profits. Most important, the Court also ruled that the religious non-profits could not be fined or penalized by the government for taking their stand in defense of their religious liberties.

There are a couple of crucial take-aways from this.

  • All along, the argument by the religious non-profits has been that they don’t want to be involved in providing abortion and contraception services that they find morally offensive.
  • This ruling vindicates that argument, and sends a clear signal to the government that they can’t force religious people to violate their religious beliefs by threatening them with ruinous fines.
  • The ruling also makes clear that it is not the business of the government or courts to tell people when their religious beliefs are burdened by a law. The Court’s decision is a direct rebuke to the lower courts who substituted their judgement about Catholic and Christian belief for the plaintiffs.
  • The government has not been told in no uncertain terms that they have to be more accommodating of religious belief, and more creative in coming up with ways to achieve their goals without burdening religious beliefs.
  • The government’s parsimonious view of religious freedom has now been dealt its fourth consecutive major blow — starting with the Hosanna Tabor case, through Hobby Lobby, and now with Zubik, the Court is sending a clear message that the constitutional recognition of religous freedom has to be given special weight when it is negatively impacted by government policies.

Major kudos have to go out the defenders of religious freedom at the Becket Fund and Alliance Defending Freedom, who gave these cases the benefit of their great legal skills. But more than anything, credit must be given to the Little Sisters of the Poor, Bishop Zubik, Archbishop Wuerl, Priests for Life, and the Christian Colleges who were the plaintiffs in these cases, and who carried the banner for our natural right to practice our faith free of government coercion.

James MadisonGeorge Washington, and Thomas Jefferson would be proud.

The Danger is Clear and Present

Saturday, May 14th, 2016

There are many people who continue to scoff at our warnings about the gravity of the threats to religious liberty, and our fears of outright persecution by our government. They accuse us of scaremongering, and insist that “that will never happen”.

The skeptics need to come to New York. The threat is real, and it is here, right now — a government mandate that private health insurance plans cover elective abortions. And it is happening with all the classic characteristics of New York government — secretive, devious, duplicitous, unaccountable, and arrogant.

To understand this, you have to have a small bit of background. The New York State Department of Financial Services regulates the insurance business. They have to approve every health insurance policy by the beginning of the new year, to make sure that it complies with all the various legal requirements in New York law. To make this easier, DFS issues what it calls “model language” for health plans. Although one would think that “model language” is merely a suggestion, in reality it is required, because no health plan would be approved without it. So every health insurance company just falls in line, and the person obtaining the insurance really has no choice. So the “model language” is actually a legal mandate, dressed up in other clothing to hide the truth.

Here’s where the classic New York underhandedness comes in. Last year, DFS put out draft “model language” for small employer policies that included coverage for so-called “therapeutic abortions” — which really means abortion on demand, for any reason whatsoever. Now, of course, there is no legal authority for this — it isn’t authorized by legislation and it’s never been put through the normal process for issuing regulations. But that has never stopped a New York executive agency before — they typically act as if they were a law unto themselves, and they just make up new “laws” as they wish.

Objections were made to the crypto-mandate, and so DFS went into “rope-a-dope” mode. They promised to study it, to discuss it with superiors, etc., etc. Nothing happened, despite repeated requests for clarification. The effect of this obfuscation and delay was that they ran out the clock until the end of the year, when every insurance plan has to be submitted for approval, including the model language.

As the deadline approached, DFS dropped the real bomb, the one that shows such patent bad faith that even completely cynical watchers of New York government were appalled. In an off-handed comment, a DFS official told a representative of the Catholic Church words to the effect that “Oh, what’s the problem, you’re already paying for therapeutic abortions”. When our representative picked himself off the floor and asked “how?” and “since when?” and “why didn’t you tell us?”, the bureaucrat said that it had been the case for a long time,  and that it was all under the rubric of “medically necessary surgery”, which is automatically covered in all health insurance policies. And, of course, there’s no exemption for religious employers or anyone else who objects to paying for the killing of unborn children.

So a sneaky, duplicitous state agency has been making Catholic institutions — and everyone else — pay for elective abortions for years and lying about it being “necessary surgery”. And this is all done without any public awareness or scrutiny — it’s just a secret fiat from some nameless bureaucrat who is accountable to nobody. So much for the rule of law.

Fortunately, people are pushing back against this gross abuse of power. A lawsuit has been filed by the Dioceses of Albany and Ogdensburg, Catholic Charities agencies, religious communities, and a number of non-Catholic institutions, including the Episcopal Diocese of Albany. This lawsuit raises major issues about religious liberty, and how to put limits on an arbitrary, unaccountable government that is insistent on imposing morally offensive mandates on religious groups and people.

Don’t listen to the skeptics. The threat to freedom of religion is real and present. And it will not go away, because the pro-abortion ideology is so deeply ingrained in our state government that they will brook no opposition, and will use any available tactic, until they enshrine abortion in every area of the law and drag everyone into complicity with the destruction of the innocents.

A Light at the End of the Tunnel?

Wednesday, April 13th, 2016

There is growing reason to hope that the long battle to defend religious freedom against the HHS Mandate may soon be favorably resolved.

You will recall that the “HHS mandate” comes from a provision in the “Affordable Care Act” (the “ACA”, which is typically being called “Obamacare”) that requires all employers who offer health insurance to include coverage for “preventive services”. The term “preventive services” has been defined by the Department of Health and Human Services (“HHS”) to include contraceptive drugs and devices (including “emergency contraception”, which causes early abortions) and sterilization operations. Churches and other purely religious organizations are exempted from this mandate, but many religious and other organizations are not. As a result, they have been in court trying to vindicate their right to conscientious objection — they don’t want to cooperate in the provision of services or products that are against their religious beliefs.

There was a significant victory in 2014 when the right of two family-owned corporations won their case before the U.S. Supreme Court (the  Hobby Lobby case). But now the Court is considering a major case involving numerous religious organizations who are not exempt, and who are facing massive fines if they don’t knuckle under. The most prominent of these organizations is the Little Sisters of the Poor, but there are other Catholic and Protestant organizations as well. The principal argument of these organizations is that the government is requiring them to file forms that essentially allows the government to “hijack” their health plan to provide services that they consider morally evil.

The case was argued before the Supreme Court in March. Usually, we would expect a decision in late June, but things in the Court have become complicated by the death of Justice Scalia — cases that might otherwise have been decided by a 5 to 4 vote would likely now result in a 4 to 4 split Court.  Perhaps becuase of this dilemma, the Court did something very unusual.  They asked the parties to submit additional briefs, in response to a suggestion from the Court that there may be a way to resolve the case, by permitting employees to receive the offensive services without any action by the religious groups. This was encouraging — it suggested that the Court was sympathetic to the religious liberty arguments, and was seeking a way to protect them.

Now the religious organizations and the government have filed their briefs. The Little Sisters et al. readily agreed to the Court’s suggestion, saying that they could comply with an arrangement where they are not required to take any action that would trigger the provision of the services, and if the services are actually provided by a separate insurance plan (even if it is run by their regular insurance carrier). This is all that the religious organizations have ever wanted — to be left alone to do their work, without getting dragged into anyone’s sex lives. In effect, they were saying to the Court, “This is the solution that we would have suggested to the government years ago, if they had only asked”.

The government, for its part, reacted by quibbling, complaining, and digging their heels in. They complained about having to file a new brief. They insisted that no further concessions were necessary to protect the religious groups’ consciences — as if they knew better what is in violation of Catholic or Protestant moral teachings. They groused that the Court’s suggestion would require changes to other sections of the law and regulations, as if that were something unheard-of, rather than the commonplace result of any litigation of this type. They continued to fantasize that any further accommodation would lead to a parade of horribles — endless further litigation, thousands of women without health care, etc. And in the end, as if they were swallowing nasty-tasting medicine, they kind-of, sort-of, very reluctantly maybe agreed that the Court’s suggestion would be barely acceptable.

This ungracious reply hurts the government’s credibility, and is cause to be hopeful for a positive result. The Court now has reason to wonder why the case is even before them, and has a clear way to resolve it.  All they need do is issue a simple opinion, stating that the government has failed to establish a compelling reason to force the Little Sisters et al. to cooperate with the HHS Mandate, and ordering the settlement that the Court suggested, to which both the government (however grudgingly) and the Sisters have now agreed.

That would end this long nightmare, and vindicate the right to conscience of religious organizations. But it also raises a troubling question — if such a common-sense solution was available all this time, why did the government insist on forcing the cooperation of the religious groups? I know of no other answer, other than the Administration’s well-established hostility to traditional religious values, and their complete dedication to the spread of the ideology of sexual liberation, against any opposition.

Light a Candle for Freedom

Friday, December 18th, 2015

The wonderful Jewish holiday of Hanukkah ended the other day, and in honor of the event, I went back and re-read the Books of Maccabees.  They are a fascinating and sobering read — full of heroism and bloodshed, honor and sacrifice.  They also are an important reminder of the need for people of faith to stand strong for our freedom to worship God as he commands, and not as the powers of this world wish to dictate.

The story is fairly straightforward.  In the Second Century BC, the Greek kings of the Middle East, for a variety of reasons, decided to suppress the religious practices of the Jews.  They used various measures.  The mildest was to induce them to adopt Greek ways of living.  The most serious was to blaspheme the Temple in Jerusalem by desecrating the altar of sacrifice, and erecting a statue to one of their pagan false gods.  This led to warfare, suppression, and gruesome torture.

Throughout it all, a strong body of the faithful remained firm, and resisted.  They ultimately were successful, and rededicated the Temple to the worship of the One True God.  The great event is remembered still today, by the lighting of eight candles to honor the eight days of the ritual purification of the Temple — the holiday of Hanukkah.

This commemoration should remind us of the importance of fidelity to our faith, and the need to be willing to sacrifice and even suffer for it.  It is a lesson that is being demonstrated in our midst by the Christians who are being brutally persecuted around the world, especially in the Middle East.

The suffering of our Christian brethren can barely be imagined by those of us in the comfortable West.  The facts are clear and available to anyone who wishes to see them.  Unfortunately, far too many people prefer to avert their eyes, or even to pretend that it is not happening.  Even our government, which bears some considerable responsibility for creating the conditions that led to the persecution, refuses to call it by its real name — genocide.

At this time, it is incumbent on us all to rally with our Christian brethren.  We must speak out and make sure that this crisis is an important part of the conversation during this election year.  We should press our government to provide direct material aid to Christian refugees, including allowing them to come into the safety of our nation.  We should give generously to organizations like the Catholic Near East Welfare Association and Aid to the Church in Need, that give material support to those who are suffering.  And we need to pray without ceasing for the rescue of those who are persecuted, and for the conversion of their persecutors.

Like our Jewish friends, we should light a candle to remember the need to defend our faith.  According to the ancient Hanukkah tradition, there wasn’t enough oil to light the original candles.  But a miracle occurred, and there was enough oil for all eight days of light.  There’s a lesson for us there — if we have faith, and remain steadfast with our God, He will provide all that we need.