Posts Tagged ‘Supreme Court’

The Message Could Not Be Clearer

Friday, January 20th, 2012

The juxtaposition of events couldn’t have been more stark.  Nor could the message be any clearer — the current Administration has a deep-seated, inveterate hostility to religious freedom.

The first event happened just last week, in its most important religious liberty decision in decades, the Supreme Court unanimously upheld the autonomy of churches to act according to their beliefs, without government intrusion.   The case was Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission, and I’ve written about it before.  Essentially, the case involved the ability of churches and other religious organizations to choose their own leaders, according to their religious beliefs.

It’s important to note that, in deciding the case, the Supreme Court specifically rejected the Administration’s argument that churches have no special protection in the choice of their leaders, and should be given no more deference in such decisions than any other association — like a bowling league.  This, despite the fact that the First Amendment grants clear, specific protection to the freedom of religion.

That was a bold example of the radicalism of this Administration, and their disdain for religious freedom.  Fortunately, the Supreme Court can actually read the Constitution, and understands what it means — and handed down the clearly correct ruling.

The second event happened today.  The Administration announced that it was going to issue final regulations that would require religious organizations to provide full health insurance coverage for sterilization, abortifacient drugs, and contraceptives.  A very narrow exemption was granted, but it is so tiny in its coverage that few, if any, organizations will qualify.  I’ve written about this regulation before as well.

Religious organizations of all denominations had denounced this plan, and had called for a broader exemption, in order to respect the conscience rights of those who object to being forced to pay for morally offensive drugs and procedures.  Yet the Administration disdained their request, and made no changes in the proposal.

Again, you could not ask for a clearer example of the hostility of this Administration towards religious freedom.  The secularist, anti-life ideology of our rulers will not compromise, and will force all others to conform.

Sometimes, things are seen most clearly from a distance.  Yesterday, Pope Benedict received some of the bishops of the United States at one of their periodic “ad limina” meetings.  In his remarks to the bishops, the Holy Father made some pointed observations about the threats to religious liberty:

it is imperative that the entire Catholic community in the United States come to realize the grave threats to the Church’s public moral witness presented by a radical secularism which finds increasing expression in the political and cultural spheres. The seriousness of these threats needs to be clearly appreciated at every level of ecclesial life. Of particular concern are certain attempts being made to limit that most cherished of American freedoms, the freedom of religion. Many of you have pointed out that concerted efforts have been made to deny the right of conscientious objection on the part of Catholic individuals and institutions with regard to cooperation in intrinsically evil practices. Others have spoken to me of a worrying tendency to reduce religious freedom to mere freedom of worship without guarantees of respect for freedom of conscience.

Here once more we see the need for an engaged, articulate and well-formed Catholic laity endowed with a strong critical sense vis-à-vis the dominant culture and with the courage to counter a reductive secularism which would delegitimize the Church’s participation in public debate about the issues which are determining the future of American society.

The Holy Father is right.  We as lay Catholics need to take action to defend our freedom, and the freedom of our Church.

Remember, elections matter.

 

 

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Posted in Catholic Teaching, Conscience, Contraception, President, Religious Liberty | 2 Comments »

The Supreme Court’s Religious Freedom Mess

Tuesday, November 1st, 2011

Some day, maybe, if we wish hard enough and clap until Tinkerbell’s light comes back on, the Supreme Court will fix the mess that it’s made of First Amendment religion jurisprudence.

Plain Meaning

The First Amendment deals with two basic categories of religious rights in the Establishment Clause and the Free Exercise Clause.  They read as follows:

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

At the time that the First Amendment was enacted, these provisions only applied to Congress, but since then the Supreme Court has applied it to the states as well, under the theory that they were incorporated into the Fourteenth Amendment’s limitations on state power.  Also, at the time that the Amendment was enacted, the meaning of these phrases was pretty self-evident.

The Establishment Clause meant that there could be no “established church” — namely, a church that had enjoyed special legal status, that received unique privileges under the law, and that all citizens were either required to belong to or financially support.  Established churches were the norm in most European countries at that time, so our Founding Fathers knew well what it meant — all citizens would experience legal coercion to belong to that church, or would suffer penalties for not belonging.

The Free Exercise Clause was also well understood at the time.  It meant that the government could not forbid, restrict, or penalize people from practicing their faith.  This provision guaranteed that — in the words of the Maryland Toleration Act of 1649 — people would not be “troubled, molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof”. Perhaps the best statement of the well-understood meaning of the Free Exercise Clause was by George Washington, in his letter to the Jewish population of Newport, Rhode Island:

The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.

As we all know well, one of the main reasons that people have come to America was to enjoy these guarantees of religious freedom.  That was true in the colonial era, and it remains true now.

Unfortunately, the Supreme Court has made a complete hash of the religion clauses of the First Amendment, with the result that the freedoms they guarantee have become threatened.

The Establishment Clause Muddle

The most recent example of this came the other day, when the Supreme Court declined to hear an appeal in a case arising out of Utah.  A private organization was founded to recognize and remember state troopers who died in the line of duty on the highways of that state.  They worked with family members to erect a memorial cross (or another symbol, at the choice of the family) near the site of the trooper’s death.  They obtained permission from the state highway authorities to do so, with the understanding that the state did not pay for or endorse the symbol erected.

Naturally, a group of Christophobic atheists brought suit, claiming that the erection of the memorials violated the Establishment Clause.  The theory was that the use of the cross as a symbol of remembrance would signal that somehow the State of Utah was endorsing the Christian religion — a particular irony, since the majority of citizens of that state are not Christians, but Mormons.

Anyone who reads the bare words of the Establishment Clause, and considers its original and plain meaning, would find this an easy case — permitting private people to put up a memorial cross on the side of the road does nothing to create a state church, 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 the federal Court of Appeals ruled that the memorial crosses violated the Establishment Clause, and the Supreme Court declined to review the case.  Justice Clarence Thomas, in his dissent from the Court’s ducking of the issue, commented on the absurdity of it all:

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, as the Tenth Circuit held here, except when it doesn’t…  Such arbitrariness is the product of an Establishment Clause jurisprudence that does nothing to constrain judicial discretion.

The Empty Free Exercise Clause

The Supreme Court has not shown much more wisdom in interpreting the Free Exercise Clause, and in fact has virtually emptied it of any meaning.

In the case of Employment Division v. Smith (1990), the Court was faced with a case involving the denial of unemployment benefits to several Native Americans, under a rule that denied benefits to anyone who couldn’t pass a drug test.  But the reason they couldn’t pass the test is because they used the drug peyote in their religious practices — much as we use wine at Mass.  They challenged the law, claiming that it would force them to violate their religious beliefs.

At that time, the Native Americans looked to have a good case.  The Supreme Court had previously held that a law could not substantially burden a person’s exercise of religion unless the government had a compelling interest and the law was narrowly defined to serve that interest.  Under that standard, it would appear that the use of ritual peyote — much like the use of sacramental wine, in the face of blanket alcohol prohibitions — would have to be permitted as an exception to the law.

The Supreme Court instead changed the rules, and held that they were properly denied the benefits.  The Court held that the government is not required under the Constitution to grant exceptions to neutral laws that apply to all people, even if that law imposes a burden on a person’s religious liberty.  In essence, the Court said that the government can require a person to forego their religious practices — to give up their sacraments — in order to qualify for benefits.

In one decision, the Court essentially gutted the Free Exercise clause.  The irony is that the majority opinion was by a man whose religion is frequently a subject for attention and comment — Justice Scalia, who is a Catholic.

Where this Leaves Us

These may seem like arcane bits of legal doctrine, but they are highly relevant to a central issue facing us at this time — the extent of religious liberty in the United States.  Policies and laws are being pursued that disqualify Christian and Catholic people from full participation in society, and that penalize churches that disagree with or refuse to comply with government policies.

If applied according to their plain meaning, the Establishment and Free Exercise Clauses would offer protection from such measures.  Sadly, the Supreme Court has made such a mess of things that the First Amendment may offer little protection to those whose ancestors who came here to America seeking religious liberty.

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Posted in Religion in Public Life, Supreme Court | 2 Comments »

Erasing the First Amendment

Thursday, July 8th, 2010

When we all studied American History and Civics 101 in school, we were taught that the First Amendment to the United States Constitution guarantees religious liberty to all.  It ensures that the government cannot interfere with religious belief or practice, nor canthe state reward or punish religious people or groups for their beliefs.  All religions are to be treated equally, with no favoritism or legal restrictions.  It’s to enjoy this specific freedom that the early settlers, and many of our ancestors, came to this country.  It’s part of what makes America great.

Too bad that the Supreme Court has been on a path to erase the First Amendment to the Constitution.

This has nothing to do with the issue of prayer in public schools or copies of the Ten Commandments in public buildings.  It has everything to do with marginalizing and penalizing religious practices that are not popular with the current powers that be.

The first major instance of this came in 1990, in the case of Employment Division v. Smith.  The case involved the denial of unemployment benefits to several Native Americans, pursuant to a rule that denied benefits to anyone who couldn’t pass a drug test.  But the reason they couldn’t pass the test is because they used the drug peyote in their religious practices — much as we use wine at Mass.  They challenged the law, claiming that it would force them to violate their religious beliefs.

The Supreme Court held that they were properly denied the benefits, because the government is not required under the Constitution to grant exceptions to neutral laws that apply to all people, even if that law imposes a burden on a person’s religious liberty.  In essence, the Court held that the government can require a person to forego their religious practices — to give up their sacraments — in order to qualify for benefits.

In one decision, the Court essentially gutted the “free exercise” clause of the First Amendment.  The irony is that the majority opinion was by a man whose religion is frequently a subject for attention and comment — the Catholic Justice Scalia.

The most recent shredding of religious liberty came last week, in Christian Legal Society v. Martinez.  This case arose at a public university law school — an arm of a state government.  The Christian Legal Society, an interfaith group of law students, adoped rules that required all its officers and members to subscribe to a basic tenet of Christian moral teaching — that sexual relations are properly reserved only to a man and woman joined in a marriage.  The school denied the organization recognition because of this provision “discriminated” against personw who are engaged in homosexual acts and relationships. The effect of this was to deny the Christian students access to funding and activites that were open to all other kinds of groups (including, ironically, a “gay and lesbian” association).

The Supreme Court upheld the denial of recognition to the group, holding that the school could require that all student organizations accept anyone who applies, both as members and as leaders.  In essence, the Court decided that the state government has the power to regulate the identity and message of religious organizations, and can force them to accept people who deny or undermine the integrity of their beliefs.  And, by implication, the Court’s decision means that a religious group cannot be a full participant in the “marketplace of ideas” unless its beliefs conform to current standards of political correctness.  In other words, the government can play favorites among religious groups — granting “equal” access to those it approves, and denying it to those it disapproves.

So much for the “free exercise” and “free association” rights that are supposedly guaranteed under the First Amendment.

This decision was written by Justice Ginsburg, but was joined by two Catholic Justices, Kennedy and Sotomayor.  Since this was Justice Sotomayor’s first foray into religious liberty jurisprudence, it does not bode well for how she will rule in future cases.

There is a movement afoot in America to stigmatize religious people who uphold traditional moral teaching (particularly about homosexuality and other sexual subjects) as bigots who do not have to be tolerated in the public square.  Whether they knew so or not, the Justices of the Supreme Court have advanced that agenda and, in doing so, have reduced the liberties of all.

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Posted in Intolerance, Law, Religious Liberty, Supreme Court | Comments Off

Misguided “Personhood” Initiatives

Thursday, May 6th, 2010

In a number of states, pro-lifers are sponsoring what they call “personhood” initiatives — either legislation or state constitutional amendments that they claim will overturn Roe v. Wade and grant legal protection to the unborn. Unfortunately, this is a well-intentioned but legally and tactically misguided strategy.

We need to recall the state of the law. The Supreme Court held in Roe v. Wade, and has upheld in every subsequent abortion decision, that an unborn child is not a “person” who is entitled to protection by the Fourteenth Amendment to the United States Constitution, and that a woman’s right to an abortion is protected by that same Fourteenth Amendment. Obviously, I believe that this is an awful miscarriage of justice, but that’s the law as it stands.

Because the federal constitution is the supreme law of the land (see Article VI of the Constitution), the Supreme Court’s rulings on abortion override all state laws or constitutions.  Congress cannot overrule a Supreme Court decision interpreting the Constitution. Nor can a Supreme Court decision interpreting the federal constitution be overruled by state constitutional amendments or legislation. Only a federal constitutional amendment (e.g., the Human Life Amendment) or a subsequent Supreme Court decision can overrule the holding in Roe that an unborn child is not a “person” within the meaning of the Fourteenth Amendment.

As a result, “personhood” bills like the federal “Sanctity of Human Life Act” or the “Life at Conception Act” simply cannot accomplish what their sponsors desire — they cannot overturn Roe v. Wade by simply defining an unborn child as a “person” under the Fourteenth Amendment.  The same holds true for similar state constitutional amendments that are being proposed around the nation.  I wish it were otherwise, but there it is.

We also have to consider the state of the judiciary. Some people are proposing these “personhood” initiatives as a way of starting a case that will challenge the Supreme Court to overturn Roe. The problem with this approach is two-fold.

First, no justice who has ever sat on the Supreme Court has ever given any indication that he or she would hold that an unborn child is a “person” under the Fourteenth Amendment. In fact, only two justices currently on the Court have ever said that they would overrule Roe on any grounds (Justices Scalia and Thomas). Even if we assume (without any factual foundation) that Chief Justice Roberts and Justice Alito would also vote to overrule Roe, there’s no indication that they would support the “personhood” theory.  In any event it would still not be enough — you need five votes, and there just isn’t another Justice on the Court who would vote to overrule Roe. Second, the result of this strategy will almost certainly make things even worse.  Instead of overturning Roe, a case involving a “personhood” law would likely produce an even stronger Supreme Court decision upholding the right to abortion, either by affirming Roe on the non-personhood of the unborn, or (God forbid!) by holding that abortion rights are necessary to ensure women’s equal status in society, based on the Equal Protection Clause of the Fourteenth Amendment (Justice Ginsburg’s favorite rationale for abortion rights).

On the whole, I believe that these “personhood” initiatives are a distraction from practical, achievable ways that we can reduce abortions and increase legal protection for the unborn. Parental notification, limits on public funding, and fetal homicide/assault bills are far more profitable ways for the pro-life movement to spend our time. We have to use these kinds of bills to build an authentic pro-life culture, so that a real Human Life Amendment, or a pro-life Supreme Court, becomes politically possible.

So, while I fully respect the intentions of those who promote “personhood” bills or amendments, I would not endorse or support them, or encourage anyone else to do so.

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Posted in Abortion, Law, Legislation, Pro-Life, Supreme Court | 4 Comments »