Story 3: Lying Lunatic Left Democratic Party’s War on People of Faith By Opposing Indiana’s Religious Freedom Restoration Law — 19 Other States Have Similar Laws — Federal Religious Freedom Restoration Act of 1993 — Does Not Discriminate Against Any One Including Gays and Lesbians– Videos
Indiana legislators pledge to ‘fix’ controversial religious freedom law
Pence signs Religious Freedom Restoration Act
Religious Freedom Restoration Act Bill Draws Criticism, Support
Indiana lawmakers discuss the Religious Freedom Restoration Act
WFB’s Liz Harrington Discusses Indiana’s Religious Freedom Law on Real Story
Indiana Gov. Mike Pence Says Religious Freedom Law ‘Absolutely Not’ a Mistake
Religious Freedom Act backlash continues in South Bend, across the US
What Does The Hobby Lobby Supreme Court Ruling Mean?
The Hobby Lobby Supreme Court Decision Explained
History and Impact of the Religious Freedom Restoration Act
Mark Steyn On The Religious Freedom Restoration Act of 1993
Swarens: Gov. Mike Pence to push for clarification of ‘religious freedom’ law
Gov. Mike Pence, scorched by a fast-spreading political firestorm, told The Star on Saturday that he will support the introduction of legislation to “clarify” that Indiana’s controversial Religious Freedom Restoration Act does not promote discrimination against gays and lesbians.
“I support religious liberty, and I support this law,” Pence said in an exclusive interview. “But we are in discussions with legislative leaders this weekend to see if there’s a way to clarify the intent of the law.”
The governor, although not ready to provide details on what the new bill will say, said he expects the legislation to be introduced into the General Assembly this coming week.
Asked if that legislation might include making gay and lesbian Hoosiers a protected legal class, Pence said, “That’s not on my agenda.”
Amid the deepest crisis of his political career, Pence said repeatedly that the intense blowback against the new law is the result of a “misunderstanding driven by misinformation.”
He adamantly insisted that RFRA will not open the door to state-sanctioned discrimination against gays and lesbians. But he did acknowledge that Indiana’s image — and potentially its economic health — has been hurt badly by the controversy.
I spoke with Pence on the same day that thousands of people rallied at the Statehouse in opposition to the law. And the same day that Angie’s List CEO Bill Oesterle announced that his company will abandon a deal with the state and city to expand the company’s headquarters in Indianapolis because of RFRA’s passage.
INDIANAPOLIS STAR
Angie’s List canceling Eastside expansion over RFRA
Oesterle’s statement is a telling sign that the outrage over RFRA isn’t limited only to the political left. Oesterle directed Republican Mitch Daniels’ 2004 campaign for governor. And it’s a signal that the damage from the RFRA debacle could be extensive.
Behind the scenes, Pence and his team have been scrambling to mitigate that damage — both to the state and to the governor’s political career.
Pence said, for example, that he had a “cordial and productive” conversation with Salesforce.com CEO Marc Benioff, who announced shortly after Pence signed the RFRA legislation on Thursday that the company will cancel all corporate-related travel to Indiana. That conversation, however, has not led to a reversal of the Salesforce decision.
I asked the governor if he had anticipated the strongly negative reaction set off by the bill’s passage. His response made it clear that he and his team didn’t see it coming.
“I just can’t account for the hostility that’s been directed at our state,” he said. “I’ve been taken aback by the mischaracterizations from outside the state of Indiana about what is in this bill.”
In defense of the legislation, he noted that 19 other states and the federal government have adopted RFRA laws similar to Indiana’s. And he pointed out that President Barack Obama voted for Illinois’ version of RFRA as a state senator.
The governor also criticized the news media’s coverage of the legislation. “Despite the irresponsible headlines that have appeared in the national media, this law is not about discrimination,” he said. “If it was, I would have vetoed it.”
Yet, those justifications, cited repeatedly by the governor’s supporters in recent days, have done little to quell the controversy.
Which is why the proposal to clarify the law’s intent with a new bill has gained traction among Pence’s advisers in the past couple of days.
Pence also plans to fight back in the state and national media. He’s scheduled, for instance, to defend the law Sunday morning on ABC’s “This Week” with George Stephanopoulos. “I’m not going to take it (the criticism) lying down,” he said.
INDIANAPOLIS STAR
Pence on ‘religious freedom’ bill: ‘I stand by this law’
As we wrapped up the conversation, I asked Pence: What answer do you have for the many gays and lesbians — and their friends and families — who’ve asked this past week if they are still welcome in Indiana?
“First, this law is not about discrimination. It’s about protecting religious liberty and giving people full access to the judicial system,” he said. “But, yes, Hoosier hospitality is about making all people feel welcome in our state. We did that with the Super Bowl and with many other events, and with bringing businesses here. We will continue to do that.”
Whether Pence can get that message across — whether he still has the credibility to get people to believe it — will help determine the extent of RFRA’s damage. First, and most important, for the state. But also for Mike Pence’s political future and legacy.
Argued March 25, 2014
Decided June 30, 2014Full case nameSylvia Burwell, Secretary ofHealth and Human Services, et al., Petitioners v. Hobby Lobby Stores, Inc., Mardel, Inc., David Green, Barbara Green, Steve Green, Mart Green, and Darsee Lett; Conestoga Wood Specialties Corporation, et al., Petitioners v. Sylvia Burwell, Secretary of Health and Human Services, et al.Docket nos.13-354 13-356Citations573 U.S. ___ (more)
HoldingAs applied to closely held for-profit corporations, the Health and Human Services(HHS) regulations imposing the contraceptive mandate violate the Religious Freedom Restoration Act (RFRA). HHS’s contraceptive mandate substantially burdens the exercise of religion under the RFRA. The Court assumes that guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, but the Government has failed to show that the mandate is the least restrictive means of furthering that interest.Court membership
Case opinionsMajorityAlito, joined by Roberts, Scalia, Kennedy, ThomasConcurrenceKennedyDissentGinsburg, joined by Sotomayor; Breyer, Kagan (all but part III-C-1)DissentBreyer and KaganLaws applied
Burwell v. Hobby Lobby, 573 U.S. ___ (2014), is a landmark decision[1][2] by the United States Supreme Courtallowing closely held for-profit corporations to be exempt from a law its owners religiously object to if there is a less restrictive means of furthering the law’s interest. It is the first time that the court has recognized a for-profit corporation’s claim of religious belief,[3] but it is limited to closely held corporations.[a] The decision is an interpretation of the Religious Freedom Restoration Act (RFRA) and does not address whether such corporations are protected by the free-exercise of religion clause of the First Amendment of the Constitution.
For such companies, the Court’s majority directly struck down the contraceptive mandate, a regulation adopted by theUS Department of Health and Human Services (HHS) under the Affordable Care Act (ACA) requiring employers to cover certain contraceptives for their female employees, by a 5-4 vote.[4] The court said that the mandate was not the least restrictive way to ensure access to contraceptive care, noting that a less restrictive alternative was being provided for religious non-profits, until the Court issued an injunction 3 days later, effectively ending said alternative, leaving no employer-sponsored alternative for any female employees of closely held corporations that do not wish to provide birth control.[5]
The ruling could have widespread impact, allowing corporations to claim religious exemptions from federal laws.[6][7]
Background
Federal law
Religious Freedom Restoration Act
The United States Supreme Court ruled in Employment Division v. Smith (1990) that a person may not defy neutral laws of general applicability[b] even as an expression of religious belief. “To permit this,” wrote Justice Scalia, “would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” He wrote that generally applicable laws do not have to meet the standard of strict scrutiny, because such a requirement would create “a private right to ignore generally applicable laws”. Strict scrutiny would require a law to be the least restrictive means of furthering a compelling government interest.
In 1993, the US Congress responded by passing the Religious Freedom Restoration Act (RFRA), requiring strict scrutiny when a neutral law of general applicability “substantially burden[s] a person’s[c] exercise of religion”.[8] The RFRA was amended in 2000 by the Religious Land Use and Institutionalized Persons Act (RLUIPA) to redefine exercise of religion as any exercise of religion, “whether or not compelled by, or central to, a system of religious belief”, which is to be “construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution”. The Supreme Court upheld the constitutionality of the RFRA as applied to federal statutes in Gonzales v. O Centro Espirita in 2006.
Affordable Care Act
Most Americans are covered by employer-sponsored health insurance. In 2010, Congress passed the Affordable Care Act (ACA), which relies on the Health Resources and Services Administration (HRSA), part of the Department of Health and Human Services (HHS), to specify what kinds of preventive care for women should be covered in certain employer-based health plans. HHS exempted religious employers (churches and their integrated auxiliaries, associations of churches, and any religious order), non-profit organizations that object to any required contraception,[9] employers providing grandfathered plans (that have not had specific changes before March 23, 2010), and employers with fewer than 50 employees. The HRSA decided that all twenty contraceptives approved by the U.S. Food and Drug Administration (FDA) should be covered.[10] Companies that refuse are fined $100 per individual per day,[11] or they can replace their health coverage with higher wages and a calibrated tax.
Hobby Lobby Stores and Conestoga Wood Specialties
Hobby Lobby is an arts and crafts company founded by self-made billionaire[12]David Green and owned by the Evangelical Christian Green family with about 21,000 employees.[11] It provided the contraceptives Plan-B and Ella until it dropped its coverage in 2012, the year it filed its lawsuit.[13][14] It is the largest funder of theNational Christian Charitable Foundation that uses its billion-dollar endowment to fund a network of political groups including the Alliance Defending Freedom, which recently supported the Arizona SB 1062 bill that attracted national controversy.[15] The Hobby Lobby case also involved Mardel Christian and Educational Supply, which is owned by Mart Green, one of David’s sons.
The Green and Hahn families believe that life begins at conception which they equate to fertilization, and object to their closely held for-profit corporations providing health insurance coverage to their female employees of four FDA-approved contraceptives that the Green and Hahn families believe may prevent implantation of a fertilized egg (many doctors and scientists disagree), which the Green and Hahn families believe constitutes an abortion.[17][18][19][20]
In September 2012, Hobby Lobby filed a lawsuit in the U.S. District Court for the Western District of Oklahoma against enforcement of the contraception rule based on the RFRA and the Free Exercise Clause of the First Amendment. The district court denied Hobby Lobby’s request for a preliminary injunction. In March 2013, the U.S. Court of Appeals for the Tenth Circuit granted a hearing of the case. In June, the appeals court ruled that Hobby Lobby Stores, Inc. is a person who has religious freedom.[6] The court ordered the government to stop enforcement of the contraception rule on Hobby Lobby and sent the case back to the district court, which granted preliminary injunction in July. In September, the government appealed to the U.S. Supreme Court.[21]
Two other federal appeals courts ruled against the contraception coverage rule, while another two upheld it.[11]
On November 26, the Supreme Court accepted and consolidated the case with Conestoga Wood Specialties v. Sebelius. Two dozen amicus briefs support the government, and five dozen support the companies. American Freedom Law Center‘s brief argues that birth control harms women because men will only want them “for the satisfaction of [their] own desires.”[22] Another brief argues that the contraception rule leads to “the maximization of sexual activity”.[7] Two of the briefs oppose each other on the constitutionality of the RFRA. Two briefs that do not formally take sides oppose each other on whether the right to religion applies to corporations.[23] One of those briefs argues that if shareholders are separated by the corporate veil from corporate liabilities, then their religious values are also separate from the corporation. It mentions the ruling in Domino’s Pizza, Inc. v. McDonald made against the African American owner of JWM Investments whose contracts were breached due to racial discrimination. The brief argues that if JWM Investments could not suffer discrimination through its owner, then Hobby Lobby could not suffer religious burden through its owner.[24][25] Two briefs were filed by LGBT groups concerned that future anti-discrimination laws would be pre-emptively harmed if employers could claim to be religiously exempt.[26][27][28]
Argument and deliberation
Oral arguments were held on March 25, 2014 for 30 minutes more than the usual one hour.[8] The three women in the court focused their questioning on Hobby Lobby’s lawyer, Paul D. Clement, while the men focused on the administration’s lawyer, Solicitor General Donald Verrilli, Jr.[29] Justice Sotomayor quoted the ruling from United States v. Lee (1982) saying that an employer can’t deprive employees of a statutory right because of religious beliefs. Clement replied that Lee does not apply because it was a challenge against a tax rather than against a significant burden. Sotomayor said that instead of paying the burden of the penalty, Hobby Lobby could replace its health care with the equivalent expense of higher wages and a calibrated tax, which the government would use to pay for the employees’ health care.[30][31] Near the end of Clement’s argument, Justice Kennedy expressed concern for the rights of the employees who may not agree with the religious beliefs of their employers.[32] When Verrilli argued that the ruling in Cutter v. Wilkinson requires the court to weigh the impact on third parties in every RFRA case, Justice Scalia said that the RFRA does not require the court to balance the interest of the religious objector to the interest of other individuals. Verilli returned to Lee,saying that granting an exemption to an employer should not impose the employer’s religious faith on the employees.[30][33]
Opinion of the Court
Majority opinion
On June 30, 2014, Associate JusticeSamuel Alito delivered the judgment of the court. Four justices (Roberts, Scalia, Kennedy, and Thomas) joined him to strike down the HHS mandate, as applied to closely held corporations with religious objections, and to prevent the plaintiffs from being compelled to provide contraception under their healthcare plans. The ruling was reached on statutory grounds, citing the RFRA, because the mandate was not the “least restrictive” method of implementing the government’s interest. The ruling did not address Hobby Lobby’s claims under the Free Exercise Clause of the First Amendment.[34]
The court argued that the purpose of extending rights to corporations is to protect the rights of shareholders, officers, and employees.[35] It said that “allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.”[36] The court found that for-profit corporations could be considered persons under the RFRA. It noted that the HHS treats nonprofit corporations as persons within the meaning of RFRA. The court stated, “no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.”[37] Responding to lower court judges’ suggestion that the purpose of for-profit corporations “is simply to make money”, the court said, “For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives.”[38] The court rejected the contention that “the Nation lacks a tradition of exempting for-profit corporations from generally applicable laws,” pointing to a federal statute from 1993 that exempted any covered health care entity from engaging in “certain activities related to abortion”.[39]
The court held that the HHS contraception mandate substantially burdens the exercise of religion, rejecting an argument that the $2,000-per-employee penalty for dropping insurance coverage is less than the average cost of health insurance. Responding to HHS’s argument that the provision of coverage does not itself result in destruction of embryos, the Court asserted that the argument dodges the substantial burden question that the Court is supposed to address. The Court added, citing Jesuit moral manuals, that the argument is also the religious question of the morality of enabling the immoral acts of others, to which HHS had provided “a binding national answer”. The Court argued that federal courts should not answer religious questions because they would in effect be deciding whether certain beliefs are flawed.[40][41] The court argued that “companies would face a competitive disadvantage in retaining and attracting skilled workers,” that increased wages for employees to buy individual coverage would be more costly than group health insurance, that any raise in wages would have to take income taxes into account, and that employers cannot deduct the penalty.[42]
The court found it unnecessary to adjudicate on whether the HHS contraceptive mandate furthers a compelling government interest and held that HHS has not shown that the mandate is “the least restrictive means of furthering that compelling interest”.[43] The court argued that the most straightforward alternative would be “for the Government to assume the cost…” and that HHS has not shown that it is not “a viable alternative”.[44] The court said that the RFRA can “require creation of entirely new programs”.[45] The court also pointed out that HHS already exempts any nonprofit organization from paying for any required contraception by allowing it to certify its religious objection to its insurance issuer, which must “[p]rovide separate payments for any contraceptive services required to be covered”.[46] However, the court said the approach might not necessarily be the least restrictive alternative for all religious claims.[47]
The court concluded by addressing “the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction”. The court said that their decision “provides no such shield”, and that “prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”[48] The court also said that the requirement to pay taxes despite any religious objection is different from the contraceptive mandate because “there simply is no less restrictive alternative to the categorical requirement to pay taxes.”[49] The court acknowledged the dissent’s “worries about forcing the federal courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable laws…”, noting that this point was “made forcefully by the Court in Smith“. The court responded by saying, “Congress, in enacting RFRA, took the position that ‘the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests’…The wisdom of Congress’s judgment on this matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.”[50]
Concurring opinion
Justice Anthony Kennedy wrote a concurring opinion, responding to the “respectful and powerful dissent”, by emphasizing the limited nature of the ruling and saying that the government “makes the case that the mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees”, but that the RFRA’s least-restrictive way requirement is not met because “there is an existing, recognized, workable, and already-implemented framework to provide coverage,” the one that HHS has devised for non-profit corporations with religious objections. “RFRA requires the Government to use this less restrictive means. As the Court explains, this existing model, designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise.” (Kennedy, J., concurring, p. 3, 4)
Dissenting opinions
Justice Ruth Bader Ginsburg delivered the primary dissent, which was joined by Justice Sotomayor in full and by Justices Breyer and Kagan as to all but Part III–C–1[51] on “whether a corporation qualifies as a ‘person’ capable of exercising religion”.[52] Ginsburg began, “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. … Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a ‘less restrictive alternative.’ And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e., the general public, can pick up the tab.”[53]
She challenged the majority’s unprecedented view of for-profit religion saying “Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA. The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities[54]…Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.”[55] Responding to the majority’s argument that the government should “assume the cost” of contraceptives, Ginsburg said that “the nation’s only dedicated source of federal funding for safety net family planning services…” is not designed to absorb the unmet needs of those already insured. She noted that “a less restrictive alternative” has not been written into law by Congress.[56] Ginsburg warns, “The Court, I fear, has ventured into a minefield…”[57]
Justices Breyer and Kagan wrote a one-paragraph dissenting opinion, saying that “the plaintiffs’ challenge to the contraceptive coverage requirement fails on the merits” and that they “need not and do not decide whether either for-profit corporations or their owners may bring claims under the Religious Freedom Restoration Act of 1993.”[58]
Reactions
Barbara Green, co-founder of Hobby Lobby, said “Today, the nation’s highest court has reaffirmed the vital importance of religious liberty as one of our country’s founding principles. The court’s decision is a victory, not just for our family business, but for all who seek to live out their faith.”[59]
Conestoga CEO Anthony Hahn said, “Americans don’t have to surrender their freedom when they open a family business.”[59]
Organizations
Conservative and pro-life groups praised the ruling. The National Review said that the Supreme Court ruling “[led] Alliance Defending Freedom attorney Matt Bowman to call Hobby Lobby an ‘inclusive decision’ that advances everyone’s freedom.”[60]Susan B. Anthony List President Marjorie Dannenfelser said, “This is a great victory for religious liberty – the bedrock of our founding. In living out our religious convictions, there are certain things we must not do. This is why we are at a watershed moment. Religious people will no longer be ordered to take action that our religion says we must not take.”[61]Family Research Council President Tony Perkins said, “The Supreme Court has delivered one of the most significant victories for religious freedom in our generation. We are thankful the Supreme Court agreed that the government went too far by mandating that family businesses owners must violate their consciences under threat of crippling fines.”[61] The U.S. Conference of Catholic Bishops said, “We welcome the Supreme Court’s decision to recognize that Americans can continue to follow their faith when they run a family business…Now is the time to redouble our efforts to build a culture that fully respects religious freedom.”[62]
Pro-choice and civil-liberties groups criticized the ruling. Cecile Richards, president of the Planned Parenthood Action Fund, said, “Today, the Supreme Court ruled against American women and families, giving bosses the right to discriminate against women and deny their employees access to birth control coverage. This is a deeply disappointing and troubling ruling that will prevent some women, especially those working hourly-wage jobs and struggling to make ends meet, from getting birth control.”[63] Deputy legal director of the American Civil Liberties Union Louise Melling said, “This is a deeply troubling decision. For the first time, the highest court in the country has said that business owners can use their religious beliefs to deny their employees a benefit that they are guaranteed by law.”[64]
In an editorial, the New England Journal of Medicine called the decision “a setback for both the ACA’s foundational goal of access to universal health care and for women’s health care specifically”, voicing concern that “in assessing the competing claims about abortion and birth control, the Court’s majority focused on the religious claims of the corporations without discussing scientific or medical opinions.”[65] In JAMA Internal Medicine, Alta Charo wrote that “consistent with a disturbing trend among courts and legislatures to misstate or misuse scientific information in the context of women’s reproductive rights and health, the Supreme Court’s decision ignored the well-accepted distinction between contraception and abortion.”[66] The American Congress of Obstetricians and Gynecologists, representing 90% of U.S. board-certified gynecologists, supported a bill to overturn the Hobby Lobby ruling.[67]
Government
White House spokesman Josh Earnest said, “Congress needs to take action to solve this problem that’s been created and the administration stands ready to work with them to do so. President Obama believes that women should make personal health care decisions for themselves, rather than their bosses deciding for them. Today’s decision jeopardizes the health of women that are employed by these companies.”[64]
Senate Majority Leader Harry Reid (D-Nev.) said, “If the Supreme Court will not protect women’s access to health care, then Democrats will. We will continue to fight to preserve women’s access to contraceptive coverage and keep bosses out of the examination room.”[3]
Senate Minority Leader Mitch McConnell said, “[T]he Obama administration cannot trample on the religious freedoms that Americans hold dear.”[3]
Senator Charles Schumer (D-NY), who introduced the RFRA in 1993, said his law “was not intended to extend the same protection to for-profit corporations, whose very purpose is to profit from the open market.”[68]
Speaker of the House John Boehner (R-Ohio) said, “The mandate overturned today would have required for-profit companies to choose between violating their constitutionally-protected faith or paying crippling fines, which would have forced them to lay off employees or close their doors.”[69]
House minority leader Nancy Pelosi (D-CA) said, “Although the Court restricted their ruling to ‘closely-held’ companies, this ruling will immediately affect the lives of millions of women across the country. Over 90 percent of America’s businesses are ‘closely-held,’ including such large employers as Koch Industries and Bechtel.[69]Women should not be forced to jump through extra hoops to secure the fundamental health care they need. Allowing employers and CEOs to limit the health care available to employees is a gross violation of their workers’ religious rights. It’s just not her boss’ business.”[64]
Senator Ted Cruz (R-Tex.) said, “Today’s victory in the Hobby Lobby case is terrific news—but now is no time to rest. We cannot rely on the courts alone to defend our religious liberty.”[61]
Senator Orrin Hatch (R-Utah) said, “I applaud the Supreme Court’s decision to protect the religious freedom of all Americans, both individually and collectively. The notion that religious freedom belongs only to some, and even then only in private, defies our nation’s traditions, our laws, and our Constitution. And as the Supreme Court rightfully said today, the Religious Freedom Restoration Act could not have been clearer in saying religious liberty of all Americans must be equally protected and not unnecessarily burdened.”[61]
Rep. Michele Bachmann (R-Minn) said, “I am extremely encouraged by today’s Supreme Court decision to uphold the religious liberty rights of the Green family of Hobby Lobby.”[61]
Aftermath
Cases following SCOTUS ruling
Forbes reported that following the ruling in Burwell v. Hobby Lobby, “the Supreme Court vacated the judgment against Eden Foods and sent the case back to the U.S. Court of Appeals for the Sixth Circuit for further consideration.”[70]
Wheaton College order
On July 3, 2014, the Supreme Court granted a temporary exemption to the approach it suggested as a less restrictive alternative in Hobby Lobby, where the plaintiffs would send a form (EBSA Form 700)[71] to its insurance issuer, which would pay for the contraception. In an unsigned emergency injunction for Wheaton College in Illinois, the court said that instead of notifying its insurance issuer, Wheaton can notify the government. Once notified, the government should notify the issuer. Wheaton believed that by transferring the obligation to cover contraceptives to its insurance issuer, it was triggering that obligation. The emergency injunction does not constitute a ruling on the merits of Wheaton’s religious objection. The court said “Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives.”[72]
In a 15-page dissent joined by the other two women on the court, Justice Sotomayor criticized the majority’s reasoning: “Wheaton’s application comes nowhere near the high bar necessary to warrant an emergency injunction from this court…The court’s actions in this case create unnecessary costs and layers of bureaucracy, and they ignore a simple truth: The government must be allowed to handle the basic tasks of public administration in a manner that comports with common sense.”[73]
In dueling commentaries between regular SCOTUSblog contributor Marty Lederman and co-founder Tom Goldstein, Lederman argued that only Form 700 can require an insurance provider to pay for contraception coverage. Goldstein argued that an existing regulation allows the government to specify an alternative to Form 700. He pointed out that “the Court didn’t accept Wheaton’s most aggressive argument” that it cannot be required to do anything. He said that Justice Kennedy’s concurrence is controlling and makes clear that the RFRA is not violated by requiring Wheaton to notify the government.[77][78]
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Religious exemption from laws that apply to the general public
Although the court stated clearly that the decision is limited to the contraceptive mandate (Syllabus p. 4-5), the ruling is seen to have consequences extending far beyond contraception. Walter Dellinger, former acting solicitor general said, “for the first time, commercial enterprises could successfully claim religious exemptions from laws that govern everyone else.” Fifteen states had filed a brief arguing that businesses would be able to deny coverage for transfusions, stem cell treatments, and psychiatric care.[6] In line with the dissenting opinion, The American Prospect asked, “[W]ill the taxpayers have to send a check to employees if employers feel that minimum wage laws violate their religious beliefs?”[79]Jonathan Rauch, a senior fellow at the Brookings Institution, said that objections to paying health benefits for same-sex spouses will get traction.[80] The National Gay and Lesbian Task Force (NGLT) and the National Center for Lesbian Rights withdrew their support for the Employment Non-Discrimination Act (ENDA) passed by the Senate, saying that its religious exemptions would allow companies to fire or refuse to hire LGBT workers in light of the Hobby Lobby ruling. NGLT executive director Rea Carey said, “We do not take this move lightly. We’ve been pushing for this bill for 20 years.”[81]
Such concerns are focused on the court’s application of the federal RFRA law and were driven by national controversy over a state RFRA amendment bill in Arizona. Douglas Laycock, law professor at the University of Virginia, said, “The whole secular left has decided” that RFRA laws “are very dangerous because they care so much more about the contraception cases and gay rights.” He said RFRA laws are mischaracterized because they do not dictate outcomes favoring religious objectors, they only require courts to use the highest standard of scrutiny on any law challenged.[6] Mark Kernes, Senior Editor and Chief Legal Analyst forAVN magazine stated in an op-ed piece, “If the Hobby Lobby decision supports the ‘right’ of companies not to make available birth control that will prevent women from “catching” a pregnancy, what’s to keep those same religious companies from arguing that providing access to PrEP drugs like Truvada, which help prevent gays (and, admittedly, everyone) from catching HIV shouldn’t similarly be excluded from their health plans?”[82]
Imposition of religious beliefs onto others
Marcia Greenberger, co-president of the National Women’s Law Center, said that the Supreme Court has never ruled that companies have religious beliefs and that “it has never held that religious exercise provides a license to harm others, or violate the rights of third parties.” Louise Melling, ACLU deputy legal director, said religious freedom “gives us all the right to hold our beliefs, but it doesn’t give you the right to impose your beliefs on others, to discriminate against others.”[7] The editorial board of The New York Times wrote that the decision “swept aside accepted principles of corporate law and religious liberty to grant owners of closely held, for-profit companies an unprecedented right to impose their religious views on employees.”[83] A Fox News columnist wrote, “[W]ith all of the debate about the religious beliefs of the Hobby Lobby owners, what about the religious beliefs of their employees? They are just as important, and should not be trampled upon.”[84]The director of the United Church of Christ’s Washington, D.C. office, said that the ruling “may embolden private employers to claim religious objections to particular health care services, in effect forcing their own religious views upon their employees.”[85] Former Secretary of State Hillary Clinton said, “It’s the first time that our court has said that a closely-held corporation has the rights of a person when it comes to religious freedom, which means that the…corporation’s employers can impose their religious beliefs on their employees.”[86] The Center for American Progress said that the ruling “moves in the direction this court has been moving already, which is talking about corporate personhood—really treating corporations like people, saying that the corporation has a religion itself and that should be imposed on its employees.”[80]Interfaith Alliance leader Rev. Welton Gaddy said, “The First Amendment is at its best when it is used to protect the rights of minorities from the whims of the powerful. Today’s decision, which gives the powerful the right to force their religious beliefs on those around them, is a far cry from the best traditions of religious freedom.”[62]
Scholars on the other side (including some on the left) disagree, arguing that companies owned and run by liberals will likewise benefit from the freedom to operate according to their conscience or values – which has not been viewed as “imposing” views, because people routinely choose whom to associate with based on philosophical compatibility.[87] This debate reflects a larger recurring ideological issue over what constitutes “coercion” or “imposing” – e.g., whether burdens imposed by law onto employers are better or worse than burdens imposed by employers on employees.[88]
Corporate liability
The New York Times editor Dorothy J. Samuels wrote, “If owners indicate that they are not entirely separate from their corporation—by denying corporation employees’ birth control coverage based on their personal religious beliefs—the case could be made in future state-court litigation that they have waived their right to be shielded from responsibility for corporate financial liabilities.”[89] The dean of the UC Irvine School of LawErwin Chemerinsky said, “The liabilities of the corporation are not attributed to the owners, so why should the owners be able to attribute their beliefs to the company?”[90] Samuels leaves her readers with an adage: “Be careful what you wish for.”[89] Several legal scholars wrote an amicus brief to the Supreme Court for this case arguing this danger, while scholars on the other side counter that incorporated non-profit organizations enjoy liability protection despite their activities based on religious or other values/conscience-based causes.[91]
The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at 42 U.S.C.§ 2000bb through 42 U.S.C.§ 2000bb-4 (also known as RFRA), is a 1993 United States federal law aimed at preventing laws that “substantially burden” a person’s free exercise of religion. The bill was introduced by Congressman Chuck Schumer (D–NY) on March 11, 1993 and passed by a unanimous U.S. House and a near unanimous U.S. Senate with three dissenting votes[1] and was signed into law by President Bill Clinton.
The RFRA was held unconstitutional as applied to the states in the City of Boerne v. Flores decision in 1997, which ruled that the RFRA is not a proper exercise of Congress’s enforcement power. However, it continues to be applied to the federal government—for instance, in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal—because Congress has broad authority to carve out exemptions from federal laws and regulations that it itself has authorized. In response to City of Boerne v. Flores, some individual states passed State Religious Freedom Restoration Acts that apply to state governments and local municipalities.
Provisions
This law reinstated the Sherbert Test, which was set forth by Sherbert v. Verner, and Wisconsin v. Yoder, mandating that strict scrutiny be used when determining whether the Free Exercise Clause of the First Amendment to the United States Constitution, guaranteeing religious freedom, has been violated. In the Religious Freedom Restoration Act, Congress states in its findings that a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion;[2] therefore the Act states that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”[3]
The law provided an exception if two conditions are both met. First, the burden must be necessary for the “furtherance of a compelling government interest.”[3] Under strict scrutiny, a government interest is compelling when it is more than routine and does more than simply improve government efficiency. A compelling interest relates directly with core constitutional issues.[4] The second condition is that the rule must be the least restrictive way in which to further the government interest.
This tipi is used for Peyote ceremonies in the Native American Church, one of the main religions affected by the Religious Freedom Restoration Act
The Religious Freedom Restoration Act applies to all religions, but is most pertinent[dubious– discuss] to Native American religions that are burdened by increasing expansion of government projects onto sacred land. In Native American religion the land they worship on is very important. Often the particular ceremonies can only take place in certain locations because these locations have special significance.[5] This, along with peyote use, are the main parts of Native American religions that are often left unprotected.
The Free Exercise Clause of the First Amendment states that Congress shall not pass laws prohibiting the free exercise of religion. In the 1960s, the Supreme Court interpreted this as banning laws that burdened a person’s exercise of religion (e.g.Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972)). But in the 1980s the Court began to allow legislation that incidentally prohibited religiously mandatory activities as long as the ban was “generally applicable” to all citizens. Also, the American Indian Religious Freedom Act, intended to protect the freedoms of tribal religions, was lacking enforcement. This led to the key cases leading up to the RFRA, which were Lyng v. Northwest Indian Cemetery Protective Association (1988) and Employment Division v. Smith, 494 U.S. 872 (1990). In Lyng, the Court was unfavorable to sacred land rights. Members of the Yurok, Tolowa and Karok tribes tried to use the First Amendment to prevent a road from being built by the U.S. Forest Service through sacred land. The land that the road would go through consisted of gathering sites for natural resources used in ceremonies and praying sites. The Supreme Court ruled that this was not an adequate legal burden because the government was not coercing or punishing them for their religious beliefs.[6] In Smith the Court upheld the state of Oregon‘s refusal to give unemployment benefits to two Native Americans fired from their jobs at a rehab clinic after testing positive for mescaline, the main psychoactive compound in the peyote cactus, which they used in a religious ceremony. Peyote use has been a common practice in Native American tribes for centuries. It was integrated with Christianity into what is now known as the Native American Church.[7]
The RFRA applies “to all Federal law, and the implementation of that law, whether statutory or otherwise”, including any Federal statutory law adopted after the RFRA’s date of signing “unless such law explicitly excludes such application.”[9]
Challenges and weaknesses
The Peyote cactus, the source of the peyote used by Native Americans in religious ceremonies.
In 1997, part of this act was overturned by the United States Supreme Court. The Roman Catholic Archdiocese of San Antoniowanted to enlarge a church in Boerne, Texas. But a Boerne ordinance protected the building as a historic landmark and did not permit it to be torn down. The church sued, citing RFRA, and in the resulting case, City of Boerne v. Flores, 521 U.S.507(1997), the Supreme Court struck down the RFRA with respect to its applicability to States (but not Federally), stating that Congress had stepped beyond their power of enforcement provided in the Fourteenth Amendment.[8] In response to the Boerneruling, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000, which grants special privileges to religious land owners.[10]
The Act was amended in 2003 to only include the federal government and its entities, such as Puerto Rico and the District of Columbia.[11] A number of states have passed state RFRAs, applying the rule to the laws of their own state, but the Smith case remains the authority in these matters in many states.[12]
The constitutionality of RFRA as applied to the federal government was confirmed on February 21, 2006, as the Supreme Court ruled against the government inGonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S.418 (2006), which involved the use of an otherwise illegal substance in a religious ceremony, stating that the federal government must show a compelling state interest in restricting religious conduct.
Post-Smith, many members of the Native American Church still had issues using peyote in their ceremonies. This led to the Religious Freedom Act Amendments in 1994, which state, “the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremony purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any state. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation.”[3]
Applications and effects
The Religious Freedom Restoration Act holds the federal government responsible for accepting additional obligations to protect religious exercise. In O’Bryan v. Bureau of Prisons it was found that the RFRA governs the actions of federal officers and agencies and that the RFRA can be applied to “internal operations of the federal government.”[13] RFRA, in conjunction with President Bill Clinton‘s Executive Order in 1996, provided more security for sacred sites for Native American religious rites.[3]
As of 1996, the year before the RFRA was found unconstitutional as applied to states, 337 cases had cited RFRA in its three year time range.[14] It was also found that Jewish, Muslim, and Native American religions, which make up only three percent of religious membership in the U.S., make up 18 percent of the cases involving the free exercise of religion.[14] The Religious Freedom Restoration Act was a cornerstone for tribes challenging the National Forest Service’s plans to permit upgrades to Snow Bowl Ski Resort. Six tribes were involved, including the Navajo, Hopi, Havasupai, and Hualapai. The tribes objected on religious grounds to the plans to use reclaimed water. They felt that this risked infecting the tribal members with “ghost sickness” as the water would be from mortuaries and hospitals. They also felt that the reclaimed water would contaminate the plant life used in ceremonies. In August 2008, the Ninth Circuit Court of Appeals rejected their RFRA claim.[15][16]
In the case of Adams v. Commissioner, the United States Tax Court rejected the argument of Priscilla M. Lippincott Adams, who was a devout Quaker. She tried to argue that under the Religious Freedom Restoration Act of 1993, she was exempt from federal income taxes. The U.S. Tax Court rejected her argument and ruled that she was not exempt. The Court stated: “…while petitioner’s religious beliefs are substantially burdened by payment of taxes that fund military expenditures, the Supreme Court has established that uniform, mandatory participation in the Federal income tax system, irrespective of religious belief, is a compelling governmental interest.”[17] In the case of Miller v. Commissioner, the taxpayers objected to the use of social security numbers, arguing that such numbers related to the “mark of the beast” from the Bible. In its decision, the U.S. Court discussed the applicability of the Religious Freedom Restoration Act of 1993, but ruled against the taxpayers.[18]
The RFRA figured prominently in oral arguments in the case, Burwell v. Hobby Lobby, heard by the Supreme Court on March 25, 2014.[19] In a 5-4 decision, Justice Alito stated, that the RFRA did not just restore the law as before Smith but contains a new regulation that allows to opt out of federal law based on religious beliefs.[20]
20th anniversary
A day-long symposium was held at the Newseum in Washington, D.C., on Nov. 7, 2013, to commemorate the 20th anniversary of the Religious Freedom Restoration Act. “Restored or Endangered? The State of the Free Exercise of Religion in America” featured three panel discussions and two keynote addresses.
The first keynote address was from Oliver S. Thomas, the former general counsel of the Baptist Joint Committee for Religious Liberty and the chair of the diverse “Coalition for the Free Exercise of Religion” in the 1990s that worked for the passage of RFRA. The second was from Douglas Laycock, who was an author of RFRA. His address traced the legal history of RFRA and discussed its impact on current debates, including the contraception mandate and same-sex marriage laws.
The panel discussions covered the history and impact of RFRA, religious freedom and the contraceptive mandate of the Affordable Care Act, and current and future challenges to the free exercise of religion in a diverse society. The addresses and panel discussions are all available online, as well as a special downloadable resource with more on RFRA, published by the Baptist Joint Committee.[21]
The Bill of Rights was originally proposed as a measure to assuage Anti-Federalist opposition to Constitutional ratification. Initially, the First Amendment applied only to laws enacted by the Congress, and many of its provisions were interpreted more narrowly than they are today. Beginning with Gitlow v. New York (1925), the Supreme Courtapplied the First Amendment to states—a process known as incorporation—through the Due Process Clause of the Fourteenth Amendment.
In Everson v. Board of Education (1947), the Court drew on Founding FatherThomas Jefferson‘s correspondence to call for “a wall of separation between church and State”, though the precise boundary of this separation remains in dispute. Speech rights were expanded significantly in a series of 20th and 21st-century court decisions which protected various forms of political speech, anonymous speech, campaign financing, pornography, and school speech; these rulings also defined a series of exceptions to First Amendment protections. The Supreme Court overturned English common law precedent to increase the burden of proof for defamation and libel suits, most notably in New York Times Co. v. Sullivan (1964). Commercial speech, however, is less protected by the First Amendment than political speech, and is therefore subject to greater regulation.
The Free Press Clause protects publication of information and opinions, and applies to a wide variety of media. In Near v. Minnesota (1931) and New York Times v. United States (1971), the Supreme Court ruled that the First Amendment protected against prior restraint—pre-publication censorship—in almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the right of assembly guaranteed by this clause, the Court has also ruled that the amendment implicitly protects freedom of association.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[1]
In 1776, the second year of the American Revolutionary War, the Virginia colonial legislature passed a Declaration of Rights that included the sentence “The freedom of the press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.” Eight of the other thirteen states made similar pledges. However, these declarations were generally considered “mere admonitions to state legislatures”, rather than enforceable provisions.[2]
After several years of comparatively weak government under the Articles of Confederation, a Constitutional Convention in Philadelphia proposed a new constitution on September 17, 1787, featuring among other changes a stronger chief executive. George Mason, a Constitutional Convention delegate and the drafter of Virginia’s Declaration of Rights, proposed that the Constitution include a bill of rights listing and guaranteeing civil liberties. Other delegates—including future Bill of Rights drafter James Madison—disagreed, arguing that existing state guarantees of civil liberties were sufficient and that any attempt to enumerate individual rights risked the implication that other, unnamed rights were unprotected. After a brief debate, Mason’s proposal was defeated by a unanimous vote of the state delegations.[3]
For the constitution to be ratified, however, nine of the thirteen states were required to approve it in state conventions. Opposition to ratification (“Anti-Federalism”) was partly based on the Constitution’s lack of adequate guarantees for civil liberties. Supporters of the Constitution in states where popular sentiment was against ratification (including Virginia, Massachusetts, and New York) successfully proposed that their state conventions both ratify the Constitution and call for the addition of a bill of rights. The U.S. Constitution was eventually ratified by all thirteen states. In the 1st United States Congress, following the state legislatures’ request, James Madison proposed twenty constitutional amendments, which were then condensed to twelve and forwarded to the states. Ten of these were ratified and became the Bill of Rights.[4] The First Amendment passed the House and Senate with almost no recorded debate, complicating future discussion of the Amendment’s intent.[5][6] The First Amendment (along with the rest of the Bill of Rights) was submitted to the states for ratification on September 25, 1789, and adopted on December 15, 1791.[7][8]
Thomas Jefferson wrote with respect to the First Amendment and its restriction on the legislative branch of the federal government in an 1802 letter to the Danbury Baptists (a religious minority concerned about the dominant position of the Congregationalist church in Connecticut):
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.[9]
In Reynolds v. United States (1878) the Supreme Court used these words to declare that “it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere [religious] opinion, but was left free to reach [only those religious] actions which were in violation of social duties or subversive of good order.” Quoting from Jefferson’s Virginia Statute for Religious Freedom the court stated further in Reynolds:
In the preamble of this act […] religious freedom is defined; and after a recital ‘that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,’ it is declared ‘that it is time enough for the rightful purposes of civil government for its officers to interfere [only] when [religious] principles break out into overt acts against peace and good order.’ In these two sentences is found the true distinction between what properly belongs to the church and what to the State.
Originally, the First Amendment applied only to the federal government, and some states continued official state religions after ratification. Massachusetts, for example, was officially Congregationalist until the 1830s.[10] In Everson v. Board of Education (1947), the U.S. Supreme Court incorporated the Establishment Clause (i.e., made it apply against the states). In the majority decision, Justice Hugo Black wrote:
The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion to another … in the words of Jefferson, the [First Amendment] clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State’ … That wall must be kept high and impregnable. We could not approve the slightest breach.[11]
U.S. President Thomas Jeffersonwrote in his correspondence of “a wall of separation between church and State”.
Everson used the metaphor of a wall of separation between church and state, derived from the correspondence of PresidentThomas Jefferson. It had been long established in the decisions of the Supreme Court, beginning with Reynolds v. United States in 1879, when the Court reviewed the history of the early Republic in deciding the extent of the liberties of Mormons. Chief Justice Morrison Waite, who consulted the historian George Bancroft, also discussed at some length the Memorial and Remonstrance against Religious Assessments by James Madison, who drafted the First Amendment; Madison used the metaphor of a “great barrier.”[15]
Justice Hugo Black adopted Jefferson’s words in the voice of the Court.[16] The Court has affirmed it often, with majority, but not unanimous, support. Warren Nord, in Does God Make a Difference?, characterized the general tendency of the dissents as a weaker reading of the First Amendment; the dissents tend to be “less concerned about the dangers of establishment and less concerned to protect free exercise rights, particularly of religious minorities.”[17]
Beginning with Everson, which permitted New Jersey school boards to pay for transportation to parochial schools, the Court has used various tests to determine when the wall of separation has been breached. Everson laid down the test that establishment existed when aid was given to religion, but that the transportation was justifiable because the benefit to the children was more important. In the school prayer cases of the early 1960s, (Engel v. Vitale and Abington School District v. Schempp), aid seemed irrelevant; the Court ruled on the basis that a legitimate action both served a secular purpose and did not primarily assist religion. In Walz v. Tax Commission (1970), the Court ruled that a legitimate action could not entangle government with religion; in Lemon v. Kurtzman (1971), these points were combined into the Lemon test, declaring that an action was an establishment if:[18]
the statute (or practice) lacked a secular purpose;
its principal or primary effect advanced nor inhibited religion; or
it fostered an excessive government entanglement with religion.
The Lemon test has been criticized by justices and legal scholars, but it remains the predominant means by which the Court enforces the Establishment Clause.[19]In Agostini v. Felton (1997), the entanglement prong of the Lemon test was demoted to simply being a factor in determining the effect of the challenged statute or practice.[20] In Zelman v. Simmons-Harris (2002), the opinion of the Court considered secular purpose and the absence of primary effect; a concurring opinion saw both cases as having treated entanglement as part of the primary purpose test.[19] Further tests, such as the endorsement test and coercion test, have been developed to determine the whether a government action violated the Establishment Clause.[21][22]
In Lemon the Court stated that that the separation of church and state could never be absolute: “Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable,” the court wrote. “Judicial caveats against entanglement must recognize that the line of separation, far from being a “wall,” is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.”[23]
Accommodationists
Accommodationists, in contrast, argue along with Justice William O. Douglas that “[w]e are a religious people whose institutions presuppose a Supreme Being”.[24]This group holds that the Lemon test should be applied selectively.[24] As such, for many conservatives, the Establishment Clause solely prevents the establishment of a state church, not public acknowledgements of God nor “developing policies that encourage general religious beliefs that do not favor a particular sect and are consistent with the secular government’s goals.”[25][26]
“Freedom of religion means freedom to hold an opinion or belief, but not to take action in violation of social duties or subversive to good order,” In Reynolds v. United States (1878), the Supreme Court found that while laws cannot interfere with religious belief and opinions, laws can be made to regulate some religious practices (e.g., human sacrifices, and the Hindu practice of suttee). The Court stated that to rule otherwise, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself. Government would exist only in name under such circumstances.”[27] In Cantwell v. Connecticut (1940), the Court held that the Due Process Clause of the Fourteenth Amendmentapplied the Free Exercise Clause to the states. While the right to have religious beliefs is absolute, the freedom to act on such beliefs is not absolute.[28]
In Sherbert v. Verner (1963),[29] the Supreme Court required states to meet the “strict scrutiny” standard when refusing to accommodate religiously motivated conduct. This meant that a government needed to have a “compelling interest” regarding such a refusal. The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist faith.[30] In Wisconsin v. Yoder (1972), the Court ruled that a law that “unduly burdens the practice of religion” without a compelling interest, even though it might be “neutral on its face,” would be unconstitutional.[31][32]
The need for a compelling interest was narrowed in Employment Division v. Smith (1990),[33] which held no such interest was required under the Free Exercise Clause regarding a law that does not target a particular religious practice.[34] In Church of Lukumi Babalu Aye v. City of Hialeah (1993),[35] the Supreme Court ruled Hialeah had passed an ordinance banning ritual slaughter, a practice central to the Santería religion, while providing exceptions for some practices such as thekosher slaughter. Since the ordinance was not “generally applicable,” the Court ruled that it needed to have a compelling interest, which it failed to have, and so was declared unconstitutional.[36]
In 1993, the Congress passed the Religious Freedom Restoration Act (RFRA), seeking to restore the compelling interest requirement applied in Sherbert andYoder. In City of Boerne v. Flores (1997),[37] the Court struck down the provisions of RFRA that forced state and local governments to provide protections exceeding those required by the First Amendment, on the grounds that while the Congress could enforce the Supreme Court’s interpretation of a constitutional right, the Congress could not impose its own interpretation on states and localities.[38] According to the court’s ruling in Gonzales v. UDV (2006),[39] RFRA remains applicable to federal laws and so those laws must still have a “compelling interest”.[40]
Marriage Redefinition Sought at SCOTUS Fails, Debate Continues
Ryan Anderson discusses what the Supreme Court got wrong in its marriage decisions—but why the proponents of same-sex marriage failed to achieve their goal of a court-imposed nationwide redefinition. One thing is clear: the debate about marriage will continue, now more than ever.
The morning after two important—and troubling—Supreme Court decisions in the Proposition 8 and Defense of Marriage Act (DOMA) cases, here’s the lay of the land. The important takeaway: The marriage debate is every bit as live today as it was yesterday morning…and that means it’s time to redouble our efforts to stand for marriage across America. Some key numbers following the decisions:
50 The number of states whose marriage laws remain the same after the Court’s marriage decisions.
38 The number of states with laws defining marriage as the union of a man and a woman. That includes California, where the scope of today’s Prop 8 decision beyond the specific plaintiffs will be the subject of ongoing debate and, most likely, further litigation.
12 The number of states that can now force the federal government to recognize their redefinition of marriage. The Court struck Section 3 of DOMA, which means that it must recognize same-sex marriages in states that redefine marriage.
1 The number of sections of the Defense of Marriage Act struck down yesterday (Section 3). Section 2, which ensures that no state will be forced to recognize another state’s redefinition of marriage, is still law.
0 The number of states forced to recognize other states’ redefinition of marriage.
The important news you may not be hearing is that the U.S. Supreme Court did not redefine marriage across the nation. That means the debate about marriage will continue. States are free to uphold policies recognizing that marriage is the union of a man and a woman, so that children have a mother and a father.
States will lead the way even as we work to restore clear marriage policy at the federal level. And in the states, support for marriage as the union of a man and a woman remains strong.
Still, the Court should have respected the authority of California citizens and Congress.
On DOMA, the Court did not respect Congress’s authority to define marriage for the purposes of federal programs and benefits. The Court got federalism wrong.
On Proposition 8, the citizens of California who voted twice to pass Prop 8 should have been able to count on their Governor and Attorney General to defend the state’s constitution. That’s what democratic self-government is all about.
Now more than ever, we need to make it clear why marriage as the union of a man and a woman matters—for children, for civil society, and for limited government. As citizens, we all need to be prepared to make the case for marriage. That’s why we at Heritage have worked with allies to produce a booklet called “What You Need to Know about Marriage.” Download your free copy at TheMarriageFacts.com.
Jay Sekulow Spoke with Glenn Beck: SCOTUS Decision on DOMA & Prop 8
Breaking Down the Court’s Prop 8 and Doma Rulings | Supreme Court Same-Sex Marriage Ruling
Wall Street Journal Legal Editor Ashby Jones breaks down the Supreme Court’s Prop 8 and Doma rulings, and what the decisions could mean for same-sex marriage going forward.
Supreme Court strikes down key part of DOMA, dismisses Prop 8 case
America : Supreme Court shoots down DOMA and Prop 8 within the U.S. (Jun 26, 2013)
Rush Limbaugh: Scalia was right when he warned repeal of sodomy laws would lead to gay marriage
Glenn Beck and Rand Paul DOMA Reaction: Gay Marriage Rulings Will Lead To Polygamy, Zoophilia
The Five Reacts To Supreme Court’s DOMA And Prop 8 Rulings ‘This Is A Huge Conservative Victory’
Dr. Jeffress Discusses the SCOTUS DOMA Decision on The O’Reilly Factor (6/26/13)
DOMA Struck DOWN – Justice Scalia’s Hypocritical Rage Quotes
Andrew Sullivan: Gay People Like Glenn Greenwald Can Now Come Back, and Jesus Was Thrilled Today
Sally Kohn Battles Fox Panelist Over SCOTUS Ruling: How Does My Right To Marry Affect You At All?
Fox News contributor Sally Kohn today reacted to the Supreme Court ruling that her partnership and the unions of many other people across the country deserve equal protection under the law. She said that this is the latest step in the United States’ attempts over history in “striving towards making a more perfect union,” adding that in the United States, you can’t just pass a law “solely for the purpose of discriminating.”
Kohn thought it was smart for the Supreme Court to lean on the states rights argument, which she said conservatives would be cheering had this been literally any other political issue. Fellow panelist Ryan Anderson found it contradictory that the Supreme Court would take make such a significant ruling for states rights in the DOMA case, yet dismissed the California Proposition 8 case in which the people actually voted to decide how to define marriage in their state. He argued that the government’s business in getting involved in marriage is to promote marriages that can produce children, hence the definition of marriage being one man and one woman.
Kohn told Anderson that he can make “excuses” but the fact is laws passed just to discriminate are wrong. She also pointed out that the ruling is also significant due to the marriage benefits that gay couples can now get. Anderson shot back that the Supreme Court didn’t exactly say that state bans against gay marriage are unconstitutional, and reaffirmed that the California ban “tells the truth about marriage.” Kohn said, “I’m a little confused as to how my right to marry affects Ryan at all, unless we’re getting married, Ryan.”
Headline: Supreme Court rules DOMA is unconstitutional
Watch Rep. Bachmann and Others Speak Against DOMA Ruling
Moments After DOMA Ruling – Gay Activists Promise to Push Gay Marriage Nation-Wide
Supreme Court Strikes Down DOMA | WSJ WorldStream | Supreme Court DOMA Ruling
Mixed Reactions to Supreme Court Decisions
Supreme Court strikes down DOMA
In a landmark decision, the Supreme Court strikes down a federal provision denying benefits to legally married couples. For more CNN videos, visit our site at http://www.cnn.com/video/
Edith Windsor, who filed the original case that could upend the Defense of Marriage Act, says just getting the case to this point is a kind of victory.
“We’ve made a huge step forward and a huge difference in how people look at us,” she said. “And so, it’ll happen. Another year if not now.”
It was the death of Windsor’s life partner, Thea Clara Spyer, that led to the case.
Theirs was not a fleeting romance — the women were together 42 years sharing ups and downs, laughs and tears. They also shared what they’d earned together, including from Windsor’s job as a programmer with IBM and Spyer’s work as a psychologist.
FRANK SINATRA – STRANGERS IN THE NIGHT – LIVE
Frank Sinatra – My Way (Live in London 1971)
The Supreme Court struck down part of DOMA. Here’s what you need to know
By Dylan Matthews
The Supreme Court today struck down a key part of the Defense of Marriage Act, the 1996 law signed by President Clinton that defined marriage as between a man and a woman for the purpose of federal law.
The decision was 5-4, with the majority opinion written by Justice Anthony Kennedy — who also wrote the court’s historic gay rights decisions in Romer v. Evans and Lawrence v. Texas. Justices Antonin Scalia, Samuel Alito, and John Roberts all filed dissents. Justice Clarence Thomas joined Scalia’s dissent, and joined Alito’s in part, while Roberts joined Scalia’s in part. Justices Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg joined Kennedy’s majority opinion.
Here’s what you need to know.
What was the actual case about?
United States v. Windsor concerns Edith Windsor, who was widowed when her wife Thea Spyer died in 2009. Windsor and Spyer were married in 2007 in Canada after being partners for 40 years. Windsor was forced to pay $363,053 in estate tax on Spyer’s estate, which she argues she would not have to pay if she had been Spyer’s husband. Thus, she claims, the Defense of Marriage Act, which prevents her from being considered Spyer’s spouse for the purposes of federal taxes, literally cost her $363,053.
How did it get here?
The Obama administration has declined to defend DOMA, and so the Bipartisan Legal Advisory Group (BLAG), a standing organization in Congress, took over the law’s defense at the instruction of House Speaker John Boehner (R-OH). The U.S. District Court for the Southern District of New York ruled in June that DOMA’s definition of marriage as between a man and a woman lacked a rational basis, and ordered damages of $363,053 paid to Windsor. In October, the Second Circuit Court of Appeals concurred, with a panel ruling 2-1 for Windsor. Then the Supreme Court considered it. Here are the arguments in the case:
Three. The first was the equal protection issue. The second was whether the fact that the executive branch agrees with Windsor means that there isn’t a real controversy in this case, meaning the court doesn’t have jurisdiction. The third was whether BLAG would be harmed by DOMA being overturned, and thus whether it has standing to defend the law (a friend-of-the-court brief by Harvard professor Vicki Jackson argues that even Congress doesn’t have standing, and even if it did, BLAG wouldn’t).
Justice Kennedy’s ruling held that the court had jurisdiction in the case, effectively ruling that there was a real controversy and that BLAG had standing to defend the law. His ruling was solely based on his judgment that DOMA violates the equal protection clause.
What does this mean for gay couples?
It depends on what area you’re talking about. “What section 3 of DOMA does is that it performs a find and replace of every instance of ‘spouse’ or ‘husband’ or ‘wife’ appears and changes it so that it’s “opposite sex husband” or ‘opposite sex wife’,” says Rita Lin, a partner at Morrison and Foerster in San Francisco who argued Golinski v. United States Office of Personnel Management, another DOMA case. “The effect is going to vary based on which of the thousand-plus statutes or regulations are affected.”
There are some clear-cut cases. It seems pretty clear that legally married same-sex couples where one member is employed by the federal government are entitled to spousal benefits, just the same as any other married couple. For other legally married couples who don’t live in states where same-sex marriage is recognized, there’s some question as to whether the “state of celebration” or “state of residence” matters. Usually, the former is the standard used, meaning a marriage is valid if it’s valid in the state it was celebrated. That would mean most legally married same-sex couples, regardless of where they live, are entitled to spousal benefits.
Other areas, like tax law, may require additional rule-making before same-sex couples are treated equally. “Some operate just based on policy, without getting into a regulation or statute, so those can be modified very quickly,” Tara Borelli, an attorney at Lambda Legal who was also a counsel in Golinski. ”Others require rule-making.” And others require statutory changes. Borelli notes that Social Security will probably have to be changed by Congress for same-sex couples to be treated equally.
This does open the door for bi-national same-sex couples to be treated equally under the law. That means that comprehensive immigration reform probably need not include a provision specifically tailored to making sure bi-national partners of same-sex couples can get visas automatically, the same as opposite-sex partners. As Paul Smith, a partner at Jenner & Block and arguably the leading gay rights litigator in the country (he won Lawrence v. Texas, overturning state bans on gay sex), told me, “My understanding is that the elimination of DOMA would by itself mean that all bi-national married couples would have the same rights, whether same sex or not.”
Flagrant Conduct: The Story of Lawrence v. Texas (Dale Carpenter)
n 2003 the Supreme Court struck down America’s sodomy laws in the case of Lawrence v. Texas. In Flagrant Conduct, a work nine years in the making, Dale Carpenter challenges what we thought we knew about the case. Drawing on dozens of interviews, he analyzes the claims of virtually every person involved. Carpenter first introduces us to the interracial defendants themselves, who were hardly prepared “for the strike of lightning” that would upend their lives, and then to the Harris County arresting officers. He charts not only the careful legal strategy that Lambda Legal attorneys adopted to make the case compatible to a conservative Supreme Court but also the miscalculations of the Houston prosecutors who assumed that the nation’s extant sodomy laws would be upheld. Dale Carpenter clerked for Judge Edith H. Jones of the Fifth Circuit Court of Appeals and blogs frequently for The Volokh Conspiracy. Charles Lane is the author of The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction.
Geoffrey R. Stone of the University of Chicago Law School says, “Dale Carpenter’s Flagrant Conduct does for Lawrence v. Texas what Richard Kluger’s Simple Justice and Anthony Lewis’s Gideon’s Trumpet did for Brown v. Board of Education and Gideon v. Wainwright. It tells the story of a profoundly dramatic and important Supreme Court decision in a way that brings to life the stakes, the participants, the justices, and the drama of the constitutional controversy. It is a landmark achievement.”
Lawrence Vs. Texas (2003) – Opinion (Kennedy) – Supreme Court Of The United Sates Of America
Justice Kennedy delivering the opinion of the United States Supreme Court in the case John Geddes Lawrence and Tyron Garner v Texas 02-102 (2003). The court found that a Texas law classifying consensual, adult homosexual intercourse as illegal sodomy violated the privacy and liberty of adults to engage in private intimate conduct under the 14th amendment. Kennedy is joined by Stevens, Souter, Ginsburg, Breyer, while O’Connor wrote a separate concurrence. Justice Scalia wrote a dissent, which is joined by Rehnquist, Thomas. Thomas also wrote a separate dissenting opinion.
Lawrence Vs. Texas (2003) – Dissent (Scalia) – Supreme Court Of The United Sates Of America
Lawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 (2003),[1] is a landmark decision by the United States Supreme Court. In the 6–3 ruling, the Court struck down the sodomy law in Texas and, by extension, invalidated sodomy laws in thirteen other states, making same-sex sexual activity legal in every U.S. state and territory. The Court overturned its previous ruling on the same issue in the 1986 case Bowers v. Hardwick, where it upheld a challenged Georgia statute and did not find a constitutional protection of sexual privacy.
Lawrence explicitly overruled Bowers, holding that it had viewed the liberty interest too narrowly. The Court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Lawrence invalidated similar laws throughout the United States that criminalized sodomy between consenting adults acting in private, whatever the sex of the participants.[2]
The case attracted much public attention, and a large number of amici curiae (“friends of the court”) briefs were filed. Its outcome was celebrated by gay rights advocates, who hoped that further legal advances might result as a consequence.
Background
Legal punishments for sodomy often included heavy fines and/or life prison sentences, with some states, beginning with Illinois in 1827, denying other rights, such as suffrage, to anyone convicted of the crime of sodomy.[citation needed] In the late 19th and early 20th centuries, several states imposed various eugenics laws against anyone deemed to be a “sexual pervert”.[citation needed] As late as 1970, Connecticut denied a driver’s license to a man for being an “admitted homosexual”.[3]
As of 1960, every state had an anti-sodomy law.[4] In 1961, the American Law Institute’s Model Penal Code advocated repealing sodomy laws as they applied to private, adult, consensual behavior.[5] Two years later the American Civil Liberties Union (ACLU) took its first major case in opposition to these laws.[6] Most judges were largely unsympathetic to the substantive due process claims raised.
In Griswold v. Connecticut (1965), the Supreme Court struck down a law barring the use of contraceptives by married couples. In Griswold for the first time the Supreme Court recognized, at least for married couples, a right to privacy,[7] drawing on the Fourth Amendment’s protection of private homes from searches and seizures without a warrant based on probable cause, the Fifth Amendment’s guarantee of due process of law, and the Ninth Amendment’s assurance that rights not specified in the Constitution are “retained by the people”. Eisenstadt v. Baird (1972) expanded the scope of sexual privacy rights to unmarried persons. In 1973, the choice whether to have an abortion was found to be protected by the Constitution in Roe v. Wade.
In Bowers v. Hardwick (1986), the Supreme Court heard a constitutional challenge to sodomy laws brought by a man who had been arrested, but was not prosecuted, for engaging in oral sex with another man in his home. The Court rejected this challenge in a 5 to 4 decision. Justice Byron White’s majority opinion emphasized that Eisenstadt and Roe had only recognized a right to engage in procreative sexual activity, and that long-standing moral antipathy toward homosexual sodomy was enough to argue against the notion of a “right” to sodomy. Justice Blackmun, writing in dissent, argued that Eisenstadt held that the Constitution protects people as individuals, not as family units.[8] He then reasoned that because state intrusions are equally burdensome on an individual’s personal life regardless of his marital status or sexual orientation, then there is no reason to treat the rights of citizens in same-sex couples any differently.[9]
By the time of the Lawrence decision, nine states—Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia—still banned consensual sodomy without respect to the sex of those involved, and four—Texas, Kansas, Oklahoma and Missouri—prohibited same-sex couples from engaging in anal and oral sex.[4]
History
Arrest of Lawrence and Garner
On September 17, 1998, John Lawrence,[10][11] a gay 55-year-old medical technologist, was hosting two gay acquaintances, Tyron Garner,[12] age 31, and Robert Eubanks,[13] 40, at his apartment on the outskirts of Houston. Lawrence and Eubanks had been friends for more than 20 years. Garner and Eubanks had a tempestuous on-again off-again romantic relationship since 1990. Lacking transportation home, the couple were preparing to spend the night. Eubanks, who had been drinking heavily, left to purchase a soda from a nearby vending machine. Apparently outraged that Lawrence had been flirting with Garner, he called police and reported “a black male going crazy with a gun” at Lawrence’s apartment.[14]
Four Harris County sheriff’s deputies responded within minutes and Eubanks pointed them to the apartment. They entered the unlocked apartment toward 11 p.m. with their weapons drawn. In accordance with police procedures, the first to arrive, Joseph Quinn, took the lead both in approaching the scene and in later determining what charges to bring, if any. He later reported seeing Lawrence and Garner having anal sex in the bedroom. A second officer reported seeing them engaged in oral sex, and two others did not report seeing the pair having sex. Lawrence did not acquiesce to the police. Instead he repeatedly challenged the police for entering his home. Quinn had discretionary authority to charge them for a variety of offenses and then to arrest them or not. When Quinn considered charging them with having sex in violation of state law, he had to get an Assistant District Attorney to check to the statutes to be certain they covered sexual activity inside a residence. He was told that Texas’s anti-sodomy statute, the “Homosexual Conduct” law, made it a Class C misdemeanor if someone “engages in deviate sexual intercourse with another individual of the same sex”.[15] The statute, Chapter 21, Sec. 21.06 of the Texas Penal Code, had been adopted in 1973 when the state revised its criminal code to end its proscription on heterosexual anal and oral intercourse.[16]
Quinn decided to charge Lawrence and Garner with having “deviate sex” and to arrest them. In the opinion of the author of the most detailed account of the arrests, Quinn’s decision was likely driven by Lawrence’s verbal abuse, along with some combination of Quinn’s negative response to homosexuality, the fact that Lawrence was white and Garner was black, and the false gun report.[17] In the separate arrest reports he filed for each, he wrote that he had seen the arrestee “engaged in deviate sexual conduct namely, anal sex, with another man”.[17] Lawrence and Garner were held in jail overnight. At a hearing the next day, they pled not guilty to a charge of “homosexual conduct”. They were released toward midnight.[18] Eubanks pled no contest to charges of filing a false police report. He was sentenced to 30 days in jail but released early.[19]
Prosecution and appeals
The gay rights advocates from Lambda Legal litigating the case convinced Lawrence and Garner not to contest the charges despite their innocence and to plead no contest instead.[20] On November 20, Lawrence and Garner pleaded no contest to the charges and waived their right to a trial. Justice of the Peace Mike Parrott found them guilty and imposed a $100 fine and court costs of $41.25 on each defendant. When the defense attorneys realized that the fine was below the minimum required to permit them to appeal the convictions, they asked the judge to impose a higher penalty. Parrott, well aware that the attorneys intended to use the case to raise a constitutional challenge, increased it to $125 with the agreement of the prosecutor.[21]
To appeal, Lawrence and Garner needed to have their cases tried in Texas Criminal Court. Their attorneys asked the court to dismiss the charges against them on Fourteenth Amendment equal protection grounds, claiming that the law was unconstitutional since it prohibited sodomy between same-sex couples, but not between heterosexual couples. They also asserted a right to privacy and that the Supreme Court’s decision in Bowers v. Hardwick that found no privacy protection for consensual sex between homosexuals was “wrongly decided”.[22] On December 22, Judge Sherman Ross denied the defense motions to dismiss. The defendants again pled “no contest”. Ross fined them $200 each, the amount agreed upon in advance by both sides.[23]
A three-judge panel of the Texas Fourteenth Court of Appeals heard the case on November 3, 1999.[24] Their 2–1 decision issued on June 8, 2000, ruled the Texas law was unconstitutional. Justice John S. Anderson and Chief Justice Paul Murphy found that the law violated the 1972 Equal Rights Amendment to the Texas Constitution, which bars discrimination based on sex, race, color, creed, or national origin. J. Harvey Hudson dissented.[25] The Court of Appeals decided to review the case en banc. On March 15, 2001, without hearing oral arguments, it reversed the three-judge panel’s decision and upheld the law’s constitutionality 7–2, denying both the substantive due process and equal protection arguments.[26] Attorneys for Lawrence and Garner asked the Texas Court of Criminal Appeals, the highest appellate court in Texas for criminal matters, to review the case. After a year’s delay, on April 17, 2002, that request was denied. Lambda Legal’s Harlow called that decision “a major abdication of judicial responsibility”. Bill Delmore, the Harris County prosecutor who argued the case, called the judges “big chickens” and said: “They have a history of avoiding the hot potato cases if they can.”[27]
Consideration by the Supreme Court
In a petition for certiorari filed in the U.S. Supreme Court on July 16, 2002, Lambda Legal attorneys asked the Court to consider:[28]
1. Whether the petitioners’ criminal convictions under the Texas “Homosexual Conduct” law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws?2. Whether the petitioners’ criminal convictions for adult consensual sexual intimacy in their home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?3. Whether Bowers v. Hardwick should be overruled?
On December 2, 2002, the Court agreed to hear the case. Lambda Legal coordinated the submission of sixteen amicus curiae briefs to complement their own brief. Submitting organizations included the American Bar Association, the American Psychological Society, the American Public Health Association, the Cato Institute, the Log Cabin Republicans, a group of history professors, and a group of religious denominations.[29] An op-ed in support by former Sen. Alan Simpson appeared in The Wall Street Journal on the morning scheduled for oral argument.[30] The attorneys for Texas did not control the amicus briefs submitted in support of their position. Two were by noteworthy scholars, Jay Alan Sekulow and Robert P. George, while the remainder represented religious and social conservatism. Several, including that of Liberty Counsel, depicted homosexuals as self-destructive, disease-prone, and promiscuous. The states of Alabama, South Carolina, and Utah advised the Court that unlike heterosexual sodomy, homosexual sodomy had “severe physical, emotional, psychological, and spiritual consequences”.[31]
At oral argument on March 26, 2003, Paul M. Smith, an experienced litigator who had argued eight cases before the Supreme Court, spoke on behalf of the plaintiffs.[32] Texas Attorney General John Cornyn, then a candidate for the U.S. Senate, refused to have his office take the case. Charles A. Rosenthal, District Attorney of Harris County, represented the state.[33] His performance was later described as “the worst oral argument in years”, but some believe his lack of preparation reflected his lack of enthusiasm for the statute he was defending.[34][35]
On April 7, 2003, Sen. Rick Santorum referred to the oral arguments in Lawrence when asked his views on homosexuality:
We have laws in states, like the one at the Supreme Court right now, that has sodomy laws and they were there for a purpose…. And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything…. It all comes from, I would argue, this right to privacy that doesn’t exist in my opinion in the United States Constitution, this right that was created…in Griswold…[36]
Decision
On June 26, 2003, the Supreme Court released its 6–3 decision striking down the Texas statute. Five justices held it violated due process guarantees, and a sixth, Sandra Day O’Connor, held it violated equal protection guarantees. The opinion overruled Bowers v. Hardwick and implicitly invalidated similar sodomy statutes in 13 other states.
Majority opinion
Justice Anthony Kennedy wrote the majority opinion which Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined. He wrote: “The petitioners [Lawrence and Garner] are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Kennedy reviewed the assumption the court made in Bowers, using the words of Chief Justice Burger’s concurring opinion in that case, that “Condemnation of [homosexual practices] is firmly rooted in Judeao-Christian moral and ethical standards.” He reviewed the history of legislation that criminalized certain sexual practices, but without regard for the gender of those involved. He cited the Model Penal Code’s recommendations since 1955, the Wolfenden Report of 1963, and a 1981 decision of the European Court of Human Rights.
He endorsed the views Justice Stevens had outlined in his dissent in Bowers and wrote: “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.” The majority decision also held that the intimate, adult consensual conduct at issue here was part of the liberty protected by the substantive component of the Fourteenth Amendment’s due process protections. Holding that “the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual”, the court struck down the anti-sodomy law as unconstitutional.
Kennedy underscored the decision’s focus on consensual adult sexual conduct in a private setting:
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.[37]
O’Connor’s concurrence
Justice Sandra Day O’Connor filed a concurring opinion in which she offered a different rationale for invalidating the Texas sodomy statute. She disagreed with the overturning of Bowers—she had been in the Bowers majority—and disputed the court’s invocation of due process guarantees of liberty in this context. Rather than including sexuality under protected liberty, she used the equal protection argument and struck down the law because it was directed at one group. O’Connor maintained that a sodomy law that was neutral both in effect and application might be constitutional, but that there was little to fear because “democratic society” would not tolerate it for long. O’Connor noted that a law limiting marriage to heterosexual couples would pass the rational scrutiny as long as it was designed to “preserv[e] the traditional institution of marriage” and not simply based on the state’s dislike of homosexual persons.
Scalia’s dissent
Justice Antonin Scalia wrote a dissent, which Chief Justice William H. Rehnquist and Justice Clarence Thomas joined. Scalia objected to the Court’s decision to revisit Bowers, pointing out many decisions from lower courts that relied on Bowers that might now need to be reconsidered.[38] He noted that the same rationale used to overturn Bowers[39] could have been used to overturn Roe v. Wade, which the Justices in the majority in Lawrence had recently upheld in Planned Parenthood v. Casey. Scalia also criticized the majority opinion for failing to give the same respect to stare decisis that three of those in the majority had insisted on in Casey.[40]
Scalia wrote that if the court was not prepared to validate laws based on moral choices as it had done in Bowers, state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity would not prove sustainable.[41]
He wrote that:
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct…. [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.
He cited the majority opinion’s concern that the criminalization of sodomy could be the basis for discrimination against homosexuals as evidence that the majority ignored the views of most Americans:
So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal.
He continued: “Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.” The majority’s “invention of a brand-new ‘constitutional right'”, he wrote, showed it was “impatient of democratic change”.
Thomas’s dissent
Justice Thomas wrote in a separate dissent that the law the Court struck down was “uncommonly silly”, a phrase from Justice Potter Stewart’s dissent in Griswold v. Connecticut, but he voted to uphold it as he could find “no general right of privacy” or relevant liberty in the Constitution. He added that if he were a member of the Texas legislature he would vote to repeal the law.
Reactions
President Bush’s press secretary Ari Fleischer refused to comment on the decision, noting only that the administration had not filed a brief in the case. As governor, Bush had opposed repeal of the Texas sodomy provision, which he called a “symbolic gesture of traditional values”.[42] After quoting Fleischer calling it “a state matter”, Linda Greenhouse, writing in The New York Times, commented: “In fact, the decision today…took what had been a state-by-state matter and pronounced a binding national constitutional principle.”[43]
The Lambda Legal’s lead attorney in the case, Ruth Harlow, stated in an interview after the ruling that “the court admitted its mistake in 1986, admitted it had been wrong then…and emphasized today that gay Americans, like all Americans, are entitled to full respect and equal claim to [all] constitutional rights.”[44] Prof. Laurence Tribe has written that Lawrence “may well be remembered as the Brown v. Board of Education of gay and lesbian America”.[45] Jay Alan Sekulow of the American Center for Law and Justice has referred to the decision as having “changed the status of homosexual acts and changed a previous ruling of the Supreme Court… this was a drastic rewrite”.[46]
Peter LaBarbera, a senior policy analyst of the anti-LGBT group Culture and Family Institute, later president of the anti-LGBT organization Americans for Truth about Homosexuality, said that the end result of Lawrence v. Texas was “like the Roe v. Wade of the homosexual issue”.[47][48] The United States Conference of Catholic Bishops called the decision “deplorable”.[49]
Columbia Law Prof. Katherine M. Franke, in an analysis of Lawrence that appeared in June 2004, criticized its “domesticated” conception of liberty that failed to present “a robust concept of freedom”. She contrasted it with the language of Planned Parenthood v. Casey, which discussed “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”. Lawrence‘s emphasis on geographical privacy, in her view, described a circumscribed form of liberty and failed to develop the court’s evolving assertion of the right to autonomy and personal independence. Its assumption, based on nothing in the record, that Lawrence and Garner were in a relationship and had a personal bond leaves open the court’s view of their right to express their sexuality or fulfill erotic desires. She noted how a Kansas court in Limon v. Kansas read Lawrence to allow far greater punishment for engaging in same-sex activity with a minor than different-sex activity with a minor. She terms this “the legal enforcement of heteronormative preferences”.[50] The decision in Limon was later reversed, in part on the basis of Lawrence.[51]
Subsequent cases
A few months later, on November 18, 2003, the Massachusetts Supreme Judicial Court ruled that same-sex couples have a right to marry. Though deciding the case on the basis of the state constitution, Chief Justice Margaret Marshall quoted Lawrence in its second paragraph: “Our obligation is to define the liberty of all, not to mandate our own moral code.”[52]
Upon rehearing Williams v. Pryor after Lawrence, the Eleventh Circuit Court of Appeals upheld Alabama’s ban on the sale of sex toys.[53] Facing comparable facts, the Fifth Circuit struck down Texas’s sex toy ban holding that “morality is an insufficient justification for a statute” and “interests in ‘public morality’ cannot constitutionally sustain the statute after Lawrence“.[54]
Lawrence invalidated age of consent laws that differed based on sexual orientation. The day after the Lawrence decision, the Supreme Court ordered the State of Kansas to review its 1999 “Romeo and Juliet” law that reduces the punishment for a teenager under 18 years of age who has consensual sexual relations with a minor no more than four years their junior, but explicitly excludes same-sex conduct from the sentence reduction.[55] In 2004, the Kansas Appeals Court upheld the law as is, but the Kansas Supreme Court unanimously reversed the lower court’s ruling on October 21, 2005,[56] in State v. Limon.[57]
Subsequent federal and state case law has been quite explicit in limiting the scope of Lawrence and upholding traditional state regulations on marriage, expressly allowing a marriage-procreation link. (See Standhardt v. Superior Court ex rel County of Maricopa, 77 P.3d 451 (Ariz. App. 2003); Morrison v. Sadler, 821 N.E.2d 15 (Ind. App. 2005); Hernandez v Robles (7 NY3d 338 2005).) In Muth v. Frank, 412 F.3d 808 (7th Cir. 2005), the Seventh Circuit declined to extend Lawrence to cases of consensual adult incest, although it did say that Lawrence v. Texas was “a new substantive rule and […] thus retroactive”. The case was distinguished because parties were not similarly situated since there is in the latter case an enhanced possibility of genetic mutation of a possible offspring.
In Martin v. Ziherl, the Supreme Court of Virginia ruled the state’s fornication law unconstitutional.[58] In the Holm case a polygamist attempted without success to use Lawrence to overturn Utah’s laws banning these polygamous relationships. The Supreme Court refused to hear his plea.[59] The Connecticut Supreme Court rejected an argument based on Lawrence that a teacher had a constitutional right to engage in sexual activity with his female students.[60][61]
The United States Court of Appeals for the Armed Forces, the last court of appeals for Courts-Martial before the Supreme Court, has ruled that Lawrence applies to Article 125 of the Uniform Code of Military Justice, the article banning sodomy. It has also twice upheld prosecutions under Article 125 when applied as necessary to preserve good order and discipline in the armed forces.[62][63]
Judge Vaughn Walker cited Scalia’s dissent in his decision in Perry v. Brown that found California’s Proposition 8 banning same-sex marriage unconstitutional.[64]
The level of scrutiny applied in Lawrence
Justice Scalia and others have noted that the majority did not appear to apply the strict scrutiny standard of review that would be appropriate if the Lawrence majority had recognized a full-fledged “fundamental right”. He wrote the majority, instead, applied “an unheard-of form of rational basis review that will have far-reaching implications beyond this case”.[65]
Nan D. Hunter has argued that Lawrence used a new method of substantive due process analysis, and that the Court intended to abandon its old method of categorizing due process rights as either “fundamental” or “not fundamental” as too restrictive.[66] Justice Souter, for example, argued in Washington v. Glucksberg that the role of the Court in all cases, including unenumerated rights cases, is to ensure that the government’s action has not been arbitrary.[67] Justice Stevens has repeatedly criticized tiered scrutiny and prefers a more active judicial balancing test based on reasonability.[68]
Lower courts have read Lawrence differently on the question of scrutiny. In Lofton v. Secretary of the Department of Children and Family Services the United States Court of Appeals for the Eleventh Circuit upheld a state law barring adoption of children by homosexuals, holding explicitly that Lawrence did not apply strict scrutiny.[69] In Witt v. Department of the Air Force, the United States Court of Appeals for the Ninth Circuit held that Lawrence applied intermediate scrutiny.[70]
Pronk Palisades 
Lying Lunatic Left Democratic Party’s War on People of Faith By Opposing Indiana’s Religious Freedom Restoration Law — 19 Other States Have Similar Laws — Federal Religious Freedom Restoration Act of 1993 — Does Not Discriminate Against Any One Including Gays and Lesbians– Videos
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The Pronk Pops Show Podcasts
Pronk Pops Show 437: March 30, 2015
Pronk Pops Show 436: March 27, 2015
Pronk Pops Show 435: March 26, 2015
Pronk Pops Show 434: March 25, 2015
Pronk Pops Show 433: March 24, 2015
Pronk Pops Show 432: March 23, 2015
Pronk Pops Show 431: March 20, 2015
Pronk Pops Show 430: March 19, 2015
Pronk Pops Show 429: March 18, 2015
Pronk Pops Show 428: March 17, 2015
Pronk Pops Show 427: March 16, 2015
Pronk Pops Show 426: March 6, 2015
Pronk Pops Show 425: March 4, 2015
Pronk Pops Show 424: March 2, 2015
Pronk Pops Show 423: February 26, 2015
Pronk Pops Show 422: February 25, 2015
Pronk Pops Show 421: February 20, 2015
Pronk Pops Show 420: February 19, 2015
Pronk Pops Show 419: February 18, 2015
Pronk Pops Show 418: February 16, 2015
Pronk Pops Show 417: February 13, 2015
Pronk Pops Show 416: February 12, 2015
Pronk Pops Show 415: February 11, 2015
Pronk Pops Show 414: February 10, 2015
Pronk Pops Show 413: February 9, 2015
Pronk Pops Show 412: February 6, 2015
Pronk Pops Show 411: February 5, 2015
Pronk Pops Show 410: February 4, 2015
Pronk Pops Show 409: February 3, 2015
Pronk Pops Show 408: February 2, 2015
Pronk Pops Show 407: January 30, 2015
Pronk Pops Show 406: January 29, 2015
Pronk Pops Show 405: January 28, 2015
Pronk Pops Show 404: January 27, 2015
Pronk Pops Show 403: January 26, 2015
Pronk Pops Show 402: January 23, 2015
Pronk Pops Show 401: January 22, 2015
Pronk Pops Show 400: January 21, 2015
Pronk Pops Show 399: January 16, 2015
Pronk Pops Show 398: January 15, 2015
Pronk Pops Show 397: January 14, 2015
Pronk Pops Show 396: January 13, 2015
Pronk Pops Show 395: January 12, 2015
Pronk Pops Show 394: January 7, 2015
Pronk Pops Show 393: January 5, 2015
Pronk Pops Show 392: December 19, 2014
Pronk Pops Show 391: December 18, 2014
Pronk Pops Show 390: December 17, 2014
Pronk Pops Show 389: December 16, 2014
Pronk Pops Show 388: December 15, 2014
Pronk Pops Show 387: December 12, 2014
Pronk Pops Show 386: December 11, 2014
Pronk Pops Show 385: December 9, 2014
Pronk Pops Show 384: December 8, 2014
Pronk Pops Show 383: December 5, 2014
Pronk Pops Show 382: December 4, 2014
Pronk Pops Show 381: December 3, 2014
Pronk Pops Show 380: December 1, 2014
Story 3: Lying Lunatic Left Democratic Party’s War on People of Faith By Opposing Indiana’s Religious Freedom Restoration Law — 19 Other States Have Similar Laws — Federal Religious Freedom Restoration Act of 1993 — Does Not Discriminate Against Any One Including Gays and Lesbians– Videos
Indiana legislators pledge to ‘fix’ controversial religious freedom law
Pence signs Religious Freedom Restoration Act
Religious Freedom Restoration Act Bill Draws Criticism, Support
Indiana lawmakers discuss the Religious Freedom Restoration Act
WFB’s Liz Harrington Discusses Indiana’s Religious Freedom Law on Real Story
Indiana Gov. Mike Pence Says Religious Freedom Law ‘Absolutely Not’ a Mistake
Religious Freedom Act backlash continues in South Bend, across the US
What Does The Hobby Lobby Supreme Court Ruling Mean?
The Hobby Lobby Supreme Court Decision Explained
History and Impact of the Religious Freedom Restoration Act
Mark Steyn On The Religious Freedom Restoration Act of 1993
Swarens: Gov. Mike Pence to push for clarification of ‘religious freedom’ law
Gov. Mike Pence, scorched by a fast-spreading political firestorm, told The Star on Saturday that he will support the introduction of legislation to “clarify” that Indiana’s controversial Religious Freedom Restoration Act does not promote discrimination against gays and lesbians.
“I support religious liberty, and I support this law,” Pence said in an exclusive interview. “But we are in discussions with legislative leaders this weekend to see if there’s a way to clarify the intent of the law.”
The governor, although not ready to provide details on what the new bill will say, said he expects the legislation to be introduced into the General Assembly this coming week.
Asked if that legislation might include making gay and lesbian Hoosiers a protected legal class, Pence said, “That’s not on my agenda.”
Amid the deepest crisis of his political career, Pence said repeatedly that the intense blowback against the new law is the result of a “misunderstanding driven by misinformation.”
He adamantly insisted that RFRA will not open the door to state-sanctioned discrimination against gays and lesbians. But he did acknowledge that Indiana’s image — and potentially its economic health — has been hurt badly by the controversy.
I spoke with Pence on the same day that thousands of people rallied at the Statehouse in opposition to the law. And the same day that Angie’s List CEO Bill Oesterle announced that his company will abandon a deal with the state and city to expand the company’s headquarters in Indianapolis because of RFRA’s passage.
INDIANAPOLIS STAR
Angie’s List canceling Eastside expansion over RFRA
Oesterle’s statement is a telling sign that the outrage over RFRA isn’t limited only to the political left. Oesterle directed Republican Mitch Daniels’ 2004 campaign for governor. And it’s a signal that the damage from the RFRA debacle could be extensive.
Behind the scenes, Pence and his team have been scrambling to mitigate that damage — both to the state and to the governor’s political career.
Pence said, for example, that he had a “cordial and productive” conversation with Salesforce.com CEO Marc Benioff, who announced shortly after Pence signed the RFRA legislation on Thursday that the company will cancel all corporate-related travel to Indiana. That conversation, however, has not led to a reversal of the Salesforce decision.
I asked the governor if he had anticipated the strongly negative reaction set off by the bill’s passage. His response made it clear that he and his team didn’t see it coming.
“I just can’t account for the hostility that’s been directed at our state,” he said. “I’ve been taken aback by the mischaracterizations from outside the state of Indiana about what is in this bill.”
In defense of the legislation, he noted that 19 other states and the federal government have adopted RFRA laws similar to Indiana’s. And he pointed out that President Barack Obama voted for Illinois’ version of RFRA as a state senator.
The governor also criticized the news media’s coverage of the legislation. “Despite the irresponsible headlines that have appeared in the national media, this law is not about discrimination,” he said. “If it was, I would have vetoed it.”
Yet, those justifications, cited repeatedly by the governor’s supporters in recent days, have done little to quell the controversy.
Which is why the proposal to clarify the law’s intent with a new bill has gained traction among Pence’s advisers in the past couple of days.
Pence also plans to fight back in the state and national media. He’s scheduled, for instance, to defend the law Sunday morning on ABC’s “This Week” with George Stephanopoulos. “I’m not going to take it (the criticism) lying down,” he said.
INDIANAPOLIS STAR
Pence on ‘religious freedom’ bill: ‘I stand by this law’
As we wrapped up the conversation, I asked Pence: What answer do you have for the many gays and lesbians — and their friends and families — who’ve asked this past week if they are still welcome in Indiana?
“First, this law is not about discrimination. It’s about protecting religious liberty and giving people full access to the judicial system,” he said. “But, yes, Hoosier hospitality is about making all people feel welcome in our state. We did that with the Super Bowl and with many other events, and with bringing businesses here. We will continue to do that.”
Whether Pence can get that message across — whether he still has the credibility to get people to believe it — will help determine the extent of RFRA’s damage. First, and most important, for the state. But also for Mike Pence’s political future and legacy.
Burwell v. Hobby Lobby Stores, Inc.
Supreme Court of the United States
Argued March 25, 2014
Decided June 30, 2014Full case nameSylvia Burwell, Secretary ofHealth and Human Services, et al., Petitioners v. Hobby Lobby Stores, Inc., Mardel, Inc., David Green, Barbara Green, Steve Green, Mart Green, and Darsee Lett; Conestoga Wood Specialties Corporation, et al., Petitioners v. Sylvia Burwell, Secretary of Health and Human Services, et al.Docket nos.13-354
13-356Citations573 U.S. ___ (more)
HoldingAs applied to closely held for-profit corporations, the Health and Human Services(HHS) regulations imposing the contraceptive mandate violate the Religious Freedom Restoration Act (RFRA). HHS’s contraceptive mandate substantially burdens the exercise of religion under the RFRA. The Court assumes that guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, but the Government has failed to show that the mandate is the least restrictive means of furthering that interest.Court membership
John G. Roberts
Antonin Scalia · Anthony Kennedy
Clarence Thomas · Ruth Bader Ginsburg
Stephen Breyer · Samuel Alito
Sonia Sotomayor · Elena Kagan
Case opinionsMajorityAlito, joined by Roberts, Scalia, Kennedy, ThomasConcurrenceKennedyDissentGinsburg, joined by Sotomayor; Breyer, Kagan (all but part III-C-1)DissentBreyer and KaganLaws applied
Burwell v. Hobby Lobby, 573 U.S. ___ (2014), is a landmark decision[1][2] by the United States Supreme Courtallowing closely held for-profit corporations to be exempt from a law its owners religiously object to if there is a less restrictive means of furthering the law’s interest. It is the first time that the court has recognized a for-profit corporation’s claim of religious belief,[3] but it is limited to closely held corporations.[a] The decision is an interpretation of the Religious Freedom Restoration Act (RFRA) and does not address whether such corporations are protected by the free-exercise of religion clause of the First Amendment of the Constitution.
For such companies, the Court’s majority directly struck down the contraceptive mandate, a regulation adopted by theUS Department of Health and Human Services (HHS) under the Affordable Care Act (ACA) requiring employers to cover certain contraceptives for their female employees, by a 5-4 vote.[4] The court said that the mandate was not the least restrictive way to ensure access to contraceptive care, noting that a less restrictive alternative was being provided for religious non-profits, until the Court issued an injunction 3 days later, effectively ending said alternative, leaving no employer-sponsored alternative for any female employees of closely held corporations that do not wish to provide birth control.[5]
The ruling could have widespread impact, allowing corporations to claim religious exemptions from federal laws.[6][7]
Background
Federal law
Religious Freedom Restoration Act
The United States Supreme Court ruled in Employment Division v. Smith (1990) that a person may not defy neutral laws of general applicability[b] even as an expression of religious belief. “To permit this,” wrote Justice Scalia, “would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” He wrote that generally applicable laws do not have to meet the standard of strict scrutiny, because such a requirement would create “a private right to ignore generally applicable laws”. Strict scrutiny would require a law to be the least restrictive means of furthering a compelling government interest.
In 1993, the US Congress responded by passing the Religious Freedom Restoration Act (RFRA), requiring strict scrutiny when a neutral law of general applicability “substantially burden[s] a person’s[c] exercise of religion”.[8] The RFRA was amended in 2000 by the Religious Land Use and Institutionalized Persons Act (RLUIPA) to redefine exercise of religion as any exercise of religion, “whether or not compelled by, or central to, a system of religious belief”, which is to be “construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution”. The Supreme Court upheld the constitutionality of the RFRA as applied to federal statutes in Gonzales v. O Centro Espirita in 2006.
Affordable Care Act
Most Americans are covered by employer-sponsored health insurance. In 2010, Congress passed the Affordable Care Act (ACA), which relies on the Health Resources and Services Administration (HRSA), part of the Department of Health and Human Services (HHS), to specify what kinds of preventive care for women should be covered in certain employer-based health plans. HHS exempted religious employers (churches and their integrated auxiliaries, associations of churches, and any religious order), non-profit organizations that object to any required contraception,[9] employers providing grandfathered plans (that have not had specific changes before March 23, 2010), and employers with fewer than 50 employees. The HRSA decided that all twenty contraceptives approved by the U.S. Food and Drug Administration (FDA) should be covered.[10] Companies that refuse are fined $100 per individual per day,[11] or they can replace their health coverage with higher wages and a calibrated tax.
Hobby Lobby Stores and Conestoga Wood Specialties
Hobby Lobby is an arts and crafts company founded by self-made billionaire[12] David Green and owned by the Evangelical Christian Green family with about 21,000 employees.[11] It provided the contraceptives Plan-B and Ella until it dropped its coverage in 2012, the year it filed its lawsuit.[13][14] It is the largest funder of theNational Christian Charitable Foundation that uses its billion-dollar endowment to fund a network of political groups including the Alliance Defending Freedom, which recently supported the Arizona SB 1062 bill that attracted national controversy.[15] The Hobby Lobby case also involved Mardel Christian and Educational Supply, which is owned by Mart Green, one of David’s sons.
Hobby Lobby’s case was consolidated with another case by Conestoga Wood Specialties, a furniture company owned by the Mennonite Hahn family that has about 1,000 employees. They were being represented by Alliance Defending Freedom.[16]
Specific contraceptives contested by plaintiffs
The Green and Hahn families believe that life begins at conception which they equate to fertilization, and object to their closely held for-profit corporations providing health insurance coverage to their female employees of four FDA-approved contraceptives that the Green and Hahn families believe may prevent implantation of a fertilized egg (many doctors and scientists disagree), which the Green and Hahn families believe constitutes an abortion.[17][18][19][20]
Lower court history
In September 2012, Hobby Lobby filed a lawsuit in the U.S. District Court for the Western District of Oklahoma against enforcement of the contraception rule based on the RFRA and the Free Exercise Clause of the First Amendment. The district court denied Hobby Lobby’s request for a preliminary injunction. In March 2013, the U.S. Court of Appeals for the Tenth Circuit granted a hearing of the case. In June, the appeals court ruled that Hobby Lobby Stores, Inc. is a person who has religious freedom.[6] The court ordered the government to stop enforcement of the contraception rule on Hobby Lobby and sent the case back to the district court, which granted preliminary injunction in July. In September, the government appealed to the U.S. Supreme Court.[21]
Two other federal appeals courts ruled against the contraception coverage rule, while another two upheld it.[11]
The case was previously titled Sebelius v. Hobby Lobby. Sylvia Burwell was automatically substituted as petitioner when she was approved by the United States Senate as the Secretary of Health and Human Services after being nominated by President Barack Obama to replace Kathleen Sebelius following Sibelius’ resignation on April 10, 2014.
U.S. Supreme Court consideration
Acceptance and briefs
On November 26, the Supreme Court accepted and consolidated the case with Conestoga Wood Specialties v. Sebelius. Two dozen amicus briefs support the government, and five dozen support the companies. American Freedom Law Center‘s brief argues that birth control harms women because men will only want them “for the satisfaction of [their] own desires.”[22] Another brief argues that the contraception rule leads to “the maximization of sexual activity”.[7] Two of the briefs oppose each other on the constitutionality of the RFRA. Two briefs that do not formally take sides oppose each other on whether the right to religion applies to corporations.[23] One of those briefs argues that if shareholders are separated by the corporate veil from corporate liabilities, then their religious values are also separate from the corporation. It mentions the ruling in Domino’s Pizza, Inc. v. McDonald made against the African American owner of JWM Investments whose contracts were breached due to racial discrimination. The brief argues that if JWM Investments could not suffer discrimination through its owner, then Hobby Lobby could not suffer religious burden through its owner.[24][25] Two briefs were filed by LGBT groups concerned that future anti-discrimination laws would be pre-emptively harmed if employers could claim to be religiously exempt.[26][27][28]
Argument and deliberation
Oral arguments were held on March 25, 2014 for 30 minutes more than the usual one hour.[8] The three women in the court focused their questioning on Hobby Lobby’s lawyer, Paul D. Clement, while the men focused on the administration’s lawyer, Solicitor General Donald Verrilli, Jr.[29] Justice Sotomayor quoted the ruling from United States v. Lee (1982) saying that an employer can’t deprive employees of a statutory right because of religious beliefs. Clement replied that Lee does not apply because it was a challenge against a tax rather than against a significant burden. Sotomayor said that instead of paying the burden of the penalty, Hobby Lobby could replace its health care with the equivalent expense of higher wages and a calibrated tax, which the government would use to pay for the employees’ health care.[30][31] Near the end of Clement’s argument, Justice Kennedy expressed concern for the rights of the employees who may not agree with the religious beliefs of their employers.[32] When Verrilli argued that the ruling in Cutter v. Wilkinson requires the court to weigh the impact on third parties in every RFRA case, Justice Scalia said that the RFRA does not require the court to balance the interest of the religious objector to the interest of other individuals. Verilli returned to Lee,saying that granting an exemption to an employer should not impose the employer’s religious faith on the employees.[30][33]
Opinion of the Court
Majority opinion
On June 30, 2014, Associate Justice Samuel Alito delivered the judgment of the court. Four justices (Roberts, Scalia, Kennedy, and Thomas) joined him to strike down the HHS mandate, as applied to closely held corporations with religious objections, and to prevent the plaintiffs from being compelled to provide contraception under their healthcare plans. The ruling was reached on statutory grounds, citing the RFRA, because the mandate was not the “least restrictive” method of implementing the government’s interest. The ruling did not address Hobby Lobby’s claims under the Free Exercise Clause of the First Amendment.[34]
The court argued that the purpose of extending rights to corporations is to protect the rights of shareholders, officers, and employees.[35] It said that “allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.”[36] The court found that for-profit corporations could be considered persons under the RFRA. It noted that the HHS treats nonprofit corporations as persons within the meaning of RFRA. The court stated, “no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.”[37] Responding to lower court judges’ suggestion that the purpose of for-profit corporations “is simply to make money”, the court said, “For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives.”[38] The court rejected the contention that “the Nation lacks a tradition of exempting for-profit corporations from generally applicable laws,” pointing to a federal statute from 1993 that exempted any covered health care entity from engaging in “certain activities related to abortion”.[39]
The court held that the HHS contraception mandate substantially burdens the exercise of religion, rejecting an argument that the $2,000-per-employee penalty for dropping insurance coverage is less than the average cost of health insurance. Responding to HHS’s argument that the provision of coverage does not itself result in destruction of embryos, the Court asserted that the argument dodges the substantial burden question that the Court is supposed to address. The Court added, citing Jesuit moral manuals, that the argument is also the religious question of the morality of enabling the immoral acts of others, to which HHS had provided “a binding national answer”. The Court argued that federal courts should not answer religious questions because they would in effect be deciding whether certain beliefs are flawed.[40][41] The court argued that “companies would face a competitive disadvantage in retaining and attracting skilled workers,” that increased wages for employees to buy individual coverage would be more costly than group health insurance, that any raise in wages would have to take income taxes into account, and that employers cannot deduct the penalty.[42]
The court found it unnecessary to adjudicate on whether the HHS contraceptive mandate furthers a compelling government interest and held that HHS has not shown that the mandate is “the least restrictive means of furthering that compelling interest”.[43] The court argued that the most straightforward alternative would be “for the Government to assume the cost…” and that HHS has not shown that it is not “a viable alternative”.[44] The court said that the RFRA can “require creation of entirely new programs”.[45] The court also pointed out that HHS already exempts any nonprofit organization from paying for any required contraception by allowing it to certify its religious objection to its insurance issuer, which must “[p]rovide separate payments for any contraceptive services required to be covered”.[46] However, the court said the approach might not necessarily be the least restrictive alternative for all religious claims.[47]
The court concluded by addressing “the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction”. The court said that their decision “provides no such shield”, and that “prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”[48] The court also said that the requirement to pay taxes despite any religious objection is different from the contraceptive mandate because “there simply is no less restrictive alternative to the categorical requirement to pay taxes.”[49] The court acknowledged the dissent’s “worries about forcing the federal courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable laws…”, noting that this point was “made forcefully by the Court in Smith“. The court responded by saying, “Congress, in enacting RFRA, took the position that ‘the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests’…The wisdom of Congress’s judgment on this matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.”[50]
Concurring opinion
Justice Anthony Kennedy wrote a concurring opinion, responding to the “respectful and powerful dissent”, by emphasizing the limited nature of the ruling and saying that the government “makes the case that the mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees”, but that the RFRA’s least-restrictive way requirement is not met because “there is an existing, recognized, workable, and already-implemented framework to provide coverage,” the one that HHS has devised for non-profit corporations with religious objections. “RFRA requires the Government to use this less restrictive means. As the Court explains, this existing model, designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise.” (Kennedy, J., concurring, p. 3, 4)
Dissenting opinions
Justice Ruth Bader Ginsburg delivered the primary dissent, which was joined by Justice Sotomayor in full and by Justices Breyer and Kagan as to all but Part III–C–1[51] on “whether a corporation qualifies as a ‘person’ capable of exercising religion”.[52] Ginsburg began, “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. … Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a ‘less restrictive alternative.’ And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e., the general public, can pick up the tab.”[53]
She challenged the majority’s unprecedented view of for-profit religion saying “Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA. The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities[54]…Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.”[55] Responding to the majority’s argument that the government should “assume the cost” of contraceptives, Ginsburg said that “the nation’s only dedicated source of federal funding for safety net family planning services…” is not designed to absorb the unmet needs of those already insured. She noted that “a less restrictive alternative” has not been written into law by Congress.[56] Ginsburg warns, “The Court, I fear, has ventured into a minefield…”[57]
Justices Breyer and Kagan wrote a one-paragraph dissenting opinion, saying that “the plaintiffs’ challenge to the contraceptive coverage requirement fails on the merits” and that they “need not and do not decide whether either for-profit corporations or their owners may bring claims under the Religious Freedom Restoration Act of 1993.”[58]
Reactions
Barbara Green, co-founder of Hobby Lobby, said “Today, the nation’s highest court has reaffirmed the vital importance of religious liberty as one of our country’s founding principles. The court’s decision is a victory, not just for our family business, but for all who seek to live out their faith.”[59]
Conestoga CEO Anthony Hahn said, “Americans don’t have to surrender their freedom when they open a family business.”[59]
Organizations
Conservative and pro-life groups praised the ruling. The National Review said that the Supreme Court ruling “[led] Alliance Defending Freedom attorney Matt Bowman to call Hobby Lobby an ‘inclusive decision’ that advances everyone’s freedom.”[60] Susan B. Anthony List President Marjorie Dannenfelser said, “This is a great victory for religious liberty – the bedrock of our founding. In living out our religious convictions, there are certain things we must not do. This is why we are at a watershed moment. Religious people will no longer be ordered to take action that our religion says we must not take.”[61] Family Research Council President Tony Perkins said, “The Supreme Court has delivered one of the most significant victories for religious freedom in our generation. We are thankful the Supreme Court agreed that the government went too far by mandating that family businesses owners must violate their consciences under threat of crippling fines.”[61] The U.S. Conference of Catholic Bishops said, “We welcome the Supreme Court’s decision to recognize that Americans can continue to follow their faith when they run a family business…Now is the time to redouble our efforts to build a culture that fully respects religious freedom.”[62]
Pro-choice and civil-liberties groups criticized the ruling. Cecile Richards, president of the Planned Parenthood Action Fund, said, “Today, the Supreme Court ruled against American women and families, giving bosses the right to discriminate against women and deny their employees access to birth control coverage. This is a deeply disappointing and troubling ruling that will prevent some women, especially those working hourly-wage jobs and struggling to make ends meet, from getting birth control.”[63] Deputy legal director of the American Civil Liberties Union Louise Melling said, “This is a deeply troubling decision. For the first time, the highest court in the country has said that business owners can use their religious beliefs to deny their employees a benefit that they are guaranteed by law.”[64]
In an editorial, the New England Journal of Medicine called the decision “a setback for both the ACA’s foundational goal of access to universal health care and for women’s health care specifically”, voicing concern that “in assessing the competing claims about abortion and birth control, the Court’s majority focused on the religious claims of the corporations without discussing scientific or medical opinions.”[65] In JAMA Internal Medicine, Alta Charo wrote that “consistent with a disturbing trend among courts and legislatures to misstate or misuse scientific information in the context of women’s reproductive rights and health, the Supreme Court’s decision ignored the well-accepted distinction between contraception and abortion.”[66] The American Congress of Obstetricians and Gynecologists, representing 90% of U.S. board-certified gynecologists, supported a bill to overturn the Hobby Lobby ruling.[67]
Government
White House spokesman Josh Earnest said, “Congress needs to take action to solve this problem that’s been created and the administration stands ready to work with them to do so. President Obama believes that women should make personal health care decisions for themselves, rather than their bosses deciding for them. Today’s decision jeopardizes the health of women that are employed by these companies.”[64]
Senate Majority Leader Harry Reid (D-Nev.) said, “If the Supreme Court will not protect women’s access to health care, then Democrats will. We will continue to fight to preserve women’s access to contraceptive coverage and keep bosses out of the examination room.”[3]
Senate Minority Leader Mitch McConnell said, “[T]he Obama administration cannot trample on the religious freedoms that Americans hold dear.”[3]
Senator Charles Schumer (D-NY), who introduced the RFRA in 1993, said his law “was not intended to extend the same protection to for-profit corporations, whose very purpose is to profit from the open market.”[68]
Speaker of the House John Boehner (R-Ohio) said, “The mandate overturned today would have required for-profit companies to choose between violating their constitutionally-protected faith or paying crippling fines, which would have forced them to lay off employees or close their doors.”[69]
House minority leader Nancy Pelosi (D-CA) said, “Although the Court restricted their ruling to ‘closely-held’ companies, this ruling will immediately affect the lives of millions of women across the country. Over 90 percent of America’s businesses are ‘closely-held,’ including such large employers as Koch Industries and Bechtel.[69]Women should not be forced to jump through extra hoops to secure the fundamental health care they need. Allowing employers and CEOs to limit the health care available to employees is a gross violation of their workers’ religious rights. It’s just not her boss’ business.”[64]
Senator Ted Cruz (R-Tex.) said, “Today’s victory in the Hobby Lobby case is terrific news—but now is no time to rest. We cannot rely on the courts alone to defend our religious liberty.”[61]
Senator Orrin Hatch (R-Utah) said, “I applaud the Supreme Court’s decision to protect the religious freedom of all Americans, both individually and collectively. The notion that religious freedom belongs only to some, and even then only in private, defies our nation’s traditions, our laws, and our Constitution. And as the Supreme Court rightfully said today, the Religious Freedom Restoration Act could not have been clearer in saying religious liberty of all Americans must be equally protected and not unnecessarily burdened.”[61]
Rep. Michele Bachmann (R-Minn) said, “I am extremely encouraged by today’s Supreme Court decision to uphold the religious liberty rights of the Green family of Hobby Lobby.”[61]
Aftermath
Cases following SCOTUS ruling
Forbes reported that following the ruling in Burwell v. Hobby Lobby, “the Supreme Court vacated the judgment against Eden Foods and sent the case back to the U.S. Court of Appeals for the Sixth Circuit for further consideration.”[70]
Wheaton College order
On July 3, 2014, the Supreme Court granted a temporary exemption to the approach it suggested as a less restrictive alternative in Hobby Lobby, where the plaintiffs would send a form (EBSA Form 700)[71] to its insurance issuer, which would pay for the contraception. In an unsigned emergency injunction for Wheaton College in Illinois, the court said that instead of notifying its insurance issuer, Wheaton can notify the government. Once notified, the government should notify the issuer. Wheaton believed that by transferring the obligation to cover contraceptives to its insurance issuer, it was triggering that obligation. The emergency injunction does not constitute a ruling on the merits of Wheaton’s religious objection. The court said “Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives.”[72]
In a 15-page dissent joined by the other two women on the court, Justice Sotomayor criticized the majority’s reasoning: “Wheaton’s application comes nowhere near the high bar necessary to warrant an emergency injunction from this court…The court’s actions in this case create unnecessary costs and layers of bureaucracy, and they ignore a simple truth: The government must be allowed to handle the basic tasks of public administration in a manner that comports with common sense.”[73]
In January, the Supreme Court granted a similar temporary injunction to the Little Sisters of the Poor.[74][75][76]
In dueling commentaries between regular SCOTUSblog contributor Marty Lederman and co-founder Tom Goldstein, Lederman argued that only Form 700 can require an insurance provider to pay for contraception coverage. Goldstein argued that an existing regulation allows the government to specify an alternative to Form 700. He pointed out that “the Court didn’t accept Wheaton’s most aggressive argument” that it cannot be required to do anything. He said that Justice Kennedy’s concurrence is controlling and makes clear that the RFRA is not violated by requiring Wheaton to notify the government.[77][78]
Implications
Religious exemption from laws that apply to the general public
Although the court stated clearly that the decision is limited to the contraceptive mandate (Syllabus p. 4-5), the ruling is seen to have consequences extending far beyond contraception. Walter Dellinger, former acting solicitor general said, “for the first time, commercial enterprises could successfully claim religious exemptions from laws that govern everyone else.” Fifteen states had filed a brief arguing that businesses would be able to deny coverage for transfusions, stem cell treatments, and psychiatric care.[6] In line with the dissenting opinion, The American Prospect asked, “[W]ill the taxpayers have to send a check to employees if employers feel that minimum wage laws violate their religious beliefs?”[79] Jonathan Rauch, a senior fellow at the Brookings Institution, said that objections to paying health benefits for same-sex spouses will get traction.[80] The National Gay and Lesbian Task Force (NGLT) and the National Center for Lesbian Rights withdrew their support for the Employment Non-Discrimination Act (ENDA) passed by the Senate, saying that its religious exemptions would allow companies to fire or refuse to hire LGBT workers in light of the Hobby Lobby ruling. NGLT executive director Rea Carey said, “We do not take this move lightly. We’ve been pushing for this bill for 20 years.”[81]
Such concerns are focused on the court’s application of the federal RFRA law and were driven by national controversy over a state RFRA amendment bill in Arizona. Douglas Laycock, law professor at the University of Virginia, said, “The whole secular left has decided” that RFRA laws “are very dangerous because they care so much more about the contraception cases and gay rights.” He said RFRA laws are mischaracterized because they do not dictate outcomes favoring religious objectors, they only require courts to use the highest standard of scrutiny on any law challenged.[6] Mark Kernes, Senior Editor and Chief Legal Analyst forAVN magazine stated in an op-ed piece, “If the Hobby Lobby decision supports the ‘right’ of companies not to make available birth control that will prevent women from “catching” a pregnancy, what’s to keep those same religious companies from arguing that providing access to PrEP drugs like Truvada, which help prevent gays (and, admittedly, everyone) from catching HIV shouldn’t similarly be excluded from their health plans?”[82]
Imposition of religious beliefs onto others
Marcia Greenberger, co-president of the National Women’s Law Center, said that the Supreme Court has never ruled that companies have religious beliefs and that “it has never held that religious exercise provides a license to harm others, or violate the rights of third parties.” Louise Melling, ACLU deputy legal director, said religious freedom “gives us all the right to hold our beliefs, but it doesn’t give you the right to impose your beliefs on others, to discriminate against others.”[7] The editorial board of The New York Times wrote that the decision “swept aside accepted principles of corporate law and religious liberty to grant owners of closely held, for-profit companies an unprecedented right to impose their religious views on employees.”[83] A Fox News columnist wrote, “[W]ith all of the debate about the religious beliefs of the Hobby Lobby owners, what about the religious beliefs of their employees? They are just as important, and should not be trampled upon.”[84]The director of the United Church of Christ’s Washington, D.C. office, said that the ruling “may embolden private employers to claim religious objections to particular health care services, in effect forcing their own religious views upon their employees.”[85] Former Secretary of State Hillary Clinton said, “It’s the first time that our court has said that a closely-held corporation has the rights of a person when it comes to religious freedom, which means that the…corporation’s employers can impose their religious beliefs on their employees.”[86] The Center for American Progress said that the ruling “moves in the direction this court has been moving already, which is talking about corporate personhood—really treating corporations like people, saying that the corporation has a religion itself and that should be imposed on its employees.”[80] Interfaith Alliance leader Rev. Welton Gaddy said, “The First Amendment is at its best when it is used to protect the rights of minorities from the whims of the powerful. Today’s decision, which gives the powerful the right to force their religious beliefs on those around them, is a far cry from the best traditions of religious freedom.”[62]
Scholars on the other side (including some on the left) disagree, arguing that companies owned and run by liberals will likewise benefit from the freedom to operate according to their conscience or values – which has not been viewed as “imposing” views, because people routinely choose whom to associate with based on philosophical compatibility.[87] This debate reflects a larger recurring ideological issue over what constitutes “coercion” or “imposing” – e.g., whether burdens imposed by law onto employers are better or worse than burdens imposed by employers on employees.[88]
Corporate liability
The New York Times editor Dorothy J. Samuels wrote, “If owners indicate that they are not entirely separate from their corporation—by denying corporation employees’ birth control coverage based on their personal religious beliefs—the case could be made in future state-court litigation that they have waived their right to be shielded from responsibility for corporate financial liabilities.”[89] The dean of the UC Irvine School of Law Erwin Chemerinsky said, “The liabilities of the corporation are not attributed to the owners, so why should the owners be able to attribute their beliefs to the company?”[90] Samuels leaves her readers with an adage: “Be careful what you wish for.”[89] Several legal scholars wrote an amicus brief to the Supreme Court for this case arguing this danger, while scholars on the other side counter that incorporated non-profit organizations enjoy liability protection despite their activities based on religious or other values/conscience-based causes.[91]
See also
http://en.wikipedia.org/wiki/Burwell_v._Hobby_Lobby_Stores,_Inc.
Religious Freedom Restoration Act
Burwell v. Hobby Lobby
The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at 42 U.S.C. § 2000bb through 42 U.S.C. § 2000bb-4 (also known as RFRA), is a 1993 United States federal law aimed at preventing laws that “substantially burden” a person’s free exercise of religion. The bill was introduced by Congressman Chuck Schumer (D–NY) on March 11, 1993 and passed by a unanimous U.S. House and a near unanimous U.S. Senate with three dissenting votes[1] and was signed into law by President Bill Clinton.
The RFRA was held unconstitutional as applied to the states in the City of Boerne v. Flores decision in 1997, which ruled that the RFRA is not a proper exercise of Congress’s enforcement power. However, it continues to be applied to the federal government—for instance, in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal—because Congress has broad authority to carve out exemptions from federal laws and regulations that it itself has authorized. In response to City of Boerne v. Flores, some individual states passed State Religious Freedom Restoration Acts that apply to state governments and local municipalities.
Provisions
This law reinstated the Sherbert Test, which was set forth by Sherbert v. Verner, and Wisconsin v. Yoder, mandating that strict scrutiny be used when determining whether the Free Exercise Clause of the First Amendment to the United States Constitution, guaranteeing religious freedom, has been violated. In the Religious Freedom Restoration Act, Congress states in its findings that a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion;[2] therefore the Act states that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”[3]
The law provided an exception if two conditions are both met. First, the burden must be necessary for the “furtherance of a compelling government interest.”[3] Under strict scrutiny, a government interest is compelling when it is more than routine and does more than simply improve government efficiency. A compelling interest relates directly with core constitutional issues.[4] The second condition is that the rule must be the least restrictive way in which to further the government interest.
Background and passage
This tipi is used for Peyote ceremonies in the Native American Church, one of the main religions affected by the Religious Freedom Restoration Act
The Religious Freedom Restoration Act applies to all religions, but is most pertinent[dubious – discuss] to Native American religions that are burdened by increasing expansion of government projects onto sacred land. In Native American religion the land they worship on is very important. Often the particular ceremonies can only take place in certain locations because these locations have special significance.[5] This, along with peyote use, are the main parts of Native American religions that are often left unprotected.
The Free Exercise Clause of the First Amendment states that Congress shall not pass laws prohibiting the free exercise of religion. In the 1960s, the Supreme Court interpreted this as banning laws that burdened a person’s exercise of religion (e.g.Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972)). But in the 1980s the Court began to allow legislation that incidentally prohibited religiously mandatory activities as long as the ban was “generally applicable” to all citizens. Also, the American Indian Religious Freedom Act, intended to protect the freedoms of tribal religions, was lacking enforcement. This led to the key cases leading up to the RFRA, which were Lyng v. Northwest Indian Cemetery Protective Association (1988) and Employment Division v. Smith, 494 U.S. 872 (1990). In Lyng, the Court was unfavorable to sacred land rights. Members of the Yurok, Tolowa and Karok tribes tried to use the First Amendment to prevent a road from being built by the U.S. Forest Service through sacred land. The land that the road would go through consisted of gathering sites for natural resources used in ceremonies and praying sites. The Supreme Court ruled that this was not an adequate legal burden because the government was not coercing or punishing them for their religious beliefs.[6] In Smith the Court upheld the state of Oregon‘s refusal to give unemployment benefits to two Native Americans fired from their jobs at a rehab clinic after testing positive for mescaline, the main psychoactive compound in the peyote cactus, which they used in a religious ceremony. Peyote use has been a common practice in Native American tribes for centuries. It was integrated with Christianity into what is now known as the Native American Church.[7]
The Smith decision outraged the public. Many groups came together. Both liberal (like the American Civil Liberties Union) and conservative groups (like theTraditional Values Coalition) as well as other groups such as the Christian Legal Society, the American Jewish Congress, the Baptist Joint Committee for Religious Liberty, and the National Association of Evangelicals joined forces to support RFRA, which would reinstate the Sherbert Test, overturning laws if they burden a religion.[8] The act, which was Congress’s reaction to the Lyng and Smith cases, passed the House unanimously and the Senate 97 to 3 and was signed into law byU.S. President Bill Clinton.
Applicability
The RFRA applies “to all Federal law, and the implementation of that law, whether statutory or otherwise”, including any Federal statutory law adopted after the RFRA’s date of signing “unless such law explicitly excludes such application.”[9]
Challenges and weaknesses
The Peyote cactus, the source of the peyote used by Native Americans in religious ceremonies.
In 1997, part of this act was overturned by the United States Supreme Court. The Roman Catholic Archdiocese of San Antoniowanted to enlarge a church in Boerne, Texas. But a Boerne ordinance protected the building as a historic landmark and did not permit it to be torn down. The church sued, citing RFRA, and in the resulting case, City of Boerne v. Flores, 521 U.S. 507(1997), the Supreme Court struck down the RFRA with respect to its applicability to States (but not Federally), stating that Congress had stepped beyond their power of enforcement provided in the Fourteenth Amendment.[8] In response to the Boerneruling, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000, which grants special privileges to religious land owners.[10]
The Act was amended in 2003 to only include the federal government and its entities, such as Puerto Rico and the District of Columbia.[11] A number of states have passed state RFRAs, applying the rule to the laws of their own state, but the Smith case remains the authority in these matters in many states.[12]
The constitutionality of RFRA as applied to the federal government was confirmed on February 21, 2006, as the Supreme Court ruled against the government inGonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006), which involved the use of an otherwise illegal substance in a religious ceremony, stating that the federal government must show a compelling state interest in restricting religious conduct.
Post-Smith, many members of the Native American Church still had issues using peyote in their ceremonies. This led to the Religious Freedom Act Amendments in 1994, which state, “the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremony purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any state. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation.”[3]
Applications and effects
The Religious Freedom Restoration Act holds the federal government responsible for accepting additional obligations to protect religious exercise. In O’Bryan v. Bureau of Prisons it was found that the RFRA governs the actions of federal officers and agencies and that the RFRA can be applied to “internal operations of the federal government.”[13] RFRA, in conjunction with President Bill Clinton‘s Executive Order in 1996, provided more security for sacred sites for Native American religious rites.[3]
As of 1996, the year before the RFRA was found unconstitutional as applied to states, 337 cases had cited RFRA in its three year time range.[14] It was also found that Jewish, Muslim, and Native American religions, which make up only three percent of religious membership in the U.S., make up 18 percent of the cases involving the free exercise of religion.[14] The Religious Freedom Restoration Act was a cornerstone for tribes challenging the National Forest Service’s plans to permit upgrades to Snow Bowl Ski Resort. Six tribes were involved, including the Navajo, Hopi, Havasupai, and Hualapai. The tribes objected on religious grounds to the plans to use reclaimed water. They felt that this risked infecting the tribal members with “ghost sickness” as the water would be from mortuaries and hospitals. They also felt that the reclaimed water would contaminate the plant life used in ceremonies. In August 2008, the Ninth Circuit Court of Appeals rejected their RFRA claim.[15][16]
In the case of Adams v. Commissioner, the United States Tax Court rejected the argument of Priscilla M. Lippincott Adams, who was a devout Quaker. She tried to argue that under the Religious Freedom Restoration Act of 1993, she was exempt from federal income taxes. The U.S. Tax Court rejected her argument and ruled that she was not exempt. The Court stated: “…while petitioner’s religious beliefs are substantially burdened by payment of taxes that fund military expenditures, the Supreme Court has established that uniform, mandatory participation in the Federal income tax system, irrespective of religious belief, is a compelling governmental interest.”[17] In the case of Miller v. Commissioner, the taxpayers objected to the use of social security numbers, arguing that such numbers related to the “mark of the beast” from the Bible. In its decision, the U.S. Court discussed the applicability of the Religious Freedom Restoration Act of 1993, but ruled against the taxpayers.[18]
The RFRA figured prominently in oral arguments in the case, Burwell v. Hobby Lobby, heard by the Supreme Court on March 25, 2014.[19] In a 5-4 decision, Justice Alito stated, that the RFRA did not just restore the law as before Smith but contains a new regulation that allows to opt out of federal law based on religious beliefs.[20]
20th anniversary
A day-long symposium was held at the Newseum in Washington, D.C., on Nov. 7, 2013, to commemorate the 20th anniversary of the Religious Freedom Restoration Act. “Restored or Endangered? The State of the Free Exercise of Religion in America” featured three panel discussions and two keynote addresses.
The first keynote address was from Oliver S. Thomas, the former general counsel of the Baptist Joint Committee for Religious Liberty and the chair of the diverse “Coalition for the Free Exercise of Religion” in the 1990s that worked for the passage of RFRA. The second was from Douglas Laycock, who was an author of RFRA. His address traced the legal history of RFRA and discussed its impact on current debates, including the contraception mandate and same-sex marriage laws.
The panel discussions covered the history and impact of RFRA, religious freedom and the contraceptive mandate of the Affordable Care Act, and current and future challenges to the free exercise of religion in a diverse society. The addresses and panel discussions are all available online, as well as a special downloadable resource with more on RFRA, published by the Baptist Joint Committee.[21]
See also
http://en.wikipedia.org/wiki/Religious_Freedom_Restoration_Act
First Amendment to the United States Constitution
The First Amendment (Amendment I) to the United States Constitution prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on thefreedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.
The Bill of Rights was originally proposed as a measure to assuage Anti-Federalist opposition to Constitutional ratification. Initially, the First Amendment applied only to laws enacted by the Congress, and many of its provisions were interpreted more narrowly than they are today. Beginning with Gitlow v. New York (1925), the Supreme Courtapplied the First Amendment to states—a process known as incorporation—through the Due Process Clause of the Fourteenth Amendment.
In Everson v. Board of Education (1947), the Court drew on Founding Father Thomas Jefferson‘s correspondence to call for “a wall of separation between church and State”, though the precise boundary of this separation remains in dispute. Speech rights were expanded significantly in a series of 20th and 21st-century court decisions which protected various forms of political speech, anonymous speech, campaign financing, pornography, and school speech; these rulings also defined a series of exceptions to First Amendment protections. The Supreme Court overturned English common law precedent to increase the burden of proof for defamation and libel suits, most notably in New York Times Co. v. Sullivan (1964). Commercial speech, however, is less protected by the First Amendment than political speech, and is therefore subject to greater regulation.
The Free Press Clause protects publication of information and opinions, and applies to a wide variety of media. In Near v. Minnesota (1931) and New York Times v. United States (1971), the Supreme Court ruled that the First Amendment protected against prior restraint—pre-publication censorship—in almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the right of assembly guaranteed by this clause, the Court has also ruled that the amendment implicitly protects freedom of association.
Text
The Bill of Rights in theNational Archives
Background
In 1776, the second year of the American Revolutionary War, the Virginia colonial legislature passed a Declaration of Rights that included the sentence “The freedom of the press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.” Eight of the other thirteen states made similar pledges. However, these declarations were generally considered “mere admonitions to state legislatures”, rather than enforceable provisions.[2]
James Madison, drafter of the Bill of Rights
After several years of comparatively weak government under the Articles of Confederation, a Constitutional Convention in Philadelphia proposed a new constitution on September 17, 1787, featuring among other changes a stronger chief executive. George Mason, a Constitutional Convention delegate and the drafter of Virginia’s Declaration of Rights, proposed that the Constitution include a bill of rights listing and guaranteeing civil liberties. Other delegates—including future Bill of Rights drafter James Madison—disagreed, arguing that existing state guarantees of civil liberties were sufficient and that any attempt to enumerate individual rights risked the implication that other, unnamed rights were unprotected. After a brief debate, Mason’s proposal was defeated by a unanimous vote of the state delegations.[3]
For the constitution to be ratified, however, nine of the thirteen states were required to approve it in state conventions. Opposition to ratification (“Anti-Federalism”) was partly based on the Constitution’s lack of adequate guarantees for civil liberties. Supporters of the Constitution in states where popular sentiment was against ratification (including Virginia, Massachusetts, and New York) successfully proposed that their state conventions both ratify the Constitution and call for the addition of a bill of rights. The U.S. Constitution was eventually ratified by all thirteen states. In the 1st United States Congress, following the state legislatures’ request, James Madison proposed twenty constitutional amendments, which were then condensed to twelve and forwarded to the states. Ten of these were ratified and became the Bill of Rights.[4] The First Amendment passed the House and Senate with almost no recorded debate, complicating future discussion of the Amendment’s intent.[5][6] The First Amendment (along with the rest of the Bill of Rights) was submitted to the states for ratification on September 25, 1789, and adopted on December 15, 1791.[7][8]
Establishment of religion
Thomas Jefferson wrote with respect to the First Amendment and its restriction on the legislative branch of the federal government in an 1802 letter to the Danbury Baptists (a religious minority concerned about the dominant position of the Congregationalist church in Connecticut):
In Reynolds v. United States (1878) the Supreme Court used these words to declare that “it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere [religious] opinion, but was left free to reach [only those religious] actions which were in violation of social duties or subversive of good order.” Quoting from Jefferson’s Virginia Statute for Religious Freedom the court stated further in Reynolds:
Originally, the First Amendment applied only to the federal government, and some states continued official state religions after ratification. Massachusetts, for example, was officially Congregationalist until the 1830s.[10] In Everson v. Board of Education (1947), the U.S. Supreme Court incorporated the Establishment Clause (i.e., made it apply against the states). In the majority decision, Justice Hugo Black wrote:
In Torcaso v. Watkins (1961), the Supreme Court ruled that the Constitution prohibits states and the federal government from requiring any kind of religious test for public office. In the Board of Education of Kiryas Joel Village School District v. Grumet (1994),[12] Justice David Souter, writing for the majority, concluded that “government should not prefer one religion to another, or religion to irreligion.”[13] In a series of cases in the first decade of the 2000s—Van Orden v. Perry (2005),McCreary County v. ACLU (2005), and Salazar v. Buono (2010)—the Court considered the issue of religious monuments on federal lands without reaching a majority reasoning on the subject.[14]
Separationists
U.S. President Thomas Jeffersonwrote in his correspondence of “a wall of separation between church and State”.
Everson used the metaphor of a wall of separation between church and state, derived from the correspondence of PresidentThomas Jefferson. It had been long established in the decisions of the Supreme Court, beginning with Reynolds v. United States in 1879, when the Court reviewed the history of the early Republic in deciding the extent of the liberties of Mormons. Chief Justice Morrison Waite, who consulted the historian George Bancroft, also discussed at some length the Memorial and Remonstrance against Religious Assessments by James Madison, who drafted the First Amendment; Madison used the metaphor of a “great barrier.”[15]
Justice Hugo Black adopted Jefferson’s words in the voice of the Court.[16] The Court has affirmed it often, with majority, but not unanimous, support. Warren Nord, in Does God Make a Difference?, characterized the general tendency of the dissents as a weaker reading of the First Amendment; the dissents tend to be “less concerned about the dangers of establishment and less concerned to protect free exercise rights, particularly of religious minorities.”[17]
Beginning with Everson, which permitted New Jersey school boards to pay for transportation to parochial schools, the Court has used various tests to determine when the wall of separation has been breached. Everson laid down the test that establishment existed when aid was given to religion, but that the transportation was justifiable because the benefit to the children was more important. In the school prayer cases of the early 1960s, (Engel v. Vitale and Abington School District v. Schempp), aid seemed irrelevant; the Court ruled on the basis that a legitimate action both served a secular purpose and did not primarily assist religion. In Walz v. Tax Commission (1970), the Court ruled that a legitimate action could not entangle government with religion; in Lemon v. Kurtzman (1971), these points were combined into the Lemon test, declaring that an action was an establishment if:[18]
The Lemon test has been criticized by justices and legal scholars, but it remains the predominant means by which the Court enforces the Establishment Clause.[19]In Agostini v. Felton (1997), the entanglement prong of the Lemon test was demoted to simply being a factor in determining the effect of the challenged statute or practice.[20] In Zelman v. Simmons-Harris (2002), the opinion of the Court considered secular purpose and the absence of primary effect; a concurring opinion saw both cases as having treated entanglement as part of the primary purpose test.[19] Further tests, such as the endorsement test and coercion test, have been developed to determine the whether a government action violated the Establishment Clause.[21][22]
In Lemon the Court stated that that the separation of church and state could never be absolute: “Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable,” the court wrote. “Judicial caveats against entanglement must recognize that the line of separation, far from being a “wall,” is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.”[23]
Accommodationists
Accommodationists, in contrast, argue along with Justice William O. Douglas that “[w]e are a religious people whose institutions presuppose a Supreme Being”.[24]This group holds that the Lemon test should be applied selectively.[24] As such, for many conservatives, the Establishment Clause solely prevents the establishment of a state church, not public acknowledgements of God nor “developing policies that encourage general religious beliefs that do not favor a particular sect and are consistent with the secular government’s goals.”[25][26]
Free exercise of religion
“Freedom of religion means freedom to hold an opinion or belief, but not to take action in violation of social duties or subversive to good order,” In Reynolds v. United States (1878), the Supreme Court found that while laws cannot interfere with religious belief and opinions, laws can be made to regulate some religious practices (e.g., human sacrifices, and the Hindu practice of suttee). The Court stated that to rule otherwise, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself. Government would exist only in name under such circumstances.”[27] In Cantwell v. Connecticut (1940), the Court held that the Due Process Clause of the Fourteenth Amendment applied the Free Exercise Clause to the states. While the right to have religious beliefs is absolute, the freedom to act on such beliefs is not absolute.[28]
In Sherbert v. Verner (1963),[29] the Supreme Court required states to meet the “strict scrutiny” standard when refusing to accommodate religiously motivated conduct. This meant that a government needed to have a “compelling interest” regarding such a refusal. The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist faith.[30] In Wisconsin v. Yoder (1972), the Court ruled that a law that “unduly burdens the practice of religion” without a compelling interest, even though it might be “neutral on its face,” would be unconstitutional.[31][32]
The need for a compelling interest was narrowed in Employment Division v. Smith (1990),[33] which held no such interest was required under the Free Exercise Clause regarding a law that does not target a particular religious practice.[34] In Church of Lukumi Babalu Aye v. City of Hialeah (1993),[35] the Supreme Court ruled Hialeah had passed an ordinance banning ritual slaughter, a practice central to the Santería religion, while providing exceptions for some practices such as thekosher slaughter. Since the ordinance was not “generally applicable,” the Court ruled that it needed to have a compelling interest, which it failed to have, and so was declared unconstitutional.[36]
In 1993, the Congress passed the Religious Freedom Restoration Act (RFRA), seeking to restore the compelling interest requirement applied in Sherbert andYoder. In City of Boerne v. Flores (1997),[37] the Court struck down the provisions of RFRA that forced state and local governments to provide protections exceeding those required by the First Amendment, on the grounds that while the Congress could enforce the Supreme Court’s interpretation of a constitutional right, the Congress could not impose its own interpretation on states and localities.[38] According to the court’s ruling in Gonzales v. UDV (2006),[39] RFRA remains applicable to federal laws and so those laws must still have a “compelling interest”.[40]
http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution
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