CAT | law
Writing in the New Yorker, Jeffrey Toobin wonders where the Hobby Lobby decision might lead:
The great Oliver Wendell Holmes once observed that important Supreme Court decisions “exercise a kind of hydraulic effect.” Even if the authors of such decisions assert that their rulings will have limited impact, these cases invariably have a profound influence. So it has been with Burwell v. Hobby Lobby Stores, Inc., which is less than six months old….
Justice Samuel Alito insisted, in his opinion for the Court, that [the] in decision [in Hobby Lobby] would be very limited in its effect. Responding to the dissenting opinion by Justice Ruth Bader Ginsburg, who called it “a decision of startling breadth,” Alito wrote, “Our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can ‘opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.’ ” Ginsburg, though, wondered where the guidance was for the lower courts when faced with similar claims from employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others).
The problem is not (necessarily) what was decided in the Supreme Court but how that decision will be interpreted in lower courts where, for the most part, it will stay:
A sampling of court actions since Hobby Lobby suggests that Ginsburg has the better of the argument. She was right: the decision is opening the door for the religiously observant to claim privileges that are not available to anyone else.
One such matter is Perez v. Paragon Contractors, a case that arose out of a Department of Labor investigation into the use of child labor by members of the Fundamentalist Church of Jesus Christ of Latter-day Saints. (The F.L.D.S. church is an exiled offshoot of the Mormon Church.) In the case, Vernon Steed, a leader of the F.L.D.S. church, refused to answer questions by federal investigators, asserting that he made a religious vow not to discuss church matters. Applying Hobby Lobby, David Sam, a district-court judge in Utah, agreed with Steed, holding that his testimony would amount to a “substantial burden” on his religious beliefs—a standard used in Hobby Lobby—and excused him from testifying. The judge, also echoing Hobby Lobby, said that he needed only to determine that Steed’s views were “sincere” in order to uphold his claim. Judge Sam further noted that the government had failed to prove that demanding Steed’s testimony was not, in the words of the R.F.R.A., “the least restrictive means of furthering that compelling governmental interest.” That burden seems increasingly difficult for the government to meet…
To repeat a point I made in an earlier post:
It ought to go without saying that religious freedom is part of the bedrock of American liberty, but so too is the notion of equality before the law. There has to be unum, so to speak, as well as pluribus.
From a week or so back, CNN reports:
That’s the message Pope Francis seemed to be sending lawmakers Friday, saying the growing worldwide trend toward legalizing recreational drugs is a very, very bad idea. “Drug addiction is an evil, and with evil there can be no yielding or compromise,” he told participants at the International Drug Enforcement Conference in Rome. The Pope’s call isn’t shocking. Francis has spoken of the dangers of drug use before.
It’s no surprise at all that the pope is opposed to drug use as a personal choice (that’s a perfectly respectable position to take, and from a pontiff I’d expect nothing else) , but the vigor of the language with he goes on to attack any form of drug legalization is striking.
“Here I would reaffirm what I have stated on another occasion: No to every type of drug use. It is as simple as that,” [the pope] said.
“Attempts, however limited, to legalize so-called ‘recreational drugs’, are not only highly questionable from a legislative standpoint, but they fail to produce the desired effects,” the pope said.
Quite how the pope knows that legalization fails escapes me. Prohibition has not, shall we say, been a great success. Marijuana legalization, by contrast, has barely been tried.
No fear though, Francis has a solution:
Francis, who has spoken out against drug use several times, said that to ensure young people did not fall prey to drugs, society had to say “‘yes’ to life, ‘yes’ to love, ‘yes’ to others, ‘yes’ to education, ‘yes’ to greater job opportunities”.
“If we say ‘yes’ to all these things, there will be no room for illicit drugs, for alcohol abuse, for other forms of addiction,” he said in remarks to a drug enforcement conference in Rome carried on the website of Vatican radio.
That, I am afraid, is drivel.
The Daily Mail has the details:
A baptist church was at the centre of a police probe after a sign which suggested non-Christians would ‘burn in hell’ was investigated as a ‘hate incident’. The offending sign at Attleborough Baptist Church in Norfolk, pictured burning flames below words which read: ‘If you think there is no God you better be right!!’.
Now the church has been forced to remove the sign after a passer-by complained to police that it could ‘not be further’ from the Christian phrase, love thy neighbour. Robert Gladwin, 20, said: ‘It is my basic understanding that Christianity is inclusive and loving in nature. ‘The message being displayed outside of the church could not be further from the often uttered phrase ‘love thy neighbour’.’
Mr Gladwin said he was ‘astounded’ when he spotted the poster by chance as he was walking home. He said: ‘I was just astounded really. We live in the 21st century and they have put that message – that non-Christians will burn in hell – up to try and scare people into joining their mentality.’
The strongly-worded sign – which was put up next to a notice board which promises that visitors ‘can always be sure of a very warm welcome’ – was taken down by Pastor John Rose, 69, after police launched an investigation into the complaint.
Mr Rose said he ‘regretted’ how the poster could have been interpreted. He said: ‘Attleborough Baptist Church offers a variety of ways in which people are able to engage with the Christian message…Jesus encourages us to love God and to love our neighbour and we therefore regret that the poster has been seen as inciting hatred.
The Eastern Daily Press has more:
A spokesperson for the police said: “Norfolk Constabulary received a report regarding a poster outside a church in Attleborough which was deemed offensive by the complainant.
“National guidance required us to investigate the circumstances and the matter has been recorded as a hate incident. Having spoken to the pastor of the church, it has been agreed the poster will be taken down.”
This is, of course, a ludicrous story, not least the presumption on the part of Gladwin that his understanding of Christianity is superior to that of the pastor. It might be, it might not be (Christianity takes many different forms).
But it is also a sinister story. It is sinister that Gladwin’s response to seeing this poster was to turn to the police. It is sinister that the police chose to investigate the matter on the basis of one complaint (it would have also been sinister had they chosen to investigate after receiving five thousand complaints). It is sinister that this decision was based on (unspecified) “national guidelines”. “Obeying orders”, it seems is no longer enough. It is sinister that there are “national guidelines”. It is sinister that the police then labeled the posting of this entirely unobjectionable poster as a “hate incident”. And it is sinister that the pastor has “agreed” to take down the poster.
A friend who is a Roman Catholic priest once told me that there are more references to Hell in the gospels than to Heaven. If that’s so, let’s hope that Jesus doesn’t show up in Norfolk any time soon. Because if He does, the moment that He starts talking about, oh, the “furnace of fire” or, say, “the fire [that ] is not quenched,” He will probably have to start looking for a very good lawyer.
For some relief from this nasty tale…
This piece is from the Guardian and it comes with some of the paper’s usual irritating baggage, but it is still worth reading as an examination of the factual background to the Little Sisters HHS case:
The ACA has a series of outs for religious employers who say medication like contraception violates their moral beliefs. It’s essentially three-tied: for-profit organizations have to cover contraception in their health plans; explicitly religious organizations like churches don’t have to provide contraception if they believe birth control is morally wrong; and religiously-affiliated non-profits that are neither owned nor controlled by religious groups do not have to provide contraception either, but they have to fill out a form certifying that they are religiously-affiliated, and then a third party administrator makes sure that employees can get contraception if they need it. The third-party administrator, and not the employer, pays for contraception coverage.
In the case that led Sotomayor to issue the injunction, an organization called the Little Sisters of the Poor Home for the Aged objected to the ACA’s contraception requirement. All the Little Sisters have to do is fill out a form and the organization will be under no obligation to pay for birth control for its many employees – which include home health aides, nurses, administrators and a variety of women who may not be Catholic or, like 98% of sexually active Catholic women, may choose to use a birth control method other than natural family planning – but apparently a form is too great an intrusion on their religious liberty….
The Becket Fund [a fund I note named after a priest ‘martyred’ for his belief in religious legal privilege], a conservative organization representing the Little Sisters, claims that the ACA restricts the religious freedom of the Sisters because the Sisters rely on a Catholic insurance company, the Christian Brothers Trust, for their company health insurance. The Christian Brothers Trust doesn’t provide coverage for hormonal birth control, IUDs or sterilization.
According to the Becket Fund, the Sisters are stuck between a rock and a hard place: they could continue to participate in the Christian Brothers Trust insurance coverage and refuse to designate the Christian Brothers as a contraception provider, which the Becket Fund says would result in ACA-related fines, or they could designate the Christian Brothers Trust to provide contraception coverage, violating both groups’ deeply-held religious beliefs. Alternately, they could drop health coverage all together, which would also put them at risk for fines. Or, they could ditch the Christian Brothers Trust and designate new group insurance coverage, which would cover contraception for employees without making the Sisters pay for or negotiate a single thing, but would again require them to fill out a form that supposedly violates their belief that employees shouldn’t be allowed to get contraception.
The Little Sisters aren’t paying for contraception even through a third-party-secured insurance plan; they certainly aren’t being asked to distribute it, and Catholic nuns aren’t being force-fed birth control pills. They simply have to sign a piece of paper saying they’re a religious group, and then turn to a third party to negotiate all the details….
[A]s it turns out, the Christian Brothers Trust insurance group can refuse to provide contraception and will face no fines or consequences. That’s because the Trust is a self-insured “church plan”, which means that the Little Sisters can designate the Christian Brothers as the third-party administrators, and if the Brothers still refuse to provide contraception coverage, the government can’t fine them. In other words: the Little Sisters can continue operating exactly as before, and nothing will happen….
Food for thought.
The court will decide what it decides and (not being too familiar with the constitutional case law) I have no opinion on how that could—or should—spin out, but, as a matter of commonsense and of basic equity (none of which, of course, need be particularly relevant where the law courts are concerned) it remains hard for me to see these rules as an assault on religious freedom. That the Roman Catholic Church has also long been a supporter of universal healthcare only adds irony—and a degree of insult—to the mix.
The Guardian reports:
In their zeal to tout their faith in the public square, conservatives in Oklahoma may have unwittingly opened the door to a wide range of religious groups, including Satanists who are seeking to put their own statue next to a Ten Commandments monument outside the statehouse. The Republican-controlled legislature in the state known as the buckle of the Bible Belt authorised the privately funded Ten Commandments monument in 2009. It was placed on the Capitol grounds last year despite criticism from legal experts, who questioned its constitutionality. The Oklahoma chapter of the American Civil Liberties Union has filed a lawsuit seeking its removal.
But the New York-based Satanic Temple saw an opportunity. It notified the state’s Capitol Preservation Commission that it wants to donate a monument and plans to submit one of several possible designs this month, said Lucien Greaves, a spokesman for the temple.
“We believe that all monuments should be in good taste and consistent with community standards,” Greaves wrote in letter to state officials. “Our proposed monument, as an homage to the historic/literary Satan, will certainly abide by these guidelines.”
And the little ones are not left out:
Greaves said one potential design involves a pentagram, a satanic symbol, while another is meant to be an interactive display for children.
For the children!
The Republican state representative Mike Ritze, who spearheaded the push for the Ten Commandments monument and whose family helped pay the $10,000 for its construction, declined to comment on the Satanic Temple’s effort, but Greaves credited Ritze for opening the door to his group’s proposal.
“He’s helping a satanic agenda grow more than any of us possibly could,” Greaves said. “You don’t walk around and see too many satanic temples around, but when you open the door to public spaces for us, that’s when you’re going to see us.”
The Oklahoma legislature has taken other steps that many believe blur the line that divides church and state. The House speaker said he wants to build a chapel inside the Capitol to celebrate Oklahoma’s “Judeo-Christian heritage”. Several lawmakers have said they want to allow nativity scenes and other religious-themed symbols in public schools. The Republican representative Bobby Cleveland, who plans to introduce one such bill next year, said many Christians feel they are under attack as a result of political correctness. He dismissed the notion of Satanists erecting a monument at the Capitol.
“I think these Satanists are a different group,” Cleveland said. “You put them under the nut category.”
Well yes, but…
The Guardian reports:
Dan Keller has left an Austin jail, a week after his wife was released – and 21 years after the pair were given a 48-year sentence for sexual assault during America’s “Satanic panic” era. Fran Keller, 63, was released on bond last week after the Travis County district attorney agreed that the trial jury was probably swayed by the faulty testimony of an expert witness.
To supporters of Dan, 72, and Fran Keller, 63, their 1992 trial was a modern-day Texas witch-hunt that recalled the hysterical delusions of seventeenth-century Salem. The fuse was lit in August 1991, when a three-year-old girl on the way to a behavioural therapy session told her mother that Dan Keller had spanked her at the preschool he ran with his wife in Austin.
The girl told the therapist that Keller had sexually assaulted her using a pen and “pooped and peed on my head”.
In subsequent months, two other children made similar claims about the Kellers. By the time the couple went on trial in November 1992, the allegations were significantly more lurid and involved allegations of ritual abuse, murder, dismemberment and animal sacrifice.
The Kellers were found guilty of aggravated sexual assault of a child, even though the three-year-old girl at the centre of the case recanted her claims in court.
The only physical evidence against the Kellers was the testimony of Dr Michael Mouw, who examined the girl in the emergency room of a local hospital after the therapy session and said he found tears in her hymen that potentially indicated that she was molested.
Mouw signed an affidavit last January in which he affirms that he now realises his inexperience led him to a conclusion that “is not scientifically or medically valid, and that I was mistaken.”
In an appeal filed on behalf of Fran Keller earlier this year, her lawyer, Keith Hampton, also argued that the state presented misleading evidence about the cemetery, relied on a false witness confession and the testimony of a “quack” satanic abuse “expert”, and that suggestive interview techniques had encouraged the children to make “fantastical false statements”.
According to police reports and trial records, the children said that Dan Keller killed his dog and made children cut it up and eat it, “baptised” kids with blood and disembowelled pets, forcing children to drink the blood.The Kellers were also said to have decapitated and chopped up a baby, put the remains in a swimming pool and made the children jump in. In one account, the Kellers were said to have stolen a baby gorilla from a park and Frances cut off one of its fingers.
The pair, who apparently liked to wear robes, were said to have dug graves in a cemetery to hide dead animals and a passer-by who was shot and carved up with a chain saw…
Nick Cohen, writing in The Spectator:
Firoozeh Bazrafkan is frightened of nothing. Five foot tall, 31 years old, and so thin you think a puff of wind could blow her away, she still has the courage to be a truly radical artist and challenge those who might hurt her. She fights for women’s rights and intellectual freedom, and her background means her fight has to be directed against radical Islam. As a Danish citizen, she saw journalists go into hiding and mobs attack her country’s embassies just because Jyllands-Posten published cartoons of Muhammad that were so tame you could hardly call them ‘satirical’. Bazrafkan is also the daughter of an Iranian family, and the Islamic Republic’s subjugation of women revolts her.
When I met her, she was enduring a crash course in politically correct Europe’s many hypocrisies. White Danes reported her to the police for writing that Muslim men abuse and murder their daughters, and adding for good measure that the ‘Koran is more immoral, deplorable and crazy than manuals of the two other global religions combined’.
You could say that her remarks were offensive. You could say that the inattentive reader might just take them to mean that all Muslim men abuse and murder their daughters. But if every remark that someone might find offensive or misinterpret were banned, the human race would fall silent.
Liberal principles once held that the Danish state should only punish Bazrafkan if her words provoked violence. As it was, the court asked for no proof of actual incitement. (There was none to be had.) Instead, it acted as if criticism of religion — a system of beliefs which individuals should be free to choose and others should be free to criticise — was identical to racial prejudice, which all thinking people condemn because no one can choose his or her ethnicity.
The white ‘liberal’ judges therefore ruled that the Iranian-born artist was a ‘racist’ and gave her a criminal record for condemning honour killings and clerical misogyny…
And the story gets worse. Read the whole thing.
A Pennsylvania mining company sued by the federal government on behalf of a worker who refused a biometric handscan because he believes in the Bible’s mark of the beast prophecy, said on Thursday that it supports religious freedom.
The Equal Opportunity Employment Commission filed a lawsuit against Consul Energy Inc, stating that Beverly Butcher Jr. had worked at the company’s coal mine in Mannington, West Virginia, for more than 35 years, until he was required to use a biometric hand scanner to track his hours.
Consul, with headquarters in Western Pennsylvania, was accused of discriminating against Butcher, who repeatedly told mining officials that using the scanner violated his Evangelical Christian beliefs, given his view of the relationship between hand-scanning technology and the mark of the beast in the New Testament’s Book of Revelation, the lawsuit said.
According to the Christian Bible, the mark is implanted on the forehead or right hand and symbolizes allegiance to the antichrist.
Well, of course…
The EEOC notes:
The mining [company] refused to consider alternate means of tracking Butcher’s time and attendance, such as allowing him to submit manual time records as he had done previously or reporting to his supervisor, even though the mining company had made similar exceptions to the hand scanning for two employees with missing fingers.
The EEOC is arguing that Butcher was forced to retire because his employer refused to accomodate his religious beliefs. The test is whether “the employer can provide an accommodation without incurring an undue hardship”.
We don’t, it should be stressed, know all the background to this case, but from the facts as presented here, it does seem odd that Consul was not prepared to be just a little more accommodating of someone who had been with them for a very long time.
Whether the company should be compelled to do so is an entirely different question.
AUSTIN, Texas — Texas Gov. Rick Perry on Thursday signed a law protecting Christmas and other holiday celebrations in Texas public schools from legal challenges — but also stressed that freedom of religion is not the same thing as freedom from religion…Dubbed the “Merry Christmas” bill, the bipartisan measure sailed through the state House and Senate to reach Perry’s desk.
It removes legal risks of saying “Merry Christmas” in schools while also protecting traditional holiday symbols, such as a menorah or nativity scene, as long as more than one religion and a secular symbol are also reflected.
It is, of course, sad and stupid that there can be “legal risks” associated with exchanging Christmas greetings in schools. If the new law fixes that, it’ll be all to the good, but quite what makes a “secular symbol” eludes me. I’m with the atheist shoemakers in Berlin who said this:
There are already hundreds of symbols for atheism and none of them tickle us in quite the right place… either they’re too sciency, or too literal, or just plain ugly… Well, our solution is inspired by a Christian friend (thanks Matt) who accused us of having god-shaped-holes. And we think a gaping, BLACK HOLE is absolutely perfect… And what says “I believe in nothing” better than nothing?
Quite. But it’s difficult to imagine a black hole nestling between the manger and the menorah. There is, however, another candidate, jovial, genially syncretic and refreshingly appreciative of the joys of consumerism.
Yup, Santa would do very well indeed.
Vladimir Putin’s attempt to blend social conservatism and Russian Orthodoxy into the mix that is (nominally: the reality is rather grubbier) the ideology of his regime continues. The Guardian has the details.
First, we have an unpleasant piece of anti-homosexual legislation (in wording, context and intent far broader—and far nastier than the “Section 28” that was, to say the least, one of the Thatcher era’s less glorious achievements):
The law in effect makes it illegal to equate straight and gay relationships, as well as the distribution of material on gay rights. It introduces fines for individuals and media groups found guilty of breaking the law, as well as special fines for foreigners.
And then we have this:
Minutes after passing the anti-gay legislation, the Duma also approved a new law allowing jail sentences of up to three years for “offending religious feelings”, an initiative launched in the wake of the trial against the anti-Kremlin punk band Pussy Riot.
There ought, of course, to be no ‘right’ not to be offended. What’s particularly interesting about the latter law, however, is the way that it borrows from western neo-blasphemy legislation. Back at the time of the Pussy Riot trial, I noted this:
An interesting angle to this whole case is that the women have been charged under Article 213 (2) of the Russian criminal code: “hooliganism” motivated by religious hatred or hostility. The language of western political correctness, not to speak of Islamic efforts to suppress free speech, have, it seems, found an echo in Moscow, the Third Rome.
The echo is even louder now.
And while I am on this topic, I ought to mention that there was a spot of bother over at the Corner over the unfortunate (let’s be kind) intervention of a GOP congressman into the Pussy Riot controversy. My contributions to the fracas are here and here.