LifeNet

WSJ: "Religious Liberty Affirmed" editorial

Great analysis. Hit the link for the full editorial, which should be available without a subscription.

Judging by the liberal reaction, you would think the Supreme Court majority that struck down part of ObamaCare's birth-control mandate on Monday has suddenly imposed Shariah law. Yet as a matter of law rather than political opportunism, the narrow decision is an important vindication of religious liberty in this (still, blessedly) pluralistic constitutional republic.

Burwell v. Hobby Lobby challenged the Administration's requirement that all corporations cover contraception including abortifacients and sterilization in their worker health plans. The Affordable Care Act did not require this imposition on businesses such as the Hobby Lobby arts-and-crafts chain that tries to operate in accord with religious principles. The White House invented it via regulatory discretion in 2012 as part of its "war on women" election theme.

The problem is that a 1993 law called the Religious Freedom Restoration Act, or RFRA, requires the government to meet a high standard when interfering with the free exercise of religion. The feds must narrowly tailor such rules and use the "least restrictive means" at their disposal for achieving some public good.

The White House claims to be promoting women's health and gender equality, but it drew an artificial distinction between types of corporations. Its remarkable argument is that businesses forfeit normal conscience protections when trying to turn a profit.

On Monday the Court held 5-4 that RFRA does cover closely held businesses like Hobby Lobby and that the Administration failed the law's substantial-burden test. RFRA is meant "to provide protection for human beings," Justice Samuel Alito writes. "A corporation is simply a form of organization used by human beings to achieve desired ends."

Claiming that for-profit businesses cannot exercise religion reflects the mechanistic liberal view that companies only exist to maximize dollars "at the expense of everything else." But of course corporations have many other goals, such as charitable causes, green energy or, yes, promoting moral beliefs.

The Administration has already made a contraception mandate "accommodation" for nonprofits, allowing soup kitchens and the like to supposedly avoid being complicit in what they view as grave wrongs. This gimmick is being litigated separately and our view is that nothing is solved by hiding the costs of contraception in the balance sheets of third-party insurers. Still, writes Justice Alito, the Administration "has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections."

Justice Alito was explicit in noting that the Hobby Lobby ruling only applies to closely held, family-run commercial enterprises. Publicly traded companies with dispersed ownership would have some difficulty demonstrating sincere religious beliefs, and most Americans of all faiths (or none at all) do not share Hobby Lobby's birth control qualms. But tolerance only means something if minority beliefs are respected, especially religious faith and conduct.

******

... political overkill suggests that Democrats are secretly delighted by the ruling, which they hope to use to scare women to the polls and salvage their shaky midterm prospects. Yet the real liberal grievance isn't with the Supreme Court but with RFRA itself. If Democrats are as upset as they claim, they ought to campaign this fall to repeal RFRA and be honest about how little they care about religious liberty.

Supreme Court Religious Freedom decision analysis

There are other good ones which we will be posting; here's one from yesterday's WSJ columnist, James Taranto. And Mr. Taranto is neither a Christian, nor is he pro-life. but he is honest.

Excerpts below the link.

The Corporate Conscience. Hobby Lobby and the left's contradictions.

For-profit corporations, at least if they are "closely held," can raise conscientious objections to government policies under the Religious Freedom Restoration Act of 1993. So the Supreme Court held today, by a vote of 5-2, in the much-anticipated case now styled Burwell v. Hobby Lobby.

The vote in Hobby Lobby's favor was actually 5-4, along familiar lines, but as we shall explain, two dissenting justices declined to address the question whether RFRA's protections can apply to for-profit companies. The majority, in a decision by Justice Samuel Alito held that Hobby Lobby and two other companies need not comply with the ObamaCare birth-control mandate, to which their owners object on religious grounds.

The plaintiffs in these cases did not claim their First Amendment rights had been violated; such a claim, as we noted in March, would almost certainly have been precluded by the 1990 case of Employment Division v. Smith. But Congress responded to that case by enacting RFRA, which mandates the courts apply "strict scrutiny" to government policies as enforced against litigants who object on religious grounds.

In order to meet strict scrutiny, the government must show both that the policy is justified by a "compelling" interest and that it is the "least restrictive means" of furthering that interest. At least five justices seemed to agree that the interest in assuring cost-free access to the abortifacient contraceptives in question is "compelling": the four dissenters and Justice Anthony Kennedy, who in a concurring opinion wrote: "It is important to confirm that a premise of the Court's opinion is its assumption that the HHS regulation at issue here furthers a legitimate and compelling interest in the health of female employees."

That's true, but the premise was stipulated--"we assume," wrote Justice Alito--not decided. For the plaintiffs to prevail, it would be sufficient for the government to fail either test, and as Justice Alito argues, it clearly failed the least-restrictive-means test:

In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.

Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government's aims while providing greater respect for religious liberty.

Some religious nonprofits have argued that the HHS accommodation is too restrictive and violates their First Amendment rights; this case does not address that question--or, indeed, whether "an approach of this type complies with RFRA," in Alito's words. The majority cite another less-restrictive alternative: a government program providing contraceptives directly.

Justice Ruth Bader Ginsburg filed a hyperbolic dissent (citation omitted):

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."

As Kennedy gently observes in response, "the Court's opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent." Ginsburg suggests the decision would open up the possibility of religious exemptions from statutes prohibiting race discrimination, a claim Alito and the majority flatly reject: "The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal."

Ginsburg's claim that "the court decides" religious opt-outs should be available when a "less restrictive alternative" is available is misleading. Here the court did not, as it frequently does by necessity, apply a standard of its own invention in interpreting broadly written constitutional language. The "less restrictive alternative" language is in the RFRA statute; it was Congress, not the court, that made that decision.

 

Celebrating Hobby Lobby decision; massive all-women showing outside Supreme Court

Nice to see our side showing some media savvy.

And no doubt the Cal Thomas commentary on the decision is spot-on.

 

Supreme Court rules 5-4 in abortion/contraception case, upholding religious freedom

Only 5-4, which is very sad. But infinitely better than 4-5.

The Supreme Court ruled Monday that some corporations can hold religious objections that allow them to opt out of the new health law requirement that they cover contraceptives for women.

The contraceptives the plaintiffs objected to were, of course, abortifacients.

We will post more on this decision in the next ew days.