Responding to Protections and Applications of the First Amendment Today
Berkley Center for Religion, Peace and World Affairs
Reproduced with permission
“Religion,” said Justice William Douglas in his Wisconsin v. Yoder (1972) opinion, is “an individual experience.” The opinion was a partial dissent, and this statement is partially correct. But, it does not tell the entire story. Many “religious experiences” are those of monks, mystics, and prophets – and of salesmen, coaches, teachers, and cops. But, many are also of peoples and tribes and congregations. As Justice Douglas’s colleague, Justice William Brennan, insisted in Corporation of the Presiding Bishop v. Amos (1987), “[f]or many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals.” [Full Text]
N Engl J Med 2014; 371:596-599 August 14, 2014 DOI: 10.1056/NEJMp1407965
I. Glenn Cohen, J.D., Holly Fernandez Lynch, J.D., M.Bioethics, and Gregory D. Curfman, M.D.
At the tail end of this year’s Supreme Court term, religious freedom came into sharp conflict with the government’s interest in providing affordable access to health care. In a consolidated opinion in Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Burwell (collectively known as Hobby Lobby) delivered on June 30, the Court sided with religious freedom, highlighting the limitations of our employment-based health insurance system.
Hobby Lobby centered on the contraceptives-coverage mandate, which derived from the Affordable Care Act (ACA) mandate that many employers offer insurance coverage of certain “essential” health benefits, including coverage of “preventive” services without patient copayments or deductibles. The ACA authorized the Department of Health and Human Services (HHS) to define the scope of those preventive services, a task it delegated to the Institute of Medicine, whose list included all 20 contraceptive agents approved by the Food and Drug Administration. HHS articulated various justifications for the resulting mandate, including the fact that many Americans have difficulty affording contraceptives despite their widespread use and the goal of avoiding a disproportionate financial burden on women. Under the regulation, churches are exempt from covering contraception for their employees, and nonprofit religious organizations may apply for an “accommodation,” which shifts to their insurance companies (or other third parties) the responsibility for providing free access. However, HHS made no exception for for-profit, secular businesses with religious owners. [Full text]
Wesley J. Smith
The wailing and gnashing of teeth in some quarters over the modest Hobby Lobby decision has me worried. Apparently, many on the political port side of the country believe that once a favored public policy has been enacted, it immediately becomes a “right” that can never be altered or denied. More, once such a “right” is established for the individual, others should have the duty to ensure access – even at the cost of violating their own religious consciences.
If such thinking prevails, medical professionals could be forced to participate in the taking of human life, for example in abortion, assisted suicide, and (given the research trends in regenerative medicine) providing treatments derived from the intentional destruction of human embryos or fetuses.
That certainly seems to be the direction in which the ACLU wishes to take the country. Recently, the ACLU of Washington State began trolling for potential clients to sue medical professionals or facilities that refused to participate in certain legal procedures or transactions based on religious objection:
Have you or members of your family been denied reproductive health care or end-of-life services by a religiously based medical facility? The ACLU believes that everyone in Washington has the right to receive health care that is not restricted by the religious beliefs of others.
If people want to deny corporations a conscience, how can they ever again demand that corporations act morally, conscientiously?
Paul De Vries*
The Supreme Court was right to allow corporations to be exempt from the mandate to pay for abortion pills or contraception when their leaders have established religious reasons against them. Moral issues can stand as questions for the liberty of conscience – whether individual conscience or corporate conscience.
That liberty of conscience empowers individuals, religious institutions, and corporations – as the Supreme Court just now made clear on the last day of June! The protections of the liberty of conscience for years have allowed people with a track record of pacifism to be exempt from military service and also for hospital nurses and doctors who object to abortion to be scheduled for other surgeries only. “Conscientious objectors” have had a long, distinguished, respected, empowered history in America.
Oddly, those who attack a corporate right to choose allege that it is obvious that corporations do not have consciences – and so that they cannot be “conscientious objectors.” How are those attackers so blind? [Full text]
Christian Medical Association
Washington, DC – June 30, 2014 – The 15,000-member Christian Medical Association (CMA, www.cmda.org), the nation’s largest and oldest faith-based doctors’ organization, today praised the Supreme Court’s ruling in two Health and Human Services (HHS) Obamacare mandate cases but noted “increasing attempts by the government to coerce the faith community.” CMA had outlined the medical aspects underlying religious objections to the HHS Obamacare mandate in its friend of the court brief in Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius.
CMA CEO Dr. David Stevens said in a statement, “We are very thankful that the Supreme Court acted to protect family businesses from government coercion and fines for simply honoring the tenets of their faith.
“This is a much-needed victory for faith freedoms, because this administration continues its assault on the values of the faith community. We are witnessing increasing attempts by the government to coerce the faith community to adopt the government’s viewpoint in matters of conscience,” noted Stevens.
CMA also filed a friend-of-the-court brief in another Supreme Court case this term, McCullen v. Coakley, to defend First Amendment free speech and assembly rights of pro-life advocates against a Massachusetts law that prohibited many citizens from entering a public street or sidewalk within 35 feet of an abortion facility.
“There seems to be growing intolerance of the faith community by some government officials who appear to want to extinguish the First Amendment freedoms that allow for a diversity of values,” Stevens observed, “We are seeing this antagonism expressed in coercive government mandates enforced with harsh penalties and discriminatory practices that threaten to eliminate the faith community from the public square.”
Dr. Stevens noted that the Obama administration recently launched another sweeping mandate that appears to target faith-based groups, requiring agreement with same-sex marriage as a condition of receiving federal grants. CMA’s Freedom2Care website (www.Freedom2Care.org) details other violations of faith and conscience rights:
American Center for Law and Justice
WASHINGTON, June 30, 2014 /PRNewswire-USNewswire/ — The American Center for Law and Justice (ACLJ), a pro-life legal organization that focuses on constitutional law, said today the Supreme Court issued a “landmark decision protecting religious freedom and freedom of conscience” in a 5-4 decision striking down the constitutionality of the ObamaCare HHS mandate, ruling that closely-held corporations cannot be required to provide contraception coverage for their employees.
“This is a landmark decision protecting religious freedom and freedom of conscience,” said Jay Sekulow, Chief Counsel of the ACLJ. “The court clearly recognized that closely-held corporations enjoy religious liberty rights just as they enjoy rights to free speech. American citizens do not lose their religious freedom when they form a corporation and try to live out their religious values in the conduct of their business. Moreover, the court – by holding that closely-held corporations cannot be forced to directly subsidize abortion-pills – dealt a severe blow to the Obama Administration’s ongoing assault on religious liberty and represents a significant setback to the abortion industry.”
The ACLJ filed an amicus brief urging the high court to reject the ObamaCare HHS mandate arguing that the mandate not only imposes “a very real and palpable injury” to those business owners affected but “substantially burdens their religious exercise” as well.
The ACLJ currently represents 32 individuals and corporations in seven pending actions against the government, including two cases currently pending before the high court. The ACLJ has obtained preliminary injunctive relief for its clients in all seven cases. Further, the ACLJ has represented 79 Members of Congress, filed more than a dozen amicus briefs, and stood up for hundreds of thousands who oppose the mandate.
Led by ACLJ Chief Counsel Jay Sekulow, the ACLJ is based in Washington, D.C. and is online at www.aclj.org.
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The Catholic Archdiocese of Atlanta, Georgia and the Catholic Diocese of Savannah have been granted a permanent injunction barring the federal government from enforcing the HHS birth control mandate against them. [Catholic Culture] In Oklahoma, 200 Catholic employers filed a suit against the federal government seeking the same kind of protection. The Catholic Benefits Association wants to offer health insurance that does not include coverage for contraceptives. [Associated Press] On 25 March, the United States Supreme Court began hearing oral arguments in Sebelius v. Hobby Lobby and Conestoga Wood Specialties v. Sebelius, two cases challenging the HHS mandate. [The Foundry]
As a result of continuing concerns about the HHS preventive service mandate, the chairman of the U.S. Conference of Catholic Bishops’ (USCCB) Ad Hoc Committee for Religious Liberty, the president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, and over 100 prominent national religious leaders and scholars have signed an open letter to the Obama administration entitled Standing Together for Religious Freedom. The letter calls on the Administration and Congress to respect conscience rights and religious freedom.
Nonetheless, Georgetown University, a Catholic institution, has announced that it considers the Obama administration’s revised contraceptive mandate acceptable. The president of Georgetown stated that the new regulation provides “the opportunity to reconcile our religious identity and our commitment to providing access to affordable healthcare.” Similarly, the Catholic Health Care Association states that it is satisfied that its members will not have to “contract, provide, pay or refer for contraceptive coverage.” The Association includes over 600 hospitals and 1400 other health facilities in every American state and in Washington, D.C. [NCR]
A federal court granted a preliminary injunction to Hobby Lobby. The business is operated by its owners in accordance with their Christian convictions. The Green family does not object to contraception, but rejects the IUD and morning-after pill because of concern about embryocidal effects. The court ruled that the injunction was warranted because of “substantial public interest in ensuring that no individual or corporation has their legs cut out from under them while these difficult issues are resolved.” [Becket Fund] In contrast, a federal appeals court has rejected the appeal of Mennonite owners of Conestoga Wood Specialties Corporation against a lower court ruling that held they must comply with the regulation. In a 2- 1 decision, the Third Circuit Court of Appeals ruled that a corporation cannot be said to share an owner’s religious convictions. [Lancasteronline]