Getting It Right: The Court Lets RFRA Do Its Job

By Brandon Dabling

Those who have read today’s Hobby Lobby decision may find it hard not to be amused by the hysterical reactions it has sparked across the internet and even in the Court’s principal dissent. To be sure, these voices are arguing against something important, but this “something” is not Justice Alito’s majority opinion. Call it a product of blinding polarization, corrupted education or a calculated misrepresentation to fuel the fire of the so-called war on women. Whatever it’s source, it is unhelpful in understanding today’s case. It’s also wrong.

So, let’s be clear at the outset, this decision did absolutely nothing to bar women from receiving birth control or even the abortion-inducing drugs (abortifacients) to which Hobby Lobby’s owners objected. The issue was never on the table. 

This doesn’t mean that critics on the Left are altogether wrong in their fears, namely those that the Religious Freedom Restoration Act (RFRA) and the First Amendment’s Free Exercise Clause might still have some bite. The beauty of today’s opinion is that it is limited in its scope while deliberately leaving open (sometimes even hinting at) several avenues by which similar government overreach could be limited and religious freedom expanded.

The official holding of the Court is that the Health and Human Services agency (NOT the federal government and not Congress) cannot force or coerce the owners of “closely held corporations” to provide abortion-inducing drugs for their employees if doing so violates these owners’ “sincerely held religious beliefs.” What are closely held corporations? The Court doesn’t precisely say, but argues that whatever they are, this label certainly describes a company such as Hobby Lobby that is true to its Christian mission statement and biblically-rooted policies at each of its locations.

There are a few qualifications attached to the holding that seem to have escaped Justice Ginsburg’s dissent and many of those now voicing their displeasure. To be clear, the Court only bars regulationsthat pose a significant burden on religious exercise AND also fail to represent least restrictive means (of religious liberty that is) that the government could have employed to achieve a compelling objective, in this case insurance coverage for abortifacients. 

This is RFRA doing what it was intended to do. The government had several ways to provide women abortifacients that would have also preserved Hobby Lobby’s owners’ religious freedom, including supplying the drugs directly. There should be no surprises here, only dismay and hopefully the bracing reawakening that comes with our now annual reminder that at least  four justices show little pause in mangling the law in the name of advancing the sexual revolution.

The Court does nothing radical here. Rather, it obliges the federal government to treat religious objecting owners of for-profit corporations the same way it treats objectors from non-profit organizations and the millions of non-abortifacient-providing plans that were grandfathered under the bill. Indeed at one point Alito hints that the exemption of such a large segment of the population from the regulation’s demands suggests that even the federal government doesn’t view this coverage as a truly compelling interest. Indeed, Congress and even President Obama did not view the providing these drugs important enough to include in the original bill.

True to form, the Roberts Court uses the smallest gun available that still gets the job done, here striking down the regulation under a federal statute rather than the Constitution’s Religious Free Exercise Clause. This can be frustrating for some conservatives who want to see the home run vindication of religious liberty and the Constitution, but this is responsible jurisprudence.

While the Court today uses a smaller gun, it suggests that it would lend a sympathetic ear to future cases’ arguments that might require the use of the larger one, e.g., in a similar case at the state level. After all, the argument that any level of government has a compelling interest in ensuring that all employers provide their employees abortion-inducing drugs is vulnerable to say the least.

Religious Freedom At The Crossroads: A Preview Of The Hobby Lobby Decision

By William C. Duncan

The U.S. Supreme Court will decide Monday a dispute between two private companies, owned and operated by people of faith, and the national government over the federal mandate that employers offer coverage for certain contraceptives that could act as abortifacients. The mandate creates a terrible quandary for the business owners in the case. Hobby Lobby, one of the family businesses involved in the case, is well known for making business decisions guided by accountability to God—Sunday closing, higher wages for full-time employees, limited hours of operation to allow for family time, etc. Here, the decision is not to subsidize drugs that could end an unborn life. Under the mandate, that decision would result in the company paying large fines to the IRS.

To illuminate the novelty of the Health and Human Services mandate let’s take as a baseline, George Washington’s 1790 letter to the Hebrew Congregation in Newport, Rhode Island. President Washington noted of the United States: “It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.” As regards the national government, that principle was codified with the ratification of the First Amendment just over a year after Washington’s letter.

 

George WashingtonWith the mandate, and similar exactions, national, state and local governments are now doing precisely what Washington disclaimed—granting to businesses and individuals the ability to act on their beliefs (as in “free exercise”) in the public square only at the indulgence of the government and only sparingly when it appears a religious exemption would not interfere with a state purpose deemed essential—such as ensuring that every individual can get all forms of contraception paid for by their employers or taxpayers.

What is particularly galling is that the government has been reasonably free in indulging secular businesses by exempting them from the coverage of the law but exasperatingly stingy in doing the same for religious entities other than churches.

Indeed, the current system appears closer to Revolutionary France’s approach to religious liberty than the ideal George Washington endorsed for the new United States. From the 1789 Declaration of the Rights of Man: “No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.” This will sound familiar to those following the current debate over the contraceptive mandate or over the requirement of bakers or photographers to facilitate same-sex relationship celebrations. In the latter instance, one justice of the New Mexico Supreme Court explicitly announced:

In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.

 

FranceIt is hard to see much difference between saying the “price of citizenship” is to “channel” the exercise (“conduct”) of religious liberty (though, you are free to believe what you want) and saying that the law will not “disquiet” you for your beliefs as long as they are not manifested in a way that interferes with government objectives—in these instances, the objective of codifying the sexual revolution. It is cold comfort that, for now, these exactions appear to apply only in the highly regulated business setting since the sphere of what is regulated seems only to expand.

How did we get from the ideal (though not always the practice) of robust free exercise announced by President Washington and given official sanction in federal and State constitutional guarantees to a place where even religious sectors of civil society are conscripted to carry out the state’s ideological purposes?

There seem to be four converging streams that threaten to permanently alter the landscape of religious liberty.

The first is the increased role of government. Increasing portions of everyday life—nearly all of employment relationships, the provision of charity, membership lists, etc.—are now subject to direct regulation. Federal and state governments now “occupy the field” in performing functions previously served by family or other mediating institutions.

Second, the legal understanding of what constitutes protected free exercise has been constricted so that any government policy that applies to both secular and religious conduct is approved even if it has the effect of burdening a religious practice.

 

Supreme CourtThird, taking a cue from the Supreme Court’s Establishment Clause doctrines which characterize religion as a potentially contaminating influence on public life that must be cabined by federal court oversight (lest, perchance, a crèche appear on public property unaccompanied by neutralizing secular displays), the law and elite opinion have grown more hostile to, or at least embarrassed by, religious expression.

Perhaps most importantly, is the triumph of the ideology of sexual revolution. The idea that our most important rights are “rights” to engage in nonmarital and non-procreative sexual relations gives direct rise to the “right” championed by the HHS mandate—the right to free contraceptives.

As these streams converge, it is hardly surprising that the government has now taken on the role of guarantor not only of a basic order and safety or even minimal standard of living but of abstractions like dignity or equal satisfaction of desires supposedly threatened by the government’s failure to facilitate and give legal status to adult sexual preferences.* Increasingly, the government has positioned itself as the defender of sexual rights against the moral scruples of citizens, requiring them to endorse, or even fund, the sexual freedom that has become a paramount preoccupation.

Defending religious liberty will thus require responding to each of these developments. It would be very helpful if the Supreme Court at least precludes a government requirement that owners abandon commitments of faith in order to do business. The conflicts can be expected to continue, however, as long as an expansive state, suspicious or hostile to religious exercise, continues to endorse the “relentless cult” of sexual novelty and codify its precepts.

 

*In an indication of what is likely to follow, some states are actively working to facilitate (by assigning legal parent status to non-parents) adult acquisition of children through surrogacy and other forms of assisted reproduction to accessorize their relationships.

Ordain Women: Lets Call A Spade A Spade

By Kristen Doe 

On June 11 Kate Kelly posted the formal letter from her bishop notifying her of the June 22 disciplinary council to evaluate her church membership. Unsurprisingly, in the ten days since her posting there have been a number of news articles clamoring to comment on the meaning and reaction to “dissent” in the LDS Church.The New York Times describes the LDS Church’s actions as being, “the first time since 1993, when the church ejected a handful of intellectuals known as the ‘September Six’, that it has moved so forcefully to quash such prominent and critical voices.” The Huffington Post quotes Kelly saying, “Disciplining arbitrarily and unfairly one person is not going to stop this movement.” The blogosphere too has started to ripple and Kelly has wasted no time including those reactions of support in her absentee letter to her bishopric. Kelly’s letter to her bishopric sounded off in a similar tune to Joanna Brooks memoir The Book of Mormon Girl,describing her lifelong membership in the LDS Church and framing her narrative as one of deep, intellectual questions amidst a backward church closed to ‘modern’ revelation that, if truly asked, would most certainly align itself with the goals of the group with which she presides, Ordain Women.

 

Kelly’s letter to her bishopric is a snapshot of her perception of the LDS church and her relationship to it. She describes herself in the ward where her disciplinary council took place as unacknowledged by the bishopric and then goes on to relate pieces of the history of her membership in the church. She describes understanding gendered inequalities as a child when she was baptized in a ‘male’ jumpsuit; she describes herself as a questioner, inspired by the Young Women value integrity; she describes her mission and her marriage in the temple, and she urges the council to consider not only her role in this organization but the some thousand people their decision will affect. The history of her membership, much like Brooks memoir, claims normalcy in the church by emphasizing a laundry list of good behavior check marks much like a resume or college application. I have no doubt that the feelings related to these life events are deep and that many of the women who participate in Ordain Women, or even empathize with the cause have true deep feelings and questions about a number of facets of church doctrine, and I do not want to minimize those questions or the feelings associated with them. However, Kate Kelly did not have a disciplinary council for asking questions; she did not have a disciplinary council for discussing questions with local and area leadership, and she certainly did not have a disciplinary council because questions are prohibited in the LDS church.

New conference
Kate Kelly had a disciplinary council because “of her activities relating to Ordain Women, for openly, repeatedly and deliberately acting in public opposition to the Church and its leaders after having been counseled not to do so, for continuing to teach as doctrine information that is not doctrine after having been counseled regarding the doctrine of the priesthood, and for leading others to do the same.” This informal probation letter was given to her on May 22, 2014 and can be seen here. Kelly’s narrative as presented on her blog, comments to the media, and in her letter to her bishopric is one in which her questions are being taken as subversive, and therefore need to be either ignored or extinguished. She describes the disciplinary council as a reaction to her questions and her excommunication as a punishment to “thousands of Mormons who have questions and concerns with gender inequality in the church and want a place to voice those concerns in safety. You are punishing anyone with a question in their heart who wants to ask that question vocally, openly and publicly.” Despite the informal letter from Kelly’s local leaders listing the actions she has taken that warrant probation and now a disciplinary council, she continues to frame the narrative as one in which her questions are the reason for reactions from local leadership. This is not only misleading but pandering for a headline by liberal media willing to paint the church as removing critical voices from its membership. The New York Times and others readily obliged.

The juxtaposition between Kelly’s local leader’s description of her relationship to church membership, and Kelly’s description of her local leader’s reactions are not the same. In fact, Kelly’s narrative is one in which members should fear asking questions because of the silent threat of church discipline under mysteriously vague circumstances. The LDS church released to two statements this week, the first described how members’ actions (not questions) can cause concern from local leaders: “Sometimes members’ actions contradict Church doctrine and lead others astray. While uncommon, some members in effect choose to take themselves out of the Church by actively teaching and publicly attempting to change doctrine to comply with their personal beliefs.” This phraseology, “choose to take themselves out of the Church,” is incredibly clear when read with the definitions of how church discipline works. Although the individual actions of members that illicit church discipline vary, there is a process, and it is not vague; it is not decided by a singular person, and it is certainly not done without attempting to counsel with the individual. Additionally, the responses of church leadership are not determined by a laundry list of actions that require specific responses. Local church leadership counsels together and prayerfully determines consequences that will aid members in returning to full fellowship.

Kelly’s changing of the narrative is indicative of how Ordain Women and its affiliates have approached their campaign to change church doctrine: by creating situations where it would appear that asking questions is equivalent with apostasy, where being denied entrance to Priesthood meetings was synonymous with inequality, and recruiting others to have/voice doubts was a matter of strength and intelligence. This is not my narrative, nor is it the narrative of the church with which I am a member.

(1) The LDS church is a church of questions, so much so that we believe in modern revelation—for me, this is the most open-ended question there is (and of any church I know); and we believe in an open canon where prophets and apostles continue to instruct and guide.

(2) The LDS church claims its lineage, like other Christians, through the Abrahamic faith, and (as Valerie Cassler notes) the Old Testament is not known for equality of women. Yet, the LDS church is the only one that I know of where salvation is an individual endeavor and the highest degree of exaltation occurs only as married couples. True to the Faith describes the relationship of the Priesthood to the family as “the most important exercise of the Priesthood” that occurs “with his wife an equal partner” (125). Dallin H. Oaks in the most recent General Conference said, “we are not accustomed to speaking of women having the authority of the priesthood in their Church callings, but what other authority can it be?” There is certainly more to be said here but it is a different topic for a different day.

(3) The LDS church is not a government entity with which we campaign for doctrine that we think would be appropriate, or convenient, or enriching. It is not an entity that changes based the number of people that protest at General Conference. It is steadfast in its doctrine and open to questions and revelation all at the same time. This tightrope is one of depth and richness, where there is consistency and change all at once. Our history is rich with examples of this, again another topic perhaps for another day.

Kate Kelly is presenting a misleading facade that is not only teaching false doctrine, but is also presenting a narrative about the LDS church that is a disservice to its members as a whole. This is not about asking questions. This is about aggressively trying to give answers for the church as a whole under the guise of equality. Pretending that actions are innocent questions without an agenda opposing LDS church doctrine is a deception that members should be quick to recognize and quick to dismiss.

Kristen was born and raised in Los Angeles, California. She received her bachelors in Political Science at Brigham Young University and her masters in Political Theory at the University of Utah.

The Conservative Civil War: Morality, Agency, And Self-Government

by Savannah Eccles

“Only a virtuous people are capable of freedom. As nations become more corrupt and vicious, they have more need of masters.” -Benjamin Franklin

A recent article on The Huffington Post titled Gay Marriage in the US: 5 Reasons why the National Fight for Equality is Winning grabbed my attention. The five reasons laid out by Kevin Eckstrom in the article are sound (though not illuminating enough to reiterate in this article),but the deeper reason behind the growing momentum of the same-sex marriage campaign — and similar social campaigns such as marijuana legalization — was simply overlooked. Beyond the obvious cultural shifts in America (Eckstroms Reason #1), a far more fundamentally motivated movement is taking place. This movement can be summed up in the word freedom. Free people are free to make whatever choices they want, and the government has no right to interfere. Liberals and Libertarians alike flock to the sounding call of this Freedom Movement. The real power behind the social campaigns of same-sex marriage, marijuana, and abortion is the Freedom Movement, and the five reasons laid out in the Huffington Post article are simply bi-products.

GOP VersusInterestingly, a counter-movement is also spilling over into the public arena. This second movement stems from a deeply religious reaction to the anything goes philosophy of modern social politics. Consequently, the religious right has become more vocal and energized as a political base. The clash between these movements is responsible for the deep division between modern conservatives. Indeed, one could say that conservatives are embedded in a fight-to-the-death civil war. How can the libertarian freedom of choice, action, and thought mantra be reconciled with the morality or bust cry of the religious right? The only possible bridge, or mediator, between the libertarian camp and social conservative camp is also the product of their mutual coexistence; it is both a cancer and a cure for the conservative civil war. The answer is the principle of self-government.

The practice of government by consent is the quintessential political right. The key words from Lincolns most famous address “government of the people, by the people, for the people” summarize the philosophy from which a truly free nation was conceived. In government, man is not subject to a king but to himself and, through the democratic practice, his neighbor. Bound by natural laws that regulate mans ability to act on his will, the democratic man is solely accountable for both action and reaction. Thus the democratic man is master of his action and slave of its consequence.

Agency, or the ability to act upon ones will, is the most obvious foundational principle of self- government. This agency extends to the selection of religion, philosophy, career, and location. As such, state-mandated religion, political party, occupation, or residence is not permissible in a system of self- government. The democratic man must decide for himself and his neighbor, through the power of the vote, the social institutions and norms he will uphold. Consequently, the responsibility inherent in self-government binds a man to his neighbor as much as to himself. Truly, the democratic collective, or the mass of free individuals, dictates all political life.

Still, the foundational concept of agency does not ensure the success of self-government. For example, questions regarding market regulation, drug legality, abortion rights, and same-sex marriage display serious flaws in the system of self-government as upheld solely by the principle of agency. On the one hand, the claim of agency in a system of self-government liberates the citizen from traditional moral dictates. Free men in a free country have the right to exercise their rights in harmony with the moral code they select. This would lead to the conclusion that same-sex marriage, abortion, and recreational drug use are acceptable actions as they fall within an individuals moral code.

How then does society reconcile this conclusion with the realities of the free market? If this principle of agency is solely authoritative, regulation of the free market is an illegitimate act of government. Participants in the market are free to make business decisions as their conscience dictates. Unethical and immoral business deals are the right of citizens per the principle of agency.

Yet, financial crashes due largely to unethical business practices have spurned the government into the business of market regulation — thereby undermining the practice of self-government. To provide stability to an anarchical, unregulated market, government has no choice but to intervene. Once a foundation of self-government, unbridled agency inevitably leads to the disruption of self-governance. This relates, in turn, to social issues such as recreational drug use. Government need only institute laws regarding drug use when drug use becomes so prevalent as to disrupt the stability of society. Action is not without consequence in the arena of personal rights. A self-governed people cannot rely upon the government to answer questions of morality without ceasing to be self-governed, but government must fill the void of responsibility vacated by the individual. In other words, law and order will be kept whether by the hand of responsible citizens, or by the hand of government.

If self-government is to be maintained, agency must be regulated by morality. Indeed, self-government requires morality as an imperative, social norm. A democratic system must be based on two coexisting principles: morality and agency. The application of this balance between the two core principles produces a long term, sustainable form of self-government.

Still, present qualms about same-sex marriage, abortion, and recreational drug use remain complex to the political observer. Today, two answers can be found to these questions. Either agency is authoritative and outweighs morality, or morality is authoritative and negates the claim of agency. The two principles are pitted against each other in a winner-takes-all showdown of foundational concepts. One must bow to the other as the bilateral balance of self-government tips completely in the favor of the victorious principle. But, as shown by the free market example, self-government requires that the two principles simultaneously exist as checked and balanced equals.

So, our attention must turn to the cause of this modern tension between agency and morality. Though the liberalized society places too much emphasis on the individuals right to agency, it is the lack of emphasis on morality that has allowed the unbalance of foundational principles. Morality can function as a check for agency only so long as a majority of the people uphold the same moral principles. Without a common moral law, such as the ten commandments, morality becomes relative and loses it functional authority in society. A common moral law does not necessitate the existence of only one religion. Rather, a common moral law requires a common moral ground between the several religions within a plural society. So, while plurality can be a contributing characteristic of democracy, polarized plurality, or a system of social institutions without a common moral ground, weakens the second principle of morality to the point that it can no longer function as a check for agency. Unregulated by morality, agency invariably leads to heavy government regulation, and the practice of self- government decays.

GOP SplitUnfortunately, this occurrence is too often placed in the middle of the government versus anarchy debate. As society begins to experience the waning of self-government, splinter groups, such as the Tea Party, naturally arise to counter the tide of government intervention. Self-government is placed in a battle in which it is the automatic loser because the issue of self-government is not government versus anarchy but morality versus agency. So, the first step towards remedying the cause of self-government is recognizing the delicate balance between agency and morality on which self-government exists. Then, society can turn its attention towards the far more dangerous hydra that is morality in a polarized plural society.

In summary, self-government relates not only to a man controlled by himself and a government controlled by the people but to a society and economy governed by the individual and collective practices of the people. Naturally, the premise of such an ideal is mans right to agency. Yet, the prerequisite to the institutionalization of this ideal is morality. So, while the right to agency condones self-government, the law of morality governs its practice. A functioning form of self-government is the result of a balanced social system of morality and agency. Likewise, the unification of conservatism is dependent on this successful balancing. Until the two conservative bases recognize the great unbalance between morality and agency, and act accordingly, the conservative civil war will undoubtedly continue.