In our latest podcast, Mark and I discuss yesterday’s decision in Burwell v. Hobby Lobby Stores, Inc., the contraception mandate case. We summarize and explain the background, the holding, and the reasoning of the case. We also consider possible implications for future religious freedom challenges.
In our most recent podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss last week’s oral argument in Sebelius v. Hobby Lobby, the Contraception Mandate case. We address the background of the litigation, the rhetorical strategies adopted by each side, and the major doctrinal questions the Court will need to resolve. We also make predictions about how the Justices will ultimately rule. The podcast will be useful for students and others looking for an introduction to this extremely important case.
At The Volokh Conspiracy today, I have a post on the latest Contraception Mandate case to reach the Court: the Little Sisters case, which was the subject of our most recent Legal Spirits podcast with Kevin Walsh. I write that litigation about the Mandate, which has been going on for about a decade, is like that famous lawsuit in Bleak House, which dragged on year after year.
Why has the Mandate litigation lasted so long? I argue it’s a matter of principle, for both sides:
Why does the Mandate litigation go on and on? As I said, it’s not a question of money. Lawyers are not getting rich on these cases. The litigation continues because people care deeply, as a matter of principle, about the result, and because each side views the other as an existential threat. For proponents of the Mandate, it’s about women’s health and equality, and about beating back the obscurantist forces that threaten both. For opponents, it’s about affirming their deepest faith commitments, notwithstanding pressure from the state and progressive opinion that seeks to crush them. Even when a practical solution seems available—as the Court noted in Zubik—the parties find it difficult to compromise. The symbolic stakes are too high.
In short, the Contraception Mandate litigation, like so many other disputes over law and religion, reflects the deep polarization in our society. As long as that polarization continues, cases like Hobby Lobby, Zubik, and Little Sisters will continue to arise—as well as cases like Masterpiece Cakeshop, Fulton v. City of Philadelphia, and many others.
Readers can find the whole post here.
Two little items to report. First, Professor Doug Laycock has a very good piece at the Religion and Politics Blog.
Second, I participated in a Bloomberg Law podcast with Professor Robert Katz on these issues. I thought we had a useful exchange. At the end of the interview, however, Rob was asked a question about the relevance of Hobby Lobby to these matters, to which he responded essentially that the two were disconnected. I didn’t get a chance to jump in (had to leave to teach class!) but I have a different view and thought this quote from Doug’s piece was apt:
For the first time in American history, government had made it unlawful, at least if you were an employer, to practice a well-known teaching of the largest religions in the country. The same-sex marriage debate has the same feature. This attempt to suppress practices of the largest faiths is a new thing in the American experience. And this huge escalation in the level of government regulation of religious practices is of course producing a reaction from religious conservatives, and is part of the reason for the current polarization.
Some interesting law and religion news stories from around the web this week:
- In the Boston bomber case, jury selection is taking longer than anticipated. Catholics who follow the catechism’s teaching on the death penalty are automatically disqualified from service because of their inability to consider imposing the death penalty.
- A prosecutor argued that a Guantanamo Bay military court order that bars female guards from touching an accused al Qaeda commander violates Pentagon sex discrimination guidelines and means inmates could set prison policies. The attorney for the inmate argued that lifting the temporary order would violate the U.S. Constitution and the Supreme Court’s decision in Hobby Lobby .
- At a Tuesday news conference, Mormon leaders condemned discrimination against gays and vowed to support anti-discrimination legislation to protect people from being denied jobs or housing because of their sexual orientation. They also called for these laws, and others, to protect the rights of people who say their beliefs compel them to oppose homosexuality or to refuse service to gay couples.
- A controversial French comedian appeared in court on charges of inciting racial hatred with comments he made two years ago expressing regret that a prominent Jewish journalist had not died in the “gas chambers.” In the wake of the Charlie Hebdo attack, the charges suggest that free speech and mocking religion may have limits in France.
- Georgia Baptist and other religious leaders voiced differing positions on the state’s proposed “religious freedom” legislation.
- An Israeli magistrate court ruled that the Beit Shemesh Municipality must remove prominent signs put up in central locations in the city’s ultra-Orthodox communities warning women to dress modestly and not to linger in certain places.
- The Nova Scotia Supreme Court found that the Nova Scotia Barristers’ Society overstepped its jurisdiction when it blocked students from Trinity Western University from joining the bar unless the school exempted law students from its mandatory “community covenant,” which requires students to vow to abstain from sexual intimacy that violates the sanctity of marriage between a man and a woman.
- The Pew Research Center offers an overview of this unusually “active and influential year” at the Supreme Court when it comes to cases of religious liberty.
- Listen to our podcast on Holt v. Hobbs, the prison-beard case the Court decided last week.
- Opinion: Egypt uses charges of blasphemy and contempt for religion to wage a “war on atheism.“
- Citing Hobby Lobby, a federal judge held that three companies that operate independent living, assisted living and skilled nursing care centers in Colorado can’t be required to include contraception or sterilization in their health insurance because of their religious objections.
- A secular humanist group in Canada is preparing to hand out “Get out of Religion Class” coupons to students in Catholic high schools that receive public funding. Under Canadian law, religion classes are optional even at these Catholic schools.
In The American Interest this week, sociologist Peter Berger has a provocative essay on the controversy over the City of Houston’s demand for sermons several pastors have delivered on the topics of homosexuality and gender identity. Berger says the roots of the controversy lie in the Obama Administration’s disregard for religion. He makes a powerful point, but I wonder whether he overstates things.
The City of Houston’s demand came in the form of subpoenas in a lawsuit over a petition to repeal a city anti-discrimination ordinance. As I explained in an earlier post, the city’s demand was outrageous, even given the freewheeling standards of American litigation, and the city has in fact narrowed its request. Some smart observers think this “narrowing” is just a publicity stunt. In my opinion, the new subpoenas, which ask only for communications that relate to the petition and ordinance themselves, stand a better chance of surviving. We’ll see how the court rules.
But leave aside that narrow, procedural matter for now. Here’s a more important question. Why did the city issue the offensive subpoenas in the first place? America has a long tradition of respecting religion, and the idea that government would demand to know what pastors were saying in their own churches should have set off all kinds of alarms. We don’t do that sort of thing in our country.
Berger says the episode reflects America’s decreasing regard for religion and religious believers. And he lays the blame largely at the door of the Obama Administration:
This episode in the heart of the Bible Belt can be placed, first, in the national context of the Obama presidency, and then in a broad international context and its odd linkage of homosexuality and religious freedom. I’m not sure whether President Obama still has a “bully pulpit”; at this moment even close political allies of his don’t want to listen to his sermons, if they don’t flee from the congregation altogether. All the same, every presidency creates an institutional culture, which trickles down all the way to city halls in the provinces. This administration has shown itself remarkably tone-deaf regarding religion. This was sharply illuminated at the launching of Obamacare, when the administration was actually surprised to discover that Catholics (strange to say!) actually care about contraception and abortion. Eric Holder’s Department of Justice has repeatedly demonstrated that it cares less about religious freedom as against its version of civil rights. Perhaps one reason for the widespread failure to perceive this attitude toward the First Amendment is that Barack Obama is seen through the lens of race–“the first black president”. I think a better vision comes through the lens of class–“the first New Class president”–put differently, the first president, at least since Woodrow Wilson, whose view of the world has been shaped by the culture of elite academia. This is evident across the spectrum of policy issues, but notably so on issues involving gender and religion.
Now, there’s much in what Berger says. The Obama Administration has shown little enthusiasm for religious freedom. True, the Administration intervened recently to protect a prison inmate’s right to wear a 1/4-inch beard for religious reasons. But in the two major religious freedom cases of its tenure, Hobby Lobby and Hosanna-Tabor, the Administration created obstacles for religious freedom in needlessly inflammatory ways. Read more