Commentary Magazine


Topic: Hobby Lobby

Elizabeth Warren Stops Pretending

Yesterday on Twitter, the Senate Democrats sent out a message that seemed to attribute the following paraphrased declaration to Elizabeth Warren: “Remember the government shutdown? That was started by a GOP effort to let employers deny workers access to birth control.” Because it was unclear, and because this statement is so utterly and obviously false, Twitter users were left wondering if Warren could really have said something so outrageously fictitious. It turned out that, yes, Warren made this comment, having finally and fully descended into self-parody.

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Yesterday on Twitter, the Senate Democrats sent out a message that seemed to attribute the following paraphrased declaration to Elizabeth Warren: “Remember the government shutdown? That was started by a GOP effort to let employers deny workers access to birth control.” Because it was unclear, and because this statement is so utterly and obviously false, Twitter users were left wondering if Warren could really have said something so outrageously fictitious. It turned out that, yes, Warren made this comment, having finally and fully descended into self-parody.

The Washington Examiner’s Ashe Schow posted the video and transcript of Warren’s remarks in context. Here is what the senator said:

In 2012, the Republicans tried to pass the Blunt amendment, a proposal that would have allowed employers and insurance companies to deny women access to health care services based on any vague moral objections.

Democrats said ‘no.’ The president said ‘no.’ The American people said ‘no’ to this offensive idea.

But instead of listening to the American people, Republicans in Washington doubled down.

Remember last year’s government shutdown that nearly tanked our economy? That fight started with a GOP effort to hold the whole operation of the federal government hostage in order to try to force Democrats and the president to let employers deny workers access to birth control.

Well, we rejected the hostage-taking. Democrats said ‘no.’ The president said ‘no.’ The American people said ‘no’ to this offensive idea.

Schow explains, in case any readers were foolish enough to believe Warren, how none of Warren’s claim is true. The government shutdown, of course, was not about birth control but about a budget impasse and features native to ObamaCare (which the contraception mandate was not), and their selective enforcement.

Additionally, no one, under any reading of this controversy, was trying to “deny women access” to anything. The only question was whether some companies with religious objections to possible abortifacients would be forced to pay for services that violate their beliefs while still paying for 80 percent of birth control products. But again, that wasn’t the issue over which the government was shut down anyway.

As I have noted, joining the Senate seems to have erased any attempt at seriousness left over from Warren’s previous career as a consumer advocate. Conservatives have been disappointed because the intellectual bankruptcy of modern liberalism has left them with few liberals capable of conducting an intelligent debate on policy. Warren seemed to present a real challenge to conservatives, but she dropped her academic pretensions before she even joined the Senate, having run her campaign not on policy but on fabricated “war on women” victimhood and rants against “Big Oil.”

Warren has revealed herself to be a conventional leftist, and that’s why her made-up storylines about birth control actually matter. As Mary Katherine Ham notes over at Hot Air:

Back in 2013, at the time of the shutdown, she was saying the same thing because the entire strategy for this great, fresh intellectual hope of the Democratic Party is to yell about how no one can achieve anything outside the collective, and unless the collective provides every single necessity for basic living, free of cost, we are cast into the darkest of ages. It makes no difference to her that birth control was readily available to everyone, subsidized and provided free by the government, and covered by almost all employer-based insurance plans before a bureaucrat at Health and Human Services decided to force every employer in America to provide it without a copay, regardless of their religious beliefs. It was even available to Hobby Lobby employees before the Hobby Lobby case was decided and will remain available to them after that decision.

Indeed, the left was overjoyed at the prospect of Warren joining the Senate because it would put a faux-intellectual sheen on their unflinching statist impulses. Warren wasted no time in delivering on that promise, but she has gradually lost the ability to act as though there’s more to her liberalism than increasing and overusing government authority. After a center-left think tank criticized Warren’s Occupy Wall Street populism, she used her perch on the Senate Banking Committee to demand that think tanks disclose their Wall Street donors to discredit any pro-business scholarship and so she would know precisely who in the private sector dared criticize her.

Warren is fighting a battle against reality and good governance in the name of expanded and intrusive government power. She has also, apparently, given up pretending otherwise.

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Will Clinton Run as Elizabeth Warren?

The Democratic strategy of outright dishonesty about the Supreme Court’s Hobby Lobby decision was nowhere more extreme than in Hillary Clinton’s ludicrous response to the ruling. As I noted at the time, Clinton sounded as though she flew around the world as secretary of state but never got off the plane. She called the ruling “a really bad, slippery slope” and comparable to “a disturbing trend that you see in a lot of societies that are unstable, anti-democratic, and prone to extremism.”

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The Democratic strategy of outright dishonesty about the Supreme Court’s Hobby Lobby decision was nowhere more extreme than in Hillary Clinton’s ludicrous response to the ruling. As I noted at the time, Clinton sounded as though she flew around the world as secretary of state but never got off the plane. She called the ruling “a really bad, slippery slope” and comparable to “a disturbing trend that you see in a lot of societies that are unstable, anti-democratic, and prone to extremism.”

In reality, aside from the ignorance this displays about both the societies Clinton visited on her Instagram tour and the country she hopes to lead as president, the ruling was precisely the opposite. It reaffirmed America as a place of religious liberty and a beacon to those fleeing religious persecution in the countries Clinton visited and pretended to pay attention to while the world burned.

But there was another element of irony to Clinton’s remarkably misinformed and mendacious comments: they were a direct challenge to her husband, who as president signed into law, with the encouragement of many Democrats, the Religious Freedom Restoration Act on which the Hobby Lobby ruling was based. What Hillary likened to unstable and anti-democratic societies, her husband called “a standard that better protects all Americans of all faiths in the exercise of their religion.” On signing RFRA, Clinton said:

The free exercise of religion has been called the first freedom, that which originally sparked the development of the full range of the Bill of Rights. Our Founders cared a lot about religion. And one of the reasons they worked so hard to get the first amendment into the Bill of Rights at the head of the class is that they well understood what could happen to this country, how both religion and Government could be perverted if there were not some space created and some protection provided. They knew that religion helps to give our people the character without which a democracy cannot survive. They knew that there needed to be a space of freedom between Government and people of faith that otherwise Government might usurp.

Why has Hillary Clinton moved so far to her husband’s left that she openly equates the religious freedom he championed with the world’s authoritarians? One answer is: anger–specifically, the anger of the Democratic base, which has shifted far to the left from where it was two decades ago. That’s the upshot of an in-depth and informative Politico piece today on Hillary’s balancing act between wanting to remind voters of the economic stability of the 1990s and decrying the pro-business policies that helped bring it about, policies that have fallen out of favor with the Occupy Wall Street base of the Democratic Party and thus with the party’s congressional leaders as well. Headlined “A Clinton approach for angrier times” (though the headline seems to have changed this afternoon) the piece notes:

On a broad range of issues from tax policy and Wall Street reform to religious rights, more than a dozen senior Democratic strategists and people who have worked with the former first family told POLITICO that Hillary Clinton will have to craft a platform that reflects the party’s shift left and populist sentiment across the political spectrum that distrusts entrenched interests and worries about growing wage inequality. Some described this balancing act as one of the most significant issues for the potential presidential candidate.

“This is the most important set of conversations going on right now. We are in a different economic era that requires a different kind of response,” said Simon Rosenberg, founder of the New Democrat Network who shaped the economic message for Bill Clinton in the 1992 campaign. “Apple isn’t making the same products they were 20 years ago, so you should not expect any Democrat to obey policies that are over 20 years old.” Rosenberg added that no one in the Hillary Clinton orbit underestimates the task she faces.

Clinton is an insider who is close to Wall Street and who can’t seem to get people to stop shoveling money at her and her family. This might not be an issue in a general election, because Republicans and independents don’t demonize the very idea of wealth and success the way Democrats do. What Clinton seems to fear is someone like Elizabeth Warren–but not necessarily as a candidate. The risk Warren poses to Clinton is surfacing in the populist fury Warren is kicking up around the country as she campaigns for Democratic candidates who need star power but who still want to pretend they don’t know who Barack Obama is.

The Washington Post reports on “a string of recent Warren appearances in red and blue states alike, where Democratic base voters have embraced her fiery message as an envoy to working-class voters frustrated with both Wall Street and the Obama administration.” Warren has ditched the policy-wonk pretense of her pre-Senate days and embraced intellectually shallow, populist messages and policies. What’s troubling for Clinton is that Warren’s shoddy demagoguery is connecting with an extreme-minded, angry liberal base. Whether she directly challenges Clinton for the nomination or not, Clinton is clearly already letting Warren set the agenda.

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Hobby Lobby, Religious Liberty, and the Dangers of Complacence

It’s tempting, and easy, to dismiss Democrats’ legislative response to the Supreme Court’s Hobby Lobby decision. Senate Democrats say as soon as today they could bring up a bill that would, as Politico terms it, “override” the high court’s ruling, which followed the course set out in the Religious Freedom Restoration Act. Democrats want to push this as part of the “war on women” by making shameless false claims about the court’s ruling and trashing both RFRA and the First Amendment.

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It’s tempting, and easy, to dismiss Democrats’ legislative response to the Supreme Court’s Hobby Lobby decision. Senate Democrats say as soon as today they could bring up a bill that would, as Politico terms it, “override” the high court’s ruling, which followed the course set out in the Religious Freedom Restoration Act. Democrats want to push this as part of the “war on women” by making shameless false claims about the court’s ruling and trashing both RFRA and the First Amendment.

Conservatives have been generally dismissive of the White House’s “war on women,” and for good reason. Additionally, they may be further tempted to deride the left’s response now that they’ve won a limited victory at the Supreme Court. It also requires a heroic effort to take seriously any policymaking that begins with Harry Reid including Clarence Thomas in his category of “white men” who should be ignored. Reid is railing against the Supreme Court, but he does not appear to be terribly familiar with it. (As an aside, why mention the race of the justices at all if this is an issue about gender? Because leftists can’t speak, apparently, without accusing someone of being racist.)

But this attitude would be a mistake, with regard to the Hobby Lobby pushback. To be sure, conservatives should avoid getting drawn into a fictitious debate on birth control based on completely false premises and designed not to advance policy solutions but to give Democrats yet another chance to insult the intelligence of the nation’s women and to put Christianity–and by extension, religious belief in general–on trial. After all, it’s unlikely that yet another Reid-led Democratic effort to undo basic American rights will pass the House.

And getting drawn into this debate risks giving the Democrats what they actually want: a change of subject. As the Obama presidency plummets in popularity and the corruption and abuse of power scandals keep multiplying, the Democrats want to talk about anything but the issues dragging them down.

Nonetheless, conservatives should think twice about taking the debate over this bill–not the president’s executive action, but the Senate bill on which there would presumably be debate and a vote–too lightly. What the Democrats are trying to do is build a public-policy consensus that would erode religious liberty by holding a referendum on whether America’s first freedom, and the basis for the American project, should be undone in the service of left-wing culture-war extremism.

Is it worth undermining religious freedom just so Democrats can distract the electorate from their inability to govern with a public discussion about the economics of sex? For Democrats like Harry Reid, the answer is an unequivocal yes. Basic freedoms are fine in the abstract, according to Democratic policymakers, but they often infringe on Democrats’ quest for power. So they must be subverted.

Conservatives must understand that the risk here is not actual policy, since the bill won’t pass the House. The risk is that by ceding space in the public sphere to liberal demagogues, they won’t engage the important part of this debate. Since, as I’ve written previously, opposition to religious freedom is now a partisan Democratic position, conservatives are the last line of defense. What they don’t want is for the left to own a debate that could build a public consensus against those freedoms. If conservatives won’t speak up for religious freedom, nobody will, and it will be ignored and trampled.

It’s also important because none of this takes place in a vacuum. In a very smart piece for BuzzFeed, Chris Geidner tracks the evolving fight over religious exemptions in employee non-discrimination legislation. He notes that LGBT groups and their supporters are backing away from anti-discrimination legislation they were initially inclined to support because of the religious exemptions being added. The bill will probably not be advanced in the House this year, Geidner notes, and explains why these groups are fighting about it anyway.

He gives three reasons: to shape the next version of this legislation that comes through Congress in the next session; because the groups are unnerved by the Supreme Court’s upholding of religious freedom protections in the Hobby Lobby case; and to influence President Obama’s forthcoming executive order on the issue. In other words, these groups recognize that although the Democrats’ demand for employee-sponsored drugs that may act as abortifacients has nothing to do with gay rights, in some way it has everything to do with it.

Settling law and winning public debates over religious freedom affects other laws and other debates that follow it. Just as the Supreme Court sets precedent in legal rulings, so too the passage of laws and other actions set precedent in how the public understands the issues at play and how politicians can attract support for their own legislative projects. The left has always operated with the knowledge that there’s no off-season here. They are counting on conservative exhaustion, complacence, or both. Conservatives must demonstrate neither.

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The GOP’s Growing Vulnerability on Cultural Issues

Several weeks ago I met with an influential Republican lawmaker to discuss economic matters. Yet I found myself raising another set of issues: Republicans need to prepare (especially in 2016) for an assault by Democrats on a range of cultural and quasi-cultural issues, including contraception, gay marriage, abortion, religious liberties, immigration, evolution, and climate change.

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Several weeks ago I met with an influential Republican lawmaker to discuss economic matters. Yet I found myself raising another set of issues: Republicans need to prepare (especially in 2016) for an assault by Democrats on a range of cultural and quasi-cultural issues, including contraception, gay marriage, abortion, religious liberties, immigration, evolution, and climate change.

What I told this GOP lawmaker is that what cultural issues were to Republicans in the 1980s–think welfare, law and order, and George H.W. Bush’s criticism of Michael Dukakis over the Pledge of Allegiance–is what they are to Democrats in the 2010s. This conversation took place before the Supreme Court ruling on the Hobby Lobby case, but the reaction to it confirmed the observation. Democrats, in their frenzied overreaction to the Court ruling–none more overwrought than that of Hillary Clinton–clearly believe this is an issue that will help them politically.

In many places, they’re probably right.

With that in mind, I’d commend to you an article by Ron Brownstein of National Journal, in which he writes:

While Republicans took the offense on most cultural arguments through the late 20th century, now Democrats from Obama on down are mostly pressing these issues, confident that they represent an expanding majority of public opinion. Veteran pollster Stanley B. Greenberg captures this almost unprecedented Democratic assurance when he declares flatly: “Republicans are on the losing side of all of these trends.”… amid public unease over Obama’s economic and foreign policy record, cultural affinity has become the Democrats’ most powerful electoral weapon.

Many Republicans don’t want to focus on cultural and social issues, fearing the issues will damage them while also believing that economic and foreign-policy topics are where their attention should be. But progressives, in combination with a sympathetic press, will push cultural issues front and center. Which means it’s imperative that high-profile Republicans prepare themselves for the coming wave of attacks.

To be clear, I don’t believe the correct response, morally or politically, is for the GOP to become a socially liberal party. But I do think that there are ways to re-frame some of these issues in a manner that will benefit not just the Republican Party but social conservatism itself.

Precisely how to do so is beyond the scope of this post. For now, it’s obvious that Republicans with national ambitions need to gird themselves for the coming offensive; to prepare themselves not just in terms of public policy but also to find a vocabulary to discuss these issues. This means adopting a tone and countenance that is principled and non-censorious, that can articulate one’s views in a way that is not seen as angry and intolerant. (It doesn’t help when one Republican running for president in 2012 promised that if elected, he would talk about the dangers of contraception.)

Obviously one has to approach things on a case-by-case basis. But generally speaking, Republicans need to be seen as speaking out on behalf of moral truths in ways that are more winsome than judgmental, in a way meant to persuade rather than inflame, and making sure their views align with science rather than against it. What this means, in part, is the individuals making the arguments need to radiate some measure of grace rather than zeal. What we’re talking about is using a light touch rather than a heavy hand. To understand the difference, think about how the language (and spirit) of the pro-life movement shifted from accusing people of being “baby killers” to asking Americans to join a movement committed to enlarging the circle of protection to the most vulnerable members of the human community, in which every unborn child is protected in law and welcomed in life. (In addition, science, in the form of sonograms, has been a friend of the pro-life movement. It’s no accident, then, that Americans have become more pro-life in their views over the last 15 years. In 2012, for example, Gallup reported that the 41 percent of Americans who identified themselves as “pro-choice” is one percentage point below the previous record low in Gallup trends, recorded in May 2009, while 50 percent now call themselves “pro-life,” one point shy of the record high, also from May 2009.)

Social conservatism, if it ever hopes to succeed, needs to be articulated in a way that is seen as promoting the human good and advancing human dignity, rather than declaring a series of forbidden acts that are leading us to Gomorrah. That alone isn’t enough to turn the tide in a nation that is trending toward liberal social views on many issues. But it is a start.

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Elizabeth Warren and the Right

While many on the left seem to be pining for a populist 2016 campaign from the likes of Elizabeth Warren, the truth is that a Warren campaign probably has at least as many backers among conservatives. That’s not only because it would mean Hillary Clinton wouldn’t skate to her party’s nomination virtually unopposed (or opposed by Martin O’Malley, which is the same thing). It’s also because Warren was the last hope for the emergence of a serious intellectual liberalism. Yesterday’s Hobby Lobby ruling, however, made it clear such a liberalism is nowhere to be found.

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While many on the left seem to be pining for a populist 2016 campaign from the likes of Elizabeth Warren, the truth is that a Warren campaign probably has at least as many backers among conservatives. That’s not only because it would mean Hillary Clinton wouldn’t skate to her party’s nomination virtually unopposed (or opposed by Martin O’Malley, which is the same thing). It’s also because Warren was the last hope for the emergence of a serious intellectual liberalism. Yesterday’s Hobby Lobby ruling, however, made it clear such a liberalism is nowhere to be found.

On its list of liberal reactions on Twitter to the announcement of the Supreme Court’s decision, Mediaite includes this gem from Warren:

Can’t believe we live in a world where we’d even consider letting big corps deny women access to basic care based on vague moral objections.

Now, those who followed the case know that none of that is true. But just as disconcerting as the complete disregard for the facts is Warren’s dismissive attitude toward Christian belief. Warren sees opposition to abortifacients as “vague moral objections.” There was a time liberals argued that Warren was needed in the Senate to speak up for the people, to advocate for the Americans who weren’t getting a fair shake from their government. It turns out putting Elizabeth Warren in the Senate meant Americans would need protection for their basic freedoms against the government more than ever.

Warren’s delegitimization of religious belief and practice to empower government at the expense of the individual is coupled with her denial of the basic science behind Hobby Lobby’s objections to being forced to provide abortifacients. But it shouldn’t come as a surprise. Last month, National Review’s Patrick Brennan observed an event at which Warren joined French economist Thomas Piketty to talk about inequality.

Brennan notes that the two discussed some of Warren’s plans for college loan and tax reform, and that Warren’s plans are, from a policy standpoint, distinctly unimpressive. They are liberal crowd-pleasers, not informed and judicious attempts to solve problems. Brennan writes:

Warren’s agenda, left-leaning as it is, isn’t about rigorous progressive examination of what’s gone wrong with our system or how to fix it. It’s about intuitively appealing ideas and pleasing particular constituencies. Of course, this is pretty good politics — as the number of attendees who told me they want Warren to run for president seems to suggest.

But her fan base may end up disappointed.  For one, she was a reluctant Senate candidate, and a Warren for President campaign still seems a far-off dream. And Professor Piketty — perhaps sensing that she’s as good as the left wing of American politics has these days — wasn’t about to say it, but Elizabeth Warren isn’t an economic expert or a progressive policy crusader. She’s a talented populist who sells clever but unserious proposals with a sense of academic sophistication that makes Bostonians feel like they’re clapping for someone whose views are an intellectual cut above Ed Schultz’s. In the end, they’re not.

Conservatives had higher hopes for Warren too, because they believed for a time that she was proof it was still possible for a progressive politician to engage seriously in a policy debate. That ship has sailed.

Of course, it’s all relative. However unserious Warren’s response to Hobby Lobby, it had nothing on Hillary Clinton’s. The former secretary of state was at the Aspen Ideas Festival, where she was asked about the Supreme Court decision. According to the Atlantic, which sponsors the festival, Clinton actually said the following:

“I disagree with the reasoning as well as the conclusion,” Clinton said, almost before Isaacson had his question out. “I find it deeply disturbing.” …

“Part of the reason I was so adamant about including women and girls [in State Department efforts] is that they’re often the canaries in the mine,” Clinton explained. “It is a disturbing trend that you see in a lot of societies that are unstable, anti-democratic, and prone to extremism. Women’s bodies are used as the defining and unifying issue to bring together people—men—to get them to behave in ways that are disadvantageous to women but prop up rulers.”

Now, she said, something similar was happening in the United States, where religion was worming its way into government. “Many more companies will claim religious beliefs. Some will be some sincere, others maybe not. We’re going to see this one insurable service cut out for many women,” she said. “This is a really bad, slippery slope.”

This person is, by all accounts, running for president of the United States. Which makes it easier to understand conservatives pining for a Warren candidacy, I suppose. But conservatives looking for a Democratic candidate willing to have a serious debate on the issues will be waiting quite a while, it appears.

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The Opposition to Religious Liberty Is Partisan–And That’s What Is Dangerous

Anyone watching Congressman Xavier Becerra, Democrat of California, on Fox News Sunday yesterday saw the one significant aspect of the Hobby Lobby case that the Supreme Court would not have solved no matter how it ruled today. Of course, it helped that the high court defended some space for religious freedom in its ruling. But Becerra’s talking points demonstrated just why religious protections must be in place and defended vigorously: religious freedom for its own sake is now a partisan issue.

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Anyone watching Congressman Xavier Becerra, Democrat of California, on Fox News Sunday yesterday saw the one significant aspect of the Hobby Lobby case that the Supreme Court would not have solved no matter how it ruled today. Of course, it helped that the high court defended some space for religious freedom in its ruling. But Becerra’s talking points demonstrated just why religious protections must be in place and defended vigorously: religious freedom for its own sake is now a partisan issue.

Becerra was asked by host Chris Wallace whether business owners must violate their beliefs if the government mandates it. Here is the ensuing exchange (sic throughout; from the transcript):

BECERRA: The government will not violate anyone’s religious beliefs. But no one has the right to discriminate against a woman because of her own beliefs. I believe that the Supreme Court will find that no business –

WALLACE: She doesn’t have to work with the company.

BECERRA: – no business should be allowed to discrimination against women. And we’ve gone beyond that. We should also try to pay them equally for the work they do.

WALLACE: We’re not talking about that. We’re talking about the birth control mandate.

BECERRA: Let’s protect the woman’s rights to be able to earn the same pay and live their lives –

WALLACE: What about the owner’s right to his religious freedom, his religious beliefs?

BECERRA: The owner has a right to his or her religious beliefs, but that doesn’t mean you get to discriminate against women if a woman have different beliefs than what the owner has and the woman wants to exercise her rights under the Constitution.

Notice Becerra–twice–compares “religious beliefs” to any “beliefs.” The owner may hold religious beliefs that would be violated by the contraception mandate. But the employee believes the owner should provide her with any form of birth control she wants. Now we’re at an impasse, according to Becerra’s remarkably preposterous gibberish. According to Becerra’s mindset–and remember, he is offering the Democratic Party take on this case–religious beliefs are no different from political opinions. That is, for the purposes of constitutional law and practice, they don’t exist separate from any random employee demand.

Of course, the Supreme Court did not rule this way, because Becerra’s reasoning, such as it is, discounts the very first passage of the very First Amendment to the Constitution. But the violence Becerra wants to inflict on the Constitution should not be ignored even after the high court rejected it, because it reflects the reason we have this case to begin with: when forced to choose between religious freedom and government coercion, the left will choose government coercion. Combine that with the extent to which the left seeks to expand government power, and you have a troubling erosion of civil society and the private sphere.

That’s evident from this piece by Yishai Schwartz in the New Republic. Schwartz argues that the left is wrong to dismiss the religious freedom issues at play here. He knocks the deeply silly talking point so popular on the left that “corporations aren’t people” and “corporations don’t have beliefs.” He writes: “I certainly hope The New Republic has free-speech rights and the local church has free-exercise rights, even though they are corporations.”

Having acknowledged the legitimacy of the religious protections Hobby Lobby sought, Schwartz also praises the religious freedom “consensus” that has prevailed … until now. What happened? Here Schwartz makes a novel, though thoroughly noxious, attempt at misdirection: “the GOP’s scorched-earth attack of the Affordable Care Act has already claimed its primary victim: religious freedom.”

Schwartz then tries, in vain, to defend his assertion that the party fighting on behalf of religious freedom is really its enemy, and the party assaulting the religious freedom consensus is innocent:

But as conservative media seized on religious freedom suits like Hobby Lobby to bludgeon Obama, the left has increasingly abandoned RFRA. Where liberals once championed a law meant to protect small religious groups from callous majorities, they now see an endless slippery slope of religious conservatives obeying whatever laws they happen to find acceptable.  In religious freedom, the left now sees only a shield that will allow religious conservatives to discriminate against gays and harm women’s reproductive health. In the partisan rancor that has consumed today’s Washington, the consensus in favor of religious accommodations has been shattered.

ObamaCare’s HHS regulations infringed on the religious freedom of Christians. After that infringement, Americans fought for their previously recognized religious rights. According to Schwartz, conservatives should have silently accepted this abrogation of constitutional protections because if they made a scene, liberals would finally concede that they don’t really believe in those protections, and in a fit of rage revolt against the very idea of religious freedom–simply because conservatives are loudly defending it.

I don’t know the Democrats that Schwartz is talking about, but they seem consumed by anger and absolutism. And they–and their apologists like Schwartz–are living proof of just how important it is to fight for and codify these rights. Any political movement that hates conservatives enough to abandon the Constitution because conservatives support it, as does the version of American liberalism Schwartz profiles, is a perpetual argument in favor of conservatives’ effort to preserve religious liberty.

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Demonizing SCOTUS: The OCare Precedent

When Chief Justice John Roberts rewrote ObamaCare from the bench in order to save it, most of the ramifications were immediately apparent. But there was one aspect of the stunt that as a member of the Supreme Court Roberts should have been sensitive to: precedent. Having caved to a public intimidation campaign from the president and his congressional allies (as well as the media) Roberts signaled that the way to get a conservative justice to discard his better judgment and rule against constitutional law was to impugn the court’s reputation in the public square.

Be mean to John Roberts and his friends, in other words, and you can have your welfare state for all he cares. This was among the most damaging effects of Roberts’s call back in 2012. And unsurprisingly, Democrats have learned their lesson. I wrote at the time that within days of the decision the media had gone back to bashing Roberts and the high court’s poll numbers had dropped. But Democrats had a found a well they were certain to return to in times of desperation. And as the Hill reports today, that time has come:

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When Chief Justice John Roberts rewrote ObamaCare from the bench in order to save it, most of the ramifications were immediately apparent. But there was one aspect of the stunt that as a member of the Supreme Court Roberts should have been sensitive to: precedent. Having caved to a public intimidation campaign from the president and his congressional allies (as well as the media) Roberts signaled that the way to get a conservative justice to discard his better judgment and rule against constitutional law was to impugn the court’s reputation in the public square.

Be mean to John Roberts and his friends, in other words, and you can have your welfare state for all he cares. This was among the most damaging effects of Roberts’s call back in 2012. And unsurprisingly, Democrats have learned their lesson. I wrote at the time that within days of the decision the media had gone back to bashing Roberts and the high court’s poll numbers had dropped. But Democrats had a found a well they were certain to return to in times of desperation. And as the Hill reports today, that time has come:

Senate Democrats and liberal groups are mounting a pressure campaign against the Supreme Court, hoping to influence future decisions by blasting conservative justices for alleged political bias.

The effort from the left also portrays the high court as an instrument rigged to help the wealthy, and is intended to energize Democratic voters and increase turnout in the midterm elections.

Some legal experts see the effort as akin to basketball or soccer players “working the ref” in a high-stakes game.

Critics say Democratic leaders used a similar strategy in 2010, when they piled on the court for striking down the ban on political spending by corporations in Citizens United v. Federal Election Commission.

Some court watchers speculated that Chief Justice John Roberts felt chastened by the angry reaction and sought to avoid another uproar, when he crafted the majority decision in 2012 that largely upheld ObamaCare.

“The left clearly tried to work the refs on the Affordable Care Act,” said Randy Barnett, a professor at the Georgetown University Law Center. “They worked the refs after Citizens United, which helped set things up for the Affordable Care Act challenge. If it seems to work, why not continue? It’s unfortunate, I think, that they’ve been encouraged in this behavior by its apparent success.”

And it’s not just a public disinformation campaign:

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Senate Rules Committee Chairman Charles Schumer (D-N.Y.) plan to hold hearings on the court’s ruling in McCutcheon v. Federal Election Commission striking down aggregate limits on campaign donations. …

Senate Majority Harry Reid (D-Nev.) panned it for granting greater influence to wealthy donors, such as Charles and David Koch, the wealthy conservative donors, whom he again slammed on the Senate floor Monday.

Of course Reid would find a way to turn a complaint about the court into another tool in his quest to turn libertarian activists into former people. In one sense, this is irrational, because it has no intellectual merit and should be beneath the leaders of the world’s greatest deliberative body. But in another sense, it’s completely rational: people respond to incentives, and in his ObamaCare ruling Roberts incentivized demonizing–that’s the Hill’s word–the Supreme Court.

The story notes that chief among the left’s worries is the upcoming ruling on the ObamaCare contraception mandate. And on that note, the best line in the story has to be this: “Democrats say the present-day court lacks the experience to understand the corrupting influence of money in politics, because none of its members have held publicly elected office.” Democrats just don’t believe that law abiding, upstanding men and women who have never been offered a bribe could ever really understand ObamaCare. And you’ve got to admit, they have a point, don’t they?

We may or may not find out if the pressure campaign works. After all, a decision on the case may not be a result of the intimidation tactics, either as a concession to them or as an act of defiance against them. It may be just another ruling on the merits of the case. But that’s one of the consequences of the Democrats’ shenanigans: the idea that the court will rule on the merits of the case becomes only one of several possibilities. Roberts thought he was protecting the legitimacy of the court in his 2012 decision. It’s quite clear now that he has done precisely the opposite.

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Mozilla Has Rights. Just Like Hobby Lobby.

The forced resignation of Mozilla CEO Brandon Eich over his support for an anti-gay marriage referendum continued to provoke bitter debate over the weekend. After an initial burst of revulsion even from liberal pundits like Andrew Sullivan over the purge of a businessman from a company over his political beliefs by pro-gay thought police, many on the left have recovered their bearings and are reminding themselves that freedom of speech for me but not for thee has always been their guiding principle. Though some are a bit shame-faced to do so, some liberals have decided that punishing individuals for their personal politics is OK because those who hold opinions contrary to their own are not only wrong but so hateful that their mere presence undermines the efforts of those associated with them.

That this is rank hypocrisy is so obvious that it barely needs to be said. If, say, a liberal business executive were to be ousted from a similar position at a Fortune 500 company because a lot of the shareholders or executives at the business didn’t like the fact that he or she was a supporter of gay marriage or had donated to prominent liberal candidates for office, you can bet your stock portfolio and your mortgage payment that the mainstream media and every left-wing pundit in creation would be anointing such a person for sainthood rather than twisting themselves into pretzels in order to justify Eich’s defenestration, as so many have already done.

But in doing so, some on the left have, albeit unwittingly, stumbled into some truths about First Amendment rights that undermine their positions on an important case under consideration at the U.S. Supreme Court.

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The forced resignation of Mozilla CEO Brandon Eich over his support for an anti-gay marriage referendum continued to provoke bitter debate over the weekend. After an initial burst of revulsion even from liberal pundits like Andrew Sullivan over the purge of a businessman from a company over his political beliefs by pro-gay thought police, many on the left have recovered their bearings and are reminding themselves that freedom of speech for me but not for thee has always been their guiding principle. Though some are a bit shame-faced to do so, some liberals have decided that punishing individuals for their personal politics is OK because those who hold opinions contrary to their own are not only wrong but so hateful that their mere presence undermines the efforts of those associated with them.

That this is rank hypocrisy is so obvious that it barely needs to be said. If, say, a liberal business executive were to be ousted from a similar position at a Fortune 500 company because a lot of the shareholders or executives at the business didn’t like the fact that he or she was a supporter of gay marriage or had donated to prominent liberal candidates for office, you can bet your stock portfolio and your mortgage payment that the mainstream media and every left-wing pundit in creation would be anointing such a person for sainthood rather than twisting themselves into pretzels in order to justify Eich’s defenestration, as so many have already done.

But in doing so, some on the left have, albeit unwittingly, stumbled into some truths about First Amendment rights that undermine their positions on an important case under consideration at the U.S. Supreme Court.

Some, like the Guardian’s Mary Hamilton, rightly point out that the First Amendment doesn’t entitle Eich to a job at Mozilla. That is true, and I don’t believe any serious conservative critic of the Mozilla lynch mob has said any different. Mozilla and any other company have a perfect right to hire or fire anyone they like. Anti-discrimination laws don’t require liberals to hire conservatives or vice versa even though injecting political litmus tests into job searches are not conducive to hiring the best people. But when New York Times columnist Farhad Manjoo wrote that Eich had to be ousted from his position because Mozilla isn’t an ordinary company, that should have unsettled some on the left who have been mocking the idea that corporations have First Amendment rights. If Mozilla should be able to fire Eich because of his politics, how can liberals also argue with a straight face that Hobby Lobby should have to pay for abortion drugs?

The upshot of Manjoo’s piece was to say that rather than a soulless instrument of the technology business, Mozilla is a unique sort of company with a raison d’être that rises above mere commerce and must be nurtured by an individual who shares a vision of inclusiveness that excludes defenders of traditional marriage and other non-liberal concepts. By refusing to “recant,” as Farhad put it, he had demonstrated his inability to lead the company. As Michelangelo Signorile, the editor-at-large of the HuffPost’s Gay Voices wrote, “It’s about a company based in Northern California that has many progressive employees, as well as a lot of progressives and young people among the user base of its Firefox browser, realizing its CEO’s worldview is completely out of touch with the company’s — and America’s — values and vision for the future.”

That Mozilla’s employees and board members actually think it is consistent with American values or even “freedom of speech” (in the words of the company’s disingenuous announcement of Eich’s departure) to hound out of their midst someone who, though a supporter of gay rights in other respects, may disagree with them about marriage or support conservative candidates says something awful about such a group. But if that’s how they feel, then it’s their right to do so even as many on the outside of their cozy left-wing bubble enclave jeer at a version of “inclusiveness” that demands ideological conformity.

Ironically, Slate’s Mark Joseph Stern thinks conservatives are the hypocrites to complain about this because of the Hobby Lobby case. He thinks conservatives are only for protecting the First Amendment rights of companies when they allow people like the religious owners of the Hobby Lobby chain to oppose the Health and Human Services mandate that would force them to pay for abortion drugs for their employees but not for Mozilla to burn Eich at the stake. Wrong.

Conservatives have been consistent about the rights of corporations. It is the left that has always mocked the notion of First Amendment rights applying to corporations, principally in campaign finance law cases. Conservatives have correctly argued that individuals do not give up their right to political speech when they incorporate or engage in commerce. By claiming, as they now do, that the special culture of Mozilla requires it to root out all unbelievers in gay marriage or supporters of conservatives, but deny that Hobby Lobby has the right to protect its particular culture or the beliefs of its owners, liberals are the ones that are engaging in hypocrisy.

It would be nice if liberals were sufficiently self-aware of their inconsistency to cause them to “recant” and grant Hobby Lobby—which has an individual business culture just as special as the one at Mozilla—the same respect it demands for the Torquemadas who rule the roost in the high-tech sector. But I’m not expecting that to happen. The real problem here isn’t hypocrisy but a liberal mindset that views conservatives as not merely wrong, but evil. Eich’s fate shows that the decline of civility in our political culture may have become irreversible. But that makes it all the more important for the courts to defend the Constitution against the left’s crusade against the First Amendment with respect to political speech and faith.

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Hobby Lobby and the Shellacking, Part II

During the Supreme Court oral argument in Sebelius v. Hobby Lobby Stores, Inc., there was an important colloquy between Justice Elena Kagan and Hobby Lobby’s counsel, Paul Clement. The issue was whether the government has a “compelling interest” in enforcing ObamaCare against employers whose undisputed fundamental religious beliefs would be violated. Clement argued that the existence of the grandfather clause in the law shows there is no such interest:   

MR. CLEMENT: … I think the grandfather provisions of this statute really are devastating for the government’s argument that it has a compelling interest [to mandate insurance that violates Hobby Lobby’s religious beliefs]. When the government pursues compelling interest, it demands immediate compliance. … I can’t imagine Congress passing Title VII [of the Civil Rights Act of 1964] and saying, “Stop discriminating on the basis of race, unless of course you have a pre-existing policy that discriminates on the basis of race, and then you can keep it as long as you’d like.”

JUSTICE KAGAN: … you know, initially Title VII did not apply to any employers with fewer than 25 employees. And then gradually, Congress brought the number down because Congress realized that there were going to be transition issues and that some time was needed to make sure that the compelling interest, you know, should be applied uniformly across all employers.

MR. CLEMENT: … [It’s consistent with a compelling interest] to say we’re going to focus on the people who actually employ the most people and therefore can engage in the most discrimination. It’s quite a different matter, and I don’t think anybody would think that Congress would pass a Title VII that said, “Hey, as long as you have a pre-existing discriminatory policy, you’re allowed to keep it.” [Transcript at pp. 30-31]

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During the Supreme Court oral argument in Sebelius v. Hobby Lobby Stores, Inc., there was an important colloquy between Justice Elena Kagan and Hobby Lobby’s counsel, Paul Clement. The issue was whether the government has a “compelling interest” in enforcing ObamaCare against employers whose undisputed fundamental religious beliefs would be violated. Clement argued that the existence of the grandfather clause in the law shows there is no such interest:   

MR. CLEMENT: … I think the grandfather provisions of this statute really are devastating for the government’s argument that it has a compelling interest [to mandate insurance that violates Hobby Lobby’s religious beliefs]. When the government pursues compelling interest, it demands immediate compliance. … I can’t imagine Congress passing Title VII [of the Civil Rights Act of 1964] and saying, “Stop discriminating on the basis of race, unless of course you have a pre-existing policy that discriminates on the basis of race, and then you can keep it as long as you’d like.”

JUSTICE KAGAN: … you know, initially Title VII did not apply to any employers with fewer than 25 employees. And then gradually, Congress brought the number down because Congress realized that there were going to be transition issues and that some time was needed to make sure that the compelling interest, you know, should be applied uniformly across all employers.

MR. CLEMENT: … [It’s consistent with a compelling interest] to say we’re going to focus on the people who actually employ the most people and therefore can engage in the most discrimination. It’s quite a different matter, and I don’t think anybody would think that Congress would pass a Title VII that said, “Hey, as long as you have a pre-existing discriminatory policy, you’re allowed to keep it.” [Transcript at pp. 30-31]

ObamaCare was enacted on the president’s oft-repeated assurances that everyone who liked their existing insurance plans could keep them–period! Everyone was grandfathered! It was only the freeloaders going to emergency rooms without insurance who–so the argument went–would be mandated into the system. And once those people were in the system, costs for everyone would go down (by $2,500!), the deficit would be cut (by a hundred billion a year!), and people would love the law (once they found out what was in it).

All this turned out to be untrue. The administration issued a grandfather regulation so narrow that virtually everyone’s existing insurance in the individual market got cancelled, which got the administration into huge political trouble. So the president issued a new exemption (via a press conference), and then unilaterally delayed the employer mandate lest the same thing happen later this year in a market 20 times as large. But the existence of the grandfather clause–as well as the exemptions issued left and right–puts the administration in legal jeopardy in the Court, because it cuts into the heart of the “compelling interest” argument. Justice rarely gets more poetic.

Political justice may take a little longer, but it may be coming. There has likely never been a law passed with more fraudulent arguments, using more fraudulent procedures, rushed through more quickly on a strictly partisan vote, while opinion polls (and the Massachusetts special election) showed the public and voters firmly opposed, both back then and now.

Now that everyone has not only learned what is in the law, but has seen how it has been implemented–with a website that didn’t work, exemptions and extensions handed out without the consent of Congress, supporters or key voting groups given immense leeway while opponents are taken all the way to the Supreme Court, and as Jonathan Tobin notes, a nonstop continuing chaos–there may be a new horror movie coming in November to a polling place near you. Call it The Shellacking, Part II.

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Religious Bias and the Washington Post

Here we go again.

The Washington Post–which years ago published a story referring to followers of the Christian right as “largely poor, uneducated, and easy to command”–yesterday published a front-page story titled, “High court with vocally devout justices set to hear religious objections to health-care law.”

Get it? The story, written by the Post’s Supreme Court reporter Robert Barnes, is meant to focus attention on–and raise our concerns about–whether justices with deep (and vocal) religious faith can rule fairly on a religious liberties case. (Two cases, including Sebelius v. Hobby Lobby Stores, Inc., will be argued before the Supreme Court today. Hobby Lobby is a chain of arts and crafts stores owned by David and Barbara Green, business owners who are evangelical Christians and seeking a religious exemption from parts of Affordable Care Act’s contraception mandate.)

We’re told, for example, that “Justice Clarence Thomas is a former seminarian who says God saved his life.” Alarming, yes, but that’s not the worst of it:

Justice Antonin Scalia is the most outspoken. He has urged fellow intellectuals to be “fools for Christ” and used an interview last fall to underscore his belief in the existence of the Devil, whose latest maneuver, he said, “is getting people not to believe in him or in God.”

Mr. Barnes later devotes two more paragraphs to the interview Scalia did with New York magazine in which he spoke about his belief that the Devil exists. Apparently some members of the elite media find this a stunning admission. (Those of us who love The Screwtape Letters do not.) 

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Here we go again.

The Washington Post–which years ago published a story referring to followers of the Christian right as “largely poor, uneducated, and easy to command”–yesterday published a front-page story titled, “High court with vocally devout justices set to hear religious objections to health-care law.”

Get it? The story, written by the Post’s Supreme Court reporter Robert Barnes, is meant to focus attention on–and raise our concerns about–whether justices with deep (and vocal) religious faith can rule fairly on a religious liberties case. (Two cases, including Sebelius v. Hobby Lobby Stores, Inc., will be argued before the Supreme Court today. Hobby Lobby is a chain of arts and crafts stores owned by David and Barbara Green, business owners who are evangelical Christians and seeking a religious exemption from parts of Affordable Care Act’s contraception mandate.)

We’re told, for example, that “Justice Clarence Thomas is a former seminarian who says God saved his life.” Alarming, yes, but that’s not the worst of it:

Justice Antonin Scalia is the most outspoken. He has urged fellow intellectuals to be “fools for Christ” and used an interview last fall to underscore his belief in the existence of the Devil, whose latest maneuver, he said, “is getting people not to believe in him or in God.”

Mr. Barnes later devotes two more paragraphs to the interview Scalia did with New York magazine in which he spoke about his belief that the Devil exists. Apparently some members of the elite media find this a stunning admission. (Those of us who love The Screwtape Letters do not.) 

On the matter of Scalia’s use of the phrase “fools for Christ,” let me offer some context. When Scalia said what he did in 2010, he was speaking to members of the St. Thomas More Society of Maryland. Justice Scalia was honored with the Society’s “Man for All Seasons Award,” given to members of the legal profession who embody the ideals of St. Thomas More.

Here’s how Catholic Review reported on the event:

Scalia outlined a long list of Christian beliefs that he said are greeted with derision by the worldly – dogmas including Christ’s divinity, the Virgin birth and Christ’s resurrection.

“Surely those who adhere to all or most of these traditional Christian beliefs are regarded in the educated circles that you and I travel in as, well, simple-minded,” Scalia asserted.

The Catholic justice cited a story in the Washington Post that described Christian fundamentalists as “poorly educated and easily led.”

“The same attitude applies, of course, to traditional Catholics,” Scalia said, “who do such positively peasant-like things as saying the rosary, kneeling in adoration before the Eucharist, going on pilgrimages to Lourdes or Medjugorje and – worst of all – following indiscriminately, rather than in smorgasbord fashion, the teachings of the pope.”

Scalia said believers should embrace the ridicule of the world.

“As St. Paul wrote to the Corinthians,” he said, “we are fools for Christ’s sake.”

Scalia noted that Christ described his followers as sheep and said no one will get into heaven without behaving like “little children.” Scalia warned, however, that reason and intellect must not be laid aside where matters of religion are concerned.

“Assuredly, a faith that has no rational basis is a false faith,” Scalia said.

The actual account leaves a different and more textured impression than the Post account, no? And did you notice something? Mr. Barnes didn’t report fully on what Scalia said, which is this: “As St. Paul wrote to the Corinthians, we are fools for Christ’s sake.” (Emphasis added.)

Most people would agree that there’s quite a difference between saying, “[Scalia] urged fellow intellectuals to be ‘fools for Christ’” and saying, “Scalia, in a speech in which he was honored by the St. Thomas More Society of Maryland, quoted the Apostle Paul in urging his fellow Catholics to be ‘fools for Christ.’”

It is a phrase most committed Christians would immediately recognize, and they would understand what it means: People who take their faith seriously will be viewed by those in the world who don’t share that faith as benighted, unenlightened, zealous, perhaps even something of a threat. Remarkably, St. Paul offered these thoughts even before he could cite the Washington Post’s coverage of Christians in public life as evidence for his claim.

Judge for yourselves, but it strikes me that the point of the story is fairly obvious: A devout person of faith is automatically suspect when it comes to judging on religious liberty matters. As a friend of mine put it to me, it’s “setting the stage for the argument that all but atheist progressives should recuse themselves from considering the legitimacy of the latest bold advance of atheist progressivism.” (We know how these things work. Liberals on MSNBC, having heard the secular dog whistle, are already raising doubts of whether “the court that will decide [the religious liberty cases] includes six Catholic justices, some of whom have not been shy about asserting their religion.”)

It would of course be offensive if the Post had (hypothetically) run a front-page article raising questions about whether a black justice could fairly rule on Brown v. Board of Education or if a Jewish justice could fairly rule on National Socialist Party v. Skokie. Does one’s sexual orientation–gay or straight–compromise one’s ruling on cases like Lawrence v. Texas? Would it be fair to raise doubts about the objectivity of non-Christian justices if they rule against the Greens in Sebelius v. Hobby Lobby? Exactly where does this identity politics begin and end?

Let me make one final observation. Everyone is motivated by a philosophical view of the world. It may be informed by religious faith or not. It may be Catholic or evangelical–or materialism or pragmatism. It may be based on the teachings of Jesus–or Kant’s categorical imperative, Mill’s theory of utilitarianism, Nietzsche’s Will to Power, or Derrida’s deconstructionism. One’s view may be shaped by Maimonides, Aristotle, John Rawls, or Richard Dawkins. It may be a very odd combination of all of the above. Or none of the above.

My point is we all have certain views about the human person and about human dignity–if the latter exists and if so, what it is based on. We all bring certain assumptions and precepts, some well formulated and others not, on how we interpret the world around us. Yet for people of a certain cast of mind, the only time this matter becomes controversial is when the worldview is Christian–particularly orthodox and traditionally Christian. (Many journalists tend to be less troubled by people of religious faith if their faith leads them to a liberal outcome. This explains why Jerry Falwell was treated much more harshly than Sojourner’s Jim Wallis, even though they are different sides of the same coin.)

When four years ago Justice Scalia said, “Surely those who adhere to all or most of these traditional Christian beliefs are regarded in the educated circles that you and I travel in as, well, simple-minded,” he knew of what he spoke. See the story by Robert Barnes, supra.  

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Liberals’ Hobby Lobby Scare Campaign

Tomorrow the U.S. Supreme Court finally takes up a case that has been headed toward their courtroom since the 2010 passage of ObamaCare. Two private companies are challenging the Department of Health and Human Services’ mandate that requires all companies to pay for a range of services including contraception and abortion-inducing drugs that violate the religious beliefs of their owners. The two companies, the Oklahoma City-based Hobby Lobby craft store chain and Pennsylvania’s Conestoga Wood Specialties Corporation are seeking to defend the First Amendment rights to exercise of religion against the government’s attempt to impose its beliefs and policies on all employers by threatening to ruin them with fines and penalties if they dare to refuse to obey the mandate.

But according to the administration and its liberal cheerleaders in the media, the stakes involved in this case involve nothing less than the future of women’s rights as well as those of gays. As the lead of a New York Times news story that would have been better placed on their opinion page read, this is a “case that pits religious liberty against women’s rights.” That frame of reference dovetailed nicely with a Times editorial that claimed Hobby Lobby and its supporters were “crying wolf about religious liberty” that would allow business owners to impose their beliefs on their helpless employees. Even worse, they claim it will gut health care and deny basic services to many Americans.

This is nothing less than a scare campaign aimed at intimidating the conservative members of the high court—or perhaps just Chief Justice John Roberts, whose worries about exposing his institution to political criticism allowed ObamaCare to survive a justified challenge to its constitutionality in 2012—to back away from a rigorous interpretation of the law that would obligate them to strike down the mandate. Far from setting off legal chaos that will undermine the foundation of human rights in this country, should Hobby Lobby and its fellow plaintiffs win, the result would be a reaffirmation of individual liberty and the basic protections afforded all Americans by the Constitution.

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Tomorrow the U.S. Supreme Court finally takes up a case that has been headed toward their courtroom since the 2010 passage of ObamaCare. Two private companies are challenging the Department of Health and Human Services’ mandate that requires all companies to pay for a range of services including contraception and abortion-inducing drugs that violate the religious beliefs of their owners. The two companies, the Oklahoma City-based Hobby Lobby craft store chain and Pennsylvania’s Conestoga Wood Specialties Corporation are seeking to defend the First Amendment rights to exercise of religion against the government’s attempt to impose its beliefs and policies on all employers by threatening to ruin them with fines and penalties if they dare to refuse to obey the mandate.

But according to the administration and its liberal cheerleaders in the media, the stakes involved in this case involve nothing less than the future of women’s rights as well as those of gays. As the lead of a New York Times news story that would have been better placed on their opinion page read, this is a “case that pits religious liberty against women’s rights.” That frame of reference dovetailed nicely with a Times editorial that claimed Hobby Lobby and its supporters were “crying wolf about religious liberty” that would allow business owners to impose their beliefs on their helpless employees. Even worse, they claim it will gut health care and deny basic services to many Americans.

This is nothing less than a scare campaign aimed at intimidating the conservative members of the high court—or perhaps just Chief Justice John Roberts, whose worries about exposing his institution to political criticism allowed ObamaCare to survive a justified challenge to its constitutionality in 2012—to back away from a rigorous interpretation of the law that would obligate them to strike down the mandate. Far from setting off legal chaos that will undermine the foundation of human rights in this country, should Hobby Lobby and its fellow plaintiffs win, the result would be a reaffirmation of individual liberty and the basic protections afforded all Americans by the Constitution.

As I have noted previously, you don’t have to agree with the owners of Hobby Lobby or other persons of faith about abortion or contraception in order to understand that a defeat for them would endanger everyone’s rights. If their religious liberty is considered less important than the government’s desire to create a universal mandate for employers to pay for such services, then there is no limit to what the government can demand and no room for faith in our public square anymore. In this case the plaintiffs are merely asking the courts to remember that the Religious Freedom Restoration Act (RFRA) set a standard by which government would be forced to prove that they were not imposing a substantial burden on the free exercise of faith by demanding that believers bow to their dictates. This is clearly not the case with ObamaCare, since its contraception mandate forces religious business owners to participate in the provision of services that clearly violate their consciences.

Protecting their rights to abstain from the mandate does not in any way endanger the rights of women or their health since Hobby Lobby employees are free to purchase such drugs on their own. What the government wants is not to protect the freedom to use contraception—which is not in question—but to be able to make religious organizations as well as private businesses pay for it and thus compromise their principles. Their reasoning is twisted, but at its heart is the belief that government can run roughshod over rights in order to obtain some larger good such as free health services. Upholding such a mandate would mean a re-writing of the First Amendment that would protect private expressions of faith but prohibit its exercise in the public square. The administration seeks to interpret the law in such a manner as to require people to choose between their faith and the survival of their enterprises. Our framers believed that government moral coercion of this sort was beyond the pale. That is why they sought to create a constitutional framework that ensured that while we would have no established church, neither would our government seek to constrain religious freedom.

As we saw with the recent furor over a revision in the Arizona version of RFRA, it is entirely possible for concerns about the rights of women or gays to be used as a weapon in order to squelch discussions about religious liberty and the Constitution. But the Supreme Court should be immune to such cynical scare mongering by the administration and the liberal mainstream media. Let us hope the justices ignore the attempt to buffalo them into suppressing religious freedom in the name of upholding ObamaCare.

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Smearing Religious Freedom’s Defenders

The verdict of national public opinion about what was universally represented as an attempt by Arizona’s legislature to authorize discrimination against gays was overwhelming. Though support for gay marriage is not yet unanimous, Americans don’t like prejudice and think laws that might legitimate bias are, by definition, wrongheaded. By vetoing Arizona’s SB1062 bill, Governor Jan Brewer was simply practicing political common sense and saving both her state (which stood to lose conventions and even an upcoming Super Bowl over the controversy) and the national Republican Party a great deal of grief over what was claimed to be a new version of Jim Crow. The “anti-gay bill” stood to become this year’s version of Todd Akin’s infamous comments about rape and abortion and could have been a millstone around the necks of all conservatives even in a year in which the GOP stands to gain ground across the country.

Fresh off this almost uncontested victory, liberals like The New Yorker’s Jeffrey Toobin are hoping to follow up on their triumph by pivoting from this controversy to ratcheting up anger at the prospect that the Supreme Court will allow religious business owners to claim religious exemptions from the federal government’s demands that they pay for insurance coverage of acts that violate their religious beliefs. What has that got to do with an “anti-gay bill?” And how can liberals hope to mobilize Americans on this issue the way they did on the Arizona bill given the significant public sympathy for the religious freedom protest of companies like the Hobby Lobby chain as well as antipathy for the ObamaCare mandates?

In order to answer that question you would have had to have actually read the Arizona bill, something that few media figures, let alone the general public actually did before lambasting it. As National Review editor Rich Lowry, pointed out in an insightful Politico op-ed published last week, even a cursory glance at the bill yielded nothing to justify the universal condemnation that rained down on it from the mainstream media. But at the heart of that dustup and the one on the ObamaCare Mandate is the same question of religious liberty that got steamrollered in Arizona and is again being attacked in the Hobby Lobby case. The principle being defended here isn’t Jim Crow or any other form of prejudice but the constitutionally protected right to religious freedom.

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The verdict of national public opinion about what was universally represented as an attempt by Arizona’s legislature to authorize discrimination against gays was overwhelming. Though support for gay marriage is not yet unanimous, Americans don’t like prejudice and think laws that might legitimate bias are, by definition, wrongheaded. By vetoing Arizona’s SB1062 bill, Governor Jan Brewer was simply practicing political common sense and saving both her state (which stood to lose conventions and even an upcoming Super Bowl over the controversy) and the national Republican Party a great deal of grief over what was claimed to be a new version of Jim Crow. The “anti-gay bill” stood to become this year’s version of Todd Akin’s infamous comments about rape and abortion and could have been a millstone around the necks of all conservatives even in a year in which the GOP stands to gain ground across the country.

Fresh off this almost uncontested victory, liberals like The New Yorker’s Jeffrey Toobin are hoping to follow up on their triumph by pivoting from this controversy to ratcheting up anger at the prospect that the Supreme Court will allow religious business owners to claim religious exemptions from the federal government’s demands that they pay for insurance coverage of acts that violate their religious beliefs. What has that got to do with an “anti-gay bill?” And how can liberals hope to mobilize Americans on this issue the way they did on the Arizona bill given the significant public sympathy for the religious freedom protest of companies like the Hobby Lobby chain as well as antipathy for the ObamaCare mandates?

In order to answer that question you would have had to have actually read the Arizona bill, something that few media figures, let alone the general public actually did before lambasting it. As National Review editor Rich Lowry, pointed out in an insightful Politico op-ed published last week, even a cursory glance at the bill yielded nothing to justify the universal condemnation that rained down on it from the mainstream media. But at the heart of that dustup and the one on the ObamaCare Mandate is the same question of religious liberty that got steamrollered in Arizona and is again being attacked in the Hobby Lobby case. The principle being defended here isn’t Jim Crow or any other form of prejudice but the constitutionally protected right to religious freedom.

As Lowry pointed out:

It was jarring to read the coverage of the new “anti-gay bill” passed by the Arizona Legislature and then look up the text of the instantly notorious SB 1062. The bill was roughly 998 pages shorter than much of legislation that passes in Washington, so reading it didn’t take much of a commitment. Clocking in at barely two pages, it was easy to scan for disparaging references to homosexuality, for veiled references to homosexuality, for any references to homosexuality at all.

They weren’t there. A headline from The Week declared, “There is nothing Christian about Arizona’s anti-gay bill.” It would be more accurate to say that there was nothing anti-gay about Arizona’s anti-gay bill.

The legislation consisted of minor clarifications of the state’s Religious Freedom Restoration Act [RFRA], which has been on the books for 15 years and is modeled on the federal act that passed with big bipartisan majorities in the 1990s and was signed into law by President Bill Clinton.

If you’ll excuse a brief, boring break from the hysteria to dwell on the text of the doomed bill, it stipulated that the word “person” in the law applies to businesses and that the protections of the law apply whether or not the government is directly a party to a proceeding (e.g., a lawsuit brought on anti-discrimination grounds).

The reason that the law was so fiercely denounced was because it opened up the possibility that a business such as florist or a baker could use the state’s version of the federal FRFA in order to back up a refusal to take part in activity that might violate their religious beliefs such as a gay wedding. The legal distinction here is a fine one. No one disputes (or at least no one should) that businesses that are a public accommodation have no right to turn away customers on the basis of their race, religion, beliefs or, their sexual orientation. But commissioning someone to create a floral arrangement or display to celebrate something they oppose is not quite the same thing as merely showing up and asking to buy flowers or bread or to sit at a lunch counter. Where exactly the law comes down on such situations is a matter of debate. You might well argue that such vendors should just accept the business or lose it to competitors. But arguing that their personal beliefs should be ignored when someone demands they participate in events that, however sympathetic, violate their beliefs, is rightly considered a bridge too far for many civil libertarians.

What happened in Arizona was that the growing support for gay marriage was used to delegitimize anyone who sought to carve out some legal space for those disagreed on religious grounds and the affair snowballed into a national furor that drowned out opposing arguments. What Toobin and other liberals would like to see is the same process apply to Hobby Lobby and other religious believers who see the ObamaCare mandate as violating their liberty by painting them as opponents of women’s rights.

The conceit of the liberal argument is to brand as intolerant those who oppose forcing religious institutions or business owners to pay for abortion drugs or contraception for their employees under the mandate. According to Toobin and the administration, those who oppose the Mandate are seeking to impose their religious views on employees and to deny them necessary services. But this is false. No one is preventing anyone from obtaining access to birth control or even an abortion drug. What the owners of Hobby Lobby and the many other plaintiffs in these cases are seeking is to not be involved in the purchase of products and services they oppose. It is the government and its liberal cheerleaders who are seeking to impose their beliefs on religious believers, not the other way around. And, unless the U.S. Supreme Court stops them by ruling in favoring of Hobby Lobby, that is exactly what they will do. One doesn’t have to oppose abortion or contraception to understand that if the government can have its way in this case, no one’s rights are safe.

The problem liberals face in seeking to demonize persons of faith who oppose the ObamaCare Mandate is that, unlike Arizona’s SB1062, the public is already well aware of its intrusive nature and the assault on individual rights it represents. Opponents of RFRA were able to buy the Arizona bill under a mountain of obfuscation, innuendo and disinformation. Liberals should forget about being able to play the same game in defense of a position that seeks to restrict religious freedom for the sake of a vast expansion of government power that a majority of Americans already oppose.

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SCOTUS Gives Religious Freedom a Hearing

Finally, after three years of debate and litigation, the nation will get an answer. The Health and Human Services Department’s ObamaCare mandate that forces all employers to pay for abortion drugs has been challenged by religious believers in courts across the nation since the passage of the president’s signature health-care legislation in 2010. The federal district and appellate courts have handed down mixed verdicts with some saying that the owners of companies must pay for coverage of services that violate their religious beliefs and others holding that the Religious Freedom Restoration Act protects their rights to refrain from supporting acts that violate their conscience. But now that the Supreme Court of the United States has agreed to hear appeals of two such cases in which the appeals courts handed down contradictory rulings, the issue will be settled once and for all.

But more than just the fate of two companies–one an Oklahoma City-based crafts store chain owned by Catholics and the other a Pennsylvania custom furniture manufacturer owned by Mennonites–are at stake in the legal battle that will probably be decided next spring. If the HHS Mandate is overturned by the high court, it will mark a signal victory for religious liberty over the efforts of the Obama administration to keep faith off the public square and out of public life. Liberal defenders of the government say the owners of Hobby Lobby and Conestoga Wood Specialties Corporation are wrong to say their personal First Amendment right to religious freedom extends to their business. But the plaintiffs and their supporters rightly maintain that what HHS is doing is to strong-arm these business owners into compliance with ObamaCare via a rule that will force them to choose between their faith and the survival of their enterprises. If the HHS Mandate is upheld, it will create a new, cribbed definition of religious freedom that will effectively mean that faith is only something to be practiced in private.

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Finally, after three years of debate and litigation, the nation will get an answer. The Health and Human Services Department’s ObamaCare mandate that forces all employers to pay for abortion drugs has been challenged by religious believers in courts across the nation since the passage of the president’s signature health-care legislation in 2010. The federal district and appellate courts have handed down mixed verdicts with some saying that the owners of companies must pay for coverage of services that violate their religious beliefs and others holding that the Religious Freedom Restoration Act protects their rights to refrain from supporting acts that violate their conscience. But now that the Supreme Court of the United States has agreed to hear appeals of two such cases in which the appeals courts handed down contradictory rulings, the issue will be settled once and for all.

But more than just the fate of two companies–one an Oklahoma City-based crafts store chain owned by Catholics and the other a Pennsylvania custom furniture manufacturer owned by Mennonites–are at stake in the legal battle that will probably be decided next spring. If the HHS Mandate is overturned by the high court, it will mark a signal victory for religious liberty over the efforts of the Obama administration to keep faith off the public square and out of public life. Liberal defenders of the government say the owners of Hobby Lobby and Conestoga Wood Specialties Corporation are wrong to say their personal First Amendment right to religious freedom extends to their business. But the plaintiffs and their supporters rightly maintain that what HHS is doing is to strong-arm these business owners into compliance with ObamaCare via a rule that will force them to choose between their faith and the survival of their enterprises. If the HHS Mandate is upheld, it will create a new, cribbed definition of religious freedom that will effectively mean that faith is only something to be practiced in private.

Liberals are mocking the claim that these business owners have any rights to refuse to fund abortion drugs or even contraception. But the constitutional right to religious freedom is not just about the ability to choose which house of worship to attend or to say private prayers without government interference. Government has no right to tell individuals that they must fund practices that violate their conscience or faith.

Even more contemptible is the attempt by the government and its leftist cheering section to claim that these business owners are imposing their beliefs on their employees, an assertion made by the New York Times earlier this month when it lamented that an appeals court had upheld religious freedom in a related case. The company owners are not requiring their employees to believe as they do or to refrain from having abortions. But they are within their rights to say that if an employee wishes to have one, they should not look to their employers for a subsidy for that act. If the mandate is upheld, then it is not freedom of conscience that is being protected but instead a dubious right to free abortion pills or contraception that cannot be found in any fair reading of the Constitution. It is faith that is under siege in these cases, not abortion rights.

As Appeals Court Justice Janice Rogers Brown wrote in a related case, “The Framers of the Constitution embraced the philosophical insight that government coercion of moral agency is odious.” She went on to write that the mandate is a “compelled affirmation of a repugnant belief” and therefore an unconstitutional burden on free exercise of religion. The Supreme Court will therefore not be deciding the right to abortion or contraception but whether the government’s belief that employers must pay for such services can supersede an employer’s right to free exercise.

Though the fate of ObamaCare will not be decided in these cases, it must be understood that the legislation’s vision of government making decisions about health care practices and policies is integral to the mandate’s attempt to abrogate fundamental constitutional rights. As wrongheaded as Congress was to impose governmental fiats on health care in this manner, the government’s attempt to trample on the rights of religious believers in this fashion is even more offensive. One need not agree with conservative Christians on either abortion or contraception to understand that the underlying principle in this case is the protection of the religious liberty of all Americans. It is to be hoped that the hearing and the decision rendered by the Supreme Court will check the efforts of the federal government to impinge on religious liberty in the name of universal health care. 

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For ObamaCare’s Enemies, the Law

In my discussion recently of the scourge of bureaucratic lawmaking during the Obama administration, I’ve generally focused on federal agencies enacting rules that could not be passed by Congress, thus undermining the democratic process. But another important problem posed by the “rise of the fourth branch” of government, in Jonathan Turley’s phrase, is the treatment of duly passed legislation that simply empowers federal regulators without limiting them.

That’s not necessarily the fault of Congress, though it is a warning to those who seek to pass complex pieces of legislation. In the case of ObamaCare, it is simply the president who has decided that he has the power to suspend and postpone parts of the law at will, or else hand out waivers to favored constituencies. Though the beneficiaries of such governance seem obvious–the president and those who receive the favors they request from him–there is actually a third group whose members benefit greatly: the crafters of the law.

Conservatives often talk about the ill effects of moral hazards in politics. And the Hill reminded us over the weekend that the more complex the law, the more ad hoc its implementation, the more room for its interpretation, and the more troubled its legal groundwork, the more the crafters of the law stand to gain. The worse the governance, the better off its practitioners, at least in certain situations, will be. The members of Congress who voted for ObamaCare may not understand the law, but those who wrote it do–and are cashing in on the regulatory monstrosity:

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In my discussion recently of the scourge of bureaucratic lawmaking during the Obama administration, I’ve generally focused on federal agencies enacting rules that could not be passed by Congress, thus undermining the democratic process. But another important problem posed by the “rise of the fourth branch” of government, in Jonathan Turley’s phrase, is the treatment of duly passed legislation that simply empowers federal regulators without limiting them.

That’s not necessarily the fault of Congress, though it is a warning to those who seek to pass complex pieces of legislation. In the case of ObamaCare, it is simply the president who has decided that he has the power to suspend and postpone parts of the law at will, or else hand out waivers to favored constituencies. Though the beneficiaries of such governance seem obvious–the president and those who receive the favors they request from him–there is actually a third group whose members benefit greatly: the crafters of the law.

Conservatives often talk about the ill effects of moral hazards in politics. And the Hill reminded us over the weekend that the more complex the law, the more ad hoc its implementation, the more room for its interpretation, and the more troubled its legal groundwork, the more the crafters of the law stand to gain. The worse the governance, the better off its practitioners, at least in certain situations, will be. The members of Congress who voted for ObamaCare may not understand the law, but those who wrote it do–and are cashing in on the regulatory monstrosity:

ObamaCare has become big business for an elite network of Washington lobbyists and consultants who helped shape the law from the inside.
 
More than 30 former administration officials, lawmakers and congressional staffers who worked on the healthcare law have set up shop on K Street since 2010….

“Healthcare lobbying on K Street is as strong as it ever was, and it’s due to the fact that the Affordable Care Act seems to be ever-changing,” Adler said. “What’s at stake is huge. … Whenever there’s a lot of money at stake, there’s a lot of lobbying going on.”

The voracious need for lobbying help in dealing with ObamaCare has created a price premium for lobbyists who had first-hand experience in crafting or debating the law.
 
Experts say that those able to fetch the highest salaries have come from the Department of Health and Human Services (HHS) or committees with oversight power over healthcare.

The most telling quote in the story, and the one that explains why ObamaCare belongs in the discussion of unaccountable bureaucracy usurping congressional authority, is this:

“Congress is easy to watch,” said Tim LaPira, a politics professor at James Madison University who researches the government affairs industry, “but agencies are harder to watch because their actions are often opaque. This leads to a greater demand on K Street” for people who understand the fine print, he said.

The delays and postponements and waivers so far have made it pretty clear that the Obama administration finally understands just how harmful ObamaCare is, but this hasn’t troubled them so much because they don’t feel bound by the law. The administration is the law, with regard to ObamaCare.

What recourse do you have if you are not part of Obama’s favored constituencies to whom the law doesn’t apply? You have the courts. In a sign of how problematic ObamaCare really is, it appears headed back to the Supreme Court because of the law’s unconstitutional abridgement of religious freedom. As the Hill reported late last week:

ObamaCare’s birth control mandate is putting the president’s signature legislative issue on a fast track back to the Supreme Court. 



Lawyers on both sides of the issue say the high court will almost certainly have to rule on the controversial policy, possibly as early as its next term. 



Two federal appeals courts have come down with opposite rulings on an important question related to the policy: whether for-profit businesses and their owners have the right to challenge in court the requirement that businesses provide contraception as part of their insurance coverage.

As Jonathan wrote in June, the high-profile case of the Hobby Lobby, a chain of stores owned by religious Christians, won a key victory this summer, though there have been setbacks in other similar cases. But the Hill story points out just why the battle over the contraception mandate is so important:

“Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?” the 10th Circuit asked. “The kosher butcher, of course, might directly serve a religious community … But we see no reason why one must orient one’s business toward a religious community to preserve Free Exercise protections.”



The administration’s position, and that of some appeals courts, has been that the religious freedom of the owners of a corporate entity does not transfer to the company itself. That is, there is a separation between the business and its owners, and religious freedom applies to the latter. A company can’t pray, goes the simplistic logic.

Of course, the 10th Circuit judges had it right. The contraception case is important because it will set precedent on the issue, and will determine whether United States law considers religious practice a privilege, not a right, when it conflicts with the government’s agenda. In this way, it won’t be much different from the rest of ObamaCare’s arbitrary and corrupt implementation.

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A Victory For Religious Freedom

The decision last year by the U.S. Supreme Court to deem ObamaCare constitutional was a blow to opponents of the president’s signature health care legislation, but it also added to the worries of those Americans who considered it a threat to their religious freedom. In particular, the decision by the Health and Human Services Department to demand that employers provide certain types of health services placed those religious believers who opposed the use of abortion-inducing drugs in a difficult position. They could go along with the HHS mandate and thus betray their consciences and beliefs, or resist the ruling and face complete financial ruin due to the draconian penalties imposed on businesses that do not comply with the government’s rulings.

But with the aid of the Becket Fund for Religious Liberty, the Green family, which owns the Hobby Lobby chain of stores, sued to prevent the government from imposing the mandate on their business. Yesterday, the Greens won a key victory when the 10th Federal Circuit Court of Appeals overruled the district court and said Hobby Lobby should not have been denied an injunction that would have prevented the government from imposing millions in fines while the case was still pending. In doing so, the majority of the appellate court judges said the Greens had a good chance of prevailing on the merits of their case—Hobby Lobby v. Kathleen Sebelius—which claims that the Federal Religious Freedom Restoration Act ought to prevent HHS from imposing practices on the business that effectively deny the religious freedom of its owners. While the Hobby Lobby case still has a long way to go, this is an important win that not only holds out the possibility of eventual triumph for the plaintiffs but also removes a key weapon from the government that might have made it impossible for the suit to go on.

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The decision last year by the U.S. Supreme Court to deem ObamaCare constitutional was a blow to opponents of the president’s signature health care legislation, but it also added to the worries of those Americans who considered it a threat to their religious freedom. In particular, the decision by the Health and Human Services Department to demand that employers provide certain types of health services placed those religious believers who opposed the use of abortion-inducing drugs in a difficult position. They could go along with the HHS mandate and thus betray their consciences and beliefs, or resist the ruling and face complete financial ruin due to the draconian penalties imposed on businesses that do not comply with the government’s rulings.

But with the aid of the Becket Fund for Religious Liberty, the Green family, which owns the Hobby Lobby chain of stores, sued to prevent the government from imposing the mandate on their business. Yesterday, the Greens won a key victory when the 10th Federal Circuit Court of Appeals overruled the district court and said Hobby Lobby should not have been denied an injunction that would have prevented the government from imposing millions in fines while the case was still pending. In doing so, the majority of the appellate court judges said the Greens had a good chance of prevailing on the merits of their case—Hobby Lobby v. Kathleen Sebelius—which claims that the Federal Religious Freedom Restoration Act ought to prevent HHS from imposing practices on the business that effectively deny the religious freedom of its owners. While the Hobby Lobby case still has a long way to go, this is an important win that not only holds out the possibility of eventual triumph for the plaintiffs but also removes a key weapon from the government that might have made it impossible for the suit to go on.

When the HHS mandate was first handed down, the key battle was fought over the government’s desire to impose the contraceptive mandate on the institutions of the Catholic Church. While the administration was able to manipulate the discussion of this direct attack on religious freedom into one about a so-called “war on women,” eventually a campaign of public pressure led the government to back down on their desire to enforce the mandate on both churches and then church institutions. But that still left individual business owners who had strong religious convictions in the cross-hairs of the HHS mandate. The administration calculated that if it removed the church from the fight on the mandate, it would be able to easily defeat the efforts of people like the owners of Hobby Lobby to resist.

They may eventually prevail, but the decision of the 10th circuit gives hope to those who believe the willingness of the government to intrude on individual consciences in this manner is outrageous.

It should be specified that the owners of Hobby Lobby are not attempting to prevent their employees from having access to contraception. But making religious Catholics pay for abortion drugs crosses the line between reasonable insurance regulations and a concerted attack on religious liberty.

Liberal defenders of the HHS mandate have characterized resistance to the mandate as an attack on women’s health while claiming the regulation does not deny the store owners’ right to worship or to personally refrain from any practice that offends their religion. But if the government eventually prevails, it would impose a cribbed version of religious liberty that would significantly impair the First Amendment rights of believers.

The government and its defenders seem to believe that religious freedom means only the right to believe something and to practice it in private. If the HHS mandate were upheld, it would signal to the country that faith is fine at home or in houses of worship but not in the public square. Religious believers would be told that if they wish to practice their faith they must refrain from commerce or any public activity. Forcing the Greens to pay for abortion drugs is no different from telling them they must keep their stores open on Sunday (they are closed on that day due to the owners’ religious beliefs) or to require a Jew to keep his business running on the Sabbath or that they must serve non-kosher food at kosher restaurants.

It may be that the Greens’ views on these drugs are not universally held and may, in fact, be unpopular. But one needn’t agree with them on contraception in order to realize that an attack on their religious freedom is a blow to the liberty of every American no matter what their faith, or even if they believe in no religion. This preliminary win for Hobby Lobby and the Becket Fund is a hopeful sign for the future of American liberty.

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An Inadequate Contraception Compromise

Last year’s Supreme Court decision declaring ObamaCare constitutional ensured that the massive expansion of government power would go forward, but it did not remove all legal challenges to the legislation. Religious organizations rightly objected to the bill’s mandate that even those who objected on religious grounds had to pay for services that violated their beliefs. Opponents of the mandate were falsely portrayed last year as taking part in a Republican “war on women” that helped whip up support for President Obama and the Democrats. Yet Church groups and others who opposed being compelled to pay for abortion drugs and contraception services rejected those slurs and challenged the mandate in court with lawsuits that were proceeding with mixed success.

But after today, some of those suits will be dropped after the White House announced a limited retreat on the issue. According to reports, the administration will no longer insist that religious non-profits observe the mandate or be in any way made to pay for services that offend their consciences. This is very good news for church institutions that were not previously exempted. But it is by no means the end of the story. Under the revised rules, individual business owners—such as those who run the Hobby Lobby store chain—who similarly object on religious grounds, are still liable to ruinous penalties amounting to millions of dollars. This amounts to a cribbed definition of religious freedom that limits its expressions only to non-profits and houses of worship, but forces all others to bend to the dictates of the federal government even at the cost of their right to practice their faith.

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Last year’s Supreme Court decision declaring ObamaCare constitutional ensured that the massive expansion of government power would go forward, but it did not remove all legal challenges to the legislation. Religious organizations rightly objected to the bill’s mandate that even those who objected on religious grounds had to pay for services that violated their beliefs. Opponents of the mandate were falsely portrayed last year as taking part in a Republican “war on women” that helped whip up support for President Obama and the Democrats. Yet Church groups and others who opposed being compelled to pay for abortion drugs and contraception services rejected those slurs and challenged the mandate in court with lawsuits that were proceeding with mixed success.

But after today, some of those suits will be dropped after the White House announced a limited retreat on the issue. According to reports, the administration will no longer insist that religious non-profits observe the mandate or be in any way made to pay for services that offend their consciences. This is very good news for church institutions that were not previously exempted. But it is by no means the end of the story. Under the revised rules, individual business owners—such as those who run the Hobby Lobby store chain—who similarly object on religious grounds, are still liable to ruinous penalties amounting to millions of dollars. This amounts to a cribbed definition of religious freedom that limits its expressions only to non-profits and houses of worship, but forces all others to bend to the dictates of the federal government even at the cost of their right to practice their faith.

It needs to be restated that one needn’t share the views of the Catholic Church about contraception or abortion to understand that what is at stake here is a principle of religious freedom that ought not to be sacrificed. The notion of universal and free contraception insurance coverage may be popular and even desirable for those who have no qualms about the government’s intrusion into this sphere of the economy or the consequent ruinous costs to both the taxpayers and the healthcare system. But however much the idea of free contraception appeals to some people, it is not a constitutional right. Nor is it a value that ought to trump the primary guarantees of the First Amendment that protect liberty of faith.

The White House retreat on the issue to the extent of exempting church institutions including schools is a sign of progress. It’s also intended to separate the church from individual believers whose rights will not be protected by this compromise. The church has been wrongly portrayed as trying to thwart the availability of contraception even though it is doing no such thing. The point of the administration’s campaign on this issue was not, as they claimed, to protect the health of women but to demonize those who stood up for their rights. But however much this retreat will be welcomed, it should not cause those who have fought this mandate to back down from their efforts to ensure that all believers and not just those registered as non-profits are allowed to opt out of a system that tramples on their faith.

At the core of this struggle is the question of whether a government that has given itself more power has the right to run roughshod over the First Amendment in order to satisfy the liberal ambition to move toward a national health care system. Religious freedom does not consist merely of the right to preach in churches or synagogues, but in allowing those who believe to fully participate in society. If the mandate tramples faith by individuals in this manner, it means that faith is no longer welcome in the public square but instead must be segregated and confined to houses of worship. Though the church is happily no longer in peril of such compulsion, others remain in the government’s cross hairs. Their challenge should continue and be rewarded with success in the courts.

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Sotomayor’s Blow to Religious Liberty

Chief Justice John Roberts’s decision to uphold the constitutionality of ObamaCare ended the discussion about the president’s signature health care legislation as far as most of the media was concerned. But for Americans whose rights have been infringed by the bill’s mandate requiring business owners to pay for services that violate their religious beliefs, the issue remains a matter of vital concern. On January 1 the penalties associated with that mandate went into effect and the battle in the courts to head off this grievous infringement of religious liberty is meeting with mixed success.

One federal judge blocked the enforcement of the mandate in a lawsuit brought by the founder of Domino’s Pizza, saying the legislation “substantially burdens the exercise of religion.” In doing so, the court prevented the government from levying massive fines on Thomas Monaghan’s property management firm while his challenge to the constitutionality of the provision proceeds through the courts. That ruling comes in the wake of decisions from federal appeals courts in St. Louis and Chicago that stopped the Department of Health and Human Services from punishing those who are fighting the mandate to pay for contraception and abortion drugs. But in a signal defeat for the cause of freedom, U.S. Supreme Court Justice Sonia Sotomayor turned down a similar request from the owners of Hobby Lobby stores and a Christian book store firm. That means these companies will be subjected to millions of dollars in fines for violating the law even though they claim it is a matter of conscience.

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Chief Justice John Roberts’s decision to uphold the constitutionality of ObamaCare ended the discussion about the president’s signature health care legislation as far as most of the media was concerned. But for Americans whose rights have been infringed by the bill’s mandate requiring business owners to pay for services that violate their religious beliefs, the issue remains a matter of vital concern. On January 1 the penalties associated with that mandate went into effect and the battle in the courts to head off this grievous infringement of religious liberty is meeting with mixed success.

One federal judge blocked the enforcement of the mandate in a lawsuit brought by the founder of Domino’s Pizza, saying the legislation “substantially burdens the exercise of religion.” In doing so, the court prevented the government from levying massive fines on Thomas Monaghan’s property management firm while his challenge to the constitutionality of the provision proceeds through the courts. That ruling comes in the wake of decisions from federal appeals courts in St. Louis and Chicago that stopped the Department of Health and Human Services from punishing those who are fighting the mandate to pay for contraception and abortion drugs. But in a signal defeat for the cause of freedom, U.S. Supreme Court Justice Sonia Sotomayor turned down a similar request from the owners of Hobby Lobby stores and a Christian book store firm. That means these companies will be subjected to millions of dollars in fines for violating the law even though they claim it is a matter of conscience.

At stake in this battle is whether the Religous Freedom Restoration Act passed by Congress will prevent the government from compelling Catholics and others to violate the dictates of their faith. On the face of it, they have a strong case for striking this provision down, but the full power of the Justice Department and its army of lawyers who have the enthusiastic support of pro-abortion grops and much of the liberal mainstream media are arrayed against them. That’s why persons of faith who seek to overturn the law have always faced an uphill battle.

Sotomayor’s decision illustrates just how difficult that task may turn out to be. Even if the owners of Hobby Lobby eventually prevail in court and their rights are upheld, a vengeful Obama administration determined to make an example of anyone who crosses them could have already destroyed their business. By sinking them under the weight of fines, the government could drive them out of business before any final decision is handed down.

One needn’t agree with the religious beliefs of the Hobby Lobby owners, or those other individuals who have brought dozens of lawsuits in various federal courts to stop the mandate, in order to see the value of the principle they are attempting to uphold. Nor need one agree with them about abortion or share their qualms about the morality of contraception. The point here is that if ObamaCare is allowed to give the government the power to render Catholic doctrine beyond the pale in this manner, then no one’s faith is safe.

Sotomayor could have ruled in the same manner as some of the appellate panels have already done and simply held off any punishment of the petitioners until the courts decided the case. But in claiming that the rationale for their request was insubstantial, the Obama appointee signaled that she and other liberals view the question of religious freedom as irrelevant to their quest to impose their diktat of universal coverage for contraception and abortion. While Justice Roberts strove to have the courts rise above partisan politics by refusing to let the court stop ObamaCare despite the fact that it violated the Commerce Clause of the Constitution, Sotomayor did not scruple from acting in a manner that seeks to ensure that the president will get his way on this issue one way or the other.

Should Hobby Lobby, Monaghan and other religious believers lose, the result will be a new, more cribbed definition of religious liberty that will bear little resemblance to the sweeping freedom promised in the First Amendment. Though some business owners may falter along the way toward the final resolution of these cases, it is to be hoped that in the end, the Supreme Court will not let this outrageous attack on the Constitution prevail.

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