Commentary Magazine


Topic: religious liberty

Separationists Run Amok in Milwaukee

Americans are rightly afraid of radical Islamists who seek to subjugate, behead, and enslave non-believers in the Middle East in the name of their faith. Ours, however, is a country where religious freedom is at the core of our identity as a nation. But many of us are so obsessed with separating religion from the state that we are prepared to go to any lengths to make it harder for individuals to practice their beliefs even when doing so threatens neither our liberties nor interferes with the rights of others. A classic example of this separationism run amok is to be found in Milwaukee where, of all things, the Jewish Federation supported the effort to prevent Jewish students at a local public high school from erecting a sukkah where they hoped to eat their lunch so as to comply with religious law about observance of the Feast of Tabernacles. In doing so, these liberal extremists taught us a lesson about how fear of religion can be almost as destructive of liberty as religious extremism.

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Americans are rightly afraid of radical Islamists who seek to subjugate, behead, and enslave non-believers in the Middle East in the name of their faith. Ours, however, is a country where religious freedom is at the core of our identity as a nation. But many of us are so obsessed with separating religion from the state that we are prepared to go to any lengths to make it harder for individuals to practice their beliefs even when doing so threatens neither our liberties nor interferes with the rights of others. A classic example of this separationism run amok is to be found in Milwaukee where, of all things, the Jewish Federation supported the effort to prevent Jewish students at a local public high school from erecting a sukkah where they hoped to eat their lunch so as to comply with religious law about observance of the Feast of Tabernacles. In doing so, these liberal extremists taught us a lesson about how fear of religion can be almost as destructive of liberty as religious extremism.

The eight-day festival of Sukkot is one in which Jews are instructed by the Torah to eat their meals in temporary huts called sukkahs in commemoration of those used by their ancestors wandering in the desert after the Exodus from Egypt. Such small structures are, as Tablet magazine points out in their piece about this story, to be found at the corporate headquarters of Google as well as at places like the Massachusetts Institute of Technology. But the small Sukkah erected at Milwaukee’s Nicolet High School that had existed in previous years was forced off campus in no small measure because the local Jewish Federation’s Community Relations Council considered it a violation of the separation between church and state.

The reasoning behind this seeming example of cognitive dissonance is that liberal true believers see any accommodation of belief on public property or in a public education setting as the thin edge of the wedge of theocracy. To their thinking, the mythical wall of separation must be erected so high that government institutions should exhibit no hint of faith. While the Founding Fathers intended the First Amendment to ensure that there would never be a state religion in the United States, modern-day liberals have distorted this sensible restriction. Instead of the constitutional prohibition of government favoring one religion over another, contemporary liberals have sought to redefine the Constitution as being hostile to the expression of religious faith in public settings.

This misguided sentiment stems from some real concerns that were dealt with in the past. State-run schools ought not to be promoting religion in the classroom as they used to do, especially when that usually was done at the expense of marginalizing religious minorities. But that justified opposition to state prayers at schools has morphed into an obsessive desire to ban Christmas trees or carols. Rather than seek to ban discrimination against their faith, many liberal Jews wish to marginalize all faiths, a divisive effort that undermines the good communal relations they purport to support as well as creating a naked public square with respect to faith that does far more harm than good. Their fear of faith leads them to invent restrictions against its expression instead of protecting religious freedom.

That is the twisted logic that led the Milwaukee Federation to push for the elimination of the Jewish students’ inoffensive sukkah.

That a group that pretends to represent all Jews would seek to prevent Jews from practicing their faith is more than ironic. It is a travesty. That travesty is only exacerbated when the person responsible for this outrage happens to be Hannah Rosenthal, whose last job before joining the federation was as the Obama State Department’s Special Envoy to Monitor and Combat Anti-Semitism. Rosenthal was the person that Americans would have looked to for leadership and outrage were sukkahs banned by some foreign government. But instead of being an advocate for more religious freedom, in her new guise as communal leader Rosenthal has adopted the liberal separationist faith as her new Torah and led the charge to expunge even the most harmless expression of Jewish practice at a local high school.

Sadly, one Jewish student interviewed by the Milwaukee Journal Sentinel said she felt “a little awkward” because if Christians “put up a Christmas tree or a crèche, we’d feel uncomfortable with that, so why put up a sukkah?”

That, in a nutshell, tells you not only what’s wrong with separationism but also with a Jewish community that is raising its children to fear other religions and to “feel awkward” when they see other Jews practicing their faith in a manner that does no harm to others.

This is, in part, a legacy of a past in which Jews did feel threatened and marginalized by the majority. But at a time when Jews are free to not only express their identity in any place or profession in the United States but to actually practice their faith unhindered by prejudice, such attitudes are not only outdated; they are highly destructive.

The problem here is that liberal Jews fear conservative Christians far more than they do ISIS, Hamas, Hezbollah, or the Taliban (as Tablet points out, it is unlikely that the federation would have opposed accommodations of Muslim practices). And they are so paranoid about it that they are ready to restrict examples of Jewish faith in the public square in order to forestall any manifestation of Christian faith there.

Hard as it may be for many liberal Jews to accept, Christians don’t threaten Jewish life in this country. But such extreme separationism is a symptom of the indifference to faith and Jewish identity that has created the demographic disaster that does threaten the Jewish future in the U.S. that was revealed by last year’s Portrait of Jewish Americans produced by the Pew Research Center. While some may have hoped that Jewish Federations would provide the leadership to help the community respond to the survey’s results, we find in Milwaukee that they are part of the problem, not the solution.

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Islamic State’s Reality Check on Dhimmitude

Dhimmi are non-Muslim citizens of an Islamic state who are allowed to remain in exchange for paying the jizyah, a tax imposed on non-Muslims. As the Prophet Muhammad conquered a new empire, large numbers of Christians, Jews, and others found themselves living under the Islamic Empire’s rule, subject to the jizyah and the limitations of dhimmi status.

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Dhimmi are non-Muslim citizens of an Islamic state who are allowed to remain in exchange for paying the jizyah, a tax imposed on non-Muslims. As the Prophet Muhammad conquered a new empire, large numbers of Christians, Jews, and others found themselves living under the Islamic Empire’s rule, subject to the jizyah and the limitations of dhimmi status.

Fast forward almost 1,400 years: Academics today who cover Islamic civilizations and history almost uniformly teach that early Islamic rule was enlightened. If they cover the jizyah and “dhimmitude” at all, they are soft-pedaled. Rather than conquer by the sword, most residents of those areas brought into the Islamic Empire joined voluntarily, it is said.

Certainly, a few authors have taken on the notion of dhimmitude and the whitewashed narrative peddled in Islamic studies courses and texts. Egyptian-born British writer Gisèle Littman, for example, writing under the pseudonym Bat Ye’or, penned Islam and Dhimmitude back in 2001, providing a precise and critically acclaimed study of the subjugation of Jews and Christians in Islamic lands. Likewise, Andrew Bostom’s The Legacy of Jihad provides crucial context and fills out the historical record by including non-Arabic sources which describe subjugation from the point of view of those suffering under Islamic domination. Nevertheless, Bat Ye’or and Bostom remain rare on university syllabuses in courses taught by professors who prefer not to challenge the dominant narrative. Others prefer to seize upon controversial or careless remarks by those focused on the treatment of religious minorities in Islamic history to disqualify the author’s entire body of work. Critics do this deliberately when they cannot counter effectively the historical facts cited or sources revealed.

Perhaps if there’s any silver lining to events in Mosul, where the self-appointed caliph of the Islamic State, Abubakr al-Baghdadi, has demanded Christians pay the jizyah, convert, or die, it will be to force scholars to rethink the benevolent narrative which they often embrace of early Islamic conversions and successive caliphates and Islamic empires’ treatment of minorities. There is nothing benevolent, enlightened, or non-violent about denial of religious freedom or liberty, nor is forcing religious minorities into second-class status on the basis of their faith ever anything other than oppression, plain and simple.

It would be wrong to castigate the Islamic empire and reign of Muhammad, his successor rashidun caliphs, or the Umayyad and early Abbasid dynasties completely. But it is as wrong to whitewash them. Perhaps it is time for a little less hagiography toward Islamic history in American and European institutions, and a little more common sense.

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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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Religious Freedom Should Be Foreign-Policy Priority

Reports from Western China suggest that the Chinese government has demanded the local Muslim population cease fasting during Ramadan. While the New York Times’s Tom Friedman and other columnists may sing the Chinese dictatorship’s praises, little marks tyranny as much as repression of religious freedom. China takes it to a new level when they demand people eat who otherwise have refrained from eating during the day. Government overreach is pretty clear when it seeks to dictate when to eat and when not to.

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Reports from Western China suggest that the Chinese government has demanded the local Muslim population cease fasting during Ramadan. While the New York Times’s Tom Friedman and other columnists may sing the Chinese dictatorship’s praises, little marks tyranny as much as repression of religious freedom. China takes it to a new level when they demand people eat who otherwise have refrained from eating during the day. Government overreach is pretty clear when it seeks to dictate when to eat and when not to.

Too often diplomats whitewash adversaries in order to make diplomacy easier. Easier diplomacy, however, isn’t necessarily more effective, especially if it does not reflect reality. It never makes sense to gear U.S. policy to what diplomats wish an adversary would be rather than what it actually is. Realism shouldn’t mean blind diplomacy with enemies; it should instead require dealing with reality.

While religious freedom may not seem a paramount U.S. national-security interest at first glance, it is perhaps the greatest window into the character and sincerity of any regime. The purpose of diplomacy is to change behavior. Governments can easily promise concessions on nuclear weapons, other conventional weaponry, ballistic missile programs, or terrorism. Often they lie, knowing American diplomats would rather cover for their lies than risk talks collapsing. A close study of diplomacy with rogues and adversaries suggest that respect for religious freedom can be correlated directly to those states’ and groups’ willingness to adhere to their other negotiated agreements.

Religious freedom, however, is easy to monitor. It may not substitute for other issues of more immediate national-security concern, but it is a barometer of sincerity and a metric for more substantive change among the states which most often threaten international order. Perhaps if religious freedom and individual liberty are to remain part of the American brand, no U.S. administration or American diplomat should be shy about standing up for either.

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Brendan Eich, the Culture Wars, and the Ground Shifting Beneath Our Feet

Last month, Ross Douthat used his New York Times column to talk about how opponents of same-sex marriage (like himself) were attempting to negotiate the terms of surrender. “We are not really having an argument about same-sex marriage anymore, and on the evidence of Arizona, we’re not having a negotiation,” he wrote. “Instead, all that’s left is the timing of the final victory — and for the defeated to find out what settlement the victors will impose.”

Yesterday was the clearest indication that, in fact, such surrender is futile: it will not be accepted. The CEO of Mozilla (the company that makes the Firefox browser), Brendan Eich, was forced to resign by an angry mob both within and without the company because six years ago he donated $1,000 to California’s Prop 8 ballot initiative reaffirming traditional marriage. The most disturbing part of this disturbing story was the fact that the company chairwoman explained the decision by saying Eich never displayed any behavior that would be objectionable to anyone. He simply held the wrong political opinion. As Jonathan Last noted, this is pretty much the definition of prosecution for a thoughtcrime.

There are a few important implications of this story, though I’d like to offer the most encouraging one first: the pushback from supporters of gay marriage. Andrew Sullivan, who has been quoted or linked to by just about everyone on this story, was thoroughly disgusted by “the hounding of a heretic.” Slate’s William Saletan confronted the left with what the logical end of this purge would look like. He seems to think they’d be disgusted by it, which is probably wishful thinking. Sullivan notes that such behavior is bad for the gay-rights movement. It’s reminiscent of the scene in Caleb Crain’s novel of post-Cold War Prague in which the American protagonist is introduced to an East German who was anti-Communist until the Berlin Wall fell, and then, implausibly, switched sides:

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Last month, Ross Douthat used his New York Times column to talk about how opponents of same-sex marriage (like himself) were attempting to negotiate the terms of surrender. “We are not really having an argument about same-sex marriage anymore, and on the evidence of Arizona, we’re not having a negotiation,” he wrote. “Instead, all that’s left is the timing of the final victory — and for the defeated to find out what settlement the victors will impose.”

Yesterday was the clearest indication that, in fact, such surrender is futile: it will not be accepted. The CEO of Mozilla (the company that makes the Firefox browser), Brendan Eich, was forced to resign by an angry mob both within and without the company because six years ago he donated $1,000 to California’s Prop 8 ballot initiative reaffirming traditional marriage. The most disturbing part of this disturbing story was the fact that the company chairwoman explained the decision by saying Eich never displayed any behavior that would be objectionable to anyone. He simply held the wrong political opinion. As Jonathan Last noted, this is pretty much the definition of prosecution for a thoughtcrime.

There are a few important implications of this story, though I’d like to offer the most encouraging one first: the pushback from supporters of gay marriage. Andrew Sullivan, who has been quoted or linked to by just about everyone on this story, was thoroughly disgusted by “the hounding of a heretic.” Slate’s William Saletan confronted the left with what the logical end of this purge would look like. He seems to think they’d be disgusted by it, which is probably wishful thinking. Sullivan notes that such behavior is bad for the gay-rights movement. It’s reminiscent of the scene in Caleb Crain’s novel of post-Cold War Prague in which the American protagonist is introduced to an East German who was anti-Communist until the Berlin Wall fell, and then, implausibly, switched sides:

“In reality I had no choice. So many horrible people were becoming anti-Communist that day. It was an opportunity for them. They were my–what is the word? In Czech they are called korouhvicky.”

“Weathervanes,” Rafe supplied.

“They were my weathervanes,” Kaspar continued. “If they were willing to betray Communism, there was something in the idea after all.”

What has always been so inexplicable about the marriage-equality movement is that its adherents have some strong arguments–libertarian, cultural, among others–in their favor, yet they don’t deploy them. They deploy the pitchforks and torches instead. Which brings us to the second implication of the Mozilla purge: religious liberty protections must be strengthened and codified wherever and whenever possible.

Religious Americans and others in favor of natural rights should not be complacent when a specific battle on this front is fought that doesn’t involve them, because the ground is continually shifting beneath our feet. Catholics should not be the only ones opposing the Obama administration’s contraception mandate, and opponents of gay marriage should not be the only ones up in arms about the forced baking of goods for wedding ceremonies. Precedents fuel the pitchforks here. Erick Erickson likes to say that “you will be made to care.” He is unquestionably correct about that.

The other implication has to do with the intended effect of such sickening purges: chilling the participation, especially of outnumbered minorities, in the political process. Yesterday I wrote about Charles Koch’s op-ed in the Wall Street Journal defending himself from deranged attacks from the left generally and Senate Democrats specifically. No one pities the billionaire, I wrote, and so the left was outraged Koch would dare speak up for himself.

But forget about the Kochs for a moment. Forget, too, about the left’s major donors like Tom Steyer, who plans to spend $100 million in congressional midterm elections in support of Democrats. What about the guy who donated $1,000 to a state ballot initiative six years ago? Should he lose his job somewhere down the line because public opinion has shifted against an old ballot initiative? To the left, the answer is: Absolutely.

This is part of why conservatives have been leery about the Democrats’ proposals to force disclosure of the kind of donors who give to Republicans (while exempting many of their own major donors). The left claims it wants full disclosure of political participation in the name of transparency and electoral integrity. We now know this isn’t remotely true. They want disclosure so they can extend the purge of heretics from private life and thus deter libertarian and conservative political participation. They want a permanent record of everyone’s political opinions to use against them at any time in the future. This is about disenfranchisement and blacklisting and nothing more. That should have been apparent before, but it’s crystal clear now.

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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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Are Animal-Rights Activists Really Concerned About Animals?

Tom Wilson and Ben Cohen have already written on these pages about how European liberals, supposedly in the name of animal rights, are banning kosher (and halal) slaughter. In such cases, concern for animal rights seems to be a rather thin veneer for other political objectives that have far more to do with intolerant ideologies than they do with protecting animals.

In the United States, animal-rights activism has found other pet causes but, at its core, activists seem less interested in protecting animals than in broader political agendas.

People for the Ethical Treatment of Animals (PETA), a group that kills more animals in the name of rescue than some slaughterhouses do in the name of food, has decided to target the circus for the sin of utilizing animals in entertainment. “Animals aren’t actors, spectacles to imprison and gawk at, or circus clowns,” the organization’s website declares. “Yet thousands of these animals are forced to perform silly, confusing tricks under the threat of physical punishment; are carted across the country in cramped and stuffy boxcars or semi-truck trailers; are kept chained or caged in barren, boring, and filthy enclosures; and are separated from their families and friends—all for the sake of human ‘entertainment.’”

What’s wrong with entertainment? And if that entertainment actually teaches children about animals, why is that bad? NYCLASS, another self-described animal-rights organization which has been leading the charge to ban horse-drawn carriages in New York City, has also recently stepped up its efforts to ban Ringling Bros. and Barnum & Bailey Circus from New York City. Much of the accusation of animal cruelty–especially toward elephants–is nonsense, and criminal nonsense at that.

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Tom Wilson and Ben Cohen have already written on these pages about how European liberals, supposedly in the name of animal rights, are banning kosher (and halal) slaughter. In such cases, concern for animal rights seems to be a rather thin veneer for other political objectives that have far more to do with intolerant ideologies than they do with protecting animals.

In the United States, animal-rights activism has found other pet causes but, at its core, activists seem less interested in protecting animals than in broader political agendas.

People for the Ethical Treatment of Animals (PETA), a group that kills more animals in the name of rescue than some slaughterhouses do in the name of food, has decided to target the circus for the sin of utilizing animals in entertainment. “Animals aren’t actors, spectacles to imprison and gawk at, or circus clowns,” the organization’s website declares. “Yet thousands of these animals are forced to perform silly, confusing tricks under the threat of physical punishment; are carted across the country in cramped and stuffy boxcars or semi-truck trailers; are kept chained or caged in barren, boring, and filthy enclosures; and are separated from their families and friends—all for the sake of human ‘entertainment.’”

What’s wrong with entertainment? And if that entertainment actually teaches children about animals, why is that bad? NYCLASS, another self-described animal-rights organization which has been leading the charge to ban horse-drawn carriages in New York City, has also recently stepped up its efforts to ban Ringling Bros. and Barnum & Bailey Circus from New York City. Much of the accusation of animal cruelty–especially toward elephants–is nonsense, and criminal nonsense at that.

Ringling Bros. and Barnum & Bailey Circus probably does more for elephants than any other American organization, entertainment or otherwise. Barnum & Bailey sponsors a 200-acre Center for Elephant Conservation which helps protect and treat elephants. Indeed, it has become the most successful breeding program in the Western hemisphere.

Feld Entertainment, a family-owned business which owns the circus, names the elephants after company CEO Kenneth Feld’s family members. Bonnie the elephant, for example, is named for Bonnie Feld; Nicole, Alana, and Juliette—three daughters active in the business—all have elephants named after them. Feld has also named elephants after Irvin, his father, and Shirley, his late aunt. When new elephants are born, Feld sends out birth announcements, hardly the move of a company that doesn’t prioritize the well-being of its elephants.

Do the circus elephants do tricks and entertain? Sure. But what self-described animal-rights activists don’t mention is that when elephants retire or are removed from the circus, they often become bored and depressed. At the circus, they are healthy and stimulated. Asian elephants have been a working animal for thousands of years. What animal-rights activists want to impose is as unnatural as demanding that humans no longer partner with dogs. To send elephants back to Asia—or to not have removed them in the first place—is also counterproductive given poaching and the danger of extinction in their native habitat.

When and where abuses occur (and having seen zoos in the Middle East, they do occur), it is important to take a stand. But bored liberals or rapacious charities often manufacture grievance in order to justify their continued operation. The circus may have become a useful rallying cry for activists to throw their weight around and try to impose their values and political agenda on others. Whether one cares about the circus or not, it’s important to take a stand because—if politicians and others take the activists at their word—they not only undercut the animals’ actual welfare but they embolden political activists to increase their demands, a slippery slope that ultimately will bear results as in Europe, where animal-rights activists infringe on fundamental rights, individual choice and, ultimately, religious liberty.

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The U.N.’s War on Religious Liberty

The United Nations Committee on the Rights of the Child didn’t break any new ground when it issued a report criticizing the Catholic Church for the sexual abuse scandal in which priests were found to have abused large numbers of children while the church hierarchy protected the priests. The egregious nature of the scandal has been amply documented, as has the church’s shameful record in responding to the accusations. While it can be argued, as the UN Committee did, that more can be done, the fact is the church has already paid a terrible price both in terms of its reputation and the drain on its wealth because of the legal restitution it has paid to survivors. As investigations of these crimes continue, that price is likely to go higher and it is to be hoped that Pope Francis will ensure that the institution he leads will make good on its promises to create the necessary safeguards to make certain that the church will never again turn a blind eye to the victimization of children entrusted to its care.

But while the UN Committee was justified in speaking of the church’s past sins, the world body did not content itself with harsh rhetoric about the sexual abuse scandal. It went further, denouncing the Vatican for a number of its religious doctrines. As the New York Times reports:

The report, issued in Geneva, addressed issues far beyond child sexual abuse, taking the Vatican to task for its opposition to contraception, homosexuality and abortion in cases of child rape and incest. The committee even suggested that the church amend its canon laws to permit abortions for pregnant girls whose lives and health are at risk.

The views of the UN committee may represent the views of many associated with the world body and, indeed, perhaps, of the majority of Americans. But for a United Nations agency to demand that one of the world’s great religions change its beliefs in this manner is outrageous. The “suggestions” of the UN not only have nothing to do with the sexual abuse scandal, they represent a symptom of the contempt for religious freedom that is increasingly popular among global liberal elites, including some in the United States.

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The United Nations Committee on the Rights of the Child didn’t break any new ground when it issued a report criticizing the Catholic Church for the sexual abuse scandal in which priests were found to have abused large numbers of children while the church hierarchy protected the priests. The egregious nature of the scandal has been amply documented, as has the church’s shameful record in responding to the accusations. While it can be argued, as the UN Committee did, that more can be done, the fact is the church has already paid a terrible price both in terms of its reputation and the drain on its wealth because of the legal restitution it has paid to survivors. As investigations of these crimes continue, that price is likely to go higher and it is to be hoped that Pope Francis will ensure that the institution he leads will make good on its promises to create the necessary safeguards to make certain that the church will never again turn a blind eye to the victimization of children entrusted to its care.

But while the UN Committee was justified in speaking of the church’s past sins, the world body did not content itself with harsh rhetoric about the sexual abuse scandal. It went further, denouncing the Vatican for a number of its religious doctrines. As the New York Times reports:

The report, issued in Geneva, addressed issues far beyond child sexual abuse, taking the Vatican to task for its opposition to contraception, homosexuality and abortion in cases of child rape and incest. The committee even suggested that the church amend its canon laws to permit abortions for pregnant girls whose lives and health are at risk.

The views of the UN committee may represent the views of many associated with the world body and, indeed, perhaps, of the majority of Americans. But for a United Nations agency to demand that one of the world’s great religions change its beliefs in this manner is outrageous. The “suggestions” of the UN not only have nothing to do with the sexual abuse scandal, they represent a symptom of the contempt for religious freedom that is increasingly popular among global liberal elites, including some in the United States.

It is important to note that none of these beliefs has anything to do with the abuse of children or the toleration of sexual predators. The crimes of which some priests were accused were entirely unrelated to Catholic doctrine and, it must be emphasized, constituted a gross violation of the church’s beliefs. To imply anything to the contrary is a terrible libel that should be retracted.

One need not share the church’s views on homosexuality, contraception, or abortion to understand that when governments or world bodies such as the United Nations venture into the realm of what faiths may or may not practice or preach, it constitutes a mortal threat to religious liberty. Here in the United States we have seen a conflict over the Obama administration’s efforts to impose a mandate forcing religious institutions and their adherents to pay for services that offend their faith. If upheld by the courts, that ObamaCare mandate would constitute an intolerable infringement on the First Amendment rights of religious freedom from government intrusion.

But what the UN Committee on the Rights of the Child has done here is to suggest that the beliefs of the Catholic Church on social issues somehow fall outside of the pale of the civilized world. One doesn’t have to delve too deeply into Europe’s dark history of religious persecution to see what happens when unpopular beliefs are branded in this manner. Just as Catholics are now advised what they may or may not believe about these issues, Jews are being told by some of the same liberal elites in Europe that religious practices such as circumcision or kosher slaughter may likewise be prohibited by law. Despite the fact that those issuing these pronouncements claim they are doing so in the name of the rights of children or some other seemingly laudable cause, such efforts are a well-worn shortcut to tyranny and the abrogation of religious liberty.

The church should unequivocally reject the UN Committee’s pronouncements about faith. So, too, should everyone who values and wishes to preserve freedom of religion for all people. 

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Religious Liberty Triumphs Over OCare

The Obama administration’s effort to force religious organizations and employers to pay for services that violate their beliefs largely provided the basis for the presidential reelection campaign’s faux “war on women” talking point. As such, it must be considered a success as it turned a debate on the constitutionality of the ObamaCare mandate forcing all employers to pay for contraception and abortion drugs into one about the supposed indifference to the rights of women on the part of conservatives. But the legal battle over the fate of the Health and Human Services Department mandate in the courts is not going quite so well for the president. Yesterday, the administration received its sternest judicial rebuke yet as the Federal District Court in Brooklyn, New York granted a permanent injunction against the enforcement of the mandate against four nonprofits operated by the Catholic Diocese of New York. As the New York Times reports:

The ruling, by Brian M. Cogan of Federal District Court in Brooklyn, found that forcing the groups to authorize a third party to provide contraceptive care still violated their religious beliefs even if they were not financially supporting contraception. Churches are already exempt from the mandate to provide contraceptive care.

This is just one of the 88 cases that have been brought against the government by those rightly citing the mandate as a violation of their constitutional rights. But this is the first time the plaintiffs have received a permanent injunction that prevents the government from either enforcing the provision or levying crippling fines against violators. The U.S. Supreme Court will eventually settle this question. But until that happens lower courts still have the ability to bring down financial ruin upon dissenters against the mandate. Though liberals have attempted to spin this issue as one in which church-run agencies (in this case, two high schools and two health-care systems) or private employers are imposing their beliefs on their employees, in fact it is the government that is forcing believers and faith-based institutions to violate their beliefs. The victory in Brooklyn, like other triumphs for the mandate critics in other courts, is one more indication that the legal tide may be turning against a liberal effort to prioritize a vision of national health care over the First Amendment.

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The Obama administration’s effort to force religious organizations and employers to pay for services that violate their beliefs largely provided the basis for the presidential reelection campaign’s faux “war on women” talking point. As such, it must be considered a success as it turned a debate on the constitutionality of the ObamaCare mandate forcing all employers to pay for contraception and abortion drugs into one about the supposed indifference to the rights of women on the part of conservatives. But the legal battle over the fate of the Health and Human Services Department mandate in the courts is not going quite so well for the president. Yesterday, the administration received its sternest judicial rebuke yet as the Federal District Court in Brooklyn, New York granted a permanent injunction against the enforcement of the mandate against four nonprofits operated by the Catholic Diocese of New York. As the New York Times reports:

The ruling, by Brian M. Cogan of Federal District Court in Brooklyn, found that forcing the groups to authorize a third party to provide contraceptive care still violated their religious beliefs even if they were not financially supporting contraception. Churches are already exempt from the mandate to provide contraceptive care.

This is just one of the 88 cases that have been brought against the government by those rightly citing the mandate as a violation of their constitutional rights. But this is the first time the plaintiffs have received a permanent injunction that prevents the government from either enforcing the provision or levying crippling fines against violators. The U.S. Supreme Court will eventually settle this question. But until that happens lower courts still have the ability to bring down financial ruin upon dissenters against the mandate. Though liberals have attempted to spin this issue as one in which church-run agencies (in this case, two high schools and two health-care systems) or private employers are imposing their beliefs on their employees, in fact it is the government that is forcing believers and faith-based institutions to violate their beliefs. The victory in Brooklyn, like other triumphs for the mandate critics in other courts, is one more indication that the legal tide may be turning against a liberal effort to prioritize a vision of national health care over the First Amendment.

It bears repeating that one needn’t share the Catholic beliefs about contraception or abortion put forward by the church or other believers (such as the owners of the Hobby Lobby chain of stores that will have their appeal of the mandate heard by the Supreme Court) to realize that what is at stake in these cases is nothing less than the future of religious freedom in this country.

Neither the church nor private businesses are preventing their employees from using contraception or having abortions. What they are doing is saying is that a law that forces them to pay for such services despite their religious principles against doing so is patently unconstitutional. Only in the legal universe of ObamaCare, which puts forward the dubious notion that not only do Americans have the right to use contraception or abortion but also that everyone is entitled to have their employers pay for it regardless of their religious principles, is this controversial. The notion that the refusal of religious believers to subsidize behavior that offends their faith is a form of discrimination against women is a legal absurdity. As the Diocese correctly noted in a statement:

“The court has correctly cut through the artificial construct which essentially made faith-based organizations other than churches and other houses of worship second-class citizens with second-class First Amendment protections,” Joseph Zwilling, a spokesman for the archdiocese, said in a statement.

The point here is that a definition of religious liberty in which faith has no place in the public square is one that is inconsistent with the Constitution as well as with the principles of a free society. Religious freedom is not just the right to pray at home or in church, synagogue, or mosque but the ability to live one’s faith in public. While the Obama administration’s effort to provide universal health-care coverage may be well-intentioned, the fact that it views its mandates as superseding the First Amendment rights of citizens is an ominous indication of what happens when government gives itself such powers.

The injunction granted in Brooklyn is but one skirmish in what has been a long legal war. But it is encouraging to see that in this case, as in others, there are judges who still value freedom more than a belief in the power of big government to impose its values on the people.

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ObamaCare, Religious Liberty, and a Crucial Supreme Court Showdown

The fact that the Supreme Court will hear a religious freedom-based challenge to the ObamaCare contraception mandate is the kind of story that possesses significance likely beyond any volume of coverage it will receive. Indeed, while liberal activists will repeatedly try to cast this in the mold of the fictional “war on women,” their own arguments reveal just how far-reaching a definitive ruling on this would be for American religious and political practice.

Thus it is instructive to listen to how the left frames the debate. To do this, it will be important to look beyond the “corporations aren’t people” argument that the left typically employs when asking the courts to remove First Amendment rights from individuals who coordinate their activities through an organized group. This argument is exceptionally weak; as Ilya Shapiro explained in the wake of the liberal hysterics over Citizens United, no one argues that companies don’t have, say, Fourth Amendment or Fifth Amendment rights.

So the left moves then from explicitly trying to revoke the constitutional rights of those with whom they disagree to the claim of protecting their own rights. This is when the left is at its most revealing, for liberals have a curious definition of rights. Last night, the Washington Examiner’s Tim Carney debated birth-control activist Sandra Fluke on MSNBC on the topic. Carney said that if the government wants to claim a compelling interest in the provision of free birth control, they also must argue there was no less intrusive way to provide it. There are obviously less intrusive ways than this ObamaCare contraception mandate.

Fluke responded that one less-intrusive way would be to have the government simply provide birth control directly, but complained that conservatives are cutting back on funding for such public programs. Then, as Ryan Moy pointed out after the broadcast, Fluke said this:

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The fact that the Supreme Court will hear a religious freedom-based challenge to the ObamaCare contraception mandate is the kind of story that possesses significance likely beyond any volume of coverage it will receive. Indeed, while liberal activists will repeatedly try to cast this in the mold of the fictional “war on women,” their own arguments reveal just how far-reaching a definitive ruling on this would be for American religious and political practice.

Thus it is instructive to listen to how the left frames the debate. To do this, it will be important to look beyond the “corporations aren’t people” argument that the left typically employs when asking the courts to remove First Amendment rights from individuals who coordinate their activities through an organized group. This argument is exceptionally weak; as Ilya Shapiro explained in the wake of the liberal hysterics over Citizens United, no one argues that companies don’t have, say, Fourth Amendment or Fifth Amendment rights.

So the left moves then from explicitly trying to revoke the constitutional rights of those with whom they disagree to the claim of protecting their own rights. This is when the left is at its most revealing, for liberals have a curious definition of rights. Last night, the Washington Examiner’s Tim Carney debated birth-control activist Sandra Fluke on MSNBC on the topic. Carney said that if the government wants to claim a compelling interest in the provision of free birth control, they also must argue there was no less intrusive way to provide it. There are obviously less intrusive ways than this ObamaCare contraception mandate.

Fluke responded that one less-intrusive way would be to have the government simply provide birth control directly, but complained that conservatives are cutting back on funding for such public programs. Then, as Ryan Moy pointed out after the broadcast, Fluke said this:

So there’s an attack on allowing employers to be required to provide this insurance coverage on insurance that employees pay for, at the same time that there’s an attack on public availability through clinics.

One more time: there’s an attack on allowing employers to be required to provide this insurance. To the left, there is no freedom without government coercion. This is either incoherent or Orwellian, or both. But that’s the argument the left is running with: they want you to be forced to provide the funding for even their most private activities; only then will you be truly free.

But Fluke isn’t the only one making this argument. Mediaite has the video of an MSNBC roundtable on the issue, in which the panelists are panicked at the thought of affording Americans full religious liberty because, essentially, it’s then a slippery slope to protecting all constitutional rights. And then–mayhem, or something:

“This is another reason why we should have moved toward a single payer system of health coverage, because we’re just going to end up with one challenge after another – whether it’s in the courts or outside of the courts – and I just don’t see an end to this,” Herbert submitted.

“We’re already on the slippery slope of corporate personhood,” he continued. “Where does it end?”

“Where does it end” is the attention-getter in that comment, but I think Herbert’s plea for single-payer health insurance is just as telling. Put the government in charge of the country’s health care, Herbert argues, because then it will be much more difficult for Americans to “challenge” the government’s infringement on their freedom. It’s not just legal challenges either. Herbert says those challenges can be brought “in the courts or outside of the courts,” the latter perhaps an allusion to the shady world of participatory democracy.

So this is much more than a fight over birth control, or even health insurance. It’s about two fundamentally different views on American constitutional freedoms. Conservatives want those freedoms to be expansive and protected, as the Founders did. Liberals want those freedoms to be curtailed lest the citizenry get greedy or the democratic process imperil the state’s coercive powers.

The Founders saw religious freedom as elemental to personal liberty in America. But they were not alone in thinking that unimpeded religious worship was a guard against an overly ambitious or arrogant national government. As Michael Burleigh writes about the role of religion in post-French Revolution European politics, with a supporting quote from Edmund Burke:

The political function of religion was not simply to keep the lower orders quiescent, as has been tiresomely argued by generations of Marxists, but also to impress upon those who had power that they were here today and gone tomorrow, and responsible to those below and Him above: ‘All persons possessing any portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and that they are to account for their conduct in that trust to the one great Master, Author, and Founder of society.’

Religion was not the “opiate of the people,” intended to keep them in line. It was, rather, to keep the government in line. This was not a revolutionary idea; it predated the American Constitution, certainly. As Francis Fukuyama writes in The Origins of Political Order: “The existence of a separate religious authority accustomed rulers to the idea that they were not the ultimate source of the law. The assertion of Frederic Maitland that no English king ever believed that he was above the law could not be said of any Chinese emperor, who recognized no law other than those he himself made.”

A battle over the constitutional protection of religious liberty is not an abstraction nor, as in cases like the birth-control mandate, a minor social-issue front in the culture war. Such battles go to the heart of how we seek to govern ourselves and how we understand the fundamental documents that serve as the explication of our national political identity. Americans should watch this case closely and take its implications seriously.

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