Tuesday, July 1, 2014

Ecumenical perspectives on SCOTUS Hobby Lobby decision and continued struggle for religious freedom

Religious liberty won at the Supreme Court yesterday. One of the earlier victims of the Obama Administration's relentless assault on this fundamental freedom was the Lutheran Church Missouri Synod (LCMS), which sought and received relief from the nation's highest court over an employment dispute at one of its schools. Synod President Matthew Harrison offers his thoughts on yesterday's ruling, remembering his denomination's earlier battle.
Two years ago, I sat on a panel before Congress, testifying to the importance of religious liberty in America today.

It seems like a long time ago.

Since then, we have seen and heard a steady stream of news, from the church and the culture, about the Health and Human Services’ mandate and the Affordable Care Act, abortifacients and the conscience, religious freedoms and what this means for women.

Thankfully, the wait is over. The Supreme Court has ruled, and the verdict is in: In a landmark case, the Supreme Court ruled in favor of religious liberty, specifically in regard to closely held corporations (those with a small number of shareholders and offering no public stock, such as corporations that are family-owned, not operated by boards).

While we rejoice in this strong upholding of religious freedom, this decision does not signal an end to this discussion. It simply emboldens us carry on, doing what we do best as Christians: praying, confessing the faith and living it out in our daily callings.

We pray that Americans, whose consciences are burdened because they have been forced to violate their religious beliefs, would know God’s comfort and forgiveness.

We confess that life, which begins at conception, is a gift from God and ought to be held in the highest regard in this country.

We live, knowing that the First Amendment guarantees us not only the right to worship, but also to practice our faith as Lutheran citizens of this great nation, serving our neighbor where the Lord has placed us.

We do all of this, even as we rejoice with the Greens of Hobby Lobby, with the Hahns of Conestoga Wood Specialties and with our millions of brothers and sisters in the United States who believe just as strongly in the religious liberties guaranteed in our Constitution.

Today we are thankful for this step toward maintaining the integrity of our religious freedoms inherent in the First Amendment, but we will also remain ever mindful. The issue is and will continue to be purely and simply about religious freedom.

And so we pray. We confess. We live.

“We fought for a free conscience in this country,” I told the committee two years ago, “and we won’t give it up without a fight.”

I meant that, and I pray you do too.

The Rev. Matthew C. Harrison
President, The Lutheran Church—Missouri Synod
Robert George also reminds us that the fight is far from over.
What does today’s ruling portend for the other cases coming down the line concerning the mandates, including those for religious non-profit entities to whom the Obama administration has offered an “accommodation” that they, rightly in my view, regard as phony? Some language in Justice Alito’s opinion, and especially some language in Justice Anthony Kennedy’s short concurring opinion, is causing a bit of anxiety for religious freedom advocates. The Becket Fund explains the “accommodation” and what is fallacious about it:

Under this, an objecting organization will notify its insurer or plan administrator, which will make payments to employees for the mandated contraceptive services. The rule insists these payments are not “benefits” and are separate from the organization’s health plan. Nonetheless, the accommodation means that employees are guaranteed payments for objectionable services, specifically because they are covered under the organization’s plan. Furthermore, the accommodation requires a self-insured organization to “designate” its plan administrator as an agent who will make or arrange for payments for the mandated services. This “accommodation” fails to solve the moral problem created by the mandate for many religious organizations.

My own judgment is that Alito’s words needn’t and shouldn’t be interpreted as suggesting that he thinks the “accommodation” satisfies RFRA concerns about the religious freedom of Catholic and Evangelical colleges and other institutions that have filed lawsuits to prevent imposition on them of the contraception and/or abortifacient mandates. As I said, Alito is a good judicial craftsman. He doesn’t address issues that needn’t be resolved in order to dispose of the case at hand. It is a mistake to read him as signaling a favorable attitude towards the “accommodation.”

Kennedy, not uncharacteristically, is harder to read. I can’t say with confidence that he is not signaling a friendly attitude towards the “accommodation.” At the same time, I cannot say that he seems to have settled his mind on the question. When one of the cases presenting the issue makes it to the Supreme Court, it will be incumbent on the lawyers challenging the imposition of the mandates to do a good job of explaining how, despite the “accommodation,” they implicate the religious employer in the provision of contraceptives and abortifacients in violation of their conscientious opposition to providing these products.

In the mean time, the cases filed by non-profit institutions like Colorado Christian College and the University of Notre Dame, and by the Catholic television network EWTN and the redoubtable Little Sisters of the Poor, will work their way through the system—mostly winning in the lower federal courts. Notre Dame Law School professor Gerard Bradley, one of our nation’s most astute commentators on religious liberty issues, has noted that these cases are of two kinds: (1) those involving claimants who self-insure; and (2) those involving claimants who purchase insurance from companies. Professor Bradley believes that today’s decision should inspire a great deal of confidence for claimants in the first category. The situation for those in the second, considered in light of what Justice Kennedy says in his concurring opinion, is more uncertain. What is certain is that Kennedy’s vote will decide the cases that consider the “accommodation.” Lawyers on the competing sides can each count on four votes being with them and four against. So lawyers on both sides will be directing their arguments to Kennedy. As is often the case, he is The Decider.

All the while, politics will happen. Hillary Clinton, Sandra Fluke, Nancy Pelosi, and others are already warning that the Supreme Court has joined the alleged “war on women.” Left-wing pressure groups will whip their base into a frenzy for electoral and fund-raising reasons. Brandishing Justice Ginsburg’s overwrought dissenting opinion, they will compare the justices in the Hobby Lobby majority to leaders of the Taliban. Democrats in Congress, egged on by the Daily Kos, Planned Parenthood, NARAL and the rest, will propose reversing the Hobby Lobby decision by amending RFRA or repealing it altogether.

Friends of religious freedom must respond swiftly and strongly to the claims and political machinations of their adversaries. We must wield the sword of truth against the falsehoods and gross exaggerations that will become the currency of the other side’s attacks. Without resorting to their tactics, we must match their intensity and determination. Key elements of our religious freedom hang in the balance.