Caesar J. Trump: Only I Can Inform You That “Freedom Is A Gift From God”

Our president has signed an executive order, fatuous and largely redundant (because current law already protects what Trump asserts needs new protection), claiming to support religious liberty.  Setting aside the obvious absurdity of such an unrepentant heathen dilating on this topic–whoa, whoa, God can make use of even the worst abusers, OK, and I should know (please sit back down, Mr. President)….

Freedom, to be sure, is not a gift from government; at least if by freedom we are speaking of spiritual freedom.  And, furthermore, ordained and other religiously motivated persons may well have much of value to say about politics and even about school bond issues and tax assessors.  Speaking of whom, however, if churches want to keep the assessor away from their door, and maintain their status as tax-exempt entities, they should think several times before expecting political dominion to come cheap.  To their souls, if not their tax-averse selves.

Rick Warren May Render Unto God And Caesar, But Not Unto The Facts Of The Hobby Lobby Case

Rick Warren, pastor and best-selling author of The Purpose-Driven Life, recently published a Washington Post op-ed supporting the Hobby Lobby company’s claim that they should not have to comply with provisions of the Affordable Care Act requiring that employee health plans include contraceptive coverage.  Warren testifies to the wonderfulness of David and Barbara Green, and I do not doubt his testimony.  I do doubt that he knows what he is talking about when he asserts that “Hobby Lobby is not a secular, publicly-traded company.  Rather, it is the personal, purpose-driven mission of one of the most devout families I’ve ever met.”  Warren is correct that Hobby Lobby is not publicly traded, but it is most definitely a secular company in that Hobby Lobby, like all corporations, is brought into being, chartered that is, by Caesar, with the state-granted privilege of limited liability.  If the Greens want to do business as individuals, with full accountability to both God and their fellow human beings, no one is forcing them to incorporate, let alone distance themselves further with a trustee ownership structure, which they did. But if David and Barbara Green, or the Hobby Lobby corporation they founded, wants the privileges of incorporation–especially limited liability–they are on shaky ground complaining about the burdens on their personal consciences caused by generally applicable public laws.  Obamacare does not force them to use birth control, let alone abortion-inducing drugs, themselves.  No one is forcing their employees to use birth control.  The law does not compel them to provide any health care plan whatsoever, though it may fine them for that, so as to spread the social costs of irresponsible corporate behavior.

Warren asks, “do Americans have the freedom to place our beliefs and ethics at the center of our business practices–or must we ignore them when we form a company?”  Seductive rhetoric, but Warren’s dramatic either/or is at odds with the reality of corporation law.  “We” do not form a company all by ourselves, “we” and our state (and, at least implicitly, federal) government have to come to terms before incorporation occurs.  So we have considerable latitude, or freedom, to act according to our beliefs and ethics, but that latitude may be limited by laws.  If the laws transgress against our consciences, we have the option of dissolving the corporate structure and going back to the land, or wherever “we” came from.

Warren claims that the Greens “live their religious values and ethics in every aspect of their business…by their commitment to helping employees maintain a healthy work-life balance, which includes closing on Sundays so workers have more time with their families.”  I wonder if the workers have not just the “positive liberty” (see Isaiah Berlin’s classic essay “Two Types of Liberty”) to fulfill their truest selves by spending Sundays with their families, but also the “negative liberty” Americans prize so much.  If Hobby Lobby’s workers have the “leave me alone” negative liberty we Americans love, might they spend their Sundays with boyfriends and mistresses, ignoring their families completely, even employing birth control, and in general amusing themselves to death?  Whose freedom and what vision of freedom is at stake in this case?

“Very Tasty, But Not Pizza”? From A Guy Who Gets A Steady Government Paycheck, But Is Certainly Not A “Justice”

So-called “Justice” Antonin Scalia, apparently desperate for attention in the wake of recent media focus on a Supreme Court fantasy league (you win by guessing how each justice will vote on upcoming cases), has gotten it by asserting, in a Washington’s birthday speech at Chicago’s Union League Club, that while Chicago pizza is “very tasty, it’s not pizza.”  This from a guy who grew up in Elmhurst, Queens, which I am sure is a very pleasant place, but is it “the city”?  No it is not.

Scalia found it “truly appalling” that students at elite law schools today have often never read the Federalist Papers, blaming it on “an age that worships diversity and moral relativism.”  He attacked the Supreme Court itself for having “adopted the demonstrably unhistoric view that the Constitution forbids not merely the favoring of one religion over the other, but even the favoring of religion in general.  In fact, it forbids the former but not the latter.”

This last assertion is about as sound as his dismissal of Chicago pizza.  Supreme Court jurisprudence on the establishment and free exercise clauses of the First Amendment is back in the news this year.  I am not a player in the fantasy-SCOTUS game, but I can say that Scalia might edify himself by looking, before he casts any more votes in actual cases, at the versions of the First Amendment that were in fact proposed and rejected by the First Congress in 1789, especially in the Senate on September 3, 1789.  They do not support Scalia’s blanket assertion.  (See my last blog post, “War On Religious Liberty Update,” for details.) They are available, for example, in Appendix One of John Witte, Jr.’s Religion and the American Constitutional Experiment: Essential Rights and Liberties.  To sum up what actually happened in September 1789, the First Amendment drafts that prohibited laws establishing “one religious sect or society in preference to others” or laws “establishing any particular denomination” or “infringing the rights of conscience” or “establishing articles of faith or a mode of worship” were all set aside in favor of the actual First Amendment.

As John Witte remarks, one can plausibly develop both “thin” and “thicker” interpretations of the First Amendment, bearing in mind that “free exercise” and “establishment” “were the broadest terms at hand to describe the principles and province of religious liberty” and to define the “outer boundaries of proper congressional conduct.”  Scalia speaks as if his approach, “nonpreferential aid” and “noncoercive support” for religion, is what all non-ignorant and historically literate people would accept as obvious.  But readers of Douglas Laycock’s law review articles on “‘Nonpreferential’ Aid to Religion: A False Claim about Original Intent” and “‘Noncoercive’ Support for Religion: Another False Claim about the Establishment Clause” (1986 and 1992; reprinted in Laycock, Religious Liberty: Overviews and History, 2010) will likely see  Scalia’s assertions more as convenient ideology than well-founded history.  Put another way, Douglas Laycock is judicious, Antonin Scalia is not.

War On Religious Liberty Update: Easy Yokes and Light Burdens Edition

Opinions differ, to put it mildly, on the meaning of religious liberty today.  A book on Hinduism by Wendy Doniger of the University of Chicago has been pulped or is being pulped right now by Penguin India following a lawsuit against the publisher by a conservative Hindu nationalist, on grounds of “offending religious feelings of Hindus,” according to stories in the Guardian. In Kansas, it seems some Republicans in the Kansas Senate are backing away from support for a so-called “protecting religious freedom regarding marriage” bill just passed by the Kansas House (which a Slate blogger rightly called an abomination reminiscent of the Jim Crow era).  Politicians from President Obama to Bobby Jindal to your local legislator are busy presenting their versions of what religious liberty means.  Everyone says they want to uphold religious liberty.

Is there a formula to help navigate the competing claims of Hobby Lobby, the Freedom From Religion Foundation, and all the rest?  The First Amendment is our canonical American text on freedom, and it may seem to some too broad and vague.  But Douglas Laycock of the University of Virginia has presented decisive evidence that what the Founders intended is not consistent with the right-wing claims that “the government can openly support religion so long as it doesn’t prefer one religion over others.”  The legislative record, Laycock notes, “tells a very different tale.  A lawyer drafting the right-wing view might write: ‘Congress shall make no law establishing any particular denomination of religion in preference to another.’  In fact that is exactly how it was written in 1789 by members of the first Senate.  But the Senate rejected that version and two similar versions that explicitly stated the right-wing view….A conference committee produced the version ultimately ratified as the First Amendment: ‘Congress shall make no law respecting an establishment of religion.’  This is the broadest version considered by either house [in 1789].  It speaks generically of ‘religion,’ not ‘religion,’ ‘a national religion,’ or ‘any particular denomination of religion.’  It forbids any law…that relates to an establishment in any way.  In light of the alternatives Congress considered and rejected, it is best understood as requiring the government to be entirely neutral towards religion….Here, the intent of the framers is as clear as it ever gets; the right wing distorts that intent to suit its own preferences.”

Those not happy with Laycock’s exposition of the original meaning of the First Amendment (written for a USA Today column in 1985 but fresh as a daisy, and reprinted in Religious Liberty: Overviews and History, 2010, pp. 529-30) might say very well, but times have changed and we are now faced with a horrifying war on religious freedom as well as moral values.  I might wonder “so what’s new,” but let me say instead that invidious (if not hateful) discrimination against whole classes of people is not the way to defend religious freedom, and is increasingly indefensible–as the Kansas Senate, for example, is apparently grasping, and as judges and legislators in Kentucky, Virginia, and Indiana have decided this week as the case against same-sex marriage collapses.

Should I give an appearance of evenhandedness and acknowledge that President Obama has a major blind spot regarding religious liberty, as columnist Kathleen Parker of the Washington Post claimed recently?  The President may have blind spots, but Parker does not seem to be familiar enough with the facts on the ground re the Little Sisters of the Poor case to do anything other than throw rhetorical bricks at the President.  No one is going to compel the Little Sisters to provide abortifacients, or even birth control, to their employees.  The somewhat more challenging issues come in the Hobby Lobby and Conestoga Wood cases, where the latest government brief (Feb. 10, as respondent to Conestoga) has crystallized a hard-to-impeach version of the questions presented: “1. Whether the Religious Freedom Restoration Act of 1993…allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.  2. Whether the requirement that non-exempted, non-grandfathered group health plans include coverage of contraceptives violates the Free Exercise Clause of the First Amendment.”

The government brief has it just right.  The real issue here, and in so many other putative “religious liberty” cases and controversies, is whose freedom counts, and who bears the burden when some complain that their consciences are violated by a generally applicable public law.  I would say it is clear that a for-profit corporation is an inanimate creature brought into being by state charter, and has no tender conscience to offend.  A religiously-based nonprofit is quite different, and accommodations should often be made so long as the Little Sisters, the Vedanta Society, the Presbyterian Youth group, the synagogue, or similar groups attest to their conscientious objections–which may indeed involve writing some kind of “permission slip,” if you want to put it that way.  Such cases can be tricky; however the Hobby Lobby, Conestoga Wood, and for that matter Town of Greece v. Galloway cases ought to be disposed of easily.

Does the Supreme Court relish sorting all this out?  They do face some vexing, difficult cases, but if five or more justices can tune out the faux-outrage ginned up by the political right over supposed violations of religious liberty, and focus on upholding “neutral laws of general applicability” with the usual exceptions and accommodations where warranted, their yoke will be easy and their burden quite light.