Declaration of Independence

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Thursday, August 16, 2012

Freedom of Religion

                     The liberty principle for this Freedom Friday concerns the fact that the most important aspect of the United States presidential election of 2012 may be Freedom of Religion.  I received a message from my nephew yesterday - encouraging me to donate to the Romney/Ryan campaign.  He then proceeded to tell me that this election is important to him because he feels that Freedom of Religion is being threatened by the Obama Administration.  "Three times this administration has argued to the Supreme Court that there is no difference between a church and the Kiwanis Club.  The court has slapped them down, but they keep trying.  I'm worried about what will happen if the administration puts more justices on the court…."

                    I wrote back to my nephew to ask if I could use his thoughts on my blog and later received his permission to use his information however I desire.  He then offered to give me "the transcript from the Supreme Court argument where the Solicitor General first made the argument to the Court.  I don't know why the Catholics don't like birth control, but Obamacare requires them to fund it.  The Administration wrote a ridiculously narrow description of what is and is not a church.  The Catholics think they are supposed to do good works in the community but Obama thinks that good works are not religion."

                    Again, I wrote back.  I asked my nephew to transmit the information to me and added that I hoped I could wade through the legalese.  The rest of this post is the information that my nephew sent to me - without any legalese.  I found it very interesting and easy to understand.  I encourage you to pay close attention to what this court case tells us about the Obama Administration.  My nephew is an attorney of law and taught history at a community college for several years; he is also an active member of The Church of Jesus Christ of Latter-day Saints.  I believe that he is well qualified to make his case that Freedom of Religion is the bottom line of the 2012 presidential election.

                    "The case is Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission.
It was argued on October 5, 2011.  You can find the full transcript at the Supreme Court Website.  (You have to scroll down under the oral argument heading.)

                    "The case was argued for the administration by Assistant to the Solicitor General Leondra R. Kruger.  The relevant portions start on page 26.  When the Court says petitioner, it means the Lutheran Church.

                    "The issue before the Court was if there was a `ministerial exception' to employment law.  In lay terms that means can a Church select and fire its own ministers.  At issue was a woman who taught in a church school but was designated as a minister by the church and acknowledged by her.  She had health problems; the church worked with her for a while and then decided that her health problems would preclude her from fulfilling her responsibilities.  The minister/teacher sued saying that federal law required the school to make accommodations.  The school replied that under Lutheran doctrine, a minister cannot sue the church.

                    "Chief Justice Roberts:  Is there a ministerial exception distinct from the right of association under the First Amendment?

                    "Kroger:  We think that the ministerial exception is one that incorporates the right of association as well as the rights under the religion clauses.

                    "CJR:  Is there anything special about the fact that the people involved in this case are part of a religious organization?

                    "Kruger:  We think that the--the analysis is one the Court--has elaborated in other cases involving similar claims to autonomy, non-interference.

                    "CJR:  Is that a `no'?  You say it's similar to other cases.  Expressive associations--a group of people who are interested in labor rights have expressive associations.  Is the issue we are talking about here in the view of the United States any different than any other group of people who get together for an expressive right?

                    "K:  We think the basic contours of the inquiry are not different.  We think how the inquiry plays out in particular cases may be--

                    "Justice Scalia:  That's extraordinary.

                    "K:  Well, I…

                    "JS:  We're talking here about the Free Exercise Clause and about the Establishment Clause, and you say they have no specials application to …

                    "K:  the contours--but the inquiry that the Court has set out as to expressive associations we think translate quite well to analyzing the claim that Petitioner has made here.  And for this reason, we don't think that the job duties of a particular religious employee in an organization are relevant to the inquiry.

                    "JS:  I think that the balancing of interests is different, according to the Petitioner, when one of the interests is religion.  And you're just denying that.  You say:  We balance religion the way we balance labor organizations.

                    "Justice Alito:  Well, do you dispute the proposition that one of the central concerns of the Establishment Clause was preventing the government from choosing ministers?  ----

                    "K:  No, Justice Alito, we don't dispute it.  What we do dispute is that what is happening when the government applies generally applicable anti-retaliation law to a religious employer is that it is choosing a minister on behalf of the church.  What it is doing is preventing religious employers, like any other employer, from punishing their employees from threatening to bring illegal conduct to the attention of---

                    "Justice Breyer:  Suppose that is the central tenet.  Suppose you have a religion and the central tenet is:  You have a problem with what we do, go to the synod; don't go to court.  And that applies to civil actions of all kinds.  All right?  So that would not be protected by the first amendment?

                    "K:  Justice Breyer, two points…

                    "JB:  Your view is it's not protected?

                    "K:  It's not protected.  … (She argues that the church would have to show that the reason for firing is grounded in church doctrine.)

                    "JA:  When you say that, are you not implicitly making a judgment about the relative importance of the Catholic doctrine that only males can be ordained as priests and the Lutheran doctrine that a Lutheran should not sue the Church in civil courts…

                    "K:  … But the difference is that the government has a, indeed, foundational interest in ensuring, as a matter of preserving the integrity of the rule of law that individuals are not punished for coming…

                    "The transcript goes on for several pages.  The Chief Justice notes at page 36 that the government is making a judgment as to how important a doctrine is to a particular church.  Government argues that sincere religious belief is not sufficient to keep the church from choosing its ministers. 

"In response to Justice Kagan, Kruger said:  `We don't see that line of church autonomy principles in the Religion Clause jurisprudence as such.  We see it as a question of freedom of association.  We think that this case is perhaps one of those cases…

Justice Kagan:  So, this is to go back to Justice Scalia's question, because I too find that amazing, that you think that the Free…neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church's relationship with its own employees.

K:  … It's certainly true that the association's claim to autonomy in this case is deeply rooted.  And concerns about how it exercises its religion--those things merge in some ways in that respect.

Justice Scalia then tells her that in his view religious freedom and freedom of association do not merge in any respect.  The argument goes on for several more pages but the bottom line is that the Obama administration believes that it has the right to inquire into the sincerity of belief.  The justices asked if that would mean that a civil court would take testimony from Lutheran ministers as to what the church actually believed.

"It is a rather astounding performance by the administration.  When the Court decided the case, it rejected the Obama position 9-9.  However, the administration came back with the same arguments in the required insurance case, i.e., Health and Human Services could decide how important birth control was to the Catholics.  Not surprisingly, the Administration decided that it was not important at all to the Catholic religion.

"You are free to use my analysis any way you want."


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