The liberty principle for this Freedom Friday concerns
the fact that the most important aspect of the United States
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
"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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