SCOTUS Day, 3/25/14

    1. Rick Warren on Purpose-Driven Business
    2. Ed Whelan on Employer duty, Employee rights
    3. Daniel Blomberg on the Government’s implausible mantra
    4. Michael A. Helfand on the Government’s Theological claim
    5. Errata
    6. For Graphic Learners
    7. Professor Volokh’s dispassionate Guide for the Perplexed
    8. Tipsy’s Take on this

1

Since I wrote “The Purpose Driven Life” 12 years ago, I have received more than 500,000 letters and e-mails from people trying to live in ways they believe honor God. For millions of Americans, faith is something you live by. It colors every decision and action, both at home and at work. It is personal, but it is not private.

David and Barbara Green are one example of a purpose-driven family leading a purpose-driven business. From the time the Greens started Hobby Lobby in their garage, building picture frames with their sons, they committed themselves and their company to one simple purpose: “Honoring the Lord in all we do by operating our company in a manner consistent with biblical principles.”

(Rick Warren)

2

[T]he government’s asserted interests in public health and gender equality are too broadly formulated to count in the strict-scrutiny inquiry, and the sieve of exceptions to the HHS mandate contradicts the government’s newly asserted interest in ensuring comprehensive contraceptive coverage …

[T]he HHS mandate does not actually impose a legal duty on any employer to provide contraceptive coverage. It thus does not guarantee any rights to employees, who can be thrown at any time into the exchanges, where their supposed right to obtain “cost-free” contraceptive coverage will depend on their willingness to pay for insurance that includes it. (The term “cost-free” means no co-pay or deductible; it doesn’t mean that the laws of economics have been repealed.)

3. A victory for Hobby Lobby would leave its employees with the same legal rights with respect to contraceptives that they had before the HHS mandate: namely, no legal right to compel Hobby Lobby to provide coverage, and the free ability to obtain contraceptives, and contraceptive coverage, on their own.

It’s bad enough that DOJ now has the gall to present itself as a champion of “vibrant religious pluralism.” Even worse, it ludicrously contends that a victory for Hobby Lobby would threaten the “free exercise of religion” of Hobby Lobby employees.

Earth to DOJ: Private employees do not have any “free exercise” right to have their employer provide for their contraception.

(Ed Whelan)

3

To salvage its conscience-killing HHS mandate, the federal government has been repeating, mantra-like, that when “followers of a particular sect enter into commercial activity as a matter of choice,” they have to check their faith at the door. The government has used this mantra, with little success, to argue that religious owners of family businesses must divorce their faith from their business. The Becket Fund and other religious liberty advocates have responded that the government cannot “force families to abandon their faith just to earn a living.”

Last week, the government saw the light and recanted. Sort of.

Announcing its federal lawsuit on behalf of a Muslim public school official forced to choose between his faith and his job, the federal government issued a statement that “No employee should be forced to violate his religious beliefs in order to earn a living.”

This is, of course, exactly right. Faith—whether Muslim, Christian, Hindu, Jewish, or otherwise—is a fundamental part of who a believer is. Faith influences not just choices made in church, but also choices made in commerce. It is a believer’s guide for all of life. As Christian apologist C.S. Lewis said about his faith, “I believe in Christianity as I believe the sun has risen: not only because I see it, but because by it I see everything else.” And it is because of this fundamental nature that America has, since before its founding, devoted itself to protecting the freedom to remain faithful to faith.

(Daniel Blomberg, emphasis added)

4

[T]he Obama administration has recognized the imposition such a law poses on many religious — and, in particular, Christian — believers. So it crafted a religious employer exception aimed at exempting churches and religious schools from complying with the mandate. However, the exception does not apply to religiously motivated employers if they operate for a profit, such as the three employers in the cases before the high court

In defending the for-profit limitation on the exception, the government has advanced a troubling argument — tantamount to a theological claim — about what types of entities practice religion. Indeed, on a number of occasions, the government has claimed that a for-profit enterprise or employer cannot be granted religious liberties because it “by definition does not exercise religion.”

“Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?” The idea that kosher practices wouldn’t apply in the for-profit sector is as bewildering as it is incoherent.

At bottom, the government is neither equipped nor should it be allowed to determine by definition that religion stops at commerce’s door. There are many grounds upon which to decide the deeply divisive questions raised by the contraception mandate. The government’s theology should not be one of them.

(Michael A. Helfand)

5

It turns out that Sunday’s New York Times editorial (see yesterday’s blog) was plagiarized from an ancient Mandatum.

This week, two households taken with a form of Jewish superstition that worships Christus have petitioned the emperor to take a radical turn and allow them to impose their hatred toward mankind upon their household slaves by refusing to permit them access to catamites as required under the Lex Obama. The custom of our ancestors is to allow tolerance for superstitions, except insofar as they threaten the security of the state or cultivate hatred toward mankind, as this one certainly would.

Read the whole Mandatum, er Mandatvm. The plagiarism is obvious.

6

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7

Of course, I may have readers on the left coasts, who say “that’s not how the New York/Los Angeles Times described it!” So for the perplexed, I offer Professor Eugene Volokh’s dispassionate guide.

8

And if things weren’t still confusing enough, much of the support for religious objections comes from not-particularly-religious conservatives who really just want to bring down Obamacare. That’s a fool’s game, because the most obvious “less restricive means” to the compelling interest of “public health and gender equality” is a Single Payer System.

I know that. I support the religious exemptions not to bring down Obamacare but because I think religious exemptions are an important part of American polity and because I think the law, on balance, favors them in today’s cases.

* * * * *

“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)

Some succinct standing advice on recurring themes.