Saturday, 9/12/15

  1. Osama’s success
  2. A powerful dissent
  3. David Brooks misses the old Russia
  4. FADA’s fatal flaw
  5. A Bill of Attainder in 2015? Really?!


Fourteen years later, thanks a heap, Osama bin Laden. With a small number of supporters,$400,000-$500,000, and 19 suicidal hijackers, most of them Saudis, you pulled off a geopolitical magic trick of the first order. Think of it as wizardry from the theater of darkness. In the process, you did “change everything” or at least enough of everything to matter. Or rather, you goaded us into doing what you had neither the resources nor the ability to do.

(Tom Engelhardt) He’s goaded us into stuff like this internally along with all our misguided trashing around in the Middle East and North Africa.


The opinion of the panel majority is clearly and gravely wrong—on an issue that has little to do with contraception and a great deal to do with religious liberty. When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion. All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?

Yet the panel majority holds otherwise. Where did it go wrong? It does not doubt the sincerity of the plaintiffs’ religious belief. But it does not accept their statements of what that belief is. It refuses to acknowledge that their religious belief is that execution of the documents is sinful. Rather, it reframes their belief. It generalizes the belief as being only opposition to facilitating the use and delivery of certain contraceptives to which they object. Under this reframing, the plaintiffs have no religious objection to executing the forms; it is just that executing the forms burdens their religious opposition to certain contraceptives. The burden would be akin to that caused by a tax on sales of religious tracts at the church bookstore, where the church has no religious objection to paying a tax but complains that the tax will make it harder to spread the Gospel. After so framing the plaintiffs’ belief, the panel majority then examines the particulars of the governing law and decides that executing the documents does not really implicate the plaintiffs in the use or delivery of the contraceptives. If one accepts this reframing of plaintiffs’ belief, the analysis of the panel majority may be correct; perhaps one could say that the exercise of this reframed belief was not substantially burdened. But it is not the job of the judiciary to tell people what their religious beliefs are.

Or perhaps the panel majority recognizes the plaintiffs’ belief but is simply refusing to recognize its importance because it is merely an “uninformed derivative” of their core belief. Some of its language could be read as saying the following: (1) Yes, the plaintiffs have a religious objection to executing the documents. (2) But the religious core of that objection is the plaintiffs’ opposition to certain types of contraception; their religious objection to executing documents is merely the expression of the view that being required to perform that task substantially burdens their beliefs regarding contraception. (3) To let the plaintiffs decide whether executing the documents is independently sinful in itself would be contrary to the court’s duty to determine whether the document-execution requirement substantially burdens what the plaintiffs’ religious concern is really all about—the provision and use of contraceptives. Put another way, the panel majority may be saying that it is the court’s prerogative to determine whether requiring the plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the plaintiffs have a “derivative” religious belief that executing the documents is sinful. This is a dangerous approach to religious liberty. Could we really tolerate letting courts examine the reasoning behind a religious practice or belief and decide what is core and what is derivative? A Christian could be required to work on December 25 because, according to a court, his core belief is that he should not work on the anniversary of the birth of Jesus but a history of the calendar and other sources show that Jesus was actually born in March; a December 25 work requirement therefore does not substantially burden his core belief. Or a Jewish prisoner could be provided only non-kosher food because the real purpose of biblical dietary laws is health, so as long as the pork is well-cooked, etc., the prisoner’s religious beliefs are not substantially burdened. The Supreme Court has refused to examine the reasonableness of a sincere religious belief—in particular, the reasonableness of where the believer draws the line between sinful and acceptable—at least since Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 715 (1981), and it emphatically reaffirmed that position in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2778 (2014).

Fortunately, the doctrine of the panel majority will not long survive. It is contrary to all precedent concerning the free exercise of religion. I am aware of no precedent holding that a person’s free exercise was not substantially burdened when a significant penalty was imposed for refusing to do something prohibited by the person’s sincere religious beliefs (however strange, or even silly, the court may consider those beliefs). And the law of this circuit is clear. Chief Judge Henry expressed the point for a panel of this court in Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010): “We conclude that a religious exercise is substantially burdened under [RFRA] when a government . . . requires participation in an activity prohibited by a sincerely held religious belief . . . .” The en banc court adopted that proposition in Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1138 (10th Cir. 2013), aff’d, 134 S. Ct. 2751 (2014).

Resolution of the substantial-burden question does not, however, resolve this litigation. I would set aside the panel decision regarding substantial burden and then return this case to the panel to determine whether the certification requirement is the least restrictive means of furthering a compelling governmental interest.

(Dissent in Little Sisters of the Poor v. Burwell (emphasis added); H/T The Becket Fund for Religious Liberty)


Russian culture had an unmatched intensity. It was often said that Russian thinkers addressed universal questions in their most extreme and illuminating forms … Russia stood for something that America has never been known for: depth of soul. If America radiated a certain vision of happiness onto the world, Russian heroes radiated a vision of total spiritual commitment … Russia is a more normal country than it used to be and a better place to live, at least for the young. But when you think of Russia’s cultural impact on the world today, you think of Putin and the oligarchs. Now the country stands for grasping power and ill-gotten money.

(David Brooks, The Russia I Miss) It ain’t over ’till it’s over, David.


I like to think I’m open to changing my mind. If you care to peruse my comments on Kim Davis in chronological order, you’ll find some definite evolution from less favorable to more favorable toward her.

So when I encountered a persuasive negative view of FADA, the First Amendment Defense Act, and traced the links to other negative comments, I was prepared to eat some crow because I knew that if I had commented on FADA at all, it would have been favorable. But at least in this blog, it appears to have come up only once and my support was rather tentative.

My view now is negative — strongly so — for one simple reason: it’s an unconstitutional waste of time in its present version, the key part of which reads thusly:

Notwithstanding any other provision of law, the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.

The fly-speckers find many problems there, but there’s one surpassing problem: this version unconstitutionally discriminations based on viewpoint. Only support of natural marriage/opposition to same-sex-marriage, is protected under FADA.

That’s not only a loser constitutionally, and one that will besmirch the cause of religious liberty, it is legitimately offensive to anyone who believes in religious freedom for all, including idiots misguided persons who bear God’s image, believe it or not, who support same-sex marriage because of religious beliefs or moral convictions.

The concept is good: protect people from discrimination by government based on their views (and maybe some actions) about marriage. Without legislation, Obergefell is a real threat to the civil liberties mostly of we who recognize that Anthony Kennedy is an arrogant idiot. But that the threat is lopsided doesn’t justify viewpoint discrimination, one of the evilest of First Amendment evils.

The sponsors must go back to the drawing board and protect all positions on marriage or FADA will be worse than empty symbolism on religious freedom. And this time, run it by some friends of religious freedom in the legal academy before you debut it.


Speaking of popular conservative causes that may not work, how about defunding Planned Parenthood?


Congress finds as follows:

(1) State and county health departments, community health centers, hospitals, physicians offices, and other entities currently provide, and will continue to provide, health services to women. Such health services include relevant diagnostic laboratory and radiology services, well-child care, prenatal and postpartum care, immunization, family planning services including contraception, sexually transmitted disease testing, cervical and breast cancer screenings, and referrals.

(2) Many such entities provide services to all persons, regardless of the person’s ability to pay, and provide services in medically underserved areas and to medically underserved populations.

(3) All funds no longer available to Planned Parenthood will continue to be made available to other eligible entities to provide women’s health care services.


(a) In General.—Notwithstanding any other provision of law, no Federal funds may be made available to Planned Parenthood Federation of America, or to any of its affiliates, subsidiaries, successors, or clinics.

(b) Rules Of Construction.—Nothing in this Act shall be construed to—

(1) affect any limitation contained in an appropriations Act relating to abortion; or

(2) reduce overall Federal funding available in support of women’s health.

(Senate Bill 1881, emphasis added)

Does this not have the whiff of a Bill of Attainder? Does it avoid being a Bill of Attainder only by not finding Planned Parenthood guilty of anything before singling it out for unfavorable treatment — i.e., by appearing arbitrary?

The devil isn’t omnipresent, but he’s at Planned Parenthood and in the legislative details.

I’d be very happy to hear that someone has persuasively addressed my question already.

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“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)

Some succinct standing advice on recurring themes.