The First Amendment legal battle in Texas politics

The politics of the legal battles over the public religious displays and the vagaries of what it means for a government to respect an establishment of religion are playing out in Texas, now, in the governors' race that's just getting started.

Gregg Abbott, Texas' attorney general, announced on Sunday he is running for governor. If he wins, he'll succeed Rick Perry and George W. Bush, likely becoming a Republican Party leader and someone talked about, at least, as a possible presidential candidate. Political observers expect him to win: He has $20 million in his campaign war chest, the blessing of the Republican party establishment, and a reputation for being a fighter.

As attorney general, Abbott has sued the Barack Obama administration 27 times. He has said that's his job, suing Obama.

But perhaps the most important example of his fighting is one Supreme Court decision on the First Amendment question of a Ten Commandment monument. It's evidence that some Texans take quite seriously, evidence which may well be parlayed into lots of votes.

Part of that reputation for fighting comes from Abbott's personal biography. He was paralyzed by a falling tree 29 years ago, and has been confined to a wheelchair ever since. Despite that challenge, he's had a successful career as a lawyer, served as a judge on the Texas Supreme Court from 1995 to 2001, and has been the attorney general since 2002.

In his gubernatorial race announcement, Abbott said, "You know, too often you hear politicians get up and talk about having a spine of steel. I actually have one, and I will use my steel spine to fight for you and Texas families every single day."

The other part of his fighter's reputation comes from Abbott's successful legal defense of a public display of the Ten Commandments. In 2005, the Supreme Court decided the case of Van Orden v. Perry in Abbott's favor. That's not incidental to his campaign announcement. His political ambitions are underwritten by how Texas voters view that victory, and his role in that victory. The court ruled that, though on the grounds of the capitol, the monument of the decalogue -- which was erected by a fraternal order in connection with the promotion of Cecile B. DeMille's film, The Ten Commandments -- did not signify a government endorsement of religion.

From the opinion, written by then-Chief Justice William Rehnquist:

The Capitol Grounds, as a whole, form the proper context in which to determine the effect of the Ten Commandments monument upon a reasonable observer. And this overall, museum setting precludes any reasonable perception of official endorsement of the monument’s religious content .... In its museum-setting context, this monument would not convey to the reasonable observer any official en- dorsement of religion. This is simply not a context in which the State is reasonably understood to be taking sides. The many monuments commemorating veterans do not communicate disapproval of pacifists; the Tribute to Children does not reflect negatively on older Texans; the Hiker and horse-riding Cowboy monuments send no message concerning motorized transport; and the Volun- teer Firemen monument reflects no official disapproval of those who pursue firefighting as a paid profession. The monuments, memorials, and commemorative plaques on the Capitol Grounds are not reasonably perceived as creating 'insiders' and 'outsiders' in the Texas political community.

Rehnquist also wrote that the monument was not exclusively religious, as it has a civic meaning, says something about the history of the laws of the state, and can also be seen as a tribute to the fraternal order that put up the monument in the first place. Those who want Christianity honored in the public square have not seemed dismayed by the claim that the publicness depletes the religiousness.

In his campaign bio, Abbott's role in Van Orden v. Perry was highlighted as an example of the kind of person he is and the kind of governor he would be. The official statement says, "Attorney General Abbott believes there is no higher power than God, and in March 2005 he personally appeared before the United States Supreme Court, where he successfully defended the constitutionality of the Ten Commandments display that adorns the Texas Capitol grounds."

Another lawyer representing Texas in the case has already built a political career on the Van Orden v. Perry decision. Ted Cruz, now a U.S. senator, references the court case regularly in his speeches. He cites "Preserving Religious Freedom" as a major reason to support him. The Supreme Court decision that the Ten Commandment monument isn't an endorsement of religion is listed as the first bullet point evidencing that commitment. Cruz's campaign literature says "that U.S. Supreme Court victory set a vitally important precedent for the right to display similar monuments across the nation."

Legal scholars are not as persuaded of the significance of the court case. They have pointed to the case as an example of how confused the jurisprudence on the First Amendment's establishment clause is, at the moment. But if the precedent is not as clear as it might seem, politically, the political value of the victory is clear enough for Cruz's stump speeches and for Abbott's gubernatorial campaign.

It's a win. It's the victory of fighters. It's the basis of a reputation to run on.

Abbott faces a long-time Republican operative and venture capitalist in the GOP primary. Some expect the recently famous Wendy Davis to go up against the Republican candidate in the general election, though no Democrat has won the governorship since George W. Bush took it in 1994.

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Secular Jesus

A statue of Jesus at a ski resort is not religious, according to a federal court ruling. Or at least not religious enough to matter.

"Big Mountain Jesus," as the statue is called, has become secularized, and over the years has lost the potency it might have once had to seem like a religious message to any passersby.

In the ruling, Judge Dana L. Christensen, an Obama administration appointee, wrote that the statue is "unquestionably a religious symbol" but is not really very religious, lacking any significant symbolic power. Because, "for most who happen to encounter Big Mountain Jesus, it neither offends nor inspires."

The symbol is secular because it's impotent.

Christensen explained:

the statue does not convey any message that individuals visiting Big Mountain whether in the summer or winter might be treated more favorably or less favorably depending on their religious beliefs or affiliation.

and,

The statue's secular and irreverent uses far outweigh the few religious uses it has served. The statue is most frequently used as a meeting point for skiers or hikers and a site for photo opportunities, rather than a solemn place for religious reflection. Big Mountain Jesus is one of the last remaining remnants from the original Big Mountain Ski Resort, and many individuals in the community value its historic significance. For many, it reflects the evolution of the town of Whitefish from a lumber town to a tourist attraction .... Typical observers ofthe statue are more interested in giving it a high five or adorning it in ski gear than sitting before it in prayer.

There are other reasons for the court's ruling that the statue on land leased by the federal government does not violate the First Amendment's Establishment Clause. The Lemon test was applied, there questions about what a "reasonable observer" would infer about the relationship between church and state from the statue, issues of standing, and so on.

This aspect of the case is quite strange, though. It's come up several times now, where those who defend religious symbols in public spaces defend them on the grounds that the symbols are meaningless. You have to wonder about how the Knights of Columbus that went up to the top of the mountain to put of a statue of their Lord and Savior would feel now that that statue is official recognized as a symbol of a town's tourist economy.

Don Byrd, of the Baptist Joint Committee for Religious Liberty, said the secularization of the Jesus statue is one reason religious people should be committed to the separation of Church and State. He writes,

The idea is disturbing that a monument to Christ can lose its religious significance, and become an appropriate government monument in the process, due to years of 'frivolity.' This line of thinking underscores why we should not allow government to co-opt religious monuments. In so doing, government doesn't honor religion, it systematically secularizes its expression.

The ruling will likely be appealed.

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Atheists make peace with public monuments

There was some reticence.

Among the atheists who organized to erect an atheist monument at a Florida courthouse, there was some ambivalence about the idea of having a monument. It was a compromise. They had wanted a 10 Commandments monument removed from the courthouse grounds, and had argued against such displays on government property in principle. Such a monument, they said, signaled the exclusion of some citizens. Such a monument meant an implicit government endorsement of religion.

They settled for denying the 10 Commandments its exclusive position in Starke, Florida.

David Silverman with America's first atheist monument.
Credit: American Atheists

According to the Associated Press, "It's a case of if you can't beat 'em, join 'em."

Maybe that's a win for pluralism, and equal access, but it's also at least a little bit of a de facto endorsement of the idea of monuments on government land. It would seem to be accepting the idea that a monument in can exist on public property, at least in certain contexts without signaling government endorsement or making some feel like second-class citizens.

The internal conflict can be seen in the public statements about the monument made by the American Atheists. The man who designed the monument expressed this reticence. Ken Loukinen, a regional director of the American Atheists, said "We'd rather there be no monuments at all, but if they are allowed to have the 10 Commandments, we will have our own."

The president of the American Atheists made similar statements. David Silverman told Time Magazine "We don't want to establish this monument; we feel we need to establish it."

The American Atheists have apparently made peace with that position, though, because Silverman announced on Saturday at the monuments' unveiling that there's now a plan to build 50 more monuments on government property in the United States. Silverman said an anonymous donor has provided funds for more atheist monuments, and the group is working to make that happen.

He told reporters he would also support other groups' legal rights to put up their own monuments.

Atheist blogger Hemat Mehta writes that this strategic, though not ideal. He says,

In an ideal world, atheist monuments like this one wouldn’t have to be here. It’s not like American Atheists was pushing to have it installed. It was only when the Courthouse granted special access to a Christian group that AA knew they couldn’t let them get away with it. Same with the rest of the nation.  

If the Christians take down their monuments, the atheists will, too.  

But until then, might as well make Christians feel *really* uncomfortable about the fact that their actions are paving the way for pro-atheist monuments to go up across the country.

There were a few protestors at the unveiling who perhaps could be taken as evidence of more general discomfort with the idea. Some flew Confederate battle flags and had signs with slogans about Yankees. Another, creationist Eric Hovind, reportedly jumped up on the monument and thanked those gathered for giving him a platform from which to preach Jesus. The private group that put up the 10 Commandment monuments has said several times publicly that they're not concerned by this development. They also weren't present at the Atheists' ceremony on Saturday.

Whether there are others who "feel *really* uncomfortable" with the monument and the idea of other such monuments remains to be seen.

The American Atheists, though, seem to have overcome their own discomfort with idea of public monuments, so long as they can have theirs too.

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Huckabee's church tax plan

It's time for churches to reject tax exempt status completely; freedom is more important than government financial favors.
— Gov. Mike Huckabee (@GovMikeHuckabee) June 11, 2013

The practical reasons why this won't happen are pretty insurmountable. 1. Giving would likely decline. 2. Churches' paperwork would increase. Those practical problems likely far outweigh any ideological issues of church-state relationships for the vast majority of American pastors.

That said, those ministers who object to the conditions of tax exempt status, specifically the limitations on political speech as a violation of their freedom, are really being pretty silly. Anyone who knows how these things work -- and the pastors know -- knows that all they have to do is reject tax exempt status.

If politics from the pulpit is a God-given right, then don't trade it for porridge.

For most, though, seriously, not being bogged down with paperwork and offering wealthy donors tax deductions on their tithes does more for their ministry, as they see their ministry, than an annual who-to-vote-for sermon ever would.

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Teachers v. church schools v. the government

The conflicting claims of legal rights of church teachers and church schools are being further tested in the federal courts.

In California this week, a federal judge ruled in the case of Family, Life, Faith and Freedom v. Lynda Serrano. In this case, a Calvary Chapel school sued two former teachers to prevent them from suing the school.

The teachers refused to submit statements of faith and pastors' recommendation letters, a year ago, and they were let go. The school deems its teachers to be "spiritual leaders," and considers the paperwork necessary in evaluating instructors' continuing spiritual leadership qualifications. It's not clear from the court documents why the teachers did not want to explain their faith and get pastors to write them letters of recommendations, but when their contracts were not renewed, they threatened to sue for wrongful termination. The church school then took its former teachers to federal court.

The lawyers for the school argued that if the teachers were allowed to make the case they had been discriminated against, that would violate the church's constitutionally protected right to the free exercise of religion.

Judge Dolly M. Gee, an Obama administration appointee, granted the teachers' motion to dismiss the suit on Tuesday. Interestingly, the ruling doesn't go so far as to say the teachers can sue their religious employer, but does say federal law cannot prevent them from filing wrongful termination suits in state court.

Gee wrote:

it is apparent that Plaintiff’s entire complaint consists of anticipated defenses to a yet-to-be-filed state court religious discrimination suit, and thus no federal question is raised. This Court therefore has no subject matter jurisdiction.

The judge criticized the lawsuit fairly harshly, calling the school's lawyers incompetent several times, and suggesting the suit was meant to harass and intimidate the ex-teachers. Some of the school's arguments would have been "dispelled by a modicum of competent legal research," Gee wrote. The church was ordered to pay the ex-teachers' lawyers' fees.

The school, for its part, will reportedly appeal the decision.

This case connects to the landmark Supreme Court decision handed down last year, where the court ruled the First Amendment right to free religious exercise entails a "ministerial exception" to laws against employment discrimination. In Hosanna-Tabor v. EEOC, the Supreme Court decided religious groups get to establish their own standards for determining who is a minister, and that if someone is considered to be a minister, they are not entitled to protections against employment discrimination. Ministers can be fired for basically any reason.

The Hosanna-Tabor case involved a "called" teacher at a Lutheran school. She got sick, went on sick leave, and then when she was approved to go back to work by her doctors, the school made moves to dismiss her because of anxieties about her condition, narcolepsy. The teacher threatened to sue, and then the school fired her for making the threat, which they said was a violation of their beliefs about conflict between Christians.

No secular school would have been allowed to fire that teacher. No religious school would either -- unless it had established that teachers were more than teachers, they were ministers, and so subject to all the capriciousness of those they served.

In the majority opinion, Chief Justice John Roberts wrote, "The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision."

In Family, Life, Faith and Freedom v. Lynda Serrano, the Calvary Chapel school lawyers cited Hosanna-Tabor, about the rights of religious groups to not be held to the standards of employment law. The teachers at their school are also considered ministers, and were also fired for threatening legal action against a church school employer. The school's lawyers attempted to argue that the ministerial exemption from employment law should also mean protection from possible discrimination litigation in state court.

According to Judge Gee, the federal courts don't have the jurisdiction necessary to block anticipated state court lawsuits that might violate churches' religious right of hiring and firing ministers. Whether or not the appeal will go anywhere remains to be seen.

It seems likely, though, that the courts will be facing more cases like this in the future. They'll continue to hear cases where there are conflicting claims about the rights of teachers and church schools, where they have to determine the scope of this constitutional protection of a "ministerial exception," and figure out the consequences and the logical, legal extensions of last year's landmark decision for religious liberty.

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Alton T. Lemon, 1928 - 2013

Alton T. Lemon, the plaintiff in a landmark Supreme Court case on the separation of church and state, has died at the age of 84. A very private man, little is known of his life apart from his membership in the American Civil Liberties Union and brief time as president of a Philadelphia Ethical Humanist Society. His obit didn't make the New York Times until 21 days after his death.

In the late 1960s, though, he lent his name to the lawsuit where the Supreme Court established the three-part legal test for determining whether or not a government has violated the constitution by "respecting an establishment of religion." Wherever American lawyers debate whether or not a government has, in fact, gone so far as to endorse a religion, Lemon's name is invoked.

Asked about his role in First Amendment history, Lemon said he was proud to have been involved in Lemon v. Kurtzman, but:

I have never sought public recognition for my role in the case. Almost all of our friends are Protestant and some don’t understand my position. We had one friend who was a schoolteacher who thought it was terrible that God was being removed from the schools .... Some people go down in history in famous books, but I might go in a dusty law book or something. I don’t view things out of proportion.

It's not just the dusty history books, though. The three-part establishment test that bears Lemon's name, the Lemon Test, is a contentious bit of jurisprudence. It has been attacked from a number of directions and may not survive the John Roberts court.

The two most conservative justices on the court, Antonin Scalia and Clarence Thomas, issued a blistering attack on the Lemon test in 1993. In a concurrence authored by Scalia, the Lemon Test was described as "Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad." Especially bothered by the inconsistent use of the judicial standard, Scalia accused his fellow justices of invoking or ignoring the Lemon Test as suited their purposes.

"Such a docile and useful monster," he wrote, adding:

For my part, I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced .... I will decline to apply Lemon -- whether it validates or invalidates the government action in question.

One need not endorse either Scalia's legal philosophy or his argumentative style to think there's a problem with the Lemon Test. It's maddeningly vague and wide open to wildly divergent interpretations.

According to the Lemon Test, a government has endorsed a religion if:

• a law is passed which does not have "a secular legislative purpose,"
• a statute's "principal or primary" effect is either to advance or inhibit religion,
• a governmental action results in "excessive government entanglement with religion."

In that decision, then-Cheif Justice Warren Burger said the test was necessary because of the vagueness of the First Amendment prohibition of "respecting an establishment of religion," and because the constitutional guarantee does not just prohibit a state religion, but many other state-religion interactions as well.

As Burger wrote:

The language of the Religion Clauses of the First Amendment is, at best, opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead, they commanded that there should be 'no law respecting an establishment of religion.' A law may be one 'respecting' the forbidden objective while falling short of its total realization. A law 'respecting' the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion, but nevertheless be one 'respecting' that end in the sense of being a step that could lead to such establishment, and hence offend the First Amendment.  

In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: 'sponsorship, financial support, and active involvement of the sovereign in religious activity.'

The lines that have been drawn, though, are hardly clear ones. How can the secularity of a law be determined? By what measure is the "primary" effect of a law to be judged? An entanglement should be considered excessive in comparison to what? And to whom does it have to seem excessive?

In at least 20 recent federal court cases, the Lemon Test has been used in different and inconsistent ways. Judge Richard Posner, a Reagan appointee, described the Lemon Test as "formless, unanchored, subjective." In a 1980 ruling, written by Kennedy-appointee Byron White, the Supreme Court noted that the Lemon Test lacked "clarity and predictability," two things typically valued in a law.

Legal scholar J.H. Choper, who clerked for Earl Warren and now teaches at Berkley, said the endorsement test that bears Alton T. Lemon's name "fails to provide a judicial standard capable of principled application." According to Choper, "application of the Lemon test generated ad hoc judgments incapable of being reconciled on any principled basis," and resulted in a kind of "conceptual disaster area."

This conflict and confusion is at issue in two current cases which could give the Supreme Court the opportunity to revisit the question of the Lemon Test.

The court has agreed to hear Town of Greece v. Galloway this term, and decide whether prayers offered by private citizens to open town council meeting violates the First Amendment prohibition on respecting establishments of religion. A lower court, citing the Lemon Test, concluded that because the majority of such prayers were Christian, the town was effectively affiliating with the Christian faith. A central part of the dispute is over whether the second prong of the Lemon Test -- the matter of primary purpose -- should be measured in terms of intent or effect.

The court is also considering hearing Elmbrook School District v. Doe, a case where graduation ceremonies were held in an evangelical church. There's no dispute this was done for practical reasons, but the lower courts have disagreed on whether or not the school's use of the religious space was excessive entanglement and over whether or not it advanced religion. One lower court ruled that observers would be able to separate the religious symbols of the church sanctuary from the proceedings.  Another disagreed, concluding that "Regardless of the purpose of school administrators in choosing the location, the sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state."

It's possible that rulings on either or both of these cases could substantially transform the test by which "respecting an establishment of religion" is judged.

The late Lemon, for his part, reported being worried in the last decade of his life that the courts would erode the legal separation of church and state. He wasn't worried about the judicial standard that bore his name per se, but was bothered by the trend he saw of conservative justices  allowing for government endorsements of Protestantism. In 2003, he told the Philadelphia Inquirer that "separation of church and state is gradually losing ground, I regret to say."

A year later, he expressed his suspicions that conservatives would establish a state church, if they could.

"At this point in my life," the then-76-year-old said, "I seriously wonder why we have religion. I am not so sure it does more good than harm. I think that the battle for church-state separation has to be a continuing fight."

And, judging by the contentions over the Lemon Test, it is.

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Expanding the religious liberty argument against ObamaCare

A bill being considered in Congress would allow individuals a religious exemption from ObamaCare. The bill, named the Equitable Access to Care and Health (EACH) Act, would make it so people could opt out of the mandate to buy health insurance by signing a sworn statement saying they have religious objections to some of what is covered by health insurance.

The way the Affordable Care Act currently stands, when it goes into effect in 2014, individuals will be required to buy health insurance or pay a tax. This amendment would create away for those whose "sincerely held religious beliefs would cause the individual to object to medical health care that would be covered under such coverage" to not buy health insurance and not pay the tax. The exemption could be used by Catholics and evangelicals who oppose some or all contraceptives, as well as others.

Creating a legal exemption that more than 50 percent of the country could ask for would, presumably, effectively kill health care.

The bill is currently being reviewed by the House Ways and Means Committee, but may not ever go to a vote.

Whether or not the EACH Act becomes law, though, it shows another angle of the conflict between those who want universal health care and those who believe that infringes on religious liberty. It's also another way that those opposed to ObamaCare are seeking to undermine it anyway they can before it becomes law.

The bill was sponsored by Republican Congressman Aaron Schock from Peoria, Illinois, who has voted to repeal ObamaCare, and is on record calling the law "deeply flawed."

Schock is considered to be a fiscal conservative, moderate on social issues. He is affiliated with a Conservative Baptist Association church and has positioned himself as someone generally supportive of social conservatives and of the sorts of groups who have have seen ObamaCare as an assault on their religious exercise, but with a stronger emphasis on economics. His main critique of the Democratic health care plan has been its "potential budget busting impact and negative economic consequences." He has said,

I believe that the Affordable Care Act has hurt job creation, burdened small businesses, put government bureaucrats between patients and their doctors, and taken the flexibility away from states like Illinois to make their own health care decisions.

The EACH Act comes at ObamaCare from an entirely different angle, though, having more in common with the scores of non-profit and business lawsuits over the contraception mandate than debates about financial costs and consequence. Those legal battles have, so far, only concerned non-profits and businesses required to provide health care for their employees, though. This bill takes that same argument and makes it on behalf of individuals.

Schock's bill suggests this front of that fight could be dramatically expanded, with millions of individuals claiming health care violates their Constitutionally guaranteed right to the free exercise of their religion.

The EACH act has been co-sponsored by 50 Republicans and 26 Democrats.

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Churches and taxes

A Congressional committee working on ways to reform and simplify the US tax code has considered recommendations to change the tax exempt status of churches.

The working group hears and summarizes recommendations from interested parties and passes that information on to the elected representatives on the House Ways and Means Committee. There's no straight line from the working group's report to eventual legislation. It doesn't make recommendations, but considers them, digests them, and passes them on. In the more than 500-page report, however, this is the only reform considered that is specific to churches' tax status.

The committee heard three recommendations for change:

• Require churches to apply for tax-exempt status, rather than receiving it automatically
• Require churches to file an annual tax return, even though no taxes are being paid, as do other non-profits
• Ease restrictions on IRS, allowing for more tax inquiries and audits of church finances

The recommendations seem to come from the Secular Coalition for America.

In a letter to the House Ways and Means Committee, the group writes, 

A fair tax system should require accountability from all organizations that are entrusted with the privileges of tax exemption. However, the limitations imposed on the IRS by these three provisions ensure that churches are virtually insulated from public or government oversight. Reporting requirements for tax-exempt organizations are in place to ensure the benefits received are serving the benevolent purpose for which they were intended. Charitable contributions by individuals, foundations, bequests, and corporations reached $298.42 billion in 2011, with religious organizations receiving the largest share -- 32 percent -- of total estimated contributions. Holding religious organizations to the same filing standards as other charitable and educational institutions ensures that the almost $100 billion being donated to these organizations is actually going to help those who need it.

The group is not recommending churches lose their tax-exempt status, but that they be held to the same standards as other non-profits, such as para-church organizations.

The Secular Coalition argues that some specific religious groups, notably the Catholic Church and the Church of Jesus Christ of Latter-day Saints, have used their money in questionable ways and cannot be held accountable because the government has provided them with a "veil of secrecy." The Secular Coalition also objects to the way charitable donations are being used for political purposes in violation of the Johnson Amendment, sometimes flagrantly, as in the Pulpit Freedom movement

The Secular Coalition estimates that "Enabling the IRS to revoke the tax-exempt status of violating religious organizations by requiring application, reporting, and removing [Church Audit Procedures Act] from the tax code could generate up to $16.75 billion per year, almost enough to cover the entire 2012 budget for NASA.

The politics of such a reform make it pretty unlikely. Changing the tax code in these ways would probably be cast as an attack on churches, and it's pretty impolitic to be seen as attacking churches.

There is, though, at least one interesting possibility for a compromise apparent in the clash between the reforms suggested by the Secular Coalition and those sought by those Pulpit Freedom movement. Perhaps the restriction on political activity could be withdrawn in exchange for new requirements that churches apply for tax exempt status, report their taxes and submit to audits in the same way as other non-profits. 

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'Heathens' and the history of 'In God We Trust'

In a pending federal lawsuit, the Freedom From Religion Foundation is seeking to get "God" taken off of U.S. currency. Previous attempts have been unsuccessful. The group claims that the motto -- which was reaffirmed by Congress in 2011 -- makes full citizenship seem to be contingent on assent with monotheism, and coerces atheists into promoting monotheism, as they're forced to carry and distribute the message "In God We Trust."

According to the lawsuit, the motto on American money violates both religion clauses of the First Amendment, giving a government endorsement to a religious belief and putting a substantial burden on atheists right not to practice religion.

Whatever one thinks of the legal merits of Newdow vs. the Congress of the United States, the complaint offers an extensive and fascinating look at the history or American money's dedication to God. Part of the story is familiar: in the context of Cold War antagonisms, American politicians, including President Dwight D. Eisenhower, were eager for the country to confess God, even if only in the vaguest of terms. Religiousness served to unify Americans against "the Godless commies," and to sanctify economic and political interests.

Less familiar are mid 19th century efforts to put "God" on American money.

In 1861, at the start of the American Civil War, some thought mentioning the divine on coins would be a good response to "heathenism."

Possibly, in particular, the suspected heathenism of Abraham Lincoln.

According to the Freedom From Religion Foundation suit:

On November 13, 1861, Rev. M.R. Watkinson -- characterizing himself as a 'Minister of the Gospel' -- wrote to Secretary of the Treasury Salmon P. Chase seeking 'the recognition of the Almighty God in some form in our coins.' Noting to the Secretary that '[y]ou are probably a Christian,' Rev. Watkinson claimed that such recognition was important to 'relieve us from the ignominy of heathenism.' Additionally, the minister argued that such recognition 'would place us under the Divine protection we have personally claimed. From my heart I have felt our national shame in disowning God as not the least of our present national disasters.' In response, on November 20, 1861, Secretary Chase wrote a short note to James Pollock, then the Director of the Mint in Philadelphia, making the purely religious claim that 'No nation can be strong except in the strength of God, or safe except in His defense. The trust of our people in God should be declared on our national coins.' Secretary Chase then instructed Director Pollock to 'cause a device to be prepared without unnecessary delay with a motto expressing in the fewest and tersest words possible this national recognition.'

Chase was a leader in the Republican party, a strong anti-slavery advocate, and part of the party's radical wing that pushed Abraham Lincoln to be less conservative and cautious. He was religious himself, but it's possible Chase wasn't motivated by his own Christian faith as much as the political desire to thwart the idea that the Lincoln administration was anti-religious. I.e., heathenish.

The president, after all, would, only a year later, tell a group of concerned Protestants that he couldn't know whether or not it was God's will that he free the slaves. Asked to invoke God on behalf of the cause, he resisted. "These are not," Lincoln wrote, "the days of miracles, and I suppose it will be granted to me that I am not to expect a direct revelation. I must study the plain, physical facts of the case, ascertain what is possible, and learn what appears to be wise and right."

That sort of secularism didn't sit well with a lot of Americans, circa 1861. Public, pro forma recognitions of God were more popular. 

It's not clear whether or not anyone was convinced of the goodness of the Union cause by the legend on the coins, though. When Congress took up the issue of the monotheistic inscription four years later, a New York Times editorial noted it sounded a bit like a dying profession of faith, too desperate to be taken at face value. According to the paper:

in view of our recent struggle for national life, does it not sound somewhat like a death-bed repentance? Does it not remind one of the significant words of the MASTER, whose estimate of this common medium was expressed in the words: "Whose image and superscription is this?" Without questioning the good motives that led to the enactment of this new form of national worship, we respectfully submit that such tract-printing by the government is always improper, and, just now especially, ill-timed [....] Let us try to carry our religion -- such as it is -- in our hearts, and not in our pockets.

It's not too hard, interestingly, to find Christian sermons making that last point today, contrasting the cheapness of words on money with what the preacher holds to be true Christian trust in God. Though, typically, conservative Christians are thought to be strong supporters of government declarations of dependance on God, the motto on the money regularly comes in for critique from conservative pulpits. At a Church of God in Conyers, Ga., in a sermon speaking to the 2008 financial crisis, for instance, the pastor preached:

every time we make or spend money, the money reminds us that our trust, as a nation, is not in the money, or the army, or the politicians. Our trust is in God. But is it really? Do we really trust God, or has our trust in God been shaken by the economic crisis that our nation is in? Do we trust in God or are we looking to someone or something else to deliver us?

In Franklin, Wisc., at Victory of the Lamb, a church that's part of the theologically conservative Wisconsin Evangelical Lutheran Synod, a whole sermon series was built off of that critique of the national motto. The series was called "In God We (Really) Trust." The church announced the series this way:

'In God We Trust.' The phrase is printed on all our money. But does our nation really trust in God?  

More importantly, do we really trust in God? Just asking the question may offend some of us. Of course I trust in God!  

Perhaps the more pointed question might be: how deeply do I trust in God?  

Jesus makes it clear that trust radically changes the way we look at and think about the world, our money and our God. This series is not for the faint of heart or for those who do not want to be stretched or challenged. 

Presumably neither church goes in for "heathenism," but the way the debate about the motto takes shape in the national discourse, criticism is often assumed to be coming from a place of anti-religious animus. In 1907, for example, when the place of the phrase on the nation's money was being debated again, the Rev. Charles Edward Locke declared, according to the suit now before the federal courts,"I have never heard of any body of men who believe in the sacred principles of patriotism passing resolutions asking to have the sentiment removed, but from my childhood I have heard the blatant protests of infidels and unbelievers against this custom."

That might be a decent description of the folks at the Freedom From Religion Foundation. They might object to the phrase "infidels," but would probably acknowledge, at least, that the reverend was talking about people like them.

The history of efforts to inscribe American money with words of monotheistic devotion, and resistance to those efforts, however, don't sort out so easily into opposition between believers and non-believers. The history of this is complicated, and political, and, as this current lawsuit serves to illustrate, both long and peculiarly fascinating.

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An emerging alliance in defense of sharia

The attacks on sharia law in American have been vociferous and completely out of proportion with actual instances of sharia law in America. A coalition of conservatives with various concerns have sought to enact legislation prohibiting sharia -- prohibiting state judges from considering religious codes that Muslims believe to be binding and might, e.g., have cited in private contracts, or even going so far as to enact legislation that equates adherence to the Islamic rules for worship with terrorism, so that "sharia organizations," including mosques, would be illegal.

Defenders of sharia against these state prohibitions are now arising from a perhaps unexpected quarter. Sharia has an ally with some Jewish legal thinkers and some Jewish groups concerned about the way these laws infringe on religious liberty.

From Florida:

A Florida state bill targeting a supposed threat from Islamic law may instead end up preventing Orthodox couples from using Jewish religious courts, or batei din, to arbitrate their divorces, according to legal specialists and some Jewish groups. 

[....] 

The Council on American-Islamic Relations has vowed to fight the bill. So too has the strictly Orthodox umbrella organization Agudath Israel of America.

There are other problems with the proposed Florida law, including the fact it is worded so ambiguously that it's not at all clear how the courts might apply the legislation. One Jewish state representative is arguing that the law is designed to have no legal effect at all, actually, and is merely meant to "generate fear of Muslims," reinforcing some of the political rhetoric of recent days.

What's interesting, though, is this alliance between a religious Jewish groups and Islamic groups. An important feature of fights over religious liberty in the United States is the way that different groups end up politically allied, with common cause. This was true in 1802, when Deists and Baptists came together in opposition to the establishment of religion, and in 1989, when the Native American Church's religious use of peyote was defended by the Traditional Values Coalition, the Christian Legal Society, the National Association of Evangelicals and the American Jewish Congress in their push to enact the Religious Freedom Restoration Act.

As the political landscape shifts, groups that might otherwise have little in common come together. Change, in these sorts of affairs, seems to happen by this process of alliances.

Others have noted the possible common cause of Muslims' wanting to defend their right to use sharia in some limited legal contracts and so forth and other religious groups in America. Eric N. Kniffen, of the Beckett Fund for Religious Liberty, has argued that the case against Muslims' religious practice in America is historically similar to the cases made against Jews, Mormons and Catholics, implying that those groups ought to sympathize with and even support American Muslims in these political struggles. Matthew Schmitz, of First Things, made the argument that there's no reason to be more suspicious of Muslims' claims to religious freedom than of Protestants' or Catholics', and that there is, rather, a common cause the three groups could share: protecting the US Constitution against illiberal excesses. Eliyahu Stern, a religious studies and history professor at Yale, also made a case in the New York Times for the specific alliance of Jews and Muslims in opposition to a ban on sharia.

It has seemed to me, though, that those alliances was mostly theoretical. Jewish groups' sympathies for Muslims' rights to religious exercise have been mixed. For example, in the controversy over Perk51 -- the so-called "Ground Zero Mosque" -- there seemed to a lot of conflict between Jewish groups, and even within Jewish groups.

It's too early to tell for sure, but perhaps that's changing. There are at least some efforts being made at the moment to flesh out the connections between Jewish religious practice in American and Muslim religious practice in America, and how their relationship to America law is identical. In Chicago, next month, for example, there's a conference of religious scholars and legal scholars considering the topic of "Shari'a and Halakha in America." There are experts on Judaism and on Islam scheduled to attend, as well as one scholar from a evangelical Christian school. At the conference, they plan to consider:

how liberal democracies can and should accommodate legal systems that are not themselves originally grounded on liberal or democratic principles [and] to what degree can systems of this sort adapt themselves to a liberal democratic environment? This conference will explore these questions, as they pertain to both shari'a and Jewish law (halacha).

The questions are good, but what's more important is the combination of Jewish and Muslim religious laws as the subjects of the question. Whether or not such efforts change the political landscape remains to be seen, but this is the sort of shift that does change things.

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'Free exercise' of religion & the covering up of child sexual abuse

The "free exercise" clause of the First Amendment has been used for lots of things. In a lot of different ways.

It's been understood by the Supreme Court to mean that those fired for their religion still have a right to unemployment benefits, and to mean that religious institutions have the right to define "minister" any way they want, and to fire those so designated for any reason. It has been applied to protect the rights of those who sacrifice animals, and those who are required by their faith to distribute literature. The idea that government can't rightly pass a law prohibiting the free exercise of religion has been successfully used to defend those who won't salute the American flag, those who won't send their children to public schools, those who use controlled substances in their worship, etc., etc., etc.

Now Sovereign Grace Ministries, an association of New Calvinist churches led by C.J. Mahaney, are arguing that "free exercise" also means churches can't be taken to court on charges of covering up sexual abuse.

The churches, in an official press release, argue:

SGM leaders provided biblical and spiritual direction to those who requested this guidance. This care was sought confidentially, as is a right under the First Amendment. We are saddened that lawyers are now, in essence, seeking to violate those rights by asking judges and juries, years after such pastoral assistance was sought, to dictate what sort of biblical counsel they think should have been provided. SGM believes that allowing courts to second guess pastoral guidance would represent a blow to the First Amendment, that would hinder, not help, families seeking spiritual direction among other resources in dealing with the trauma related to any sin including child sexual abuse.

On these grounds, the church is seeking to have lawsuits alleging leaders protected child predators and covered-up child sexual abuse dismissed, the Associated Press reports.

According to the lawsuit, the "biblical and spiritual direction" that was offered to help families "dealing with the trauma related to ... child sexual abuse" involved a lot of covering up evidence that crimes occurred.

Sovereign Grace Ministries is accused of forcing abused children to forgive their abusers.

They are accused of disciplining those who wanted to tell legal authorities about the abuse.

And more.

According to the suit, which was filed on behalf of eight who were once children in the church:

The Church directed members to unquestioningly 'obey' the Church in all matters, including methods of parenting, place of residence and employment .... Between 1987 and the present, the Church repeatedly confronted occasions of sexual predation of children was occurring under the Church's auspices. The Church failed to alert law enforcement authorities, and failed to take any steps whatsoever to protect the children from sexual predation. Instead, the Church taught members to fear and distrust all secular authorities, and expressly directed members not to contact law enforcement to report sexual assaults. This practice has not stopped, as is evidenced by teachings as communications as recent as August 2011. On those occasions when the Church was not successful in persuading the parents of the victim to refrain from contacting law enforcement, the Church interfered with the administration of justice by tipping off the sexual predators that they had been reported to law enforcement. The Church provided sexual predators with free legal advice and counsel on how to evade accountability, and repeatedly worked with sexual predators to mislead law enforcement. The Church was willing to, and did, make false statements to law enforcement officials and in courts of law in its efforts to protect sexual predators.

The lawyers representing the people claiming they were abused and that church leaders knew about it and didn't report it are making a fairly straightforward case that being a minister does not relieve one of all legal responsibilities. On-going crimes have to be reported. People being harmed have to be protected. Dissembling on behalf of a pedophile isn't protected by the First Amendment or any amendment, and isn't a right recognized by the United States Constitution.

As the co-council explained in an interview:

You cannot participate in wrong doing regardless of your status as a pastor. They don't have the right to put people into harm's way. And they don't have the right to step in the middle and obstruct justice. So there are duties imposed by law that when you know that you have somebody who is harming people, you are not allowed to let that person keep harming people.

Sovereign Grace Ministries' lawyers, on the other hand, is making the case that "Maryland courts can’t get involved in the internal affairs of church business." They filed a motion to dismiss the lawsuit on First Amendment grounds on Monday. They are of course also making the argument that they are not guilty of the cover-ups of which they've been accused, and have made multiple statements about the high priority they place on the protection of children against sexual assaults. The first legal line of defense they church is using though, is the argument that even if they did cover up sexual abuse of children, the courts do not have the right to "second guess" that pastoral care.

The argument is that religious institutions are -- or ought to be -- autonomous and self-governing, and courts have no right to interfere with religious groups' internal affairs. (Arguments against "second guessing" have also been used in extra-legal contexts to quell or at least quiet critiques. See Rachel Heald Evans' piece, "How [Not] to Respond to Abuse Allegations"). According to the Associated Press, this legal argument has been defended by some legal scholars and a number of judges. Courts in the states Utah, Wisconsin, and Missouri have said the First Amendment does protect religious institutions from intruding courts.

Other experts disagree with that position. One law professor, for example, told Christianity Today that "the First Amendment is not—and shouldn't be—a defense against child abuse." Even in the cases of clergy-penitent privilege, where the law doesn't require that crimes be reported, that legal protection does not normally extend to cases of child sexual abuse.

Sovereign Grace Ministries is not the first to make this case. They're following the legal strategy laid out by the Catholic Church. In Rhode Island, a decade ago, the Diocese of Providence argued that it had a First Amendment right not to turn over documents allegedly pertaining to its own cover-up of child sexual abuse. The argument worked for more than nine years, but was then rejected by the court.

The judge in that case ruled:

By no elastic stretch of the most fertile imagination can one rationally conclude that such information or any such communication deserves or merits confidentiality as expressions of religious freedom.

The church subsequently settled the suit for $13.5 million.

The next hearing in the case against Sovereign Grace Ministries is scheduled for March 8.

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Beyond "religious liberty"

Most of the attention given to the roiling legal fight over insurance coverage and birth control and the limits of religious exercise has come in the form of arguments about "religious liberty."

It is an issue of religious liberty, of course, though the tendency has been for those arguments to obscure more than they reveal. An example of this is Mike Huckabee's advocation for the craft store Hobby Lobby last month. Huckabee encouraged people to shop at the chain in an act of solidarity, a consumption-as-politics act of activism. He said:

They are having to fight in court for the most basic American rights of freedom of religion and freedom of speech .... The Obama administration insists that companies like Hobby Lobby bow their knees to the God of government health care mandates, even when those mandates are a clear and direct contradiction to their personal beliefs of faith.

The conflation that he's making here, between the corporation, Hobby Lobby, and "their personal beliefs of faith," is exactly what's at issue in these lawsuits. The grammatical issue of replacing a singular noun with a plural pronouns isn't an accident; it's the point. In promoting the identification of an individual shopper with the company, Huckabee's not actually making an argument that for-profit corporations can have religion and have the right to exercise religion, but re-casting the issue as a conflict between those who are for and those who are against religious freedom.

For the most part, though, it seems that the people most concerned with these legal battles are only concerned contingent on this confusion.

So it's interesting to see two conservative Christian media outlets approach the Hobby Lobby et al legal battles with Obamacare's HHS contraceptives coverage mandate from a very different direction. This last week, there were two articles where the lawsuits were put into a very different context.



At Christianity Today, journalist Melissa Steffan connected the legal cases to the pro-life movement. She wrote:

The battle over the mandate—and the emergency contraception it requires—has long been over personhood. Is a fertilized egg a person? Do the emergency contraceptives stop eggs from uterine implantation, ending a person's life?  

But now the legal battles against the HHS employer contraceptive mandate are shifting to very different questions of personhood: Are for-profit corporations "persons" in such a legal sense that they have religious rights? And do their religious liberties allow them to avoid the mandate?

Steffan doesn't try to articulate what the connection between those two arguments about personhood might actually be. The people she quotes -- mostly advocates for the companies suing the Obama administration -- don't approach that question either. The question is only raised, and pointed at.

It's a really interesting incongruity, though. Are the people who are dedicated to the idea that life begins at conception comfortable with this expansion of the definition of "person" to include corporations? Is this merely a pragmatic tactic, or is there an underlying philosophical connection between these two arguments about personhood?

At First Things, meanwhile, a professor from Pepperdine approached these lawsuits by connecting them to arguments about Sharia law in America.

Michael A. Helfand wrote:

The more religion has gone commercial, the more difficult it has become for courts to figure out how to treat conduct that that is simultaneously religious and commercial. Of course, these constitutional skirmishes are part of a far larger infrastructure of religious commerce. 

Notable examples include Sharia-compliant financial instruments and Jewish heter iska agreements, both of which are mechanisms for restructuring loans so as to avoid Islamic and Jewish law’s respective anti-usury rules. Religious communities have embraced contracts that use commercial forms to govern and structure a variety of religious relationships, such as employment contracts, arbitration provisions, and prenuptial agreements.

I don't entirely follow Helfand's line of reasoning. If I read him right, he's pivoting off of these lawsuits to make the case that religious laws have a place in American jurisprudence. His conclusion is that,

the best way to prevent the potential negative impact of religious law is to encourage ingenuity and creativity precisely at the nexus of religion and commerce. So long as courts continue to ensure that parties enter such agreements out of their own volition, the sophisticated drafting of agreements and structuring of relationships can provide solutions to the most worrisome religious customs and practices. Those supporting initiatives that hope to disaggregate religion and commerce miss the core insight that commercializing religion isn’t the problem: It’s the solution.

What this has to do with Hobby Lobby and other for-profit corporations opposed to insurance plans that cover employees' contraceptives, I'm not sure. It's interesting, though, to see the several emerging alternative rubrics for thinking about these legal cases besides arguments about "religious liberty."

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God and Mammon and religious liberty

You cannot serve both God and Mammon. At least, you can't if you're a corporation, according to the Obama administration's proposed new rules regarding what sort of organizations will be required to provide employees insurance coverage of contraceptives under Obamacare.

Previously, the Obama administration had allowed for an exemption to the contraceptives mandate that was fairly narrow. Groups were exempted only if they met four criteria: 1) their purpose was the "inculcation of religious values," 2) most of the employees shared that religion, 3) most of the people being served shared that religion, and 4) they were a non-profit organization. This defined the sort of organization the law was considering as "religious."

This definition of "religious" is the fundamental issue in a slew of lawsuits about the health care policy.

One of the main objections to this working definition was the way it deemed religious service groups to be not religious. A Catholic soup kitchen is not mainly about the "inculcation of religious values," nor does it primarily serve Catholics.

With these proposed changes to the rules, released last week, the administration acknowledges that "religion" can mean many things, and doesn't just describe houses of worship. In the proposal for new rules, it says:

The Departments agree that the exemption should not exclude group health plans of religious entities that would qualify for the exemption but for the fact that, for example, they provide charitable social services to persons of different religious faiths or employ persons of different religious faiths when running a parochial school. Indeed, this was never the Departments’ intention.

Therefore:

the Departments propose to amend the definition of religious employer ... by eliminating the first three prongs of the definition and clarifying the application of the fourth. Under this proposal, an employer that is organized and operates as a nonprofit entity and referred to in section 6033(a)(3)(A)(i) or (iii) of the Code would be considered a religious employer for purposes of the religious employer exemption.

In practice, what this would mean is that any non-profit organization can fill out a form stating their religious objections and identifying themselves as religious, and they thus opt-out of the mandate. They can then provide health insurance for their employees that fits with the requirements of their religion and the rules of Obamacare; other arrangements will be made to provide contraceptives for those employees who want it, arrangements that won't involve the religious employer.

This is designed to resolve a good many of the lawsuits while not requiring employees to be disadvantaged by their employers beliefs. Whether it will or not is an open question, I suppose, but that's the purpose of the new rules, to strike a balance between accommodating religious belief and not allowing religious practices to be imposed on or negatively affect those who don't believe. The administration says:

The proposed accommodations would provide such plan participants and beneficiaries contraceptive coverage without cost sharing while insulating their employers or institutions of higher education from contracting, arranging, paying, or referring for such coverage.

The way the balance is struck, here, is by broadening the legal definition of religious organization. Now, to be counted as religious organization, only two things are necessary: the group must considered itself to be and hold itself out to be religious, and there can't be any profit.

This means the lawsuits that have interested me most, which are about the religious rights of for-profit corporations, will go forward. This compromise specifically excludes them. Hobby Lobby, Inc., and other corporations with religious owners will still have to take their case to the courts to argue that corporations have religions and have the right to exercise them.

There have been a variety of responses to the proposed new rules. The U.S. Conference of Catholic Bishops declined to comment for the Associated Press, and said they're studying the proposal. Law firms involved in the cases defending for-profit corporations that have religious objections to insurance plans covering employee's contraceptives have said this is "picking and choosing who is allowed to exercise faith," and that the government should create an exemption for any "moral decision," disregarding anything else. Other responses have been crazier. At National Review, one writer interprets the compromise as a "double dose of authoritarianism" designed to force Catholic nuns to have birth control coverage.

Here's a thought provoking question, though. Matthew Schmitz of First Things asks:

The Obama administration believes that conscientious objections to contraception should prevail in the non-profit sector, but not in for-profit corporations. Why? Do employees of non-profits need contraception less? Do the conscience claims of their leaders matter more? Why are tax-exempt organizations granted more rights than those which pay taxes?

To put it another way, why can't a corporation serve both God and Mammon? What is it about being for-profit that necessarily excludes an organization from being legally considered religious?

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The religious practices of corporate alter egos

Are businesses, legally speaking, just the alter-egos of their owners?

The absolute clearest, most on-point exploration of the issues actually at stake in the religious liberty court cases involving for-profit business and the new health care rules is this piece by Howard M. Friedman, a former law professor and the blogger at Religion Clause. He raises this question, looking at one way the argument is being made for the religious freedoms of corporations.

Friedman notes that, in addition to questions about corporate personhood and the constitutional guarantees about exercise of religion, there are some curious quandaries about corporate law being brought up by these cases, specifically in the ways owners appear to be undermining the sorts of legal distinctions intended to protect corporate owners.

Friedman writes:

In the Affordable Care Act cases, some courts have avoided the difficult issue of whether a business has religious conscience rights by instead concluding that the business is so closely identified with its owners that it may assert the owners’ religious objections as its own.

This idea—that a corporation and its owners should be treated as the same person—is a well-known concept in corporate law, commonly referred to it as “piercing the corporate veil.” Most of the time, lawyers warn their corporate clients to do everything possible to avoid this “piercing,” since the doctrine is usually invoked when creditors of a business are making claims against the personal assets of a company’s shareholders, seeking to recoup their losses from an insolvent business by going after its owners. There is a vast amount of case law on when a court should allow “piercing the corporate veil” to reach shareholders’ personal assets, often focusing on abuse of the corporate form, misleading of creditors, or lack of corporate formalities. Business lawyers look to whether the corporation is the mere alter ego of its owners and routinely advise their corporate clients to emphasize the corporation’s separate existence from its owners.

However, the pleadings filed in many of the contraceptive mandate challenges purposely blur this line, collapsing the beliefs of the business with its owners, inviting “piercing.”

The distinction between an owner or a shareholder and the corporation itself, as Friedman notes, is an important legal underpinning of modern capitalism. What happens to these companies if they succeed in obliterating that distinction remains to be seen, but it could be serious.

The entire piece is well worth reading:  My Business, Myself: Piercing the Corporate Veil

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What 'religious liberty' means

The lower courts considering religious objections to the new health care law have -- up to this point -- reached varying and sometimes conflicting conclusions. The legal precedents in these cases about corporatations' religious practices aren't particularly clear, it seems. The unanswered questions are bound to eventually go to the Supreme Court.

A bit of a consensus is emerging, though -- a coherent argument -- among the federal courts that have rejected the religious objections to the Obama administration's mandate that employee health insurance include coverage of birth control. The courts have sidestepped the question of whether corporations have religion, though noting that that's the fundamental issue, but have made a pair of critical arguments about what "religious liberty" means.

Or, more precisely, what religious liberty doesn't mean.

This can be seen in two rulings, as Religion Clause points out.

Judges Carol E. Jackson and Sarah Evans Barker both have argued that "religious liberty" can't mean requiring employees, as a condition of their employment, to adhere to owners' religious beliefs.

Here they flip the religious liberty argument on its head, and make the case that those who say they're defending "religious liberty" are actually asking for the right to impose religious beliefs on individuals who may not personally hold those beliefs. I.e., that they're saying it's a protected practice of their religions to require people who don't adhere to those religions to follow its precepts anyway. This, the two courts have said, is not protected by the "free exercise" clause of the First Amendment or the Religious Freedom Restoration Act.

Jackson:

The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [a health care] plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. 

[The Religious Freedom Restoration Act] is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own.

 Barker:

We can imagine a wide variety of individual behaviors that might give rise to religiously-based scruples or opposition, such as alcohol consumption or using drugs or tobacco, or homosexual-related behaviors, all of which can threaten health conditions requiring treatment and care. If the financial support for health care coverage of which Plaintiffs complain constitutes a substantial burden, secular companies owned by individuals objecting on religious grounds to such behaviors, including those businesses owned by individuals objecting on religious grounds to all modern medical care, could seek exemptions from employer-provided health care coverage for a myriad of health care needs, or for that matter, for any health care at all to its employees.

These arguments are not so distinct from the question of who or what can "have" or "exercise" a religion, though. Not as separable from that problem as the courts seem to suppose. In fact, the assumptions built into both arguments seem to be that one can only individuals practice religion, and individuals' religious exercises are only valid, only constitutionally protected, insofar as that practices is not a matter of imposing a particular religious exercises on others.

A counter argument to this -- an argument I think has to be taken very seriously, even though (or, rather, because) the argument is essentially that pluralistic societies are impossible -- can be found in First Things. Greg Forster, writing about Starbucks making a political statement, writes:

This determination to protect people’s right to live in an amoral system of economic work is directly connected to the current threat to religious liberty. The basic idea is that only individuals have conscience rights; institutions like businesses are expected to be morally and even culturally neutral. This seems to be easily accomplished by giving every individual employee a veto power over the firm’s ability to say or do anything morally or culturally significant. However, in reality all human action is moral and cultural; this system doesn’t actually remove moral and cultural formation from business, it just requires businesses to conform to whatever beliefs are so socially predominant that the majority don’t even recognize them as beliefs

The question of the identity of the subject who has religion, of the definition of the agent doing the things religions' entail, has to be answered, as I see it. The question of what "religious liberty" means can only be answered when that prior question has been dealt with: answers to one entail certain answers to the other.

Judges Jackson and Barker haven't answer the question of who can have or practice religion, but they have begun to work out what one answer would mean for the definition of "religious liberty" and the scope of that sort of subject's "free exercise thereof." It's the beginnings, if nothing more, of a coherent and on-point answer to this question of the meaning of free religious exercise that has arisen in response to Obamacare.

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When Hobby Lobby decided it was opposed to providing birth control

As of today, the arts and crafts store Hobby Lobby, Inc., owes the federal government as much as $2.6 million. Tomorrow that may well be up to $3.9, and the day after tomorrow $5.2.

The company has committed to not paying these fines, claiming that they are being levied because the company refuses to compromise its religious beliefs about the evil of "abortion-causing" birth control.

As The Daily Oklahoman reports, the,

Oklahoma City-based Hobby Lobby will defy a federal law that requires employee health care plans to provide insurance coverage for types of contraception that the firm's owners consider to be “abortion-causing drugs and devices,” an attorney for the company said Thursday.

With Wednesday's rejection of an emergency stay of that federal health care law by Supreme Court Justice Sonia Sotomayor, Hobby Lobby and sister company Mardel could be subject to fines of up to $1.3 million a day beginning Tuesday.

'They're not going to comply with the mandate,' said Kyle Duncan, general counsel of The Beckett Fund for Religious Liberty, which is representing the company. 'They're not going to offer coverage for abortion-inducing drugs in the insurance plan.'

This stand will likely mean the corporation is hailed as modern day martyrs by some Christian conservatives. They might receive the same show of support that the fast food restaurant Chik-fil-A got when the the company's Chief Operating Officer made statements opposing same-sex marriage. This action -- refusing to provide employee health insurance that includes coverage of certain sorts of birth control, and refusing to pay the fine for breaking the law -- will be understood and interpreted as a stand for the robustness of religious liberty.

It turns out, though, that the verb tense of the lawyer's defiant claim,  "They're not going to offer coverage for abortion-inducing drugs in the insurance plan," is pretty important. They're not "going to," in the future.

But they did, in the past.

Legally, the question in the lawsuit Hobby Lobby has filed against the Department of Health and Human Services is more esoteric. The question is whether or not for-profit corporations have religions and exercise religion in the way that's talked about in the First Amendment.

That question isn't particularly relevant to the bulk of those concerned about this case, but that is the question before the courts. Publicly, among those most closely following these developments, the case is understood as actually being about religious liberty in American and the Obama administration's alleged attempts to limit the meaning of "religious exercise" to mere matters of belief and acts of worship, so that anything else that's done as the practice or outworking of piety, such as running a business, can only be strictly secular. For these folks, Hobby Lobby's mounting, unpaid fines are testament to its bold defense of robust religious liberty.

As one opinion-writer depicts this match-up, this is nothing less than a "war against [the] principled sector of the national economy," where,

The federal government is imposing a $1.3 million daily fine to destroy the Green family’s business or otherwise coerce them into violating their sincerely held religious convictions about the life of the unborn.

One problem with that: the company only very recently stopped providing insurance coverage of the supposedly objectionable forms of birth control to its employees.

This strong, strong stance seems to date, actually, only from the time the company learned it would soon be required by law to provide the sort of health insurance that they were already providing.

Hobby Lobby is currently facing mounting millions of dollars of fines for refusing to do what it previously did voluntarily.

For the lawsuit the corporation filed:

Recently, after learning about the nationally prominent HHS mandate controversy, Hobby Lobby re-examined its insurance policy to ensure they continued to be consistent with its faith. During that re-examination, Hobby Lobby discovered that the formulary for its prescription drug policy included two drugs -- Plan B and Ella -- that could cause an abortion. Coverage of these drugs was not included knowingly or deliberately by the Green family [members of which own the company via a trust]. Such coverage is out of step with the rest of Hobby Lobby's policies, which explicitly exclude abortion-causing contraceptive devices and pregnancy-termination drugs. Hobby Lobby therefore immediately excluded the inconsistent drugs from its policies. 

In other words, the company only took a stand -- a supposedly religious stand -- after this issue became a political issue.

The religious commitment of the people who own and run Hobby Lobby isn't in dispute. Either in the court case or anywhere else. Nor is there any question about whether or not they have made decisions that were bad for the bottom line because of those religious commitments. It's quite curious though, and I'd even say suspect, that this issue became an issue, a tenet, purportedly, of that religion the owners are committed to, after the political brouhaha over Obamacare.

While the lawyers and the plaintiffs are claiming the prohibition against certain forms of birth control are long-standing tenets of the corporation's faith -- in addition to the claim that a for-profit corporation can have and practice a faith -- the evidence the lawyers have offered suggests it's rather a new-found doctrine.

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The contraception coverage argument in a phrase

Perhaps it will ultimately be a matter of phrasing.

A third for-profit corporation has filed suit against the Obama administration's Health and Human Services' mandate that health insurance plans include coverage of contraceptives. In addition to a small flotilla of Catholic charities suing over this rule, there are also these three specific cases, where the question is finally whether or not the First Amendment's protection of religious exercise includes corporations. That is, whether or not corporations have inalienable human rights and whether or not they can in some sense be religious.

The latest suit is from Conestoga Wood Specialties Corporation, a woodworking company based in Landcaster Country, Penn. With the suit, the corporation joins and follows the arts-and-crafts chain Hobby Lobby and the Christian book publisher Tyndale House, making the case in federal court that corporations have religions.

The news story in the Philadelphia Inquirer reporting on the suit says the company, which has more than 900 employees and makes cabinets, is owned by Mennonites. Reporter Amy Worden describes Conestoga Wood Specialties as a "Mennonite-owned cabinetmaker." This seems to be a fact that no one disputes.

The headline for the piece, however, says the company is a "Mennonite firm." This is exactly what's in dispute.

Whether or not there's an important distinction between the two phrases is, it seems, basically the crux of this case.

The Obama administration's case is that a Mennonite-owned company is not the same thing as a Mennonite company. After all, there are more than 900 people working there. The religious practices of the owners may include decisions they make in running the company, but the corporation does not belong to any church. That's the argument.

Others disagree. Or, at least, favor the kind of phrasing that takes as fact what's disputed in the court case. For example:

RT @mzhemingway Mennonite company sues Obama admin over HHS mandate: bit.ly/TRQHiK
— Thomas S. Kidd (@ThomasSKidd) December 11, 2012

Then, of course, there are those like the editor at First Things whose headline elides  and implicitly denies any meaningful difference between a "Mennonite-owned corporation" and a "Mennonite corporation" and all the Mennonites.

The way one views this argument may be a matter of assumptions, really. Assumptions that come out in questions of phrasing. It just depends on how you put it.

Update (Dec. 13): The Philadelphia Inquirer has updated its headline to read "A Mennonite firm sues over Obamacare contraception coverage." Whether because the reporter or someone raised the issue I mention here or for some other reason, I do not know.

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