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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US federal court: Homeschoolers aren't persecuted in Germany

Homeschoolers are not a "particular social group" facing persecution in Germany, a federal appeals court has ruled, and homeschooling in a country where it's illegal is not grounds for asylum in the United States.

The ruling is a legal defeat for Uwe and Hannelore Romeike, a German homeschooling family, and the homeschooling activists who sought to use the case of Romeike v. Holder to get homeschoolers classified as a special, protected class.

The Romeikes have argued that they were being persecuted by the German government because they were homeschoolers; the Obama administration's Justice Department made the case that running afoul of the law does not amount to persecution, per se. In a ruling released yesterday, three federal judges unanimously agreed with the Obama administration.

Writing for the court, Judge Jeffrey S. Sutton wrote:

The question is not whether Germany’s policy violates the American Constitution, whether it violates the parameters of an international treaty or whether Germany’s law is a good idea. It is whether the Romeikes have established the prerequisites of an asylum claim -- a well-founded fear of persecution on account of a protected ground. [....]  

The Romeikes have not met this burden. The German law does not on its face single out any protected group, and the Romeikes have not provided sufficient evidence to show that the law’s application turns on prohibited classifications or animus based on any prohibited ground.

According to US law, five groups of people are eligible for asylum if they are being targeted by their home governments because they belong to one of those categories: race, religion, nationality, political opinion, or belonging to a "particular social" group. The last is not defined by the law, and has been only vaguely defined by the courts. The Romeike's lawyers were attempting to argue that homeschoolers should be considered such a "particular social group," negatively targeted in Germany.

The court rejected that argument, finding that the German law was not directed at homeschoolers, to suppress or oppress them, but is a law of general applicability.

According to Sutton (a George W. Bush appointee), the Romeikes needed to prove one of number of things. Either they had to prove that Germany's compulsory education law was designed specifically, "on its face," to persecute the particular social group, homeschoolers, or they had to prove that the law is selectively enforced to punish a particular social group (i.e., homeschoolers), or they had to prove that the law is, in practice, only applicable to that group.

Even assuming that homeschoolers are to be taken as a particular social group, and so in principle eligible for asylum, the Romeikes did not present evidence that "the compulsory school attendance law is selectively applied to homeschoolers" or that "homeschoolers are more severely punished than others whose children do not comply with the compulsory school attendance law."

In this ruling, the court affirmed that parents do have the Constitution-protected right to "to direct the upbringing and education of children under their control," an issue that had raised concerns among US homeschoolers. The court found, though, that that is not legal grounds for asylum:

The United States has not opened its doors to every victim of unfair treatment, even treatment that our laws do not allow. That the United States Constitution protects the rights of “parents and guardians to direct the upbringing and education of children under their control" does not mean that a contrary law in another country establishes persecution on religious or any other protected ground [legal citations removed].

The court cited Samuel Alito, now a conservative Supreme Court Justice, to support this argument. In the 1993 case of Fatin v. INS, where a woman wanted asylum from Iran on the grounds she was upperclass, educated, a feminist and a not a Muslim, Alito wrote,

the concept of persecution does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional. If persecution were defined that expansively, a significant percentage of the world’s population would qualify for asylum in this country -- and it seems most unlikely that Congress intended such a result

Alito could get the chance to revisit that argument, as the Romeikes' lawyers hope to take this case to the Supreme Court. Michael Farris, chairman of the Home School Legal Defense Fund that recruited the Romeikes from Germany and is representing, said the group will file an appeal.

Whether or not the court is interested in hearing this case is another question.

For now, Germans who want to move to the US to homeschool their children will have to apply for immigrant visas, rather than apply for asylum.

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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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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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The courts' disagreement over corporations having religion

Can corporations practice religion? The courts disagree.

In two different federal courts, in two different cases where for-profit companies with evangelical owners are suing the government over the Obama administration's mandate that health insurance include contraception coverage, two very different conclusions were reached. 

In Washington D.C., a federal court granted the Christian publisher Tyndale House an injunction last week, exempting the company from the daily fines it would accrue starting in January for not following the new health care law. The granted injunction is a ruling that the company has a good case, and should be treated -- at least until the final outcome -- as if it has won. Three days later, however, in Oklahoma, a federal court did not grant the arts and crafts store Hobby Lobby an injunction. The two cases are almost identical, yet the courts ruled in opposite ways. 

Pretty much, too, they ruled opposite ways because of what seems to me to be the core question, which is whether or not corporations can have or exercise religion in the sense indicated by the First Amendment. 

In the first case, Judge Reggie Walton, an appointee of the second President Bush, ruled that "the beliefs of Tyndale and its owners are indistinguishable."

In the second case, Judge Joe Heaton, also a George W. Bush appointee, ruled that corporate exercise of religion is "largely uncharted waters," and said Hobby Lobby's lawyers hadn't cited any legal precedent for the idea "that secular, for-profit corporations such as Hobby Lobby [...] have a constitutional right to the free exercise of religion," despite the fact there's no legal question about the owner's religious beliefs.

One might conclude that Walton and Heaton have a fairly straightforward disagreement about what the case law says, but the difference seems more subtle than that.

Heaton, as I read his ruling, says there's no evidence that for-profit corporations can practice religion. Walton actually agrees, though, despite ruling differently.

Walton writes in his ruling that he "declines to address the unresolved question of whether for-profit corporations can exercise religion within the meaning of [...] the Free Exercise Clause," and cites three cases where the question was left unresolved, First Nat'l Bank v. Bellotti in 1978; Church of Scientology of Cal. v. Cazares in 1981; and Stormans, Inc. v. Selecky in 2009. What he does then, though, is where the difference lies. Walton, in the first move, grants that corporations maybe can't have religion in any meaningful sense and then, in a second move says, that this particular for-profit company "Tyndale has standing to assert the free exercise rights of its owners."

The corporation can act as a kind of carrier of religion or religious practice, while not itself having or exercising said religion.

Walton ruled:

"Tyndale is a closely-held corporation owned by four entities united by their Christian faith, each of which plays a distinct role in achieving shared, religious objectives. Christian principles, prayer, and activities are pervasive at Tyndale, and the company’s ownership structure is designed to ensure that it never strays from its faith-oriented mission. The Court has no reason to doubt, moreover, that Tyndale's religious objection to providing insurance coverage for certain contraceptives reflects the beliefs of Tyndale's owners. Nor is there any dispute that Tyndale's primary owner, the Foundation, can 'exercise religion' in its own right, given that it is a non-profit religious organization."

This is either a really smart solution to the technicality of the problem, or a rather crazy begging of the question that only re-instantiates all the confusions it's supposed to clear up.

It remains to be seen.

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Catholics to bishops: never mind our souls

American Catholic bishops attempted to exert their influence on the electorate, but to little effect.

Looking at the Catholic vote the day after the election doesn't reveal any significant shifts or surprises, but the results do indicate the political impotency of a Catholic hierarchy that has become very strongly identified with politics.

The American bishops didn't appear to hesitate in picking political sides in this last election. That has not always been the case, but this time the church's hierarchy leaned heavily on Catholic parishioners, making strong pronouncements about the morality of voting one way or another, clearly indication how good Catholics should cast their ballots if they cared about their souls. Picking up issues such as abortion and mandated coverage of contraception, the church's leaders issued strongly worded statements that, ostensibly, left little room for differences of opinion among the faithful.

And yet they were ignored by significant portions of the church.

One poll in the final days of the campaign put Catholic support of Barack Obama's reelection at 52 percent. An exit poll widely cited had half of self-identified Catholics saying they'd voted for Obama, and only 48 percent saying they'd supported Mitt Romney.

The bishops were spurned by sizable portions of Catholic voters, nationally and locally.

In Illinois, for example, Bishop Thomas John Paprocki wrote that voting for candidates who supported the Democratic Party platform -- which, in contrast to the Republican platform, has planks that "explicitly endorse intrinsic evils" -- puts one's soul in danger. But many, many Illinois Catholics voters just didn't seem to care.

Paprocki's message:

"I am not telling you which party or which candidates to vote for or against, but I am saying that you need to think and pray very carefully about your vote, because a vote for a candidate who promotes actions or behaviors that are intrinsically evil and gravely sinful makes you morally complicit and places the eternal salvation of your own soul in serious jeopardy."

Nearly half of the Catholic voters in Illinois disagreed with or disregarded the bishop's warning. The CNN exit poll shows that 48 percent of the state's Catholic voters cast their ballot for Obama on Tuesday.

This is true other places as well: The bishops simply do not have significant influence over their supposed flocks.

In Colorado, some lay Catholics paid for a full-page newspaper ad carrying the political message of Denver's Archbishop Samuel J. Aquila. Aquila urged Catholics to do their "moral duty" in opposing Obama's health care plan, and the Heath and Human Services mandate that insurance coverage, including that offered by Catholic charities, include coverage of contraceptives.

Colorado opted to re-elect the president by about 110,000 votes, though, and many of those were the state's more than 700,000 Catholics.

There is some minor variation from state to state in the break-down of the Catholic vote, but it doesn't seem to have anything in particular to do with the efforts of statements or activism of the region's respective bishops.

In the five states with the largest percentage of Catholics, Obama actually won, and CNN's exit polls show that the Catholic voters were split between the parties:

• In Rhode Island, 59 percent of the population is Catholic, and Obama won by 29 percentage points.
• In Massachusetts, where 43 percent of the population is Catholic, only 21 percent of voters identify as conservative, and more than a quarter of those calling themselves conservative reported they voted for Obama.
• In New Jersey, 41 percent of the population is Catholic, and 45 percent of Catholics voters said they voted for Obama. The number of Catholics in New Jersey is about six times the number of votes that made up Obama's margin of victory.
• In Connecticut, 36.6 percent of the population is Catholic, and 49 percent of Catholic voters cast their ballots for Obama. The state went for the Democrats by 17 percent.
• In New York, where 37 percent of the population is Catholic, 47 percent of Catholic voters went for Obama. 

The 47 percent of New York Catholics who voted for Obama presumably did not include Cardinal Timothy Dolan, who went on television in the Spring to describe Obama's policies as "dramatic, radical intrusion of a government bureaucracy into the internal life of the church," and an attempt to silence people of faith, saying: "I think the public square is impoverished when people might be coerced to put a piece of duct tape over their mouth keeping them from bringing their deepest held convictions to the conversation."

And, presumably, the 47 percent of New York Catholics who voted for the president don't feel that they've been violently gagged by the policies of the man they voted for.

There will likely be arguments that those Catholics who didn't vote in accordance with the wishes of the hierarchy are, in some way, not really Catholic. It is true that Catholics who attend weekly mass -- the one measure of religiosity in election polls -- were more likely to vote for Romney. FOX's exit poll shows 57 percent of weekly mass-goers voted Republican, nationally. Of those who attend less than once per week, 57 percent voted for Obama.

The much more sharp division, though, seems to be between white Catholics and non-white Catholics, not the devout and the irregular church-goers.

According to a Pew poll done in October, 71 percent of Latino Catholics identified as Democrats, and 73 percent were planning on voting for Obama. They were nearly 20 percent more likely to support Obama than non-Latino Catholics. That overwhelming support didn't disappear when one measured for religiosity, either: among Latinos who attended mass weekly, more than 60 percent said they would vote for Obama. Where the so-called "God gap" is in effect with whites, it seems minimal at best with Latinos.

This support came despite what they heard in church when they were there every week, too, further demonstrating the church's lack of authority on these matters. Nearly one third of the church-going Latinos told pollsters they had heard sermons on candidates and elections, and more than half said they'd heard priests speak from the pulpit about abortion. It's not that they're not paying attention when, for example, a church includes a weekly prayer that "the federal government will be restored to its founding principles and allow religious liberty," it's just that they disagree.

Latino Catholics express a clear political preference, a preference which is not represented in their church's leadership.

As Eduardo Peñalver wrote in Common Weal today,

"the hierarchy finds itself identified more closely than ever with a single party in the United States, a party that is on the wrong side of inexorable demographic change. The result will be diminished influence for the Church in American politics and greater hostility towards requests for accommodation from the Democrats in power."

This divide isn't new, actually, as the numbers in this election more or less match those of the last few presidential races. Increasingly, though, the clash within the Catholic church is aggravated, as "Catholic leaders and Catholic voters can’t agree on what they think these Catholic teachings actually mean. Nor can they agree on how, or whether, those teachings might apply to the public square," as exemplified, quite publicly, in the vice presidential debate.

The election results raise very real questions about what it even means to talk about a "Catholic vote," given these divisions, and it undercuts the claims of conservatives who want to speak unilaterally about what "the church" supports or doesn't. It also especially demonstrates the hierarchy of the American Catholic church, try as they might, don't carry that much weight when it comes to the country's voting Catholics. 

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Obamacare prevents abortions

A new study suggests that the Affordable Care Act, i.e., "Obamacare," may be "the single most effective piece of 'pro-life' legislation in the past forty years," reducing abortions by up to 78 percent (!). The study tested the effects of Obamacare by covering the costs of birth control -- particularly more expensive but more effective methods -- for poor and currently uninsured or under-insured women.

The results:

"Between 2008 and 2010, abortion rates in CHOICE [study] participants ranged from 4.4 to 7.5 per 1,000 after adjusting for age and race. These rates are considerably less than the rates in St. Louis City and County for the same years and far below the national rate of 19.6 per 1,000. Using these data, we then estimated the difference in abortion rates and number of abortions prevented each year if CHOICE were available to the entire population of the region. Based on the number needed to treat, one abortion could be prevented for every 79–137 women and teenagers provided the CHOICE intervention.

".... changes in contraceptive policy simulating the Contraceptive CHOICE Project would prevent as many as 62–78% of abortions performed annually in the United States."

In the first year of the study, providing birth control for more than 9,000 women prevented an estimated 3,000 pregnancies that would have likely resulted in abortions. In comparison to women from the surrounding area in the same socio-economic bracket, the number of abortions in subsequent years was reduced by nearly 2,000 per year.

The study -- done by Jeffrey F. Peipert, Tessa Madden, Jenifer E. Allsworth and Gina M. Secura at the Washington University School of Medicine --  concludes that this is a "a clinically and statistically significant reduction in abortion rates," supporting the idea that "Unintended pregnancies may be reduced by providing no-cost contraception and promoting the most effective contraceptive methods."

Providing "no-cost contraception" is exactly what Obamacare would do, if not gutted or repealed by Republicans.

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How the religious right really thinks?

In some quarters this Ralph Reed questionnaire is being reported as evidence of the true Religious Right zeitgeist. How things really are. This is how Reed frames the issue, the "Obama question" and this coming election, and that's supposed to mean that's how it really is for those Reed supposedly can get out to vote.

Reed is, after all, "Romney's best hope for rallying evangelical voters."

Or not.

I'm not much impressed by the Freudian-slip school of interpretation.


See this document that way, as accidental-true-secret-revealed, you miss the way this is also an argument being made specifically because there's some sizable group of the target audience that doesn't think this election is a big deal.

And you miss the way this is Reed trying to position himself as a relevant operative who should always get Republican money thrown at him.

How do we know this isn't just Reed mau-mauing, as much as it's anything?

As Tom Wolfe described the practice, when a different sort of "militant minority" was shaking down pols for contracts, it sure sounds a lot like Reed and this questionnaire of his:

"Going downtown to mau-mau the bureaucrats got to be the routine practice [...]. There was one genius in the art of confrontation who had mau-mauing down to what you could term a laboratory science. He had it figured out so he didn't even have to bring his boys downtown in person. He would just show up with a crocus sack full of revolvers, ice picks, fish knives, switchblades, hatchets, blackjacks, gravity knives, straight razors, hand grenades, blow guns, bazookas, Molotov cocktails, tank rippers, unbelievable stuff, and he'd dump it all out on somebody's shiny walnut conference table. He'd say 'These are some of the things I took off my boys last night ... I don't know, man ... [...] And they would lay money on this man's ghetto youth patrol like it was now or never ... [and] the bureaucrats felt like it was all real [...] like they were reaching all those hard-to-reach hard-to-hold hardcore hardrock blackrage badass furious funky ghetto youth.

Replace those furious funky ghetto youth with "the Religious Right" and the crocus sack of weapons with a reference to people thinking Obama is worse than Nazis, and Reed's your "one genius" at the Romney offices. Which must have worked OK, since this is a $10 million campaign.

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The GOP platform & the 'war on religion'

The Republican Party platform -- approved this week at the convention in Tampa -- includes a gloss on the Bill of Rights. For the First Amendment's two clauses on religious liberty, establishment and exercise, the party repeats the claim that there is currently a "war on religion" being waged by the Obama administration, and takes a stand defending individuals' and institutions' right not to offer services not in accordance with given affiliated religions.

The platform reads:

"The most offensive instance of this war on religion has been the current Administration's attempt to compel faith-related institutions, as well as believing individuals, to contravene their deeply held religious, moral, or ethical beliefs regarding health services, traditional marriage, or abortion. This forcible secularization of religious and religiously affiliated organizations, including faith-based hospitals and colleges, has been in tandem with the current Administration’s audacity in declaring which faith-related activities are, or are not, protected by the First Amendment—an unprecedented aggression repudiated by a unanimous Supreme Court in its Hosanna-Tabor v. EEOC decision.

"We pledge to respect the religious beliefs and rights of conscience of all Americans and to safeguard the independence of their institutions from government. No health care professional or organization should ever be required to perform, provide for, withhold, or refer for a medical service against their conscience."

This seems to sum up the argument, essentially, which has been made many places in the ongoing religious-liberty-related debate about health care.

I have one factual criticism of this statement, and one (persistent) question about the argument.

First, this is a very odd reading of the Hosanna-Tabor v. EEOC case. The question wasn't about one form of religious practice vs. another, but about who qualified as a minister for the ministerial exemption to employment law. The Equal Employment Opportunity Commission lawyers argued for a more restricted and basically traditional definition of "minister," while the lawyers for the Lutheran school Hosanna-Tabor argued it had the right to list all teachers at the school as "ministers," which would allow them to fire one who was ill. Even if the school's triumph in that case is to be thought of as a triumph for "religious liberty," that's hardly a case of the "Administration’s audacity in declaring which faith-related activities are, or are not, protected by the First Amendment."

There's an argument to be made that the Obama administration is doing that, but it's not Hosanna-Tabor.

And, really, isn't any and every freedom of religion case a matter of asserting a definition of what qualifies as an exercise of religion and why? It's not so much "audacious" the nature of the issue.

Second, I still haven't seen or heard a decent, thorough working out of the logical conclusions of this position. If it's really the argument that health care professionals and organizations should not ever be required to perform services against their religion/conscience, would it be okay for a nurse who has just converted to become a Jehovah's Witness to refuse to help with a blood transfusion? Does a Catholic ambulance driver have the right refuse to transport a pregnant woman in a medical emergency that might involve an abortion to save her life? Could an emergency room doctor who is a Conservative Jewish refuse to treat a menstruating woman? Does a Christian Identity MRI tech have a First-Amendment guaranteed right not to be forced to scan a non-white person?

These are not facetious questions. I honestly don't understand if the Republican party platform's declaration of "not ever" is meant, really, to go all the way to the logical end, or if there's a line somewhere that I just haven't heard articulated.

Relatedly, it's not at all clear to me why the stated position would apply to health care professionals and not others. If the argument only applies to health care, why? If not, then the question about the nurse, ambulance driver and doctor could be repeated in an endless number of hypothetical variations. Would it still be the case that this position is as absolute as it appears?

These issues are, it seems to me, implicit in religious pluralism and right of free exercise. They exist in and are a part of the clauses of the First Amendment the platform statement seeks to interpret. These problems are not unique to the Republican party platform, but the platform goes out of its way to make a really strong statement without offering any nuance or detail or even, really, guiding principles for how Republicans might attempt to finesse problematic cases.

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Obama's blasphemy law

Ruling in favor of Westboro Baptist Church, last year, Supreme Court Chief Justice John Roberts wrote that the church members' very offensive speech was still protected by the First Amendment's guarantee of freedom of speech. Even though that speech was offensive, and even though it was outside a U.S. soldier's funeral.

Roberts wrote, "The fact that Westboro spoke in connection with a funeral ... cannot by itself transform the nature of Westboro’s speech."

Those opposing the church's protests -- which are famous for provocative slogans such as "God Hates Fags," "God Hates America," "Pray for More Dead Soldiers," and "You Will Eat Your Babies" -- had argued that, specifically because these signs were outside a funeral, they were different than if they'd been elsewhere.

President Barack Obama endorsed that argument that funerals are different this month, in a statement he made as he signed HR 1627 into law. The law -- sponsored by Republican congressmen from Florida, Ohio, Colorado and Tennessee -- limits just a little bit more Westboro Baptist's ability to protest America, declare God's condemnations and generally be provocative in the exercise of their religion. Obama supported this limiting of speech, he said, because of a "sacred duty." Where the lawyers in the Westboro court case and Samuel Alito, the one justice who dissented from the Supreme Court ruling, argued this sort of speech is different because at a funeral it's more hurtful and harmful, Obama instead argued this speech is wrong because it is blasphemous.

Blasphemous not against God, per se, but against a sense of secular sacredness. Against that which is holy in what has been called America's civil religion.

 The relevant portion of the bill reads:

"PROHIBITION.—For any funeral of a member or former member of the Armed Forces .... it shall be unlawful for any person to engage in an activity during the period beginning 120 minutes before and ending 120 minutes after such funeral, any part of which activity—

(1)(A) takes place within the boundaries of the location of such funeral or takes place within 300 feet of the point of the intersection between—

(i) the boundary of the location of such funeral; and (ii) a road, pathway, or other route of ingress to or egress from the location of such funeral;

(B) and includes any individual willfully making or assisting in the making of any noise or diversion—

(i) that is not part of such funeral and that disturbs or tends to disturb the peace or good order of such funeral; and (ii) with the intent of disturbing the peace or good order of such funeral."

President Obama on Aug. 6, the day he signed HR 1627.

Obama said in his signing statement:

"I think all Americans feel we have a moral, sacred duty towards our men and women in uniform.  They protect our freedom, and it’s our obligation to do right by them.  This bill takes another important step in fulfilling that commitment."

Highlighting this specific section of the 45-page law that seeks to restrain the Westboro Baptist protests (or others like it), he said:

"I am very pleased to be signing this bill into law.  The graves of our veterans are hallowed ground.  And obviously we all defend our Constitution and the First Amendment and free speech, but we also believe that when men and women die in the service of their country and are laid to rest, it should be done with the utmost honor and respect."

The argument here is one of sacred time and sacred space, which ought not be defiled.

For Roberts, the funeral changes nothing. Speech on "broad issues of interest to society at large" is the same as it was two hours before or after, the same 100 feet away as it is 300. Space and time remain secular; nothing is transformed by the fact of the funeral. For Obama, on the other hand, there is a transformation. A sanctification. The time around the funeral of a soldier and the space around the funeral become "hollowed."

As Robert Bellah said, famously, in 1967, "American civil religion is still very much alive."

It's in this sense of "American civil religion" that Obama's invocation of a sense of sacredness is perhaps best understood. Where there are other arguments for limiting this sort of speech, he chose this one. "Civil religion" is a tricky term. Not least because Bellah -- who hasn't himself been in love with the term he popularized in this context -- offered descriptions that were somewhat unwieldy. The basic idea, though, involves exactly this sort of argument. Civil religion involves public rhetoric that appeals to a transcendent reality that's not related to any revealed religion, but to a sacred that's sensed as revealed in America and American history. That "transcendence" is understood as immanent to all Americans, making it secular at the same time it's decidedly not. It's supposed to be easily and immediately recognizable to Americans, and also act as the ultimate ground of an argument, justification for a policy.

Bellah says this civil religion is about the "universal and transcendent religious reality as seen in or, one could almost say, as revealed through the experience of the American people."

Classic examples of this include the rhetoric of Martin Luther King Jr. and Abraham Lincoln, and also such everyday occurrences as invocations of the "Founding Fathers." Every president in recent memory has made this appeal to the transcendent truth understood and accepted by Americans to be revealed in America, to the point it's hard to imagine a president not doing this. It's like American exceptionalism plus.

The important point is that the appeal can be contrasted to an appeal to the common welfare. Most arguments in the public sphere are grounded finally in something being generally, socially good. A proposal is understood as justified to the extend it's beneficial for the general public. When there is a dispute about policy in modern democracies, be taxes or abortion or whatever, the assumption on all sides is that each side respectively believes itself to be right, and there's agreement on what "right" means and what it would mean to be that. That is, it's accepted without question that policies are to be judged by their results in the lives of the people. This is the so-called "naked" public square, where the grounds for arguing for that which is good are strictly secular.

This can be contrasted to a directly religious argument, where a given religion and, importantly, that religion's authority, serves as ground for argument. I.e., "because the Bible says," and arguments of that nature. These grounds don't offer themselves up to general evaluation and deliberation, but are understood as fixed and final, "absolute," affirmed not by the demos of democracy, but by the (holy) ground itself. Such grounds are not even rightly considered res publica, in that they're essentially inaccessible to the public except for purposes of invocation. 

What Obama is doing here, in making an appeal to the sacred and the hallowed, but a "sacred" and a "hallowed" accessible and immanent to (ostensibly) all Americans regardless of creed, is thus neither secular nor, in an important way, not secular.

A child from Westboro Baptist protests at a funeral.

The argument isn't that Westboro Baptist's exercise of speech is somehow bad for the American people (though that argument could be made). It's not that the social costs of allowing their offensive behavior is so egregious it's necessary to curtail the right of Free Speech at least a little. But it's also not appeal to special revelation, some fixed truth separate from the general experience of the American people. It's supposed to be something that all Americans know and affirm instinctively, and yet is also absolute in the sense it's affirmed as good and true entirely apart from the general welfare, and affirmed as essentially not needing any affirmation.

That is to say, the argument underlying the President's decision to sign into law a limitation of the First Amendment's guarantee of the freedom of speech is that the space and time around a soldier's funeral are fundamentally different from other spaces and times. They're transformed. And holy. But holy in this very peculiar way, where the secular is transcendent, the transcendent secular.

And protesting at a funeral, instead of an exercise of a fundamental American right, is blasphemous, an offense against that special "hallowedness" revealed in America.

One can almost hear Justice Roberts repeating that "The fact that Westboro spoke in connection with a funeral ... cannot by itself transform the nature of Westboro’s speech."

There's really no way that I know that one can argue about whether it does or doesn't. As with all matters of revelation, one either accepts that soldiers' funerals are self-evidently different, or one doesn't. Westboro's placards either appear as simple speech, offensive in the normal way, or as more than that, as a violation of something sacred.

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The new irrelevance of Rick Warren

There's something really about odd Rick Warren's explanation for why he's cancelled the planned Obama-Romeny forum. The megachurch pastor and best-selling author had announced he would reprise his role as presidential job interviewer, but now he won't.

Because:

"We created the civil forums to promote civility and personal respect between people with major differences .... The forums are meant to be a place where people of goodwill can seriously disagree on significant issues without being disagreeable or resorting to personal attack and name-calling. But that is not the climate of today's campaign."

Isn't this completely backwards, though? There's a lack of civility, so the forum is supposed to promote civility, but there isn't civility, so the forum is cancelled. But if what the forum was intended to accomplish were a fiat accompli, then what would be the point?

It's a strange argument.

One suspects something else must be going on.
Perhaps it's the politics of a Warren interview event for the respective campaigns. There was a report the campaigns nixed the thing, not Warren, and he's announcing he's cancelling it as a way to save face.

One could see how the whole thing would be just problematic for Obama and Romney. Neither of them really stood to gain. Obama would likely face hostile questions on same-sex marriage, which came up last time, when Obama's position was much more amenable to Warren than it is now. And abortion again too. These aren't the issues Obama is campaigning on, and his answers are not likely to swing any voters or motivate any of those in Warren's audience in his direction. At best, I guess, Obama could placate social conservatives, though it's hard to see how that happens. For Romney, too, the possible pitfalls seem much more serious than the potential gains. He could face hostile questions about his Mormonism. He could get attacked on his inconsistent record on social conservative issues, or even the current positions he espouses such as abortion being acceptable in cases of rape. It's hard to see how Warren steers the conversation towards the topics Romney wants to talk about.

It seems that the sense is that this campaign will not be won on the kinds of issues Warren cares about. But it could be lost on those issues.

Another way to think about what's going on here is that Warren just has failed to make himself a plausible public gate keeper. A certain amount of neutrality is necessary for one to be a respectable, acceptable host of a forum. When Warren was positioning himself as a "post-culture war" kind of evangelical, who took a more liberal position on issues such as the environment or AIDs in Africa, there was at least an argument he'd be even-handed in his criticism of the candidates. As someone more publicly associated with opposition to California's Proposition 8 and saying that Obama administration's policies amount to a "crumbling of our constitution's first guaranteed freedom: the freedom of religion," he doesn't seem like someone who's going to be good at facilitating a conversation. He doesn't seem to be moving past the culture war in any meaningful way.

The loser here is Warren, given that he still seems to want to be a power player, a power broker and king maker. His position as religious authority on the public square has evaporated in the last four years. Whether it's the politics that have changed or Warren himself, his ability to exert an influence here is gone.

Maybe he's not the only loser, though. I thought that, in the last election, the respective candidates' answers to Warren's question about evil were maybe the most interesting and really the clearest things said about underlying, governing philosophies.

While it's ridiculous and ahistorical to think this campaign is somehow dirtier or more aggressive than others, or more that way than ever, that doesn't mean it couldn't be better. It would have been nice to hear the candidates try to thoughtfully answer some big, fundamental questions. If Warren could have done that, it could have been a good thing.

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Why do people still not know if Obama is a Christian?

Recent Pew poll results on perceptions of Romney's religion say pretty much exactly what one would expect. More people know he's Mormon than used to, but they're either OK with that or don't care. The poll found "unease with Romney’s religion has little impact on voting preferences."

The more interesting information, here, is that 51 percent of registered voters don't "Identify Obama as Christian."

This isn't because they think he's a Muslim, though. There are some who think he's Muslim, but the number that identify Obama with Islam has been pretty consistent and relatively small, upticking only slightly from 12 percent right before the 2008 election to 17 percent today. 

The big block of registered voters who don't say Obama is a Christian are not saying for sure what his faith is. They're saying they "don't know." Nearly a third say that they don't know, now, a number went as high was 41 percent in 2010. From the looks of the numbers, about 10 percent of voters have, over the course of Obama's first term, gone from thinking he's a Christian to not knowing if he's a Christian to thinking he's a Christian again -- all without ever saying he's Muslim.

It's possible to read this "don't know" as simply the safe version of saying he's Muslim. Some Republican officials have taken this stance of allowing doubt and encouraging distrust without actually saying anything directly. Like, "he says he's a Christian ... (but I don't know)," etc.

There's another way to read this question about Obama's Christianity, though, which has nothing to do with rumors he's a secret Muslim.

It's possible 31 percent of registered voters don't know if Obama's a Christian because they don't know if liberal Christianity is really Christianity.


Consider: a year ago there was an intra-evangelical fight about the doctrine of eternal damnation, after megachurch minister Rob Bell wrote a book questioning some aspects of that idea. The terms of the fight were, to a large extent, could one still be considered a Christian if one did not believe in hell? This is not an exaggeration. Though it was portrayed as a conflict over this doctrine, it was actually about who gets to count as Christian. So John MacArthur wrote, e.g., "Is Rob Bell truly a Christian, or is he one of those dangerous deceivers Scripture warns us about repeatedly (Acts 20:29; 2 Corinthians 11:13-15; Colossians 2:8; 2 Peter 2:1; etc.)? It's a fair—and necessary—question." Kevin DeYoung, who started the extensive attack on Bell, wrote that "At the very heart of this controversy ... is that we really do have two different Gods" and "Bell’s vision of heaven and hell doesn’t work because his vision of God is false."

For people who take this position that Christianity is only Christianity if it includes a strong vision of eternal damnation, Obama's not going to count as Christian.

In one of his more extensive statements on his faith, for example, the then-Illinois state senator said,

"I find it hard to believe that my God would consign four-fifths of the world to hell. 
I can’t imagine that my God would allow some little Hindu kid in India who never interacts with the Christian faith to somehow burn for all eternity.
 That’s just not part of my religious makeup."

DeYoung, and those like him, would not likely conclude from the above that the president is a Muslim, but they wouldn't say he's a Christian, either. Not a "real" Christian, anyway.

Thus: "don't know."

It's a kind of yes and no answer, as in yes he's a Christian in the sense he identifies as such, but no, he's not really a Christian, because he embraces a "phony theology ... not a theology based on Bible." The "yes" is about a descriptivist account of Christianity, which allows that people are as they say they are, and the "no" is a prescriptivist account, which holds there's an essential definition of Christianity, and someone can say they're Christian without meeting the objective theological standards of being Christian.

It's possible that nearly a third of the country's registered voters are just confused and have been tricked by conservative commentators into suspecting the president of the United States is other than what he claims to be. A more reasonable explain, though, it seems to me, is that this 31 percent recognizes Obama is, as he says he is, a liberal Christian, but they don't know that that Christianity is really Christianity.

For them, liberal Christianity is in a confusing neither/nor space that's kind of hard to name, especially when going back and forth between descriptivist and prescriptivist definitions of "Christian," and that's exactly the gray area where Obama and his faith fall.

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