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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Religious arguments in the legal fights over same-sex marriage

Photo by Jamison Weiser (CC)

A man dressed up in Catholic liturgical regalia protests religious teachings against same-sex

marriage in San Francisco, Monday.

One of the biggest, most contentious issues in the ongoing American culture wars goes to the Supreme Court this week, with oral arguments today and tomorrow in two cases about the constitutionality of legally defining marriage as between a man and a woman.

At Religion and Politics, law professor Calvin Massey offers a preview of the cases:

Hollingsworth v. Perry confronts whether California’s 2008 constitutional amendment to ban same-sex marriage violates the U.S. Constitution, specifically its guarantee of equal protection to all persons under the law. Prop 8 drew a lot of attention during the 2008 election; it was bolstered by a host of religious organizations, notably the Roman Catholic Church, the Church of Jesus Christ of Latter-day Saints, and megachurch pastor Rick Warren. It passed by a 52 to 48 percent margin, receiving more than 7 million “yes” votes. Then two same-sex couples filed suit in federal court to invalidate Prop 8. The trial court voided the amendment and a federal appeals court affirmed that decision on equal protection grounds.

In United States v. Windsor, the plaintiff, Edith Windsor, is an 83-year-old widow who is challenging section 3 of DOMA, also on equal protection grounds. When her spouse Thea Spyer died in 2009, Windsor was not allowed the marital deduction for estate taxes, though she and Spyer legally married in 2007. DOMA, enacted in 1996 under the Clinton administration, makes federal marital benefits available only to married couples of the opposite sex. Because of this, Windsor paid some $350,000 in estate taxes before she sought a refund in federal court. The trial court agreed with her, and the federal appeals court affirmed the ruling; the federal government has appealed to the Supreme Court.

Massey notes that because of the way culture-war conflicts have played out over the last 40 years, some proponents of same-sex marriage are actually hoping for a small victory, rather than a big, dramatic win. If the court strikes down all same-sex marriage bans, that could detrimental to the cause, resulting in lots of backlash and generations of cultural entrenchment, where conservatives use the court's ruling as a rallying cry. It's a fear of a Pyrrhic victory. Massey calls this the "specter of Roe v. Wade":

Roe overturned all state laws prohibiting abortion, and even those that severely regulated but did not outlaw abortions. The result, as Justice Ginsburg noted in her Madison Lecture at NYU Law School, delivered 20 years ago this month, was that the trend in the states toward progressive legalization of abortion was truncated by a sweeping judicial fiat. Had the Court confined itself to striking down the Texas law at issue in Roe, without addressing the validity of other states’ laws, there would have been room for further evolution of abortion laws in the states. Instead, Roe closed the door of legislative change and brought about a 40-year battle of high emotions, even violence, and stubborn opposition to Roe and its progeny. 

When people feel that they have lost in an open and democratic debate, they may not like it but will usually accept the popular verdict. But when people feel that their voice has been ignored by a process in which they have no input, they are apt to resist the result as an illegitimate usurpation of democratic institutions

National Public Radio has a piece on a Pentecostal church in El Paso where many people would likely respond to a clear legal victory for same-sex marriage in just this way. That church has -- like a number of conservative Christian groups -- been politically active on what NPR dramatically calls "one of the battlegrounds in the gathering war over gay marriage." It's not a great news story. There are more than a few problematic framing issues typical of accounts of "culture war." But the story does give space to the views of some of those religious people in America who are deeply opposed to same-sex marriage, and worried about what the court might decide in June. One of the main fears is that a sweeping ruling will, by judicial fiat, etc., basically rule religiously informed arguments against same-sex marriage unconstitutional.

This is one of the many legal arguments that religious groups are officially making in these two cases, which can be found in the nearly 100 amici filed with the Supreme Court, where various groups not directly involved in the dispute offer their input in legal briefs.

In Hollingsworth v. Perry, there are at least two dozen such briefs from religious organizations. A survey of some of the arguments those organizations are making in favor of the right of the State of California to legally define "marriage" as only involving opposite-sex couples shows the variety of religious arguments that are being made. Some are familiar, some innovative.

A sampling:

• The National Association of Evangelicals, The Ethics and Religious Liberty Commission of the Southern Baptist Convention, The Church of Jesus Christ of Latter-day Saints, and the Missouri-Synod Lutherans jointly argue the lower court's ruling that overturned the voter-approved definition of marriage was "a misguided incursion into this democratic debate," mis-applying legal precedent, and declaring "in the name of the Constitution that religious understandings are irrational and illegitimate, even when coupled with nonreligious judgements."
• The Conference of Catholic Bishops argues that legally defining marriage as being between a man and a women is "rationally related to legitimate state interests," because of opposite-sex couples potential to procreate and because children are better off when raised with a father and a mother. The bishops write "as a matter of simple biology, the union of one man and one woman is the only union capable of creating new life [and] the People of California could reasonably conclude that a home with a mother and a father is the optimal environment for raising children." They further make the case if religious and moral considerations are involved in enacting such a ban, that doesn't make it constitutionally invalid, since "Many, if not most, of the significant social and political movements in our Nation’s history were based on precisely such considerations. Moreover, the argument to redefine marriage to include the union of persons of the same sex is similarly based on a combination of religious and moral considerations (albeit ones that are, in our view, flawed)."
• The Coalition of African American Pastors USA and others argue that the historic ruling striking down state bans on inter-racial marriage cannot be used to strike down bans on same-sex marriage. They write "the anti-miscegenation statutes in Virginia were at war with the core purposes of marriage -- especially the fostering of responsible procreation and child rearing by biological parents -- because those Virginia statutes prevented children from being raised in the optimal setting: a family headed by married biological parents" (emphases original). According to this group, the present movement to legalize same-sex marriage is analogous to historic efforts to ban inter-racial marriage, since both seek to radically redefine marriage for the sake of "extraneous" social policies. 
• The Foundation for Moral Law makes the argument that "the Framers of the Constitution would be shocked to see their document twisted to protect something they regarded as abhorrent" and that "marriage is not simply an individual right, but rather it is a divinely-established institution that is as old as if not older than civil government."
• Catholics for the Common Good (a lay-led organization from California) argues that legally defining marriage as necessarily involving opposite-sex couples is not discriminatory, but based on reasonable judgements about the biological differences between men and women. The claim is made that "there is a vast body of credible, scientific evidence that supports the California voters’ choice to differentiate the nomenclature to be assigned to male-female pairs (marriage) and single-sex pairs (domestic partnership)." They argue it must be permissible for states "to construct public policies that assume that there is a real difference between men and women; between mothers and fathers; between boys and girls; and between male-female sexual relationships, and those of same-sex couples."
• Family Research Council -- once the political arm of Focus on the Family, though now independent -- offers what they call "alternative grounds" on which same-sex marriage can be rightly, legally banned. One argument the group makes is that "the fundamental right to marry that has been recognized by this Court is limited, by the nature of marriage itself, to opposite-sex couples." Another argument offered is that the state's definition of marriage did not discriminate against anyone, since all men and women, even homosexual men and women, have the right to marry someone of the opposite sex. 
• Patrick Henry College makes the argument that legal definitions of marriage are necessarily about morality, and not allowing the people of a state to ban same-sex marriage means coercing them to morally sanction same-sex marriage. The college writes: "The definition of marriage [...] is a quintessentially moral determination, for it encompasses the question of what marriage ought to be. Since this case (like any case dealing with polygamy or incest) is about the meaning of marriage, rather than access to it on equal terms, each side is asking the state for moral sanction through the designation, 'marriage.'"

There are also a number of religious organizations that have filed amici in favor of striking down California's ban on same sex marriage. One has the backing of 18 different groups, most of which are mainline Protestant or Jewish. These include the Episcopal Church, the United Church of Christ, several Lutheran groups, several Presbyterian groups, the Unitarian Universalist Association, and a Quaker group, as well as the Union of Reform Judaism, the Rabbinical Assembly, the Reconstructionist Rabbinical Association, the United Synagogue of Conservative Judaism, and others. In their brief, these groups emphasize the breadth and diversity of support for same-sex marriage among religious groups, and make an argument from American religious pluralism. They claim that "permitting same-sex couples to marry will not impinge on religious beliefs, practices, or operations, but rather will prevent one set of religious beliefs from being imposed through civil law." Another such brief has been filed by a number of California-based religious organizations who say they oppose legally defining marriage as between a man and a woman because that would be "governmental discrimination turning on whether a committed couple's union accords with liturgical doctrines."

There is a slightly smaller number of legal briefs from religious groups filed in the second case, United States v. Windsor. Some of the groups involved are the same, though there are also others. In these briefs, those arguing for a federal law -- the Defense of Marriage Act (DOMA) -- defining marriage as being between a man and a woman turn their attention to questions of discrimination, and whether or not such a law discriminates against homosexuals. There are also assorted other arguments that are made. A survey of some of the religious organizations' arguments:

• The National Association of Evangelicals, et al., make a technical argument about how "suspect classes" should be determined in questions of violation of Equal Protection, and argue, more generally, that religious groups "have just as much right as anyone else to have our views considered by democratic decision makers. But that cannot properly occur if the great marriage debate is removed from our democratic institutions and decided by the judiciary under a heightened standard of review."
• The Family Research Counsel writes that DOMA "on its face, does not discriminate between heterosexuals and homosexuals, but between opposite-sex married couples and same-sex married couple," and repeats many of the arguments made in Hollingsworth v. Perry.
• The Catholic bishops argue DOMA's definition of marriage is not a problem because it does not deny anyone a "fundamental right," since there is no fundamental right to same-sex marriage. According to the bishops, "civil recognition of same-sex relationships is not deeply rooted in the Nation’s history and tradition—quite the opposite is true. Nor can the treatment of such relationships as marriages be said to be implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed."
• The Manhattan Declaration, Inc. -- the movement with a manifesto with more than 500,000 signatures of Catholic, evangelical and Orthodox Christians who believe "the male-female nature of marriage to be an essential Christian teaching" -- argues for the universality of the DOMA definition of marriage, and that it has nothing to do with animus towards homosexuals. A religious liberty argument is also made. The group writes:  "Marriage is a foundational institution universally known and accepted, without regard to the accidents of time and place, as a male-female coupling" and "redefining marriage imperils religious liberty and oftentimes requires that freedom of conscience be sacrificed to the newly regnant orthodoxy." Striking down the federal law defining marriage as between a man and a woman would, according to Manhattan Declaration, "constitutionalize" same-sex marriage.
• Robert P. George, who helped found the Manhattan Declaration, Inc., and has been at the forefront of natural law arguments against same-sex marriage, argues that the question for the court to decide is not the definition of marriage, but only "whether citizens and legislators may embody in law the belief in marriage as a conjugal union, as they have historically done." He further argues that it is rational and practical for those citizens and legislators to define marriage as necessarily involving opposite-sex couples (implying it is not just a religious judgement and therefore should be allowed).
• The Chaplain Alliance for Religious Liberty argues similarly, making the case that striking the opposite-sex marriage provision from DOMA would mean that "service members who adhere to traditional religious beliefs on marriage and family will likely be penalized and marginalized, and the chaplaincy’s efforts to protect religious liberty will face severe conflicts."
• Concerned Women for America -- the group Beverly LeHaye founded -- writes that homosexuals should not be a class protected against discrimination because, as a group, they're politically powerful, having "repeatedly demonstrated their ability to influence public policy through democratic means. And their influence is only increasing. Their causes are supported by the mainstream media, popular culture, big labor, and big business." The group also makes the argument that in this case, one of the key questions at stake is who defines marriage, in addition to how marriage is defined. The group argues that the decision should be made democratically, i.e., not by the courts.

There only seem to be two amici from religious groups opposing DOMA's definition of marriage in United States v. Windsor. As in Hollingsworth v. Perry, there's one brief with a large number of socially left-leaning religious groups signed onto it. These groups have chosen a strategy that's quite different than the right-leaning groups 21-guns approach. In that brief, filed by the Episcopal church of the 10 states and the District of Columbia where same-sex marriage has been legalized, six Reform and Conservative Jewish groups, the Unitarian Universalists, the United Church of Christ, and several Lutheran, Presbyterian and Methodist groups, the arguments made in the amicus in the other case are substantially repeated. They repeat the point that there is no one religious position on same-sex marriage and that a particular religious doctrine about marriage should not be given the backing of federal law. 

What import these various arguments will have in the cases before the Supreme Court remains to be seen. What is notable about these arguments from religious groups is how secular they are. They're secular in the sense that they're grounded in this-worldly justifications, arguments which are, in principle, accessible to all. These are arguments about social good, arguments that could mostly be proven or proven false with data. The cases being made mostly do not involve arguments from revelation, or religious authority, or any claims that necessarily entail any theistic ontology.

Steve Bruce has argued the rise of the religious right as a political force is evidence for secularization even in America for exactly this reason. He writes:

Critics of the secularization paradigm sometimes point to the Christian Right as evidence that social differentiation has not marginalized religion. I draw the opposite conclusion from the same data .... Christian Right organizations now present their causes in secular language .... They cannot assert that God dislikes divorce [e.g.]. They have to argue that divorce is socially dysfunctional. 

This is important, because the culture war that's fought around such issues as these Supreme Court cases is often understood -- especially by those involved -- as a pitched battle between secular and religious forces. Religious people and organizations that are politically active on the right regularly express the fear that secularists are attempting to effectively disenfranchise them, push them out of the public sphere. That's certainly the fear expressed by the pastor of the Pentecostal church in El Paso, profiled by NPR. It's an issue raised by many of the religious groups that have filed amici in these legal cases. Court rulings tend to aggravate that feeling of disenfranchisement, which is why some advocates of same-sex marriage (such as Andrew Sullivan) prefer the issue not be settle by the courts. And why some observers think conservatives stand to gain by losing these cases in court.

But, here, the religious forces are secular forces.

The main "religious" arguments being made for the legal definition of marriage as only being between opposite-sex couples is not religious, in any meaningful way. The counter argument being made, likewise, is not that these arguments should be disallowed because they are religious. Ted Olson, for example, the lawyer advocating for homosexuals' right to get married in the Hollingsworth v. Perry case, responds to the religious right's secular arguments with secular counter-arguments, saying that each fails only because it fails to prove what it sets out to prove, which is that it is in the state's interest to bar homosexuals from the legal benefits and protections of the institution of civil marriage.

As NPR reports:

Olson replies that none of the offered justifications for Proposition 8 hold water -- not family, not kids, not the institution of marriage. No one, he says, has come up with any reason why same-sex marriage 'damages heterosexual marriages in any way.' 

Ultimately, he says, it is no justification to say the country has been doing something for hundreds of years, if it flies in the face of the constitutional guarantee of equal protection of the law.

There are many like the Reformed theologian Peter Leithart, who worry that Christian arguments against same-sex marriage are barred from the public debate, and that even if they were allowed, they'd be underwhelming. Religiously informed arguments would be ineffectual and unpersuasive. "It will take," he recently wrote, "nothing short of a cultural revolution for biblical arguments to be heard, much less to become persuasive." This is because, for Leithart, it seems that "the only arguments we have are theological ones, and only people whose imaginations are formed by Scripture will find them cogent."

In these two Supreme Court cases, though, it is apparent that theological arguments aren't the only ones. Whether or not the non-theological arguments are any more cogent and persuasive to the general public is another question.

It's that question that has bubbled up in an intra-religious conservative dispute about the usefulness of the idea of natural law. The ideas of natural law underly many of the arguments religious groups are making in the legal briefs in these two cases: that there is a natural and right order that can be determined by rational thought and ought to be adhered to for the sake of human flourishing.

As Hugo Grotius pointed out, a key aspect of natural law is that it depends on reason alone, and holds "etsi Deus non daretur," even if God is not a given. Which is to say, it is secular.

The natural law arguments against same-sex marriage that are being made and have been made are secular, and thus at least theoretically reasonable and effectual in public debates in a pluralistic society. This is why the theory of natural law was embraced so wholeheartedly by conservative Christian groups seeking to have a political impact on American culture. As Brad Littlejohn explains:

With the ascendancy of the Moral Majority, conservative Christians found themselves catapulted into the public square, and the more sophisticated were conscious that a raw and undiluted biblicism was not going to get them very far in public debates. Finding themselves shoulder-to-shoulder with Catholic co-belligerents in the culture wars, evangelicals glanced over at the popish playbook and thought natural law looked like a pretty promising notion. Accordingly, they took up the idea with gusto.  

But now, scarcely a decade into this revolution [....] finding that natural law arguments are gaining them no traction in the current debate, evangelicals, and indeed many within the whole cobbled-together conservative coalition, were already wavering and considering withdrawal.

The wavering can be explained by the fact that natural law theory was picked up, by and large, because of the promise it would be a powerful tool. Conservative religious people involved in political activism may believe in natural law, but there's a strong instrumentality to that belief. Where strictly religious and theological arguments (built on biblicist or presuppositional epistemologies) had failed, those grounded this way, in reason -- commonly accessible, public reason -- would succeed. That was the promise. And yet they haven't, or at least not enough. The swing in public opinion on the topic of same-sex marriage has been shocking. Arguments about natural order have had little strength, where the testimonies about the public good of gay marriage have been both affective and effective.

The images of long-committed same-sex couples getting married have seemed to growing portions of the public to speak much more clearly about the common good, and much more persuasively about the kind of society that American citizens want to live in.

The natural law arguments against same-sex marriage have been so unpersuasive, it seems that the only way to continue to hold them is by way of giving up on the debate. To quote Littlejohn again, "We seem to be back in a situation where we must simply give up on the rest of 'irrational' society and retreat to our strongholds, or else aggressively assert the superiority of our own reasoning and call upon our opponents to subject their reasons to the yoke of Christ."

These are the religious arguments that have gone to the Supreme Court, though. Perhaps in that context things will be different. Or, perhaps the sun is setting on these particular religio-political arguments.

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'This right of privacy . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy'

Roe vs. Wade, the federal case that legalized abortion, thus determining one critical line of political battle and cultural division for generations to come, was handed down by the Supreme Court 40 years ago today.

The decision, writing by Justice Harry Blackmun, focused on the question of whether privacy was a right guaranteed by the constitution. That's not normally the core of the debate as it's debated day to day in American culture, but that was the central question of the legal issue.

A key excerpt of the decision, on the matter of a constitutional right to privacy:

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, (1968), Katz v. United States, (1967), Boyd v. United States, (1886), see Olmstead v. United States, (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, ; in the Ninth Amendment, (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, (1967); procreation, Skinner v. Oklahoma, (1942); contraception, Eisenstadt v. Baird, (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, (1944); and child rearing and education, Pierce v. Society of Sisters, (1925), Meyer v. Nebraska, supra.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, (1905) (vaccination); Buck v. Bell, (1927) (sterilization).

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

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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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Strategic misremembering

There was a lot of celebration following the Supreme Court's decision in Hosanna-Tabor v. EEOC. For those who see themselves as defenders of religious liberty, the decision was a victory. A triumph. Religious liberty won, the "current Administration’s audacity" and "an unprecedented aggression" was "repudiated by a unanimous Supreme Court," and the "secularists" were taken to the woodshed.

So why are those who celebrate this victory systematically misrepresenting it?

In a prime example of this misrepresentation, Timothy George and Thomas G. Guarino summarize the case incorrectly at First Things. They write:

"Not long ago, the Equal Employment Opportunity Commission (EEOC) challenged the 'ministerial exemption' traditionally granted to churches so they may choose their ministers according to their own criteria, unhindered by state interference. The arguments advanced by the executive branch of government, in Hosanna-Tabor v. EEOC, would have significantly reduced those protections. Fortunately, the United States Supreme Court, insisting that religious freedom is the cornerstone of democracy, unanimously supported the traditional exemption."

In case you weren't counting, the brief summary used "traditional" twice. Once: the exemption that is "traditionally granted." Twice: the "traditional exemption."

The word has resonances, obviously, with a narrative of conservatism as defense of the "way things are," resistance to government overreach and liberals' and secularists' radical attempts to restructure society. Those on the Hosanna-Tabor side of Hosanna-Tabor v. EEOC, are, in this rendering, not just on the side of religious liberty, but also on the side of tradition. The side defending what conservative thinker Russell Kirk would have called custom, convention, continuity -- preservation of these three being the second of Kirk's conservative principle. Defending, that is to say, vis a vis the third Kirk principle, "things established by immemorial usage."

As neatly as this narrative works, though, it doesn't fit the case at hand. The exemption at issue in the case is not traditional. According to the unanimous opinion of the Supreme Court that found in favor of Hosanna-Tabor, this isn't an issue of tradition. The question is rather about the extent of an exemption, and understood, critically, as a question over the definition of "minister."

The question was whether the exemption that does have a legal precedent (in lower courts) should be understood to also include the specific, unusual kind of exemption from discrimination law that was claimed by Hosanna-Tabor, a Lutheran school that fired a teacher and rescinded her "calling" after she got sick.

Chief Justice John Roberts wrote the unanimous decision. That decision says: "Until today, we have not had occasion to consider whether this freedom of a religious organization to select its ministers is implicated by a suit alleging discrimination in employment."

As Roberts understands the issues of the Supreme Court decision, it's not a matter of upholding tradition. It's not -- contra First Things -- a case of rejecting a strange new governmental imposition of rules that ignore the freedom of religious exercise, citing precedent and being done with it. Rather, as Roberts puts it, it was a matter of considering the constitutionality of one kind of use of the exemption that has never been considered before.

Thus: a new thing.

Lyle Dennison, a journalist who has covered the Supreme Court for 54 years, reported that what the court did, in this decision, it did for the first time.

He wrote, "the Supreme Court on Wednesday unanimously gave its blessing -- for the first time -- to a 'ministerial exception' to federal, state, and local laws against virtually all forms of discrimination on the job."

And, "The Court, as it acknowledged Wednesday ... has never recognized an explicit 'ministerial exception' to anti-discrimination laws at any level."

Again, it's not about tradition and upholding tradition. So why represent it that way?

If you read John Roberts' decision, which is easy enough to do, it's clear that there were three arguments in the case, all of which came down to the issue of what should define a "minister" for the ministerial exemptions to equal employment opportunity law.

In the first argument, Roberts writes that,

"We agree that there is such a ministerial exception. 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."

The fact that the court ruled that there is such an exemption as the the ministerial exemption is important, but the more significant fact to note, here, is how that position eligible for the exemption is being defined. It's being defined by the religious group itself. There's no objective standard, dictionary definition, or legal requirements for a minister. Religious groups decide and define for themselves.

In the second argument, where Roberts turns specifically to the case of Hosanna-Tabor firing a teacher, the issue is the same. It's the question of definition, not tradition or traditional exemptions. Roberts writes that the teacher in the case was a minister because she was "held ... out as a minister," by the church, "with a role distinct from that of most of its members." He writes that, further, the teacher "held herself out as a minister of the Church." Roberts adds that there was a process she had to go through and additional training she had to undertake to get the title, "minister," and that in that capacity she did serve "important religious functions" for the church.

In the third argument, Roberts responds to those arguing against Hosanna-Tabor. He writes why the EEOC is wrong,and its argument has to be rejected. Critically, he doesn't say they're wrong because they think the government has the right to interfere with religious groups' internal decisions about who will minister. Contrary to those who supposedly celebrate this decision, the decision isn't about state interference, but the definition of minister, according to Roberts. He writes that the EEOC was

"contending that any ministerial exception 'should be limited to those employees who perform exclusively religious functions.' We cannot accept that view. Indeed, we are unsure whether any such employees exist. The heads of congregations themselves often have a mix of duties, including secular ones such as helping to manage the congregation's finances, supervising purely secular personnel, and overseeing the upkeep of facilities."

In Dennitson's gloss on this, he writes that, essentially, employees are not protected by anti-discrimination laws or employment laws if they work for a religious organization that defines them as ministers. And "the employee could be anyone from the congregational leader, on down to any worker considered to be advancing the religious mission" by the religious organization, according to the religious organization's internal criterion.

Any Supreme Court ruling of course works on several different levels, in different spheres. One is the legal, how the ruling is understood by judges and lawyers in all the federal courts, how it shapes future decisions of the EEOC and lawmakers, etc. Another one, though, is how it's understood culturally.

It seems to me that, culturally, this case is consistently represented as something it's not. The court's decision is being misrepresented by those who like it and celebrate it. Though the decision really only did come down a short time ago, the memory of it seems to have gotten kind of turned around.

The misremembering seems like its in service of a larger narrative. The question is, is it strategic?

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