Teachers v. church schools v. the government

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

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

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

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

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

Gee wrote:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

According to the Freedom From Religion Foundation suit:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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An emerging alliance in defense of sharia

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

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

From Florida:

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

[....] 

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

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

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

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

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

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

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

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

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

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

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

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

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

The churches, in an official press release, argue:

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

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

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

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

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

And more.

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

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

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

As the co-council explained in an interview:

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

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

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

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

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

The judge in that case ruled:

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

The church subsequently settled the suit for $13.5 million.

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

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The religious practices of corporate alter egos

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

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

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

Friedman writes:

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

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

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

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

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

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What 'religious liberty' means

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

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

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

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

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

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

Jackson:

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

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

 Barker:

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

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

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

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

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

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

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When Hobby Lobby decided it was opposed to providing birth control

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

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

As The Daily Oklahoman reports, the,

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

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

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

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

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

But they did, in the past.

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

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

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

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

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

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

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

For the lawsuit the corporation filed:

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

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

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

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

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The contraception coverage argument in a phrase

Perhaps it will ultimately be a matter of phrasing.

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

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

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

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

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

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

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

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

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

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

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

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The ignored question of corporations' religious freedom

A federal court ruling handed down in Oklahoma yesterday said that for-profit corporations don't have rights -- constitutional, inalienable, or otherwise -- to freely exercise their religion.

The court case involves a chain of arts and crafts stores called Hobby Lobby, owned by a family-established trust, in a suit with the Obama administration over the Health and Human Services mandate requiring health insurance plans include birth control coverage. This ruling will be appealed. Its not anything like the final word on this. However, the court has made clear that the issue in this case is who or what can have a religion.

Who or what can practice a religion.

The clarification of the issue is appreciated, since the assumptions out there in these claims of "freedom of religion" are actually quite confounding, and since, as far as I can tell, no one from the many many groups or among the many many critics opposing this HHS mandate seem interested in explaining the issues. Apparently it's enough to be appalled that the Obama administration is assaulting our first freedom and obliterating freedom of religion, without ever being clear about the messy matters of corporate personhood and religious practice.

Which this 28-page ruling by U.S. District Court Judge Joe Heaton points out:

"Plaintiffs have not cited, and the court has not found, any case concluding that secular, for-profit corporations such as Hobby Lobby and Mardel have a constitutional right to the free exercise of religion .... The question of whether the Greens can establish a free exercise constitutional violation by reason of restrictions or requirements imposed on general business corporations they own or control involves largely uncharted waters." 

In short, this ruling asks the very basic question that those up in arms over religious freedom have consistently refused to answer: what sense does "religious freedom" have for a corporate entity?

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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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The religion of Hobby Lobby

The 28th lawsuit against the Obama Administration's "birth control mandate" was filed this week. This one was filed of behalf the chain of arts-and-crafts stores, Hobby Lobby.

According to Christianity Today, Hobby Lobby is "the first non-Catholic business to file suit."

While the question of what it means, exactly, for a for-profit corporation to "have a religion" is still not clear to me, this case also involves the question of what, specifically, Hobby Lobby's religion is supposed to be. It's not Catholicism, but what is it? The document filed in U.S. District Court in Oklahoma City is fairly vague on this point. It says "evangelical," mentions "Jesus Christ" and "biblical," but does not specify a church, nor any authority the Obama administration could have consulted for case-specific clarification of the religion's position on moral issues relating to insurance coverage and birth control methods.

Moral issues which, judging just by the explanations offered by the Becket Fund for Religious Liberty lawyers, are complicated:

According to the suit, the arts and crafts store's specific religion is not opposed to birth control per se, but only to birth control that is "abortion causing." This means specifically birth control that prevents fertilized eggs from implanting in the uterus. Moreover, the company's religion not only prohibits those who adhere to the religion from themselves using such forms of birth control, but also, "forbid[s] them from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices."

The breadth of "otherwise supporting" is obviously problematic. It's the kind of injunction with implications that would have to carefully explicated by a religion's ethicists and theologians.

But who are the authoritative experts of Hobby Lobby's religion?

According to the lawsuit, the unnamed religion defines the prohibition against "otherwise supporting" certain forms of birth control as meaning certain sorts of compensation packages that could potentially be used to fund birth control are not allowed, while other forms of compensation packages that have that same potential are not a problem. Why? It's not clear. The religion apparently requires believing companies (?) not to participate in or provide access to morning after pills or IUDs. The prohibition against "otherwise supporting" does not, however, extend so far as requiring a company not pay the salaries of people who could possibly use the money they've earned to pay for these forms of birth control. But it does require the company to not pay employees with insurance coverage that those employees could possibly use for morning after pills or IUDs.

The case is, as I read it, built on this explication of the requirements of the religion of Hobby Lobby.

Not providing insurance that covers certain birth control methods is defined in the suit as the "practice" of this religion, and thus protected by the "free exercise" clause of the First Amendment. The suit claims that the birth control mandate, by levying a fine on those businesses that fail to provide HHS-approved health insurances, is effectively fining those businesses that adhere to this religion of Hobby Lobby's for the practice of their religion. This is the main claim of the suit: "Having to pay fines for the privilege of practicing one's religion ... is alien to our American traditions of individual liberty, religious tolerance, and limited government. It is also illegal and unconstitutional." This is reiterated by the statement put out by Dan Green, the founder and CEO of Hobby Lobby, when the suit was filed. He said, “By being required to make a choice between sacrificing our faith or paying millions of dollars in fines, we essentially must choose which poison pill to swallow."

At least part of the argument in the case, then, has to be that this really is an exercise of a religion. 

And that argument would seem to require some specificity as to what religion this religion is that has these beliefs.

The closest the suit gets to naming a religion is naming a very broad religious tradition, i.e., "evangelical," and mentioning that the trust that runs Hobby Lobby is run by the Green family, and the family and trust have a statement of faith that has to be signed by trustees:

"By its own terms, the trust exists first and foremost 'to honor God with all that has been entrusted' to the Green family and to 'use the Green family assets to create, support, and leverage the efforts of Christian ministries.' The trustees must sign a Trust Commitment, which among other things requires them to affirm the Green family statement of faith."

This, then, becomes a key question of this suit. First, there's the question of whether a for-profit business can have a religion, in the sense entailed by the First Amendment's protection of religious practices. Second, specifically with this case, Hobby Lobby, Inc. vs. Sebillius, there's the question of whether a "religion," or, more, an "establishment of religion," can for legal purposes be a family's religion, where what the religion is and what it requires and entails are defined by a family.

This second question seems quite tricky: if it is the case that the Green family religion is a religion, fully protected by the First Amendment, is there a limit to what that family could define as its religion's required practice? Could the family in principle disregard any labor law or business regulation or tax requirement they chose on the grounds it violates a practice of the family religion?

If the Green family religion is not a religion, though, and not protected, then who or what authority determines the legitimacy of a religion for the purposes of First Amendment protection? And wouldn't that be problematic if the Constitutional protection is going to extend especially to those minor religions without the cultural capital necessary to accrue recognitions of legitimacy?

It's an important but also peculiar problem raised by this question of the religion of Hobby Lobby. What counts as a religion?  And what the definition of "religion" should be understood when we read that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"?

To me, at least, it doesn't seem clear that there's a worked-out answer to that.

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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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Ted Cruz & the Texas Ten Commandment Monument case

Ted Cruz -- Texas Republican nominee for US Senate, hailed now as a leader and intellectual force for the Tea Party movement -- made his time as Texas' Solicitor General a foundational piece of his image and campaign. In that role he argued several First Amendment cases before the Supreme Court.

Van Orden v. Perry, also known as the Texas Ten Commandments Monument case, is particularly interesting.



As I read it, Cruz et al defended the monument on three grounds:

1. The monument is primarily not religious (the most standard and yet counter-intuitive argument in these cases)
2. A reasonable observer would correctly understand 1. (this probably being the real crux of the issue)
3. Even if it were religious or were misunderstood as religious, there's nothing coercive about a monument, and thus religion isn't established (a position that's been advanced by Justice Clarence Thomas)

To a large extent, the arguments in the Texas Ten Commandment Monument case as similar to what one sees elsewhere. There were some that struck me as notably different, though.

For example:

"In its museum-setting context, this monument would not convey to the reasonable observer any official endorsement 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 Volunteer 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."

The argument here's pretty clever. Essentially, Cruz et al are saying that a monument can't make an exclusive claim. That monuments are always innately pluralistic, recognition of one thing never meaning or reasonably implying de-recognition for something else.

Presumably, though, the monument to hikers, the monument to children and the other monuments don't say anything like "I AM the LORD thy God / Thou shalt have no other gods before me,"  where the religious one has those words exactly. Which seems like a quintessentially exclusive claim.

The Supreme Court decided otherwise, though, ruling that the law,

"requires that we neither abdicate our responsibility to maintain a division between church and state nor evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage."

And, thus,

"The inclusion of the Commandments monument in this group [of monuments] has a dual significance, partaking of both religion and government, that cannot be said to violate the Establishment Clause."

In a 2011 speech, Cruz gave his own gloss on the court victory, citing it as an example of "how we re-take our country," by "standing on principle" -- "we," in that case, being specifically identified as "conservative Christians."



Some other notes:
-- Van Orden who brought the suit against Texas because of the monument, was, incredibly, a homeless Unitarian with a suspended law license.

-- Cruz' advisor at Princeton was Robert P. George.

-- In a smart analysis of Cruz's triumph, Abby Rapoport argues his win has little to do with ideology, much less the advent of a new era of Tea Party power, and has been widely and wildly mis-read.

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The political expediency of 'culture war'

It's useful to remember, when "culture war" fights reach a fevered pitch, that these conflicts and controversies are stoked and perpetuated in large part by people who don't really care. 

It's politics. And political expediency. 

There are those who do care, of course, and who really are deeply concerned about religious colleges and hospitals, for example, being required to offer birth control as part of their health care plans. But there are just as many or maybe even more who seize on such issues without any convictions except political gain. As much as Republican leaders shouted about "religious liberty," it was fundamentally political "points" that motivated them, not fear of religious exercise being curtailed by a Health and Human Services mandate. 

This is clear in how the issue has been handled after it passed from the headlines. 

As Politico reports:

"But now, with the rule set to take effect Wednesday — part of the 'Obamacare' law the GOP hates so much — the fiery repeal rhetoric has fizzled. In fact, few on Capitol Hill are saying anything about it at all.

"And that House vote to block the rule? Never happened — and isn’t in the works either. A group of die-hards on the issue asked for it again in a closed-door meeting [last] Wednesday with House leadership but said no promises were made.

"Even Rep. Jeff Fortenberry (R-Neb.), one of the most vocal critics of the rule and co-sponsor of a bill to eliminate it, has gone quiet now that the rule is about to kick in."

If one actually believed that this mandate is a violation of the free exercise of religion, this isn't how you'd respond. The actual actions of the representatives make it seem like this wasn't seen as a matter of defending the Constitution, but rather rhetoric and politics. The issue is a wedge, which might move some voters right, and motivate others to go to the polls.

There's no evidence, though, the Republican party as a party agrees with those suing the federal government over this birth control mandate that "after August 1, 2012, Plaintiffs will no longer have the right to make health care insurance decisions in line with their Catholic views," because on Wednesday the HHS rule "will go into effect and force Plaintiffs to pay, fund, contribute, or support artificial contraception, abortion, abortifacients or related education and counseling, in violation of their Constitutional rights and deeply held religious beliefs."

It's hard to see how the Republicans' very tactical response is anything other than a betrayal.

Not that there won't be congressmen and women across the country campaigning for re-election on the platform that something must be done on the issue they failed to do anything about.

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