Posts tagged with: First Amendment to the United States Constitution

TeaPartyCatholicBruce Edward Walker, recently wrote a column for the Morning Sun that relates the recent Supreme Court decision on Hobby Lobby with America’s Founding and Samuel Gregg’s latest, Tea Party Catholic. The piece begins by discussing the Declaration of Independence and one of its signers, Charles Carroll,  “a successful Maryland businessmen,” Walker says, “who was also Roman Catholic and thus denied voting rights and the freedom to hold government office under British colonial rule. In other words, Carroll had a  bigger dog in the fight for independence than any of his fellow American Protestant revolutionaries.”

Walker continues:

For Gregg, Carroll represents a fitting template for contemporary Christians of a particular denomination who advocate for lower taxes and less government intervention in the exercise of their respective faiths or other aspects of their lives. Such pushback against the state was the impetus for our War of Independence, and is the spark that ignited the Tea Party movement – the latter whose members fight for similar freedoms without ridiculous assertions of resorting to guns, jihads, crusades or even remote considerations thereof. (more…)

first amendmentKatherine Stewart is most unhappy about the recent Supreme Court decision, Greece v. Galloway. The Court upheld the right of the town of Greece, New York, to being town hall meetings with prayer, so long as no one was coerced into participating. And that makes Ms. Stewart unhappy.

In an op-ed piece for The New York Times, Ms. Stewart decries the Court’s decision as something akin to a vast, right-wing conspiracy.

The first order of business is to remove objections by swiping aside the idea that soft forms of establishment exist at all. Here, the Greece decision delivers, substantially.

A second element of the plan for undermining concerns based on the First Amendment’s Establishment Clause is to reinterpret public acts as personal expressions of speech by private individuals. Thus, when the minister appointed by the municipal government of Greece bids “all rise,” the Supreme Court majority tells us, this is not an establishment of religion because the words are not uttered by public officials. And when the town leaders respond with a sign of the cross, that isn’t establishment either, because, just then, public officials are acting as private individuals.

Another prong in the assault on the Establishment Clause is to use neutrality among religious denominations as a wedge for inserting the (presumed) majority religion into state business.

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article-photo-Elaine“This ruling is more in the spirit of Nero Caesar than in the spirit of Thomas Jefferson,” said Russell D. Moore. “This is damaging not only to the conscience rights of Christians, but to all citizens.”

Moore, the president of the Ethics & Religious Liberty Commission, was responding to the U.S. Supreme Court’s refusal to rule on a case involving Elane Photography and its owners Jonathan and Elaine Huguenin. According to the Alliance Defending Freedom (ADF), Elaine received an email in 2006 asking her to photograph a “commitment ceremony” between Vanessa Willock and her same-sex partner. Willock asked if Elaine would be “open to helping us celebrate our day . . . .” Elaine politely declined to use her artistic talents to express a celebratory message at odds with her deep convictions. (Elaine had previously declined requests from others for things such as nude maternity photos.)

Willock, a licensed attorney who has served in various paid “diversity” positions, filed a complaint with the New Mexico Human Rights Commission. After a one-day administrative trial in 2008, the commission ruled against the Huguenins and ordered them to pay $6,637.94 in attorneys’ fees. The case made its way through the state court system, with the New Mexico Supreme Court ultimately affirming the commission’s coercive decision. In an ominous concurring opinion, one justice wrote that the Huguenins “now are compelled by law to compromise the very religious beliefs that inspire their lives,” adding “it is the price of citizenship.”

ADF attorneys representing the Huguenins are presenting only one claim to the U.S. Supreme Court—that the punishment of Elane Photography violates the constitutionally protected freedom “not to speak,” known as the compelled speech doctrine.

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truthiness_largeThe Supreme Courts is hearing a case that involves a First Amendment challenge to an Ohio law that makes it a crime to “disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false.”

During the 2010 elections, the Susan B. Anthony List, a pro-life advocacy group, published ads in Ohio claiming that then-Rep. Steven Driehaus supported taxpayer-funded abortions (because he had voted for the Affordable Care Act). Driehaus filed a complaint with the Ohio Election Commission over the ads. The SBA List challenged the constitutionality of the law, which is now before the Supreme Court.

In support of the SBA List, P.J. O’Rourke, humorist and national treasure, contributed to an amicus brief defending our constitutional right to “truthiness”:
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351px-Ballot1_227c8The phrase “Separation of Church and State” is not in the language of the First Amendment, and the concept was not favored by any influential framer at the time the Bill of Rights was drafted. So how did it become part of the jurisprudence surrounding the First Amendment?

As Jim Lindgren, a law professor at Northwestern, explains, the Ku Klux Klan had something to do with it . . .

7. The first mainstream figures to favor separation after the first amendment was adopted were Jefferson supporters in the 1800 election, who were trying to silence Northern clergy critical of the immoral Jeffersonian slaveholders in the South.

8. After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.

9. In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.

10. Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed (or was it the Klansman’s Kreed?). Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the “eternal separation of Church and State.” In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment’s establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.

11. Until this term, the justices were moving away from the separation metaphor, often failing to mention it except in the titles of cited law review articles, but in the last term of the Court they fell back to using it again.

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The Separation Of Church And State“What right do they have to do this, to take away our freedoms?” Mary Anne Yep, co-founder and vice president of Triune Health Group in Chicago, recently asked of the  Obama administration regarding the HHS Mandate. On Monday when the official comment period closed, thousands of individuals swamped the Department of Health and Human Services with concerns about the HHS Mandate and the effect it would have on religious liberty in the United States. The Heritage Foundation recently posted an update about HHS and the people against it:

After more than a year of public outrage, over 50 lawsuits against the anti-conscience mandate, and a federal judge’s demand that HHS fix its coercive mandate, the Administration published a “notice of proposed rule making” (NPRM) on February 6. That proposed rule neither changes the underlying mandate finalized in law and currently in effect nor provides any workable or adequate solutions to the mandate’s trampling on religious liberty.

Several organizations have published statements on the NPRM and HHS Mandate in general.  Archbishop William Lori of Baltimore, chairman of the Catholic bishops’ Ad Hoc Committee for Religious Liberty released a statement on Monday regarding the mandate: (more…)

Has there ever, in the history of America, been a presidential administration as dismissive of religious liberties as the Obama Administration?

contraceptive-mandateThe Administration seems to truly believe that when religious beliefs come into conflict with one of the President’s pet policies—such as employers being forced to pay for contraceptives and abortifacients—that religious liberties must be set aside. A prime example is the Administration’s idea that by forming a business entity intended to limit liability, a person loses their First Amendment right to the free exercise of religion.

As CNSNews reports, during an oral argument in the U.S. District Court for the District of Columbia last fall, a lawyer for the U.S. Justice Department told a federal judge that the Obama administration believed it could force the judge’s own wife—a physician—to act against her religious faith in the conduct of her medical practice.

Here is the exchange, from the official court transcript, between this Obama administration lawyer and Judge Walton:
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A quick news and analysis digest here on the Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission ruling by the Supreme Court yesterday. Congratulations and thank you to the Becket Fund. To watch a two-hour Federalist Society panel discussion recorded in November on what is informally known as the Ministerial Exception case, visit YouTube.

Beckett Fund: Supreme Court Sides with Church 9-0 in Landmark First Amendment Ruling — Becket Fund wins greatest Supreme Court religious liberty decision in decades

The unanimous decision adopted the Becket Fund’s arguments, saying that religious groups should be free from government interference when they choose their leaders. The church, Hosanna-Tabor, was represented by The Becket Fund for Religious Liberty and Professor Douglas Laycock, University of Virginia Law School. For years, churches have relied on a “ministerial exception” which protects them from employment discrimination lawsuits by their ministers.

“The message of today’s opinion is clear: The government can’t tell a church who should be teaching its religious message,” said Luke Goodrich, Deputy National Litigation Director at The Becket Fund for Religious Liberty. “This is a huge victory for religious freedom and a rebuke to the government, which was trying to regulate how churches select their ministers.”

The Court rejected the government’s extremely narrow understanding of the constitutional protection for religious liberty, stating: “We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.”

“This is a huge win for religious liberty,” said Professor Doug Laycock.  “The Court has unanimously confirmed the right of churches to select their own ministers and religious leaders.”

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Douglas Laycock, CNN:
Huge win for religious liberty at the Supreme Court

(CNN) – Wednesday’s Supreme Court decision holding that ministers cannot sue their churches for employment discrimination was a huge win for religious liberty. It was unanimous, it was sweeping and it was unqualified.

This decision was about separation of church and state in its most fundamental sense. Churches do not run the government, select government leaders, or set criteria for choosing government leaders.

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Emily Belz, WORLD: Church’s authority ‘alone’

The high court has never ruled on the ministerial exception before, a standard created in the lower courts, and the opinion shied away from defining who qualifies as a “minister,” saying simply that the teacher in question, a commissioned minister at the Lutheran church school, qualified.

“We are reluctant … to adopt a rigid formula for deciding when an employee qualifies as a minister,” Roberts wrote in the decision. Kagan and Alito, in their concurring opinion, wrote that the “title” of minister “is neither necessary nor sufficient,” given the variety of religions in the United States, but rather courts must defer to the religious organization’s evaluation of the employee’s role.

The 6th U.S. Circuit Court of Appeals had ruled in favor of the teacher, saying she did not qualify as a minister because she spent more minutes of the day teaching secular subjects than religious subjects. The Supreme Court scoffed at that idea. “The issue before us … is not one that can be resolved by a stopwatch,” Roberts wrote.

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Matthew J. Franck, First Things: What Comes After Hosanna-Tabor

There may be a straw in the wind in yesterday’s ruling, with respect to the Obama administration’s determination to compel the coverage of contraceptive and abortifacient drugs in health insurance policies, even ones for religious institutions. The only “religious exception” offered so far by the Department of Health and Human Services to its contraceptive coverage mandate is an exemption so narrow, for religious organizations that employ and serve only their own co-religionists, that even the ministry of Jesus would not qualify. It is as though the Obama administration is staffed by people who have never encountered the ministry to the world that is so common among religious folk—especially but not uniquely among Christians.

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Mark L. Rienzi, National Catholic Register: Religious Liberty 9, President Obama 0

Such an emphatic rejection of the administration’s crabbed view of religious liberty is likely to have broader consequences. The administration has aggressively used its narrow view of religious liberty in other contexts. For example, when issuing recent regulations to require all employers to pay for contraceptives, sterilizations and drugs that likely cause abortions, the administration issued the narrowest conscience clause in history — one that would exclude a Catholic hospital simply because it is willing to serve Jewish patients.

When attempting to explain its historically narrow protection for conscience, the administration echoed its arguments from the Hosanna-Tabor case, saying the clause is only meant to protect a church from being forced to offer the drugs to employees in “certain religious positions.” The administration argued that its clause sought only to protect “the unique relationship between a house of worship and its employees in ministerial positions.” Given the government’s stingy view of who counts as “ministerial,” it is clear the administration does not think the First Amendment provides much protection for religion.

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Thomas Messner, Heritage Foundation: Supreme Court Decision in Hosanna-Tabor a Major Win for Religious Freedom

First, the ruling unambiguously affirms the vital constitutional doctrine known as the “ministerial exception.”

Second, the Court expressly agreed with every federal court of appeals to have considered the question that the ministerial exception “is not limited to the head of a religious congregation.”

Third, the Court clarified that the protections of the ministerial exception are not limited to cases where a religious group fires a minister only for a religious reason.

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Thomas Berg, Mirror of Justice: More on Hosanna-Tabor

… although the majority is case-specific on who counts as a minister, three justices–including Elena Kagan!–endorse a broader definition.  Thomas would defer heavily to the religious organization’s characterization of an employee as a minister.  And Alito and Kagan say that ordained or “commissioned” status isn’t crucial, that the question is about religiously-significant functions (listing several of them), and that “the constitutional protection of religious teachers is not somehow diminished when they take on secular functions in addition to their religious ones.

What matters is that respondent played an important role as an instrument of her church’s religious message and as a leader of its worship activities.” (Concurrence at 8)  I can imagine imagine teachers in many Christian schools satisfying that test, and also many employees in many religious social services who explicitly communicate religious messages along with the services they provide.  With three justices explicitly taking the broader approach, all you need is a couple more (Roberts and Scalia, most likely) for a majority.  Hosanna-Tabor doesn’t give us a full-fledged broad definition for a “minister,” but it makes the route to such a definition much easier.

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Wall Street Journal editorial: Hosannas for the Court

As in so many of its policies, the Obama Administration’s position reflected both its default preference for government control and its secular indifference to American religious sensibilities. This has become obvious in the contraceptive and surgical sterilization mandates the Administration is trying to impose on Catholic charities and hospitals. In this case the Justice Department’s opinion was so radical that it might have provoked the broad and unanimous Court ruling.

Hosanna-Tabor is an important reminder that the core religious freedoms guarded by the First Amendment were not to protect the public from religion, but to protect religion from government. The case is arguably among the most important religious liberty cases in a half century, and the concurrence of Justices across the ideological spectrum will be felt for years. Hallelujah.

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