SCOTUS and the Free Exercise Clause

A large portion of my family--Jewish and French Huguenot people from Alsace Lorraine also known as the Rhinelands–came over to the British colonies because their homes, lives, businesses and farms had been handed to the Catholic Church as part of hundreds of years of persecution by the state of  France and its state religion.  Many had fled to other places–specifically England–as the persecution of French Protestants and Jews was extraordinary in the late 1600s during the Nine Year War.  This was nothing new since it also occurred in the 16th century.  It was still occurring under Cardinal Richlieu and Louis XIII. French Protestants (Huguenot) and Jews did not really receive full rights in France until the establishment of the Napoleonic Code in 1804.   The stories of these horrors were handed down in my family from generation to generation along with the pride all felt in being early American colonists who participated in the writing of the Constitution and the signing of the Declaration of Independence.  I grew up with a strong sense of what religious persecution meant as well as what was behind the so-called Free Exercise Clause of the US Constitution.  It’s been burned into our family memory.  While not  a lawyer myself, I come from an extremely long line of barristers and lawyers.  My uncle argued a lot of constitutional cases for the Roosevelt administration. I grew up with huge debates around family tables.  I have spent the last few days completely distraught about the recent suggestion that a birth control provision for hospitals, universities, and other organizations run by the Catholic Church smacks of religious persecution. It simply does not represent the truth of the Supreme Court findings on what is and is not “free exercise” and what the government can and cannot regulate when it comes to religious institutions, practices and believers.

There seems to be a raging misunderstanding in the press right now about what constitutes separation of church and state and free exercise of religion.  It is extremely bothersome to me because the free exercise clause and its meaning is well established.  There is very little ambiguity about what it is and what it is not.

In 1878, the Supreme Court was first called to interpret the extent of the Free Exercise Clause in Reynolds v. United States, as related to the prosecution of polygamy under federal law. The Supreme Court upheld Reynolds’ conviction for bigamy, deciding that to do otherwise would provide constitutional protection for a gamut of religious beliefs, including those as extreme as human sacrifice.

The Court stated that  “Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices.” 

This ruling has stood the test of time.  It continued to be applied in the 1960s under the Warren Court. There were some decisions that moderated the original finding that come under the heading of “accommodation”.   Oddly enough, the free exercise clause narrowed again in the 1980s and Antonin Scalia was one of the driving forces.  In the  1990 case of Employment Division v. Smith. the court found that a law against peyote use was fine even though it had a religious use by some Native Americans. A 1993 law called the Religious Freedom Restoration Act was passed in order to broaden the interpretation.  However, many parts of that  law were struck down as unconstitutional.   Here are a few examples of cases that didn’t pass muster with SCOTUS.  Now remember, by the time these cases came up in the late 1990s, the court had clearly shifted to the right.

In the case of Adams v. Commissioner, the United States Tax Court rejected the argument of Priscilla M. Lippincott Adams, who was a devout Quaker. She tried to argue that under the Religious Freedom Restoration Act of 1993, she was exempt from federal income taxes. The U.S. Tax Court rejected her argument and ruled that she was not exempt. The Court stated: “…while petitioner’s religious beliefs are substantially burdened by payment of taxes that fund military expenditures, the Supreme Court has established that uniform, mandatory participation in the Federal income tax system, irrespective of religious belief, is a compelling governmental interest.”^[15] In the case of Miller v. Commissioner, the taxpayers objected to the use of social security numbers, arguing that such numbers related to the “mark of the beast” from the Bible. In its decision, the U.S. Court discussed the applicability of the Religious Freedom Restoration Act of 1993, but ruled against the taxpayers.^[16]

For some time, members of specific religious communities–like Mormons, Jehovah’s Witnesses, Christian Scientists, Quakers, and the Catholic Bishops–have taken cases to the Supreme Court based on the Free Exercise clause and lost.  This is why I am so confused by the complete lack of understanding in the TV Press of the current attack on birth control coverage in the HCRA. Since I am not a lawyer and have only had undergraduate classes in constitutional laws, I will defer to some one who is a well known constitutional lawyer, David Boies.  He has been appearing on The Last Word show and has calmly explained why all the hysteria about free exercise of religion is just that; badly motivated hysteria.

The high, in terms of reason and clarity, came from famed attorney David Boies on MSNBC’s “The Last Word.” Lawrence O’Donnell has let male “liberal” pundits like Mark Shields wax a little shrill on his show, but to his credit, he offered the best rebuttal to all the shrieking I’ve seen so far: Boies calmly and clearly explaining the new regulations as an issue of labor law, and the government’s regulation  of employers (relatively minimal, compared to other countries) on issues of health, safety and non-discrimination.

I’ve tried to make the same points: What if Catholics didn’t believe in child labor laws? Would we let church-run agencies flout them? Boies used the example of a religion that believed people shouldn’t work after age 60: Could they legally ban older people from employment? Of course, they could do neither. This is indeed an issue of religious freedom: the freedom of non-Catholics not to be bound by the dictates of the Catholic Church in the workplace.

But Boies, fresh off his 9th Circuit victory defending gay marriage, brought the legal knowledge.

Lawrence O”Donnell writes directly about this conversation.

Constitutional expert David Boies said there’s no basis for a constitutional fight with the birth control mandate. On The Last Word, he compared the current debate that’s heating up in Washington to simple tax law or labor laws.

“There isn’t a constitutional issue involved in this case,” he told MSNBC’s Lawrence O’Donnell on Wednesday. “You don’t exempt religious employers just because of their religion. You are not asking anybody in the Catholic church or any other church to do anything other than simply comply with a normal law that every employer has to comply with.” Boies, who represented Vice President Al Gore in Bush v. Gore, said “this case would have trouble getting to the court.”

So, I have one other reason that I’d like to bring all this up. We know that a few specific religious groups have a problem with Roe V. Wade and Griswold V Connecticut.  We know that these people have been trying to stack the courts with sympathetic whackos for about 40 years now. It seems they’re attacking Reynolds too.  If you read BB’s morning post and Peggy Sue’s last post you can see that many Republicans would just like to outlaw the judicial branch.  Newt Gingrich makes it a campaign staple.

Did you know that THREE of the SCOTUS justices turn 80 in the next five years? Ruth Bader Ginsberg, Antonin Scalia, and Anthony Kennedy are the three justices.  So, let’s think about what is at stake if any of these Republican presidential wannabes get to appoint a SCOTUS or three.  How about major appointments to courts like the one that just overturned Prop 8?

At the district and circuit court level — the first two rungs of the federal judiciary — key vacancies will likely await whoever is elected. On the 11-member U.S. Court of Appeals for the District of Columbia Circuit, which resolves challenges to federal regulations, three vacancies already exist and are not expected to be filled soon. Nationwide, the federal bench consists of 874 lifetime appointees.

“More and more, our country’s disputes, on the environment, on labor, on criminal law, are being decided by federal judges,” says University of Utah law professor Paul Cassell, a former district court judge. “We’re looking to courts to sort out issues like health care.”

Georgetown University law professor Susan Low Bloch agrees. “The legacy for the president can be huge, given how many controversial issues reach the courts.” she says. “Health care, immigration, abortion, affirmative action and voting rights — all of these are very important and tend to divide the nation.”

Yet, the judiciary — unlike the economy, which people understand as affecting their lives — rarely dominates the discussion in a presidential campaign.

Gingrich’s remarks in recent debates, interviews and documents on his campaign website have put a spotlight on federal judges. Declaring that the judiciary has turned “grotesquely dictatorial,” he proposes having judges who issue unpopular decisions picked up by U.S. marshals and made to account to Congress and the executive branch for their rulings.

“If the president and the Congress say the court is wrong, in the end the court would lose,” Gingrich said on CBS News’ Face the Nation on Dec. 18.

The right wing never takes its eyes off our courts which means none of us should either.   Think about this when you contemplate the insane comments of Rick Santorum

The next high court opening would cause a titanic confirmation fight if it would allow a Republican president to cement conservative control of the court by replacing Ginsburg or if Obama could give Democratic appointees a working majority for the first time in decades by replacing Scalia or Kennedy.

The prospect of such dramatic change on the Supreme Court, along with the justices’ high-profile election-year docket, could heighten the judiciary’s importance as an election issue, said Curt Levey, who heads the conservative Committee for Justice.

This year, the justices will hear arguments on Obama’s health care overhaul and Arizona’s immigration crackdown. The court also could soon decide whether to hear a Texas affirmative action case challenging the use of race as a factor in college admissions.

Even one new justice can produce dramatic change. Justice Samuel Alito replaced the more moderate Justice Sandra Day O’Connor and shifted the outcome in cases on abortion, campaign finance, and other key issues, even though both were appointed by Republicans.

Openings on the circuit courts of appeals get much less attention, but those courts have the last say in most legal disputes that are appealed in the federal system.

There are still more Republicans than Democrats on the circuit appeals courts and on the entire federal bench. But if Obama merely filled existing vacancies, Democratic appointees would be the majority on the influential court of appeals in Washington, where four current Supreme Court justices once served, and the Atlanta-based 11th US Circuit Court of Appeals. Republicans also maintain their edge on the 10th Circuit in Denver only because two judgeships are empty.

Two other appeals courts on which Republicans have comfortable majorities could shift over the next four years. The Chicago-based Seventh Circuit has four judges in their 70s who were chosen by Presidents Reagan and George H.W. Bush. In the New Orleans-based Fifth Circuit, Judge Emilio Garza, a Republican appointee, will take senior status in August, a move that will open a seat while Garza takes a smaller caseload. Two Reagan picks in their 70s remain on the court.

Twelve Reagan appointees now in their 70s remain on circuit appeals courts or, in the case of Scalia and Kennedy, the Supreme Court.

Republican presidents, in recent decades, have been more aggressive than Democrats in filling those seats with younger, more like-minded lawyers.

Think about the current war on women and the cases that have given access to abortion, birth control, voting rights, property and credit rights.  Read this AGAIN.  Santorum is a great example of some one who does not understand or appreciate our Constitution.  Imagine, giving him or some one beholden to his supporters the right to make decisions over YOUR life.

“When you look and see what the left is trying to do in America today, progressives are trying to shutter faith, privatize it, push it out of the public square, oppress people of faith, strip their charitable deductions away from them, trying to weaken them, churches — trying to say that anyone who believes in the value of Judeo-Christian principles,” Santorum explained.

“As we saw in the Ninth Circuit just this week, that if you believe that [same sex marriage is wrong] — this is what the court said — that if believe that, if believe what’s taught in Genesis, if you believe what’s practiced Biblically and a generation since then you are irrational. The only possible reason you could believe this, according to the Ninth Circuit, is that you are a bigot and that you are a hater.”

He continued: “They are taking faith and crushing it. Why? When you marginalize faith in America, when you remove the pillar of God-given rights then what’s left is the French Revolution. What’s left is a government that gives you rights. What’s left are no unalienable rights. What’s left is a government that will tell you who you are, what you’ll do and when you’ll do it. What’s left in France became the the guillotine.”

Santorum admitted that the U.S. was “a long way from that,” but if Obama had his way then “we are headed down that road,” citing the Obama administration’s decision to require nearly all private health insurance policies to cover family planning, including female contraceptives.

This is not what framers of the constitution meant by free exercise of religious beliefs. It is not about “crushing faith” because the law does not control your speech, your beliefs, or your freedom to assemble in a church that believes whatever.  Santorum wants the laws and the courts to follow his religion and ignore our Constitution.   It’s the very definition of religious intolerance and the support of the theocracy.  Oh, and it’s just nice to know that in an economy that cries for jobs all we can do is confuse every one about solidly established law because the American Taliban want women barefoot and pregnant or dead of childbearing.  The focus on this removes people’s thoughts and discussion from where our real agendas should be.