Argument Against Self

Prior to 1990, the Supreme Court’s standard in determining whether a law violated a citizen’s free exercise of religion was intimately tied to the Seventh-day Adventist Church. An Adventist, Adele Sherbert, sued to receive unemployment benefits after she was fired from her job because she refused to work on the Sabbath. In the case that now bears her name, Sherbert v. Verner, the Court ruled in her favor, establishing the rule that the government could not substantially burden a citizen’s religious freedom unless the government had a compelling interest and had narrowly tailored the measure to minimize infringement.

That standard was the standard until 1990, when the recently deceased Justice Scalia penned the decision in Oregon v. Smith. Scalia found the Sherbert test to be unworkable, leading to the potential for anarchy. What law could ever stand the stringent test Sherbert sought to apply? How could society function or anyone have respect for the law when exceptions to every law would have to be made for anyone who could drum up a religious objection? Scalia solved the problem by creating a way more lenient test (at least from the government’s perspective) – if the law at issue was a neutral law of general applicability, it was a good law, at least as far as a religious constitutional challenge was concerned. Scalia’s test was negatively criticized from all corners, and Congress responded by passing the Religious Freedom Restoration Act in 1993, which reasserted the Sherbert test at the federal level. However, as some Christians continue to push the boundaries of free exercise beyond constitutional sense in a pluralistic society, I have come to believe that Scalia might’ve been on to something.

The latest step down the slippery slope to Scalia’s anarchy is Zubik v. Burwell, which was argued in the Supreme Court yesterday. This case, considered to be somewhat of a companion to the Hobby Lobby case the Court heard in 2014, continues to make a religious objection to the contraception mandate of the Affordable Care Act. Several religious charities are arguing that the concessions the Obama administration made regarding the contraception mandate do not go far enough. At this current time, all the organizations have to do is fill out a form stating their objection and listing their insurance company. The religious organizations argue that this is still a substantial burden to their free exercise because for them filling out the form (and in particular naming their insurance company) is a spiritually impermissible facilitation of what they consider to be a moral wrong. With the passing of Justice Scalia, a 4-4 split seems likely. However, a split on the Court would leave the nation with conflicting law based on jurisdiction, and I am loathe to believe that the Court would allow that to be the case. As such, a victory for the government is the more likely outcome, simply based on the numbers. I think it will be harder for the conservative wing of the Court (which now stands at 3) to get a liberal justice to agree with them. Then it would be for the liberal wing of the Court to get the one swing vote (Justice Kennedy) to side with them. As for the law itself, I think based on the Court’s decision in Hobby Lobby last year, it would be hard to argue against the position of the religious charities here. After all, as far as healthcare is concerned, there is always a least restrictive means available for any regulation that infringes on an institution’s free exercise – let the government pay for it.

Putting the politics of the Court aside, there were a couple of troubling statements made in front of the Court yesterday, at least from the perspective of someone who is interested in protecting the free exercise of religion in this country. Oddly enough, both of those statement were made by those arguing for the religious adherents in this case. Cases involving religion ask two largely perfunctory questions – first, whether the citizen is sincere in their beliefs, and two, whether there is a substantial burden on the citizen’s practice of their faith. The Court is reluctant to decide on whether the citizen is sincere. It does not want to be in the business of legitimizing some beliefs over another.[1] Furthermore, the Court only in rare cases finds that there is not a substantial burden for the same reason. Despite the fact that the government conceded both points to the religious adherents in this case, the lawyer for these adherents at times gave the impression that it was within the purview of the Court to determine both sincerity and substantial burden. This position, while it might be useful for them to say in this particular argument would be amongst the many arguments made by the religious institutions in this case that would have a deleterious effect on the free exercise of religion going forward.

When I think of this case I am reminded of the legal cases involving crosses on public land that occurred roughly a decade ago. Christian groups at that time were so set on being able to have these religious monuments on public land that they went into court and argued that the symbol of the cross did not have any particular sectarian meaning. In order to erect a cross on public land, Christians were willing to strip the cross of its power and meaning. It seems to me that these organizations in the Zubik case are making the same mistake by pressing the argument of free exercise so far that it will become meaningless in the future, even if we win the battle today.

[1] A good example of this from the Hobby Lobby case in 2014 was the question of whether the drugs Hobby Lobby objected to were actually “abortifacients.” The Court said that question was moot and that the issue was that the Green family was sincere in their belief that the drugs were abortifacients.

Jason Hines is an attorney with a doctorate in Religion, Politics, and Society from the J.M. Dawson Institute of Church-State Studies at Baylor University. He is also an assistant professor at Adventist University of Health Sciences. He blogs about religious liberty and other issues at www.TheHinesight.Blogspot.com.

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This is a companion discussion topic for the original entry at http://spectrummagazine.org/node/7383

I would like to read an analysis of recent court ruling and their potential impact on Sunday law enactment.,Seems the slippery Slope is in the other direction. I would also like to know if the Genersl Conference offers a friend of the Court an opinion on these cases, if so what is their position. The Republicans still can’t get over Brown vs the Board of Education. it will make the man with the little Hands president. tZ

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What legal rationale is there for religiously-affiliated institutions to prevent the government’s generous offer to pay for contraceptive insurance for their employees who are being denied that benefit? They are neither paying for the benefits nor supporting the insurance coverage.

When any institution claims the right to withhold information on the government’s willingness to pay, they are extending their claim for religious right to the extreme.

BTW: Today’s news on a related subject: A recently introduced Assembly Bill (AB 1888) would prohibit institutions from receiving Cal Grant funds beginning in 2017 if their hiring or enrollment is deemed to discriminate against sexual orientation, gender identity, or gender expression.

Currently, religiously owned and operated universities have been able to obtain exemptions from Title IX, a federal law prohibiting instituions that receive federal financial and aid from discrimination based on sex, whose scope has been broadened to include sexual orientation. Several such universities, including Loma Linda, Biola and Pepperdine, among others would be forced to abandon their historic positions for their students to receive Cal Grants.

With the majority of Californians supporting full equality for all sexual orientation, the SdA universities and colleges here may be faced with a Hobson’s Choice or a “Catch-22” situation.
@elmer_cupino @George Tichy

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As my wife has often said, “why should my tax dollars be used to prevent the results of recreational sex?” She doesn’t believe contraception should be covered by insurance, and I agree with her. It’s one thing for an insurance company to offer such coverage; it’s quite another for the government to mandate it.

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It has nothing to do with “recreational sex” but a lot to do with the consequence of “recreational sex.” A fertile human male ejaculates between 2-5 ml of semen with each ml approximating 100 million sperms. With that kind of odds, all it takes is one “bugger” to fertilize an egg and then society carries the burden of an unwanted child or one who does not get the proper parenting. First comes CPS, then a psychiatric evaluation, foster placement, special ed, psychiatric care, drug and alcohol treatment, etc. Not to mention ongoing psychotherapy with the likes of our vaunted prophet-in-residence @GeorgeTichy. :innocent: This is where the tax dollars go. So a 10 cent BC pill is far better than $90,000-120,000 society pays a year for child/family cost of an unwanted child.

@ageis711Oxyain

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This case has nothing to do with tax payer money. It is about a private company and filling out a form which allows a private person covered under a private company’s insurance to work with to obtain coverage for themselves.

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Those who are Christian who think that all social issues aren’t spiritual in nature…need to think again and ask themselves how their “rights” impact long-term their community and nation. I have found that most are most willing to think about how they might enforce/portray “God” or “God’s will” but not deal with the aftermath of their “rights” (i.e. contraception, abortion rights, right to die, etc, etc.). It’s one thing to deal in the abstract philosophical/religious areas and a completely another to deal with the “real world”. Most Christians never do deal with it- unlike Jesus who met it head on.

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Not sure which rulings are referring to, but as far as Sunday laws are concerned that was settle din 1962 in a three or four case combined unit in which the SCOTUS ruled that Sunday laws are Constitutional if they are not for the purpose of promotiong religion. So when the people as a whole feel that Sunday laws are important to societal well being then we can see those fly through on a Constitutional basis.

Herein lies the real problem. These religious organizations have not only a breathtaking sense of entitlement, but also an overwhelming desire to play God. Heaven help us if this action is successful.

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The Cal Grant program is a subsidy to the student, not the college or university the student chooses to have it go to to pay for their tuition. I am opposed to AB 1888 because I think it is going too far to dictate to religiously owned and operated institutions to mandate that they accept something like this that goes totally against their belief system. I think this will be seen as overreach by our liberal legislators that will creat a backlash against we lgbt folks. We are gradually making some headway in trying to change hearts and minds. we don’t need the heavy hand of a government mandate.

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The role of judicial philosophy (or ideology) in Supreme Court decision-making, especially in its exercise of judicial review to invalidate laws enacted by a democratically elected Congress or state legislature, has become a highly contentious issue both within the Court’s deliberations and in the larger political environment. As the nation becomes more divided over programs and policies that inevitably seem to come before the Supreme Court, politicians and ordinary citizens are caught up in rhetoric about judicial activism or judicial restraint, often with little understanding of what these terms really mean.

The Supreme Court is acting and being perceived as much less “supreme”. As public perceptions of the Supreme Court become more politicized, the legitimacy of its power becomes clouded. If the Court is perceived as just another political institution making political decisions, but a completely undemocratic institution because its judges are appointed and serve for life, questions arise about whether the Court’s power of judicial review should be strictly limited or eliminated altogether. We have received a warning as the percent of Americans approving of how the Supreme Court does its job slid from 61% in 2009 to 46% in 2011 (Gallup, 2012), most recently 38% in 2015.

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Seventh-day Adventists are born “lawyers” who can take two sides. Legality follows them in making something legal than to make them legitimate. To work in Trade Unions who fully known well something not legal on the Sabbath have basis for an argument against self “Legally” a robust Adventist adverb - it justifies many ill-gotten gains. Ignorance of the Trade Unions Law excuses no SDA from testing it. Sherbert v. Verner, Justice they acquit the vultures but condemn the doves. My SDA uncle is in trouble with his union. They caught him working on the job. My SDA aunty caught him working on Sabbath. My uncle knew the consequences of Sabbath v. Trade Unions. He was following the gold.

I am no constitutional scholar or expert in the law but the problem I see with
the argument made by parties opposed to government mandated insurance programs which include payments for abortion & contraception is that the law
MUST regard their argument valid if the party claims to be sincerely opposed
to these inclusions because of unalterable religious convictions AND sees them
as an impossible burden on their practice of their religion.
I can see where Justice Scalia (whom I seldom agreed with) would be alarmed
with the pandoras box this legal posture would inflict on the society affected by it. This posture seems to me to make the Court the servant of the citizen instead of defining for the citizen what their legal obligations to society are under the law of the land, the Constitution. In effect siding with the citizen when they contend that the law of the land should allow every citizen to define what that law if for him or her self. I see this as leading to a state eventually of LAWLESSNESS. I view these various State Stand-Your-Ground laws as of the same nature, allowing for the use of lethal force whenever one FEELS subjectively that they are in danger of having their rights violated. The Supreme Court is mandated to interpret the intent of the framers of the Constitution, which is a BALANCING ACT between individual rights of citizens & the rights of the broader society. Thus there will always be tension between individuals beliefs of what their rights are vs.what the broader society sees as its rights. An odd numbered Supreme Court is necessary in cases when an even numbered Court would be deadlocked on the issue. I cant help but regard the Hobby Lobby case & those similar to it to not be a
sincere effort to obtain relief from provisions of a law that their consciences
are offended by, but a direct attack on the government`s right to impose ANY
LAW on them which deals with the interface between them & the broader society.

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