The Widdershins

Posts Tagged ‘Justice Scalia

Good afternoon Widdershins. For those tuning in for one of Fredster’s always insightful posts, you’ll have to suffer me today. Fredster’s computer is “CPU”ny and “app”opletic today and I’m subbing for him. He’ll be back in a day or so.

Personal religious ascendancy can be triggered by many things — it might be a burning bush, an archangel, a miracle, or something as mundane as a call to your corporation’s general counsel. It’s that last thing that spawned yesterday’s case before the Supreme Court, Hobby Lobby, et al. v. Sebelius.

You see, Hobby Lobby was already providing contraceptive coverage, even emergency “Plan B” contraception, to Hobby Lobbytheir employees until that fateful day when their General Counsel’s phone rang. It was the Becket Fund for Religious Liberty, a poseur victimhood factory, calling to ask if Hobby Lobby was interested in suing the federal government over the provisions of the Affordable Care Act.

Hobby Lobby, with its 500 to 640 stores and 13,000 to 28,000 employees (differing accounts give differing estimates), was soon joined by Conestoga Wood Specialties Corp., a Mennonite owned company from Pennsylvania with 950 employees. Both agreed to serve as the plaintiffs in this first blush attempt at endowing personal religious freedom upon corporations. I’m sure after a torrid tryst punctuated with passionate disdain for the ACA, Hobby Lobby, et al. v. Sebelius was conceived in the appropriate missionary style.

At the heart of this case is the 1993 Religious Freedom Restoration Act (RFRA). RFRA itself was a congressional reaction to a prior Supreme Court case Congress wanted to rectify. That case was Employment Division v. Smith. Decided in 1990, the issue presented in Smith was whether or not Oregon could deny unemployment benefits to two Native American men who were fired for using peyote, even though peyote was part of their religious rituals.

ScaliaNone other than Justice Scalia wrote:

A person’s religious beliefs cannot prevent him or her from abiding by laws that are neutral and not aimed at restricting religious freedom.

After the Smith case, Congress wanted to ensure minority religions were protected and passed RFRA in response. The RFRA legislative history is without question — Congress wanted to protect individuals, religious institutions, and religious organizations. Nowhere within the legislative history does RFRA mention or even hint at for-profit corporations like Hobby Lobby.

In any discussion of RFRA, you might have heard the term, “shield versus a sword”. The Congressional Record is unambiguous about this point, RFRA was meant as an individual shield and not as a sword when it came to religious rights. Simply put, RFRA was meant to protect individual religious rights and not to be used as a weapon to force religious beliefs upon others.

In the words of a smart 17th century guy, “Therein lies the rub.” The question of the Hobby Lobby case is whether or not a corporation can force, through its actions and overwhelming economic power, its religious fervor upon its female employees when it comes to certain types of contraception — not all contraception mind you, just those types of contraception the billionaire Green family find objectionable.

 

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Morning Widdershins, since Good Friday is also known as Great Friday, here’s hoping your day is both.

The legal and political commentary on this week’s Supreme Court cases has been about as helpful as life insurance ads inWe the people... an airline Sky Mall magazine — untimely, a bit scary, and a waste of resources, but otherwise they were a plucky bit of marketing for the Ralph Reeds, Tony Perkinses, and Gary Bauers of the world who will eagerly raise money off the issue.

While these two Supreme Court cases are important, they are also instructive as a barometer on where we are as a country. Along with these marriage equality cases, two very disparate things got me thinking about this — a talk radio NRA caller and yet another state passing so-called “religious freedom” legislation.

The talk radio NRA caller was bemoaning the fact that he had been delayed by almost an hour because of a background check. He was righteously irate in that his constitutional right to own an AR-15 was delayed by almost a whole sixty minutes. Of course, the blubbering walrus (take your pick, fill-in a name) radio host was also appropriately barking indignation.

Contrast that to the reasoning of marriage equality opponents who were counseling delay not measured in hours, but years by not going too far too fast. It seems even the liberal Justices are somewhat reticent citing the “Roe v. Wade lesson” of the inadvisability of acting too broadly and too precipitously. These “outcome fears” joined with the spaghetti salad of delaying excuses will likely postpone a sweeping decision granting full equality.

Justice Delayed is Justice DeniedIf this is the environment in which our “justice” is now measured, we have all lost. Simply put, “Justice delayed is justice denied.” Too often we as a people believe that “justice” is such an amorphous concept it can’t be measured, but that is wrong. Justice can be measured in the days, months, or years of its denial. When the purveyors at the highest echelons begin to worry about the delivery of justice because of the outcry and opinion of those who are not affected, we have all lost.

Overlay upon these facts, the American Family Foundation movement to pass “religious freedom” legislation. So far it has passed in some 17 states. What this legislation does is to allow citizens to ignore any law that runs counter to their “sincerely held religious beliefs unless there is a compelling governmental interest.“ Read the rest of this entry »


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