The Deflation of Rights

Supreme Court Hears Oral Arguments On Arizona Immigration LawPrint up a bunch of money, and the value of money is almost sure to decline. Make up a host of new rights and the value of rights is likely to plummet as well. As our modern experience demonstrates.

Simplifying, we might imagine three stages in the devaluation of rights. In stage one (which, like the “state of nature,” probably never quite existed), a right would be categorical. If you have a right to freedom of speech, say, this would mean that you can say whatever you want (at least within the scope of the right’s coverage) and the government cannot sanction or restrict you. Period. Justice Black sometimes talked as if freedom of speech were or should be an absolute right. The average lay person may sometimes think this is what a right means.

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Post-Hobby Lobby Illusions

My late leader of days long gone, the first Mayor Daley of Chicago, once poured out his heart about life in the political arena: “I have been vilified, I have been crucified, I have been ….criticized!” Well, I haven’t been vilified or crucified, but I have been criticized vigorously for my writings in this space on the reasoning in the Hobby Lobby case, and criticized by a long-time friend, the Editor of the Public Discourse, Ryan Anderson. My response reveals his critique, while at the same time it may sharpen and deepen the argument.

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If Not Exemptions, Then What?

This week it’s the Hobby Lobby decision and the “contraception mandate” that are provoking discussion. But beyond the specific facts and carefully narrow decision in Hobby Lobby runs a more general and perennial question: Does freedom of religion mean that sincere religious objectors have a qualified (not categorical) right to be exempted from otherwise applicable laws– a draft law, a compulsory schooling law, a regulation requiring employers to provide insurance coverage that includes contraceptives and some abortifacients? At least according to the conventional wisdom, the Supreme Court’s answer to that question for many decades was “no.”

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The New Jurisprudence of ‘Beliefspeak’

Count me as a part of that population that rejoiced over the outcome in the Hobby Lobby case. It was a relief that the Green family, owners of the Hobby Lobby craft stores, and the Hahns, owners of Conestoga Wood Specialties, were delivered from the mandates of Obamacare; the mandates that compelled these families to cover abortifacients in the medical care they funded so generously for their employees. Justice Alito also did a notable service in making clear that a “corporation” is an association of “human persons”: Every association is directed to a purpose; and there is no principle that determines that this kind of corporation, alone among all other associations, may not be committed to moral and religious purposes, apart from the making of money.

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The Deeper Meaning in the Hobby Lobby Opinion

The Supreme Court has issued its long-awaited ruling in Burwell v. Hobby Lobby Stores, Inc. On both the standing and merits questions under the Religious Freedom Restoration Act, the federal government lost. In a 5-4 majority decision authored by Justice Alito, the Court held that:

  • Closely held for-profit corporations such as Hobby Lobby are “persons” within the compass of RFRA and can exercise religion (Justices Breyer and Kagan did not decide this issue one way or the other);
  • Closely held for-profit corporations that have religious objections to providing contraception as part of their employee health plans suffer a substantial burden on their religious exercise by operation of the contraception mandate; and
  • Even if the government’s broadly formulated interests in “public health” and “gender equality” are compelling (a question left undecided by the majority opinion but seemingly embraced in Justice Kennedy’s concurrence), the government nevertheless has failed to achieve its interests by the least restrictive means.

The least restrictive means portion of the analysis was always the most difficult part of the test for mandate supporters. It is, as the Court said, “exceptionally demanding and it is not satisfied here.”

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Greece the Establishment Clause: Thomas’s Church-State Originalism

“As an initial matter, the Clause probably prohibits Congress from establishing a national religion.” –Justice Clarence Thomas, in his concurring opinion in Greece v. Galloway

“Probably”? As if the May 5, 2014 Town of Greece v. Galloway decision, upholding prayers said at the beginning of legislative meetings, didn’t upset strict separationists enough, Justice Clarence Thomas’s radically originalist concurring opinion was enough to bring on shouts for an exorcism.[1] To the contrary, Thomas’s reasoning about the First Amendment establishment clause is the most rational way to preserve liberty, by recognizing the institutional principle of federalism as well as the individual right of religious free exercise. This becomes clear once we see this opinion in light of his earlier, lengthier establishment opinions.

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Everyone expects the Inquisition

There’s been another naughty pastor. No, not the usual, but instead a minister who mentioned Christ’s name when asked to pray at a town council meeting. (They will do that!) Happily, the offending pastor need not repair to Capri, for the Supreme Court upheld the prayer in yesterday’s decision in Town of Greece v. Galloway. I’m especially delighted, since it means that pastors need not follow the advice I gave them in The American Spectator. Since obscene speech enjoys First Amendment protection, and since it doesn’t raise religious establishment problems, I suggested that pastors might prudently lace their sermons with a few F-Bombs.

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The Road to Progressive Dhimmitude

Barack Obama Sworn In As U.S. President For A Second TermIn the recent Hobby Lobby Case, Justices Elana Kagan and Sonia Sotomayor said that corporations that don’t want to pay for abortions should simply not provide any health insurance: “But isn’t there another choice nobody talks about, which is paying the tax, which is a lot less than a penalty and a lot less than — than the cost of health insurance at all?” Dissenters from the official line must pay a tax. That sounds familiar.

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In Hobby Lobby Case, Progressives Reincarnate an Old Southernism

iStock_000021534725LargeIn Sebelius vs. Hobby Lobby Stores, Inc. we are asked whether a private corporation has the right to buy health insurance that does not pay for abortion.

Progressives like Erwin Chemerinsky argue that the issue is simple: A private partnership might have the right to buy insurance according to the conscience of the owners but a corporation is a separate entity, created by the state, and, as such, is and must be secular. It is a “secular corporation.”

But why must that be the case?

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Would a Ban on Kosher Slaughter Be Constitutional, and Valid Under RFRA?

In Poland, according to an animal protection law, animals must be stunned with a stun-gun prior to slaughtering. The European Convention for the Protection of Animals for Slaughter permits EU member countries to exempt religious slaughter from the stunning requirement. However, the Polish Parliament voted against granting the exemption. However, such a slaughter would not satisfy the rules of Kosher, which proscribe a very specific manner to kill an animal in accordance with Jewish Law.  As a result, it is effectively illegal to make kosher meat in Poland. Unsurprisingly, several slaughterhouses are violating the law, and doing it anyway.

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