'A Minefield'

The Troubling Implications of the Hobby Lobby Decision

The Supreme Court’s 5-4 decision in Burwell v. Hobby Lobby Stores, where religious exemptions to the contraception mandate in the Affordable Care Act were extended to a private for-profit company, has produced jubilation among those who regarded the mandate as a grave threat to religious liberty and consternation from those who think access to no-cost contraception should be a fundamental component of health care for women. Critics complain that in extending the accommodation to Hobby Lobby, the court has misinterpreted the Religious Freedom Restoration Act of 1993 in order to take the unprecedented step of recognizing the religious rights of certain for-profit corporations. The likely result will be an endless stream of similar religious claims from other businesses. Anticipating that criticism, the majority opinion, written by Justice Samuel Alito, asserts that the case was decided on narrow grounds, and argues that worries about exemptions being granted to religious groups opposed to vaccinations, for example, are unfounded. Writing for the four dissenting justices, Justice Ruth Bader Ginsburg questioned such assurances, arguing that the Court “has ventured into a minefield.” “Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution’s] Establishment Clause was designed to preclude.’”

In granting the accommodation to Hobby Lobby, the majority ruling further contended that the administrative mechanism used to accommodate religious entities could easily be extended to commercial enterprises. Three days after issuing the Hobby Lobby ruling, however, the Court granted an emergency injunction to Wheaton College, temporarily allowing the Evangelical institution to avoid complying with even the minimal administrative paperwork required by the government in order to receive an exemption. Wheaton, like some Catholic groups, maintains that filling out the form that notifies the government and its insurer that it desires an exemption will still facilitate access to contraceptive methods it opposes on religious grounds. All three of the Court’s women justices vociferously objected. “Those who are bound by our decisions usually believe they can take us at our word,” wrote Justice Sonia Sotomayor. “Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might...retreats from that position.”

So, at this early date, it very much remains to be seen whether the Court has issued a narrow or sweeping decision with regard to the scope of religious exemptions from laws such as the Affordable Care Act. Supreme Court cases, however, are not only or primarily about the named plaintiffs. Their purpose is to set the normative framework that governs the decisions of countless other unnamed persons (both natural and corporate), who may never have the opportunity to see the inside of the courtroom. It is the future course of cases that makes me worry about the majority opinion—not the outcome in this particular case. For what the Court has done in the Hobby Lobby case is transform the Religious Freedom Restoration Act—a statute enacted by Congress to counteract a bad Supreme Court decision that harmed powerless religious minorities—into a tool for powerful minorities to resist what they believe to be dangerous social and political change. For example, it is not hard to see how the religious exemptions justified in the Hobby Lobby decision could also be applied to businesses that object to dealing with same-sex couples.

 

The Original Purpose of RFRA

As “the findings and purposes” of the law itself make clear, Congress enacted RFRA for a very specific reason. In Employment Division v. Smith (1990), the Supreme Court had significantly relaxed the test used to evaluate the government’s case in religious liberty cases. In short, religious exemptions from otherwise generally applicable laws became much harder to come by. In response to protests from both sides of the political aisle, Congress passed RFRA, which was intended “to restore the compelling interest test as set forth in Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972).” The government, in other words, had to demonstrate a compelling state interest—such as maintaining a system of taxation or protecting public health against infectious disease—if it wanted to burden religious exercise. Moreover, the government needed to show that it promoted that interest by a law tailored to impinge as little as possible on religious exercise. In practice, however, the government has nearly always won such cases. Yet while RFRA clearly came down on the side of religious expression, it did not appreciably expand the religious liberty protections available to claimants before the Smith decision. Very few cases have appeared under federal RFRA in the past twenty years; most have involved members of small religions claiming an exemption from general laws that burden them without conferring any discernible benefit on third parties. A good example is Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006), in which the Supreme Court held that RFRA protected the right of a tiny New Mexican sect of a Brazilian church to import a particular type of tea for sacramental use, despite its hallucinogenic properties that put it in the cross hairs of federal drug laws.

 

RFRA’s Mutation

Justice Alito’s opinion in Hobby Lobby, however, has worked a powerful mutation on the statute. Ignoring the purposes of the legislation, not to mention its legislative history and subsequent application, Alito argues that “nothing in the text of RFRA...was meant to be tied to this Court’s pre-Smith interpretation of the Amendment.” That is a highly selective if not deceptive interpretation of the statute. Alito virtually ignores the Court’s own earlier interpretation of RFRA in Boerne v. Flores, which recognized that the law “purported to codify” the pre-Smith religious freedom jurisprudence. He further claims that the Religious Land Use and Institutionalized Persons Act of 2000 requires that the Court interpret RFRA to protect “religious exercise to the maximum extent.”

The land-use act did amend RFRA’s definition of religious exercise to clarify that it included non-central as well as central practices of faith. But this amendment did not widen RFRA’s purpose beyond restoring pre-Smith jurisprudence. Nor did it require a “broad interpretation” of the earlier statute. And the land use act, which is focused narrowly on the use of land by religious entities and the free exercise of rights of institutionalized persons, says nothing whatsoever about how to interpret RFRA. In short, Alito wants it both ways. Looking at the text of RFRA, he focuses only on the letter of the statutory mandate, ignoring even the congressional purpose. Looking at the text of RLUIPA, he expansively interprets its spirit, extending it so far as to reframe the scope and reach of RFRA in ways that are beyond both the provisions and congressional intent of either law.

What groups should be exempt from the Affordable Care Act’s contraceptive mandate is a difficult issue. On the one hand, from the perspective of many religions, political questions are also moral questions—on every level. And for most people, moral questions invariably have a religious dimension. On the other hand, living in a pluralistic representative democracy, we are inevitably subject to laws and policies that we believe to be unjust. Except in the most extreme cases, however, we cannot expect to be exempted from laws that otherwise apply to everyone else. Here, of course, facts matter. If the contraception methods Hobby Lobby claims act as abortifacients do not in fact cause abortion, the case for exemption is seriously weakened.

In a pluralistic society, the religious freedom of one party needs to be balanced against the rights and the legitimate expectations of others. In this case, the consciences of some religious people must be weighed against the health-care concerns of women more generally, as judged by the people’s legitimately elected representatives. Yet as Ginsburg emphasizes in her dissent, Alito’s opinion gives us precious little guidance on what principles of law we should use when balancing those conflicting concerns. For example, while the ruling recognizes that corporations have free exercise rights, it identifies those rights solely with the owners of the corporation. The legitimate interests of other corporate stakeholders, particularly the employees, who may not share their employer’s religious views, evidently have no standing. In this instance, it seems that more money buys you more religious freedom—and more freedom to infringe on the choices of others.

Second, the opinion provides virtually no way to evaluate the strength of a plaintiff’s religious-liberty claim. Although RFRA’s text speaks of “substantial” burdens on a claimant’s exercise of religious liberty, the ruling pulls the teeth of this requirement. According to Alito and the majority, a burden is “substantial” as long as a claimant sincerely says it is. But as Ginsburg noted, this is an invitation to run through a minefield, not a way out of one.

The injunction granted to Wheaton College reveals the problem. If it is a substantial burden for a religious institution merely to sign a paper notifying the insurance company of its objections to contraception, then why isn’t it a substantial burden for a pacifist to sign a similar paper for the government conscientiously objecting to military service? But if we go down that road, how will we tell the difference between a conscientious objector and a deserter or draft dodger?

At a minimum, we can assess the substantiality of a burden by looking at whether it requires direct participation in an activity or merely indirect facilitation. We need to acknowledge the difference between, for example, fighting in an unjust war and paying taxes that help support an unjust war. The former is a substantial burden; the latter is not. We need to acknowledge, as well, that it cannot be a substantial burden on one’s free exercise merely to inform the government of one’s objection to a law. So too, it is one thing to be asked to provide contraception oneself, another to contribute to a benefit plan that covers contraception, and still another to be asked to inform the government of one’s religious and moral objections to contraception. The first is a substantial burden, in my view. The second and third are not.

 

Becoming What They Hate

Jurists like Justice Alito (and the Republican politicians who appointed them) have long crusaded against “judicial activism,” especially “legislating from the bench.” Their main object of ire, of course, is Roe v. Wade (1973), which not only found a right to abortion in the penumbras of the Constitution, but also required the Court to delve into the messy business of evaluating various schemes for regulating abortion.

In what may be the chief irony of Hobby Lobby, the majority opinion puts the Court in much the same position with respect to religious liberty. Alito accepted without scrutiny the plaintiff’s claim that the contraception mandate substantially burdened its exercise of religion. For the purposes of this decision, he assumed (albeit grudgingly) that the government had a compelling interest in making no-cost contraception available. In the end, the case turned on the third prong of the RFRA test: Did the government adopt the least restrictive means to achieve its end? He pointedly did not rule out the possibility that accommodating religious objections could require the government to adopt new programs—which would be supervised and second-guessed by the Court. That outcome now seems more likely after the injunction granted to Wheaton College. How is this not legislating from the bench? The conservative majority has, I would argue, become what it has so long hated.

The test proffered in the majority opinion in Hobby Lobby amounts to little more than judicial intuitionism. Does the government have a compelling state interest, say, in combatting racism? In the majority opinion, Alito suggests the answer is yes—but we’re not sure on what grounds. What about combatting discrimination on the grounds of gender or sexual orientation? My guess is that he would say no, but there’s no way to know. The logic of the Hobby Lobby decision is, I fear, as arbitrary as it is partisan.

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Cathy -- The logic of the decision isn't arbitrary at all.  It's about controlling women's sexuality, particularly the sexuality of unmarried women who don't want to become pregnant.  What else explains the Court's explicit refusal to include vaccination, blood transfusions, etc., within the range of the decision?  You yourself allude to such a logic in your penultimate sentences.  I share your hunch that Alito would probably not consider fighting discrimination based on gender or sexual orientation to be a compelling interest of the state.  Why not?  Because such discrimination would partake of a patriarchal sexual morality to which Alito subscribes.  He may declaim in the highest decibels that he's against such discrimination, but if he wouldn't be willing to consider combatting it a state interest, then what would his claim really amount to? 

Besides, as the Wheaton ruling makes very clear, we can't trust the majority of this Court to abide by the logic of any of its previous decisions -- which implies that the logic of the majority on cases involving sexual matters is not jurisprudential, but theological, and of the most conservative kind. Sotomayor is right:  you can't take the Court at its word anymore.  Of course, this has been true since Bush v. Gore, when the Court elevated the Boy Emperor to his throne.    

 

Behind the judicial intuitionism lies a Catholic dogma, that to abort a fertilized ovum is a grievous objective crime (even if it is not established that the four contraceptives are abortofacient in this sense as the plaintiffs feel they are). If the five men were members of a sect believing that blood transfusion was against nature they would probably practice their judicial intuitionism on that front. Since the judgment says nothing about the objective correctness or incorrectness of the moral judgment on alleged abortifacients it really does come down to whether judges intuitively like or dislike the claims brought forward by religious complainants.

First,Obamacare was passed by a democratic controlled Senate and House.
Second, the contraception and abortion mandates are not part of the  ACA Law but a regulation of the HHS department.

Lost in the sound and fury coming from the left in reaction to the Supreme Court’s decision in Hobby Lobby is this point, made in a letter to the San Francisco Chronicle by Emmett C. Stanton:

People choose to forget that when Obamacare passed so narrowly, it was in large part because the administration misled pro-life Democrats about its abortion and abortifacient coverage.

The legislation never would have passed if the regulation that the Department of Health and Human Services later imposed on employers had been included in the law itself. And, needless to say, Obamacare never would have passed if Congress had honestly chosen to exempt it from the Religious Freedom Restoration Act, which it had the unquestioned power to do.

All the Supreme Court did was hold that RFRA – introduced in the House by Chuck Schumer, passed unanimously in the House and passed by a 97-3 vote in the Senate with the strong support of Ted Kennedy – trumped a mere administrative regulation.

E.Patrick is correct, Prof. Kaveny is way off when she suggests that "the consciences of some religious people must be weighed against the health-care concerns of women more generally, **as judged by the people's legitimately elected representatives**."

Our "legitimately elected representatives" have decided nothing about contraceptive coverage. Here's what happened instead: 
 

-Congress didn't mandate contraceptive coverage - it deferred to HHS;

-HHS didn't mandate contraceptive coverage - it deferred to HRSA (an HHS subcommittee);

HRSA didn't mandate contraceptive coverage - it deferred to IOM;

-IOM didn't mandate contraceptive coverage - it deferred to a "committee of experts"; 

-11 of the 15 people on the "committee of experts" had strong ties to NARAL, Planned Parenthood, or other pro-abortion groups 

-The committee acknowledged that its review was a rush job, because time pressures created by the Affordable Care Act "prevented a serious and systematic review of evidence for preventative services." 

Kaveny writes, "the legitimate interests of . . . the employees . . . evidently have no standing.  In this instance, it seems that more money buys you more religious freedom--and more freedom to infringe on the choices of others."

This so off base one wonders if Kaveny is deliberately trying to mislead her readers about the Court's reasoning. The interests of third parties is certainly part of the RFRA analysis: it is the focus of the compelling government interest question and the least restrictive means test.  

And RFRA *does* tell us how to balance the interests of balancing religious liberty rights with those of female.  It says that the government must, whenever possible, advance its compelling interest (here, providing free contraceptives) in a way that avoids substantially burdening religious exercise.

The government lost in Hobby Lobby because the Court found the government has already created--on its own accord--another way of delivering these drugs that would not force Hobby Lobby to pay for them.  As Justice Kennedy put it,

"RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers--burdening one while accommodating the other--when it may treat both equally by offering both of them the same accommodation."

That's a reasonable rule, isn't it?

Oh, come on. Mr. Mosman and Mr. Kniffen are being at best disingenuous. We shocked and awed our way into Iraq although

-- Congress was misled about weapons of mass destruction.

-- Bush administration officials said the war would pay for itself.

--Bush administration officials said we would be greeted by flower-throwers.

-- We needed Iraq's oil (although in fact at least half of it is now going to China.)

-- And President Bush said the mission was accomplished.

Ergo, the the second Gulf War never happened. Cf Mosman & Kniffen.

Tom,

All I'm saying is that you can't say that Congress found that it was important to provide women with free access to contraceptives. Because it didn't. 

To the contrary, since 1997, at least 21 bills have been introduced in Congress to mandate prescription contraceptive coverage in private health plans (generally to apply to plans that have other prescription drug coverage), under the titles “Equity in Prescription Insurance and Contraceptive Coverage Act” or “Prevention First Act.” A Senate committee hearing was held on two of these bills—in 1998 and then in 2001. No committee or subcommittee of Congress has ever reported out any of these 21 bills. 

Bottom line: if you want to argue that covering contraception is imporant, fine. But you can't say that Congress agrees with you.

 

 

Wonder how long we'll have to wait for Commonweal and its blog readership to actually come down on the side favoring conservative Christians on well... just about any issue at all. Perhaps it will do so when their co-religionists start going to jail and the like, for not getting with the program of liberal Catholicism. Or perhaps, not.

Mr. K., I don't want to argue that covering contraception is important, because it isn't. And I certainly don't want to argue that national Romneycare is the best possible solution to massive lack of insurance. But I am not going to sit here and pretend the ACA is worth nothing because it is not as pristinely lovely as a fourth grade civics book's description or that I am suffering from the vapours because Congress never legislated sloppily before. If you don't like the way we make laws, you had better stay away from the bratwurst, too

 

If the Wheaton College case gets to the SCOTUS, the highest court will have to rule if Wheaton College, by refusing to sign a form requesting an exemption from mandated contraceptive coverage on religous grounds, is directly facilitating the availability of free contraceptive coverage which the owners assert is a violation of their religious beliefs. If the SCOTUS follows the Hobby Lobby ruling and RFRA, the least burdensome means for restricting religious expression is offering closely-held for profit corporations the contraceptive accommodation offered to religious non-profit organizations. How else can this be done if the government is not notified that a closely-held for profit company (or religious non-profit) wants the exemption, other than documented evidence that is in-writing?

On the other hand, the Wheaton College case may be an argument about the immorality of direct agency according to religious beliefs. How will the issue of direct and indirect agency be judged? Will the "test" be whatever the owners say it is? 

The majority of the SCOTUS may have rulled in the Hobby Lobby case on narrow grounds. But this will not answer an objection of a closely-held Christian Science non-profit corporation that does not want to cover blood transfusions based on their religious beliefs..."when and if" such an organization brings forth such a case to court.

All the claims about religous liberty, et al, have not been exhausted for there is and will be other cases brought to the SCOTUS in the months and years ahead challenging the contraceptive mandate or other aspects of the ACA. When all the civil disputes are settled, we may still be a divided society and Church on the issue of contraception.

 

 

Once again a huge victory for the Right -- they have us nattering on and on about contraception while the great evils of American society and the world at large to ignored.

I wouldn't have thought anyone could come up with a point that makes less sense than "more money buys you more religious freedom—and more freedom to infringe on the choices of others," but Gene McCarraher managed to do it. It is simply uncharitable nonsense to look at people who object to being forced to pay for what they believe are abortifacients and think it's about nothing more than controlling other people's sexuality. 

Here's a good response to idiocy like McCarraher's: 

http://slatestarcodex.com/2013/05/30/fetal-attraction-abortion-and-the-p...

Money paragraph: 

"So if [McCarraher and his ilk are] right, and pro-lifers don’t really care about fetuses – where are all the people who really care about fetuses? In a world where there is a multi-million-person movement of people who get extremely upset that we are killing chickens for food, it would be really weird to find that no one at all has any legitimate qualms about killing millions of what’s basically a smaller, less developed human baby. It’s exactly the sort of moral question that people would end up having wildly divergent views about, and for everyone to settle on one side – some people openly, other people secretly – is such a miracle that if I thought it was true I would immediately drop everything else I was doing, try to figure out why people’s moral reasoning is in sync on that question and no other, and then try to figure out some way to apply this improbable success to all the other moral questions people actually disagree about."

In response to your left-wing talking points:

-the UN was still at war with Saddam Hussein's Iraq following the First Gulf War.
-Saddam had ignored more than a dozen UN resolutions regarding his WMDs
-The US had thousands of troops and air force in the Middle East keeping Saddam in check
-The intelligence reports of most countries agreed that Saddam had WMDs and had used poison gas against rhe Kurds. 
-Most of the leading democrat politicians believed that Saddam had WMDs. Check it out at:
http://www.snopes.com/politics/war/wmdquotes.asp
-The Congress, including most democrats, voted in favor of and a coalition of nations signed on to the War to disarm and
overthrow Saddam Hussein.

 

- Here is President Obama in 2011
 "This strategy is grounded in a clear and achievable goal shared by the Iraqi people and the American people: an Iraq that is sovereign, stable, and self-reliant"

 

Mr.Blackburn

The above  is in response to your July 8 comment .

Great point. If the intellectual energy in this commentary/column went into marshalling resources to help fight voter disenfranchisement-- union suppression-- poverty-- homelessness-- the spread of AIDS-- (not to mention getting these issues articulated from the pulpit) it would be a remarkable and refreshing change. It is as if the Catholic hierarchy were asleep at the wheel and unable to focus on anything other than sexusl and reproductive doctrine.

Great point. If the intellectual energy in this commentary/column went into marshalling resources to help fight voter disenfranchisement-- union suppression-- poverty-- homelessness-- the spread of AIDS-- (not to mention getting these issues articulated from the pulpit) it would be a remarkable and refreshing change. It is as if the Catholic hierarchy were asleep at the wheel and unable to focus on anything other than sexusl and reproductive doctrine.

As usual, the contemporary American "Catholic" Left--when challenged to address the division between God and Caesar--invariably come down on the side of Leviathan.  What is "troubling" is not that Hobby Lobby addressed the level of Constitutional scrutiny required for a religious conviction to prevail over a public policy, but the overall concept that, in a country whose first right in its First Amendment of its Bill of Rights is religious free expression, the religious person must come as a supplicant to Leviathan to plead for an acknowledgement of his liberty.  Fundamentally, the ability of Leviathan to find a "compelling public need" for a "genuine public policy" is only limited by the intelligence and creativity of the U.S. Attorney defending the case.  Take a case wending its way through the Louisiana courts.  The Supreme Court of Louisiana is addressing whether an admission within confession can be compelled for public testimony in a molestation case.  The lower court rightly threw the case out, but the state Supreme Court remanded it for trial, to determine "if" a sacramental confession occurred.  Now, applying the logic of the Catholic Left: (1) society has an interest in prosecuting pedophiles; (2) society's procedures have a right to work on their own terms, just as the Church's do; (3) the seal of confession covers confessions, so society needs to know whether a "confession" has occurred, and should not have to defer to the Church's claim, especially since (4) ecclesiastical credibility is shot because of episcopal coverups.  (5) The Church could simply provide enough information to determine if a "confession" occurred, which is no more a burden on its free exercise than, say, signing a certificate notifying somebody else to buy abortiofacients in your name; (6) non-believers should not be burdened by ecclesiastical rules like the seal of confession; (7) and Catholics have given up on confession much like they have accepted contraception, so ecclesiastical teaching is the product of a bunch of old fogeys anyway.  Besides, we aren't asking you to divulge whether you confessed you gouged your tenant of rent (homelessness) or stopped some illegal alien from voting (voter disenfranchisement) or insisted on not being forced to join a union against your will (union suppression).  We are only asking you about "sexual and reproductive" stuff, and once again the male hierarchy is defending their sexual privilege by invoking a theological doctrine.  And, after all, priests have faculties to hear confessions by virtue of diocesan authorization, which makes them agents of a corporation sole, and, as we all know, Senate Democrats are hell-bent on ensuring that corporations not be able to claim religious freedom rights under RFRA or the Constitution, so this ecclesiastical agent should provide a confessional transcript?  Far-fetched?  As far-fetched as the idea that there is a right to free abortiofacients paid for by somebody else.

 

"-- Congress was misled about weapons of mass destruction." Yes, but that does not make Congress innocent. Where was their basic intelligence? Why did they drool over Blair?

"-- Bush administration officials said the war would pay for itself." It possibly lined their pockets -- Haliburtion profited hugely -- so I guess 5000 US lives and God knows how many Iraqi lives was a price that was worth it.

"--Bush administration officials said we would be greeted by flower-throwers." There was a stirring picture of liberated Iraqis pulling down a statue of Saddam -- problem was it was a fake; only a small group were pulling it down. Saddam was hated enough, but the US never made itself loved in Iraq.

"-- We needed Iraq's oil (although in fact at least half of it is now going to China.)" Oil was a major but unmentioned factor in the war decision. The three casus belli (9-11, WMDs, and importing the blessings of Democracy) were fakes -- hence the war was unjust on that basis alone by classical criteria.

"- And President Bush said the mission was accomplished." He probably still believes it. How did the USA vote twice for this mental defective? But the elections were rigged both times it seems.

"the UN was still at war with Saddam Hussein's Iraq following the First Gulf War. " The UN is not at war with anyone as far as I know. Do you mean the US? If so why did the US go through the charade of seeking UN approval for its 2003 aggression against Iraq?

"-Saddam had ignored more than a dozen UN resolutions regarding his WMDs." Far fewer than Israel has ignored, of course. But even if he did ignore the resolutions that provided no basis for the mistaken belief that the WMDs existed.

"-The US had thousands of troops and air force in the Middle East keeping Saddam in check" So why did they need the 2003 illegal shock-and-awe invasion?

"-The intelligence reports of most countries agreed that Saddam had WMDs and had used poison gas against rhe Kurds." The poison gas refers to 1987 when Saddam was the US's friend --- some of the gas was supplied by American agencies -- this old story, which did nto prevent Pres. Bush Sr. from lending billions to Saddam at the time, was vamped up in the most meretricious way to enable the catastrophic 2003 invasion. As to "intelligence reports" the most famous one is the "dodgy dossier" of Tony Blair -- manipulative, dishonest, misleading. Parliament went along and Congress applauded Blair deliriously -- but now the name "Blair2 induces a sense of nausea and shame in his former dupes. 

"-Most of the leading democrat politicians believed that Saddam had WMDs." Yes, the guilt is shared by a far wider groups than the Bush coterie. They were misled by the Bush propaganda but they should have been more careful -- they thought Iraq would be a shoe-in and scoffed at the warnings from Chirac and many others that they toll would be heavy.

"-The Congress, including most democrats, voted in favor of and a coalition of nations signed on to the War to disarm and overthrow Saddam Hussein." A coalition including many backward and impoverished nations. And its leading members soon realized their mistake -- Spain, Italy, etc. One such nation, Cameroon, had the courage to go against the US on the Security Council.

But you are basically right, the reason Bush and Blair have not been prosecuted is that they succeeded so magnificently in getting so many others to share the responsibility for their destructive acts, so it is hard to attack them without the attack boomeranging on your own head.

 

and this has WHAT do to with Hobby Lobby?

By the lights of the Supreme Court's decision about Hobby Lobby, we should now all have the right to forbid our tax dollars to be used to support any law or government expenditure with which we disagree. My sincerely held view is that Israel's occupation and attacks against Gaza are deeply immoral. Can I please demarcate my tax dollars so that they are not spent on supporting the IDF? If not, why are my religious and conscientious objections of less value than those of Hobby Lobby's? The Supreme Court has discriminated against those of us who hold subjective beliefs and value systems that are different from their own. They are overriding legislation passed by a democratically elected Congress in order to impose their own beliefs on the rest of us. 

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Exactly. The way the Roberts Court has interpreted the RFRA violates the establishment clause of the 1st ammendment (leaving aside the fact that if five justices say "up is down than" tham legally "up is down").  Courts now have two options: they can grant an exemption for EVERY  corporate "religious belief" however ridiculous; or they can pick and choose which religious beliefs are legitimate.  The former will create an anarchic nightmare and the latter is blatently unconstitutional under long standing precedent.

Congress may not have mandated anything regarding insurance coverage of birth control, but it didn't have to, because states were going about doing it long before the ACA (28 at the time it passed).  And, most importantly, US courts had upheld the year 2000 ruling by the Equal Opportunity Commission that women should be guaranteed the right to contraception coverage under their insurance plans by Title VII of the 1964 civil rights act, a ruling not disputed by the Bush administration btw.  All the ACA with its HHS mandate does is make that coverage free in most cases as part of its preventive health package for women, which has to be covered without co-pays.

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About the Author

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.