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Five years ago I wrote two articles for Commonweal about religion at Guantanamo. The shorter follow-up dealt with Rasul v. Rumsfeld (and Rasul v. Myers), in which the plaintiffs appealed in part to the Religious Freedom Restoration Act (RFRA).
At that time, courts ruled that Guantanamo detainees are not "persons" under RFRA:
Congress legislated against the background of precedent establishing that nonresident aliens were not among the 'person[s]' protected by the Fifth Amendment ... and were not among 'the people' protected by the Fourth Amendment.
In a concurring opinion, Justice Janice Rodgers Brown admitted she was troubled by the finding.
Accepting plaintiffs' argument that RFRA imports the entire Free Exercise Clause edifice into the military detention context would revolutionize the treatment of captured combatants in a way Congress did not contemplate. Yet, the majority's approach is not much better. It leaves us with the unfortunate and quite dubious distinction of being the only court to declare those held at Guantanamo are not "person[s]." This is a most regrettable holding in a case where plaintiffs have alleged high-level U.S. government officials treated them as less than human. (italics added)
She further argued that Congress did not foresee a situation like Guantanamo: "prolonged military detentions of alleged enemy combatants were not part of our consciousness." She wrote that "Congress should revisit RFRA with these circumstances in mind."
It is also true that Congress did not foresee large for-profit corporations as persons protected by RFRA. With the new, expanded definition of 'person' post-Hobby Lobby, lawyers representing Guantanamo detainees have thus filed a Temporary Restraining Order in the D.C. District Court.
When reading Justice Alito's majority opinion in Hobby Lobby alongside Justice Kennedy's concurring opinion, the unifying thread is clear. And the results don't bode well for the pending cases of religious non-profits against the HHS mandate.
A for-profit corproration has been granted its claim under the Religious Freedom Restoration Act (RFRA) only because Kennedy maintains that the government did not use the least restrictive means of providing its compelling interest. From Kennedy (p. 3):
The means the Government chose is the imposition of a direct mandate on the employers in these cases. ... But in other instances the Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities. ... The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs.
HHS shouldn't distinguish between different religious believers, "when it may treat both equally by offering both of them the same accommodation." Later he repeats that "the mechanism for doing so is already in place." Thus the accommodation of religious non-profits currently on offer is precisely the legal model available for the for-profits (such as Hobby Lobby).
COLORADO — Sitting with four high-information primary voters yesterday, I was amazed to learn that none of them had decided whom to vote for in the gubernatorial race. When each would pull his or her SUV up to the drive-thru ballot stations here in Tancredo country (CO-6), the best decision wasn’t clear.
But it’s not necessary to psychoanalyze my family members here in public. They were confused for good reason: the Republican party as a national entity is incoherent. And its own voters know it.
Are conservatives underrepresented in the theology and religion departments of our nation’s colleges and universities?
This was one of the questions discussed at the 2014 annual meeting of the Catholic Theological Society of America and already here on this blog. It’s a question I’ve been pondering for some time, and I wrote about it once in these pages.
The basic answer is Yes. When compared to the overall percentage of conservatives in religious communities or society at large, conservatives are underrepresented in academic theology.
However, when compared to conservatism as represented in other academic fields, theology is not very different.
That’s why I think the more interesting question concerns academia on the whole, of which theology is just one field that fits the trend reasonably well. The results of the limited sociological studies on this issue, notably that of Matthew Woessner and April Kelly-Woessner (good summary here) and, more recently, that of Neil Gross, show that self-selection is the primary reason the professoriate leans liberal. There are few conservative professors because, under the current conditions, few conservatives want to become professors.
With the unpredictability of Pope Francis, some Catholics have wondered if he would call another council -- a Vatican III. It appears not.
Something that big won't do for Francis. He's thinking even bigger: the church universal will be getting a Nicea III.
Almost fifty years ago, the conciliar document Nostra aetate removed a cancer from the heart of Christianity. Its central section, on Jews and Judaism, overturned centuries of faulty interpretation regarding the main "teaching of contempt" for Jews that was part of Christian culture, doctrine, and liturgy.
Surgery is one thing; rehabilitation another. The first is relatively quick and anesthetized; what follows is more challenging, sometimes painful, and often a test of perseverance and endurance.
So as the Pope prepares for the Holy Land, how healthy is the Jewish-Christian relationship? And how is Israel preparing for the Pope?
Since the English translation of Thomas Piketty's book, Capital in the Twenty-First Century, became a best-seller, the national conversation about economic inequality has returned to its proper focus: ratios.
In a country as broad and regionally diverse as ours, emphasizing absolute income metrics has less relevance than zeroing in on relative ones, such as the CEO-to-median-worker pay ratio. (This blog has talked about it multiple times in the past year or so.) Absolute income metrics, such as a $100,000 salary, become nearly meaningless when one contrasts cost-of-living indexes in, say, New York and South Bend.
Reading the commentary around Piketty's book last week, and especially conservative analyses from open-minded free-marketers (e.g., Pascal Emmanuel-Gobry), I wondered if anyone had yet proposed tying corporate tax rates to CEO/Worker pay ratio.
That is to say, the tax rate would not be based in any way on an absolute number, such as a corporation's profits, but rather based on how the corporation distributes those profits within its corporation.
Today Molly Redden at Mother Jones reports that Hobby Lobby holds mutual funds that invest in the manufacturers of the same pharmaceuticals and devices to which the company claims religious objection.
Everyone knows the power granted by Justice Kennedy’s middle position on the Supreme Court. Indeed Paul Clement, the advocate for the plaintiffs in Sebelius v. Hobby Lobby, seemed to direct most of his arguments toward the concerns he imagines Kennedy to have about the case.
But even in Clement's most hopeful fantasies, he could not have imagined the gift that Kennedy would present him during questioning of the Solicitor General. Kennedy introduced the idea that, by the logic of the government’s case -- in some future scenario, at the calamitous bottom of a slippery slope -- for-profit corporations could be forced to “pay for abortions.”
And here we are. After years of debate, protest, and litigation about the "HHS mandate" and its levels of exemption, accommodation, or non-accommodation under the Affordable Care Act, Hobby Lobby v. Sebelius and the related Conestoga Wood v. Sebelius are having their day in the Supreme Court.
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