Perrspectives - Bringing light to Darkness

Supreme Court Cases I'd Like to See

July 14, 2014

In the wake of Supreme Court's Hobby Lobby ruling, the political right and left are feverishly debating its significance and its scope. For conservatives like Ross Douthat and Damon Linker, Justice Alito's opinion that the 1993 Religious Freedom Restoration Act (RFRA) applies to "closely held" corporations merely signals a small corrective in a culture war already won by liberals. But for the likes of Katha Pollitt and Sandra Fluke, Alito's conclusion that the Affordable Care Act's contraception coverage mandate is a "substantial burden" on the free exercise of religion by private businesses represents an "attack on women" and a "slippery slope" to much worse.
Sadly, there is every reason to believe that the scope of what Justice Ruth Bader Ginsburg warned was a "decision of startling breadth" will be the harbinger of even more sweeping faith-based assaults on civil rights than its opponents fear. But given the inexorable logic of today's "religious freedom" arguments, their proponents, too, could find themselves tumbling down the same slippery slope.
Already, the Supreme Court has ordered lower courts to reconsider their previous decisions against companies opposing the entire Obamacare contraception mandate while refusing to hear challenges to several victorious firms owned by Catholics objecting to all methods of birth control. In its subsequent provisional ruling in favor of Christian Wheaton College, Justice Sonya Sotomayor warned that the Roberts Court had already revised its two-day old Hobby Lobby decision. Meanwhile, a group of prominent faith leaders sent a letter to President Obama demanding a religious exemption to his pending executive order forbidding federal contractors from discriminating against current and potential LGBT employees. The wave of lawsuits to come will soon expose the fiction behind Justice Alito's promise that:

This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer's religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.

As Jeffrey Toobin rightly noted, the Roberts Court has previously touted its "narrow" rulings only to later use them as a cudgel to smash past precedent. For example, in his supposedly narrow opinion in the 2009 Northwest Austin Municipal Utility District Number One v. Holder voting rights case, Chief Justice John Roberts invented the doctrine of "equal sovereignty" of the states. Then in his 2013 Shelby County opinion, Roberts proceeded to his equal sovereignty brainchild to completely gut Section 5 of the 1965 Voting Rights Act. Given the opportunity, there is little question that the Court's conservatives will expand their Hobby Lobby ruling to "provide a shield for employers who might cloak illegal discrimination as a religious practice."
But just as dangerous, the Roberts Court has repeatedly signaled its endorsement of a "weaponized First Amendment" to pulverize the wall separating church and state and allow the religious beliefs of some to trump the civil rights of all.
In April 2011, the Court struck down a 43 year-old precedent preventing states from spending public money on religious schools. Endorsing Arizona's tax credit scheme designed as a not-so-thinly veiled cover for school vouchers, Justice Kennedy overturned the 1968 Flast standard and ruled that taxpayers did not have standing to sue to stop religious spending by the government. Two months ago in Town of Greece v. Galloway, the Roberts Court ruled that sectarian Christian prayers used to open a town council meeting did not violate the constitutional prohibition against government establishment of religion. Its unanimous 9-0 decision in June's McCullen v. Coakley case struck down a 35 foot buffer zone around family planning clinics in Massachusetts on free speech grounds, suggesting that anti-abortion protesters were simply offering "counseling and information," and engaging in "personal, caring, consensual conversations." (Justices Scalia, Alito and Thomas would have gone further, striking down all buffer zones as "unconstitutional root and branch" because they create an "entirely separate, abridged edition of the First Amendment applicable to speech against abortion.") And while the Court in Hobby Lobby decided the federal Religious Freedom Restoration Act (RFRA) magically conferred religious free exercise rights upon corporations, Mississippi among others is extending that legal smokescreen for discrimination to individuals and businesses at the state level.
But those touting the wave of victories for so-called religious freedom may come to regret what they asked for. After all, the freedoms of speech and religion aren't just for the cheerleaders for Christian businesses, schools and proselytizers.
To see why, imagine the right-wing reaction to some of these hypothetical Supreme Court cases I'd like to see:
American Medical Association v. Jindal. This is a free speech case pitting doctors and their patients against a state government intent on muzzling them both.
Last month, the AMA passed a new set of guidelines for the practice of telemedicine. Hoping to improve treatment, manage follow-ups, lower costs and provide access to rural and low income patients, the AMA is encouraging physicians to increase the use teleconferencing and videoconferencing. Among other things, the organization "recommended that physicians and other health practitioners should abide by the state medical practice laws of the state the patient receives services."
But in Louisiana, there is one telemedicine practice that is uniquely outlawed. Despite overwhelming evidence showing the safety of RU-486 (Mifeprex), in June 2013 Governor Bobby Jindal signed a bill "designed to prevent abortions where physicians administer the drugs over an Internet video link connection, sometimes from hundreds of miles away."
Noting that Viagra has a mortality rate which is five times higher than RU-486, the AMA brought suit to protect the free speech rights of doctors. As Justice Scalia put it in his McCullen dissent, "Protecting people from speech they do not want to hear is not a function that the First Amendment allows the government to undertake in the public streets and sidewalks." How can the government possibly prevent speech it doesn't want to hear in a doctor's office?
Kansas Medical Association v. Brownback. If the AMA v. Jindal case was about government mandating physicians' silence, in Kansas the issue is forced speech. There, doctors are now legally required to lie to their patients.
When Kansas Governor Sam Brownback signed his state's harsh new antiabortion bill in April 2013, he didn't just pen his name on the document. He also wrote "Jesus+Mary" and "culture of life" on a law that, among other things, requires doctors to warn their patients that breast cancer is a potential risk of abortion. Of course, there is no such link: the American Cancer Association and the National Cancer Institute concluded that "abortion is not associated with an increase in breast cancer."
The suit brought by Kansas doctors to stop state-mandated medical malpractice is being closely watched in other states as well.
American Family Association v. Rainbow Bakery. Judging by their off-the-chart ratings in the Zagat and Michelin guides, owners James St. James and Herve LeBlanc of the trendy Rainbow Bakery and Cafe in Tupelo, Mississippi are very particular about what ingredients they choose and the delicacies they create. As it turns out, they are picky about their customers as well.
St. James and LeBlanc also happen to be gay and close friends with the Reverend Gene Robinson, the first openly gay Bishop of their Episcopal Church. But when staffers from the Tupelo-based American Family Association entered their establishment wearing t-shirts proclaiming, "Marriage is One Man and One Woman," they were refused service. The AFA brought suit, claiming that Rainbow Bakery was discriminating against them based on the organization's Christian faith.
In an ironic twist, Rainbow Bakery turned to the very same Mississippi Religious Freedom Restoration Act AFA had supported and Republican Governor Phil Bentley signed into law. As St. James put it:

"Governor Bentley said Mississippi's RFRA 'will protect the individual religious freedom of Mississippians of all faiths from government interference.' The government cannot tell us who we can and cannot serve. In our church, discrimination against gay people is a sin. We may hate the sin and love the sinner, but no law can tell us we have to cook for him."

Schlussel et al v. City of Dearborn. The city of Dearborn, Michigan has produced what might be called a case of "religious freedom for me, not thee."
For over a hundred years, Dearborn has had a large and thriving Arab American community. But in the wake of the September 11, 2001 attacks, the city of 97,000 has become the place "where Americans come to hate Muslims." As Daniel Denvir explained two years ago, whether it is Koran-burning pastor Terry Jones, the California-based Bible Believers or RenewAmerica:

Dearborn is a must-visit location on 21st-century America's newly established anti-Muslim protest circuit.

Coming to fight in their imaginary battle against Sharia law, the Bible Believers protest the city's annual Arab International Festival. Last year, the Christian missionaries brought a pig's head and signs insulting Islam's prophet. The 2014 event over Father's Day weekend was cancelled.
After the failure of a previous lawsuit to stop local mosques from broadcasting the call to prayer five times each day, incendiary blogger Debbie Schlussel is spearheading a new campaign to silence Muslims' First Amendment rights in Dearborn. Schlussel, who lives in nearby Southland, is representing a group of Dearborn residents suing the city to prevent any Muslim cleric from delivering the rotating invocation to open city council meetings.
Now, Justice Anthony Kennedy's majority opinion in the just-decided case of Town of Greece v. Galloway would suggest that Muslim or any other sectarian prayer to open a city legislative session must be permitted:

Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs. The prayer in this case has a permissible ceremonial purpose. It is not an unconstitutional establishment of religion.
The town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents.

But the Dearborn plaintiffs are convinced that in the United States, some religions are more equal than others. "Islam is an extremist cult," they argue in their brief, "which does not comport with America's Judeo-Christian tradition."
Limbaugh v. Womyn's Organic Produce. With the rapid development of new contraceptive products, the Supreme Court's recent Hobby Lobby decision may soon need an updating. With the imminent arrival of birth control micro-chips for women and pills and implants for men, family planning is on the cusp of a brave new world.
And in 2021, Morningstar Venus, CEO of Womyn's Organic Produce, declared she wasn't happy about it. A leader of a prominent Wiccan sect whose doctrines call for the "eradication of misogyny and patriarchy," Venus announced her company's insurance plan would not cover the new male birth control chip as mandated by the Affordable Care Act. Citing Justice Samuel Alito's majority opinion in the Hobby Lobby v. Burwell case, she protested that provision of the Seedless Super Chip enabled men's "consequence-free, sexual oppression of women" and so represented a substantial burden on her closely held company's free exercise of religion.
With over 16,000 workers, WOP employs hundreds of men who could be impacted by the decision forcing them to pay hundreds of dollars a year for the device. One of them was a PR associate named Rust Limbaugh. But when he brought suit, every lower court cited Alito's Hobby Lobby ruling in rejecting his claim:

We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA), 107Stat. 1488, 42 U. S. C. §2000bb et seq., permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies' owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest...
The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.

Abdullah and Sons v. State of Rhode Island. Rhode Island is one of three states with paid family leave laws. That requirement that all employers pay for workers during their time off to care for a newborn child or loved on wasn't controversial until it was challenged by Abdullah and Sons, "New England's Home for Halal."
After the birth of her first child, single-mom Becky Ann Donaldson never received her leave pay from the company. Its CEO, Abu Ahmed Abdullah, argued his sincere religious belief that an out-of-wedlock birth was an abomination. For support, he compared his to the Hahn and Green families who won the Conestoga and Hobby Lobby cases:

The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable.

Donaldson, a devout Evangelical, agreed her behavior was "sinful," but insisted the law and the "culture of life" required she receive her money.
As a state law, the Rhode Island paid family leave statute doesn't violate the federal RFRA upon which Hobby Lobby hinged. But Rhode Island does have its own RFRA statute, a factor that could save Mr. Abdullah's case.
Archdiocese of Milwaukee v. Fitzgerald Health Centers. With the wave of hospital mergers and acquisitions continuing unabated, Catholic hospital chains are rapidly becoming the only choice in many parts of the country. Thanks to current law, women's reproductive health is increasingly at risk. As the Guttmacher Institute explained:

A patchwork of federal laws explicitly allows many health care professionals and institutions to refuse to provide care related to abortion and sterilization services. Collectively, these laws prevent government agencies from forcing the provision of services or "discriminating" against individuals and institutions that refuse to provide them; they also prevent institutions receiving certain federal funds from taking action against health care personnel because of their participation or nonparticipation in beliefs about abortion or sterilization. Separate federal laws and regulations, notably Title VII of the Civil Rights Act, prohibit employers from discriminating against personnel based on religion, including religiously based objections to performing specific job functions; an employer must reasonably accommodate an employee's religious practices unless doing so would impose an undue hardship on the employer.

But what would happen instead if the health care provider refused to provide treatment to Catholic clergy?
That's exactly what happened when the former Archbishop of Milwaukee turned up at a Fitzgerald Health Center is rural Wisconsin complaining of chest pains. The staff turned him away, citing the ownership's prohibition on serving Catholic Church leaders due to his own suffering at their hands during the clergy sex abuse scandals of the 1960's and 1970's.
As it turned out, the former Archbishop wasn't having a coronary, but heartburn brought on by too much kielbasa. But the Archdiocese of Milwaukee nevertheless filed suit, claiming Dr. Fitzgerald's health centers were discriminating against men of the cloth. As Cardinal Timothy Dolan put it in his amicus brief:

Who are they to play God?

Huckabee Enterprises vs. Hagel. With the Employee Non-Discrimination Act (ENDA) still stuck in Congress, President Obama recently announced that he will issue an executive order prohibiting federal contractors from discriminating against gay, lesbian, bisexual and transgender Americans. Already faith leaders on both sides of the issue have written the President demanding or objecting to religious exemptions in the new administrative rule.
But one company--Huckabee Enterprises--isn't waiting. Founded by former Baptist Minister Marshall Huckabee, the firm among other things produces portable chapels and latrines for the United States military. Its corporate mission, as its CEO described it, is "to be part of God's Army, to be soldiers for Christ." Having famously described the passage of California's infamous Prop 8 "a miracle from God's hand," Huckabee now wants the Supreme Court to show Defense Secretary Chuck Hagel the back of its hand. In the wake of the Hobby Lobby decision, Huckabee Enterprises is demanding the Pentagon respect his company's sincere religious beliefs that LGBT job seekers can be ignored and gay workers denied equal pay and spousal benefits.
Those are just some of the "parade of horribles" the Supreme Court's Hobby Lobby and other recent rulings could ultimately produce. Feel free to use the comments to add your own.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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