Research On Religion » Hyde Amendment

Matthew Franck on Hobby Lobby & Religious Freedom Jurisprudence

tonygill — Sun, 16 Feb 2014 09:00:34 +0000

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Can the federal government require a private employer to provide a service or product to employees that violates the private owner’s freedom of conscience? This is the subject that is up for debate in an upcoming US Supreme Court case pitting Hobby Lobby and Conestoga Wood Specialties against the Health and Human Services contraception mandate that is part of the Patient Protection and Affordable Care Act. Prof. Matthew Franck, director of the William E. and Carld G. Simon Center on Religion and the Constitution at the Witherspoon Institute, provides us with the background to this case, the historical precedents that may influence how it is decided, and his review of what each side will be arguing in late March.

We begin with a review of how this court case percolated up to the Supreme Court, as well as a brief discussion who the primary plaintiffs — Hobby Lobby and Conestoga Wood Specialties — are and what issues are at stake. This discussion covers a bit of the history of the Patient Protection and Affordable Care Act and the HHS mandate that came out in the fall of 2011. The primary issue being contested concerns whether or not a business owner can be required to provide certain types of contraception, most notably abortifascients, that those owners consider to be in direct violation of their religious conscience. Tony asks a variety of questions regarding the nature of the litigants including why they were chosen amongst a number of other potential companies that were also suing, and whether or not the fact that both of these companies are privately held has any impact on their legal standing. Matt fills in all the details and notes how the case might have been different had this been the CEO of a publicly-held and traded corporation bringing suit. He also points out that under consideration is whether or not a corporation — in this case one that is privately held — can have the same rights of conscience that an individual possesses under the US Constitution’s First Amendment.

We next consider the historical case law that may (or may not) inform the thinking of the Supreme Court justices. We take a quick tour of religious liberty cases over the past half century beginning with Sherbert v Verner and ending, most recently, with Hossana-Tabor, a case that Matt has discussed in greater detail on this show before (see link below). It is during this discussion that Prof. Franck brings up a judicial concept that Tony was unaware of — exemption-based jurisprudence. This style of jurisprudence allows for laws to be made and then exemptions appealed for based upon some special characteristic of an individual or group. Matt feels that this is not the best legal structure for a country to have, something that he has written about and will be available in a few weeks (see link below).

Following our historical discussion, Matt then lays out what he believes will be the arguments made on both sides of this case. A coin flip determined that he would start with the plaintiff’s side of things and he then brings up the defendant’s rebuttal to each of those points. Many of these arguments were hinted at throughout our earlier discussion, but the last 15 minutes of the interview provide a nice summary of what will probably be heard in oral arguments in late March of 2014 (assuming the snow in DC will melt by then). At the end of the conversation, Prof. Franck lays out what he thinks will be the implications for religious liberty should the government win the case and should Hobby Lobby and Conestoga win. Recorded: February 14, 2014.

Jeremy Lott on America’s Shifting Religious Election Coalition

tonygill — Mon, 22 Oct 2012 08:00:19 +0000

What hath Election 2012 wrought? Are we witnessing a re-alignment of religious voters with Catholics shifting away from the Democrats and evangelicals becoming comfortable with a Mormon running for national office? Jeremy Lott, author and editor of RealClearReligion (among other sites), joins us to talk about his new, free e-book entitled Mitt Romney’s Mormon-Christian Coalition. We start off first, though, by examining if there have been any trends in how the media have dealt with the religious angle in the current election. Jeremy’s role with RealClearReligion gives him an advantage in answering this question and he provides some interesting insights on how places like The New York Times have covered religion. We then spend a short bit of time to look at how atheists have tried to get in the mix of electoral politics by putting up images of Jesus on toast and a man in glowing underwear before the Democratic and Republican national conventions. Our discussion then turns to how Democrats have dealt with religion in recent years and how President Obama’s seeming lack of faith (as viewed in opinion polls) and how the debate over contraception and abortion in the Patient Protection and Affordable Care Act (i.e., Obamacare) has affected religious voters, particularly Catholics. Indeed, the politics behind getting Obamacare passed and how regulations were later imposed despite initial understandings of what that legislation would do may have shattered a fragile coalition that Democrats have maintained with Catholics since Roe v Wade and the Hyde Amendment prohibiting funding for abortion at the federal level. Tony wonders how much lay Catholic voters will respond to criticisms of the Obama Administration levelled by various Catholic Church leaders. We then look at how Mitt Romney may be using this growing rift to his advantage, in part by choosing Paul Ryan, a practicing Catholic, as his running mate. We also look at how Romney has tried to assuage the fears of evangelical leaders who have had a suspicion of Mormon religious views, and how Romney infused the Republican National Convention with how Mormon values are American values without making overt appeals to Mormonism. Jeremy also notes how Mitt’s missionary background has been influential in crafting his political career, including a life-threatening car crash. The claim is made that his ability to speak to different audiences as a missionary has affected how he positions himself on various political issues, sometimes giving him the image of being a flip-flopper. But Jeremy notes that this is also an indication of how Romney learns over time and that there is no “Romney-ism” but rather a pragmatic turn-around artist who is also a skillful politician. During an earlier point in the podcast, Jeremy claims that he will “eat his hat” if the Republicans take Pennsylvania in the presidential election, a claim that Tony intends to revisit in several weeks. Recorded: October 15, 2012.