Research On Religion » Wisconsin v Yoder

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.

Phillip Muñoz on Catholic Bishops, Religious Liberty, and Health Care Mandates

tonygill — Mon, 07 May 2012 08:00:11 +0000

The U.S. Conference of Catholic Bishops recently released a document on religious liberty that criticized a new regulatory provision in the Patient Protection and Affordable Care Act (a.k.a., Obamacare) requiring employers to provide insurance coverage for contraceptions, sterilization and abortion-inducing drugs. Prof. Phillip Muñoz, the Tocqueville Associate Professor of Political Science at the University of Notre Dame and an associate professor in the Notre Dame Law School, helps us wade through this controversy by explaining the bishops’ argument and how it relates to religious liberty. After briefly outlining the controversy, we take up the initial issue of religious liberty with Phillip discussing what it means to have a right to religious liberty and then outlining the Catholic position on religious freedom. We use the realm of educational policy to help frame the general theoretical and political issue, specifically pointing to the Wisconsin v Yoder Supreme Court case that challenged whether Amish citizens could exempt their children from mandatory schooling laws based on religious grounds. Cases of parents refusing to have their children vaccinated for theological reasons is also discussed, and we note the tension between trying to balance the public interest with the right to individual conscience. Following this general discussion, we return to the recent health care mandate, discussing the politics behind the new regulations and the Catholic bishops’ reaction. Prof. Muñoz notes how the Catholic Church’s response was not to ask for particular exemptions from these regulations for their institutions (including dioceses, hospitals, and universities), but rather to oppose the mandate on a more general ground. It is noted that it is not just Church-owned institutions that are affected, but these regulations can have an impact on secular business owners who may be Catholic and/or simply opposed to paying for the contraception and abortions of their employees. The reaction of the Obama administration, including the testimony of HHS Director Kathleen Sebelius, is considered. Phillip notes how the issue of religious freedom, or the desire to opt out of these policies on grounds of moral conscience, never really occured to the people drafting and implementing the regulations. Tony then asks Phillip about a tension he has noticed within Catholic social thought, between a tendency among bishops and other Church leaders to prefer a larger government-run welfare system and the Catholic principle of subsidiarity. That latter principle states that social problems should be handled at the lowest level possible, a philosophy akin to notions of federalism and a more laissez-faire political philosophy. We speculate about how this issue may affect the upcoming presidential election, and Tony asks Phillip how much sway the opinion and pronouncement of bishops has over Catholic voters. We finish our discussion by noting that the letter drafted by the U.S. Conference of Catholic Bishops also contained concerns over violations of religious freedom in other areas of public policy, including the immigration issue. Here, the bishops appear to stand with the Obama administration in opposing recent laws in Alabama and elsewhere that make it difficult for the Catholic Church to minister to undocumented immigrants. We end the podcast with Phillip reading the prayer that the bishops used to close their pastoral letter, a salient reminder of how the secular and the sacred cross paths in the public square and the importance that freedom represents to a religious society. Recorded: May 2, 2012.