Wednesday, March 23, 2016

Supremes Hear Zubik All-or-Nothing "Religious Liberty" Arguments: Commentary Worth Noting

The Supreme Court hears arguments this morning in the case of Zubik v. Burwell.  At issue in this case: a number of religious groups including the Little Sisters of the Poor of Denver (i.e., where the current archbishop of Philadelphia, Charles Chaput, used to hang out) want to maintain that the accomodation provided by the Obama administration to employers objecting to the Affordable Care Act's requirement that employers include contraceptive coverage in employee healthcare plans burdens their religious freedom. The Little Sisters and others are arguing that even writing a letter stating that they object on grounds of conscience to providing contraceptive coverage to employees, and thereby allowing another entity to provide the coverage, infringes on their religious freedom.

Here are some recent articles I've found helpful to understand the issues: 

1. For Religion News Service, Lauren Markoe provides a run-down of who's for and who's against, of who filed amicus briefs supporting the Little Sisters of the Poor of Denver and who filed briefs supporting the Obama administration. This list is extraordinarily helpful in providing links to each amicus brief.

2. At National Catholic Reporter, Dennis Coday offers an overview of the case with links to previous NCR coverage, especially by Father Thomas Reese (Reese inclines towards support of the U.S. Catholic bishops in these matters).

3. As the Supreme Court hearing of Zubik neared, those supporting the Little Sisters of the Poor of Denver in the case (and perhaps using them as well?) assured that major media outlets would be plastered with articles calling for support for the Sisters. This past weekened, for instance, New York Times published a statement by the Sisters's spokeswoman Sister Constance Veit which sets forth the arguments of the Sisters in a way that, as Patricia Miller points out in her article linked next, sounds suspiciously like a summary of the amicus brief filed by the Becket Fund for Religious Liberty in the case.

4. For Religion Dispatches, Patti Miller reminds us of who really stands behind the Little Sisters of the Poor of Denver in the Zubik case — in addition to the Becket Fund for Religious Liberty and other right-wing faith-and-politics group intent on attacking the Obama administration, it's the U.S. Catholic bishops. Zubik is Pittsburgh bishop David Zubik. Patti writes, 

The effort to make the Little Sisters the public face of the case has been so extensive, in fact, that you could be forgiven if you didn’t know that the actual name of the case that the Supreme Court is hearing Wednesday is Zubik v. Burwell, which is a consolidated case that includes the Little Sisters' challenge to the mandate as well as the challenges of six other plaintiffs, including the anti-abortion group Priests for Life and two Catholic dioceses. 
And who is this Zubik that the opponents of the mandate are so eager to hide behind the habits of the Little Sisters? He is Bishop David Zubik of Pittsburgh, whose diocese is challenging the accomondation. Apparently the Becket Fund isn't too eager to remind anyone that it's actually a bunch of old men who belong to one of the world's most patriarchal institutions who want to deny women birth control. Wonder why?

5. A number of commentators are maintaining that the all-or-nothing approach of the Little Sisters of the Poor, the U.S. Catholic bishops, and their right-wing funding machine in this case actually works against the religious liberty they claim to be defending. These commentators include some people who have traditionally sided with the bishops in defending religious liberty — including the Baptist Joint Committee for Religious Liberty and Douglas Laycock of University of Virginia's School of Law, who supported those arguing for a religious freedom exemption in the Hobby Lobby case but who opposes the arguments of Zubik as a bridge too far that endangers religious liberty. As Holly Hollman of the Baptist Joint Committee states at Religion News Service, "These religious employers make far-reaching arguments against the exemption designed for them. In doing so, they threaten to take religious freedom law down with it": and then she concludes,

The Baptist Joint Committee and Laycock have worked for more than 25 years — often together — to advance religious liberty and to enact, implement and defend the Religious Freedom Restoration Act. It is unusual, to say the least, for us to file for the government in a free exercise case. Religious liberty is often threatened by government indifference or oversight. As this case demonstrates, it can also be endangered by exaggerated claims and overreaching.

6. At National Catholic Reporter, Tom Roberts echoes this concern about the all-or-nothing approach of the Zubik claimants and the danger that approach poses to religious freedom:

In reality, the Little Sisters and other religious groups objecting to providing contraception need only write a letter to the Department of Health and Human Services to notify the department of its objections. 
Whether that is a level of cooperation in evil that would threaten a religious mission is the big question. Attorney Douglas Laycock, a law professor at the University of Virginia and a leading authority on -- and advocate for -- religious liberty, reasons that the arguments of mandate opponents in Zubik v. Burwell may actually put religious liberty at risk.

7. As other commentators are noting, at a time in which so-called "Religious Freedom Restoration Acts" are springing up in state after state across the country, granting even non-church-related businesses and government agencies a religious-freedom-based "right" to discriminate against LGBT people, how Zubik is decided will have major implications for the lives of LGBT Americans. Here's Jay Michaelson at Daily Beast:

But as RFRAs proliferate across the country, the way the Chief Justice and Justice Kennedy vote will affect millions of people, well beyond the boundaries of these limited cases. 
That's because more than 100 anti-LGBT bills have been introduced in this year's legislative session alone, and many of them bring up the same questions as Zubik.  For example, does it 'substantially burden' the religious exercise of a family-run bed and breakfast if two women rent a room together?  What about if it's a huge hotel chain?  What if the family is required to put out a sign saying "opposite-sex couples only"? 
And then there are the unintended consequences.  Already, at least one defendant in a domestic violence case has used religion as a defense. After all, the Bible says women must obey their husbands, and countless fundamentalist sects advocate corporal punishment for spouses and children.  Does it "substantially burden" a person's religious practice for the government to say no, you can't follow the dictates of your religion and "discipline" your wife by beating her as God wants you to?

8. And on the same point, here's Dahlia Lithwick for Slate, noting that this case is really being driven by those "who are unwilling to take 'yes' for an answer":

But in many ways Zubik is as important, not only because the challengers seek to override the medical needs of third-party employees but also because this challenge sets up a dramatic new effort to curb civil rights laws by way of religious veto. The result will not implicate merely birth control but also gay rights and racial discrimination.

9. Finally, there's Michael Sean Winters at National Catholic Reporter who has, poor fellow, worked himself into quite the corner by fervently hopping onto the USCCB bandwagon when the bishops first began mounting their attack on the Obama administration, and who only now seems belatedly to recognize that he's hopped onto a bandwagon headed no place . . . well, no place good. And so he maintains, vis-a-vis Zubik, "I hope they [i.e., the U.S. bishops] win, but they deserve to lose."

And that's a miserable place to end up, isn't it? It's one my mother loved to warn her sons about when she reminded us that, if we lie down with dogs, we're certain to get up with fleas, and that we'd be known by the company we keep.

Some company's simply best not kept if one wants to preserve one's integrity.

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