Is there anything liberals care about more than “women’s health,” meaning “not having babies, by any means necessary?” If there is, ‘Puter hasn’t found it yet. This singular focus on abortion and birth control can be seen in this nonsensical New York Times editorial from Wednesday, A Missing Argument on Contraceptives.
The editors, in context of the pending Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius cases,* argue that the Establishment Clauseshould trump the Religious Freedom Restoration Act (“Act”).
According to the solons staffing the editorial pages at the New York Times, the Act is nothing more than an unconstitutional “order requiring federal courts to grant private for-profit employers an exemption that would effectively allow them to impose their beliefs on employees to deny them a valuable government benefit.”
So as to preempt damage to a cherished liberal right, the editors remind the doltish Supreme Court justices the Establishment Clause “enforc[es] the separation of church and state and bar[s] government from favoring one religion over another or nonbelievers.” The editors go on to chide the simple justices that striking down the Act “is necessary to prevent “employers from invoking the act to force their beliefs onto employees** who may not share them and who have beliefs of their own.” Further, the moron justices don’t even remember the Supreme Court “has consistently resisted religious exemptions that significantly burden other people.”
Wow. So where to start in this dog’s dinner?
As the editors admit, none of the champions of free birth control for everyone*** really makes the argument that the Establishment Clause should apply to the Hobby Lobby and Conestoga cases, and for good reason. The Establishment Clause applies to the government, not to private employers.
Even granting the editors’ good faith (which ‘Puter doesn’t), the Establishment Clause “not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion.”
Thus, the editors’ argument can be stated as follows:
The Establishment Clause forbids employers from invoking the Act to force their religious beliefs on employees.
The trouble is, the editors’ logic also requires the following proposition to be true as well:
The Establishment Clause forbids employees from invoking Obamacare to force their non-religious beliefs on employers.
The editors, legal geniuses that they are, propose a guiding principle that would require different results on the same facts. That’s why no one’s arguing the Establishment Clause should control.
Here’s what the New York Times isn’t telling us, and frankly, what they don’t want us to know.
Employers – unless they are government entities – are free to impose their beliefs on employees, with precious few exceptions. What the editors don’t like isn’t an employer forcing its beliefs on employees (see, e.g., workplace smoking bans), it’s an employer forcing its *Roman Catholic/Christian* beliefs on employees. This is especially true because this specific Roman Catholic/Christian belief threatens liberalism’s Greatest Commandment: “Thou shalt love birth control thy god with thy whole heart and with thy whole soul, and with thy whole mind.”
Contra the New York Times completely unbiased editors, the Act is not particularly controversial, in and of itself.
The Act simply states “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” The Act permits one exception. Government may burden a person’s exercise of religion if the burden is (1) necessary to further a compelling government interest and (2) the least restrictive means of implementing the compelling government interest. This is what’s known in the industry as a strict scrutiny, the highest standard of judicial review.
In reviewing Free Exercise Clause cases, the Supreme Court for years required application of strict scrutiny – that a government action be necessary to further a compelling government interest and also the least restrictive means of doing so.**** When the Supreme Court shifted away from use of strict scrutiny in Free Exercise cases, Congress passed the Act to require its application.*****
The Supreme Court upheld the Act in 2006’s
Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal,
546 U.S. 418 (2006), and expressly rejects the editors’ argument the Establishment Clause trumps the Act.
The unanimous Supreme Court (minus Alito, J., who took no part in the decision) stated:
We reaffirmed just last Term the feasibility of case-by-case consideration of religious exemptions to generally applicable rules. In Cutter v. Wilkinson, 544 U. S. ___ (2005), we held that the Religious Land Use and Institutionalized Persons Act of 2000, which allows federal and state prisoners to seek religious accommodations pursuant to the same standard as set forth in RFRA, does not violate the Establishment Clause. We had “no cause to believe” that the compelling interest test “would not be applied in an appropriately balanced way” to specific claims for exemptions as they arose. Id., at ___ (slip op., at 12). Nothing in our opinion suggested that courts were not up to the task. (emphasis added)
The constitutionality of the Act is not at issue, no matter how much the editors may wish it so.
If the editors bothered to read the case law, they would know the Supreme Court has held the Act requires exactly the sort of individualized assessment on the merits the editors seek:
RFRA, and the strict scrutiny test it adopted, contemplate an inquiry more focused than the Government’s categorical approach. RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”—the particular claimant whose sincere exercise of religion is being substantially burdened. 42 U. S. C. §2000bb–1(b). RFRA expressly adopted the compelling interest test “as set forth in Sherbert v. Verner, 374 U. S. 398 (1963) and Wisconsin v. Yoder, 406 U. S. 205 (1972).” 42 U. S. C. §2000bb(b)(1). In each of those cases, this Court looked beyond broadly formulated interests justifying the general applicability of government mandates and scrutinized the asserted harm of granting specific exemptions to particular religious claimants. (emphasis added)
The Act is not “a congressional order” requiring federal judges, automaton-like, to rubber stamp a litigant’s claim Obamacare violates his Free Exercise Clause rights. On the contrary, the Act requires a thorough, searching inquiry into the nature of such right, and a thoughtful balancing against the interests of the government.
The New York Times editors fear the Act because a faithful application of strict scrutiny in both the Hobby Lobby and Conestoga cases will require the Supreme Court to hold in favor of the companies.
No free birth control for you, Ms. Fluke!
* If you’re a law geek, you can find the merit briefs for each case
here.
** By “force their beliefs onto employees,” the New York Times editors mean “refuse to pay for employees’ birth control where doing so would directly contradict a fundamental tenet of the employer’s Christian faith.”
*** “Free” meaning of no direct cost to the responsible women who can’t afford to shell out the $9.00 per month for birth control pills. Therefore, the editors’ logic goes, men these fine ladies aren’t banging get the privilege of paying for some other guy’s consequence free boot-knocking with his drunken booty call. As ‘Puter once noted, if he’s paying for your birth control, justice requires that he should get to bang you like a screen door in a hurricane.
**** Sound familiar? It should. It’s the language in the Act,
***** Unanimously in the House, and with only three dissenting votes in the Senate, for what it’s worth. Those are “Declaration of War against Japan in 1941” numbers.
Always right, unless he isn’t, the infallible Ghettoputer F. X. Gormogons claims to be an in-law of the Volgi, although no one really believes this.
’Puter carefully follows economic and financial trends, legal affairs, and serves as the Gormogons’ financial and legal advisor. He successfully defended us against a lawsuit from a liquor distributor worth hundreds of thousands of dollars in unpaid deliveries of bootleg shandies.
The Geep has an IQ so high it is untestable and attempts to measure it have resulted in dangerously unstable results as well as injuries to researchers. Coincidentally, he publishes intelligence tests as a side gig.
His sarcasm is so highly developed it borders on the psychic, and he is often able to insult a person even before meeting them. ’Puter enjoys hunting small game with 000 slugs and punt guns, correcting homilies in real time at Mass, and undermining unions. ’Puter likes to wear a hockey mask and carry an axe into public campgrounds, where he bursts into people’s tents and screams. As you might expect, he has been shot several times but remains completely undeterred.
He assures us that his obsessive fawning over news stories involving women teachers sleeping with young students is not Freudian in any way, although he admits something similar once happened to him. Uniquely, ’Puter is unable to speak, read, or write Russian, but he is able to sing it fluently.
Geep joined the order in the mid-1980s. He arrived at the Castle door with dozens of steamer trunks and an inarticulate hissing creature of astonishingly low intelligence he calls “Sleestak.” Ghettoputer appears to make his wishes known to Sleestak, although no one is sure whether this is the result of complex sign language, expert body posture reading, or simply beating Sleestak with a rubber mallet.
‘Puter suggests the Czar suck it.
