Late yesterday, the nation’s Catholic Bishops came out with a statement that noted at least two strong objections to the revised contraceptive coverage plan unveiled yesterday by the White House:

Hours after calling the Obama administration’s contraceptives compromise a “first step,” the Catholic bishops said Friday night they have “two serious objections” to the new policy and will fight its enactment.

First, the U.S. Conference of Catholic Bishops said the administration’s plan still includes a “nationwide mandate of insurance coverage of sterilization and contraception, including some abortifacients.”

“This is both unsupported in the law and remains a grave moral concern,” the bishops said in their statement. “We cannot fail to reiterate this, even as so many would focus exclusively on the question of religious liberty.

And while Obama’s new plan allows religious-affiliated employers to refrain from paying for contraceptive coverage — insurers would be obligated to provide the coverage for free — the bishops said the change doesn’t go far enough.

“It would still mandate that all insurers must include coverage for the objectionable services in all the policies they would write,” the bishops said. “At this point, it would appear that self-insuring religious employers, and religious insurance companies, are not exempt from this mandate.”

(…)

[The Bishops] made it clear that a “lack of clear protection for key stakeholders — for self-insured religious employers; for religious and secular for-profit employers; for secular nonprofit employers; for religious insurers; and for individuals — is unacceptable and must be corrected. And in the case where the employee and insurer agree to add the objectionable coverage, that coverage is still provided as a part of the objecting employer’s plan, financed in the same way as the rest of the coverage offered by the objecting employer. This, too, raises serious moral concerns.”

This last part seems to be a bit of moving the goalposts on the part of the bishops. Previously the discussion was about religious institutions that run entities like hospitals, now it’s been expanded to included entirely new classes of people, some of whom arguably have far less of a “religious liberty” claim than an organization like the Catholic Church might. Should the owner of a small manufacturing company be treated the same, for the sake of this argument, as the Catholic Church? I think there’s a fairly weak case for doing that, which is why I don’t think the religious liberty argument doesn’t really work in this case. The real question, for which no answer has been provided to date that I’ve seen, is why the Federal Government should have any power at all to tell employers and insurance companies what the contents of their contracts should be. That’s the real issue here, not some culture war argument over a non-existent “war on religion.” Why the right isn’t making it is beyond me.

As anticipated, earlier today the Obama Administration announced a change in the requirement for employers to provide contraceptive coverage in the insurance they are required to provide to employees under the PPACA. Unfortunately it seems like more of a smokescreen than a solution and seems to be based on the idea that there is such a thing as “free” birth control:

Seeking to allay the concerns of Catholic leaders and head off an escalating political storm, President Obama on Friday announced an adjustment to the administration’s health-care rule requiring religiously affiliated employers to provide contraceptive coverage to women.

Women still will be guaranteed coverage for contraceptive services without any out-of-pocket cost, but will have to seek the coverage directly from their insurance companies if their employers object to birth control on religious grounds.

Religiously-affiliated non-profit employers such as schools, charities, universities, and hospitals will be able to provide their workers with plans that exclude such coverage. However, the insurance companies that provide the plans will have to offer those workers the opportunity to obtain additional contraceptive coverage directly, at no additional charge.

Churches remain exempt from the birth-control coverage requirement. And their workers will not have the option of obtaining separate contraceptive coverage under the new arrangement.

The administration’s decision to make an adjustment reflected the high political stakes of an issue that had generated intense criticism in recent days from a growing chorus of Catholic and Republicans leaders, as well as some Democrats. In Congress and on the campaign trail, leading Republicans attacked the Obama administration’s position as a war on religion.

In an appearance in the White House briefing room, Obama said he instructed aides to craft a solution quickly in the wake of the outcry.

“After many genuine concerns were raised over the last few weeks — and the more cynical desire to make this into political football — it became clear that spending months hammering out a solution not an option; we had to move this faster,” Obama said, flanked by Health and Human Services Secretary Kathleen Sebelius, whose agency is administering the rule.

“I’ve been confident from the start we could work out a sensible approach here,” the president added. “Some folks in Washington may want to treat this as another political wedge issue, but it shouldn’t be. I never saw it that way. It’s people with goodwill on both sides of the debate sorting through a complicated issue to find a solution that works for everyone. Today’s announcement has done that.”

White House officials said Obama called Archbishop Timothy Michael Dolan, Keehan and Planned Parenthood President Cecile Richards to explain the new rules. The officials declined to elaborate on the nature of the conversations.

During a conference call with reporters to explain details, a senior White House official said that the impact of the change on insurers would be cost neutral–and even potentially cost-saving–because on balance it would reduce the need to provide medical coverage related to unwanted pregnancies and other conditions that can be avoided with birth control.

“The new policy ensures women can get contraception without paying a co-pay and addresses important concerns raised by religious groups,” the White House said in a statement.

Not surprisingly, Administration allies and other groups on the left are hailing the new compromise — after all, who doesn’t like to get stuff when other people are going to be paying for it? — but it’s unclear how Church groups are going to react to this. To some extent, it seems like a shell game after all. Unlike the Hawaii Rule, the new plan does not contemplate employees paying for the additional cost of contraceptive coverage (which is, in all likelihood marginal at best) but it also doesn’t require religious employers to pay for the coverage. Instead, the payments will be made by that abstract entity the “insurance company” who some people in the White House apparently think has a pot of money somewhere that comes from some unknown source. However, as Sarah Kiff notes, there is a huge catch in the plan as revised that is likely to make it difficult to sell:

The catch here is that there’s a difference between “revenue neutral” and “free.” By one report’s measure, it costs about $21.40 to add birth control, IUDs and other contraceptives to an insurance plan. Those costs may be offset by a reduction in pregnancies. But unless drug manufacturers decide to start handing out free contraceptives, the money to buy them will have to come from somewhere.

Where will it come from, since neither employers nor employees will be paying for these contraceptives? That leaves the insurers, whose revenues come from the premiums that subscribers pay them. It’s difficult to see how insurance companies would avoid using premiums to cover the costs of contraceptives. They could, perhaps, use premiums from non-religious employers. Those businesses wouldn’t likely object on faith-based grounds, but they probably wouldn’t be keen on footing the bill for people who aren’t on their payrolls.

The proposal is also likely to raise concerns among religious employers, who may think (not entirely incorrectly, I would submit) that the cost of the contraceptive coverage will still ultimately come out of the insurance premiums they pay, and that it will be taken into account when premium increases are calculated over the life of the plan. From the perspective of the Catholic Bishops and the other religious organizations that have been protesting about this rule, it’s hard to see what has really changed from the original rule. As I said, it’s not as if the insurance companies have sources of revenue independent of the premiums they receive (or that it would even be proper for them to use those revenues for insurance purposes if they did), so ultimately the only entities that pay for the cost of coverage are the employer or the employee.

As I’ve said since the start of this debate, for me this isn’t a religious argument. I’m still not entirely convinced by the religious liberty arguments that the Church and its allies make, although whether or not those claims succeed in court is less important than the political impact that they might have. For me, the issue is whether Congress and the White House should be dictating the terms under which employers provide non-salary benefits to their employees at all. That’s a much larger debate, of course, and it will likely end up being resolved by the Supreme Court. However, if the Obama Administration truly wants to accommodate the concerns of religious institutions, then it needs to get off the high horse and admit that there is no such thing as “free” birth control, or “free anything else for that matter. Someone will end up paying for it in the end and, unless they want to take the political risk of alienating Catholics and other religious voters with a change that seems to be little more than a fig leaf, then maybe they need to consider something like the Hawaii Rule even if that means that employees end up picking up the cost.

Update: This statement from the National Conference of Catholic Bishops, while not an endorsement at all, is more positive than one might have expected:

WASHINGTON— The United States Conference of Catholic Bishops (USCCB) sees initial opportunities in preserving the principle of religious freedom after President Obama’s announcement today. But the Conference continues to express concerns. “While there may be an openness to respond to some of our concerns, we reserve judgment on the details until we have them,” said Cardinal-designate Timothy Dolan, president of USCCB.

“The past three weeks have witnessed a remarkable unity of Americans from all religions or none at all worried about the erosion of religious freedom and governmental intrusion into issues of faith and morals,” he said.

“Today’s decision to revise how individuals obtain services that are morally objectionable to religious entities and people of faith is a first step in the right direction,” Cardinal-designate Dolan said. “We hope to work with the Administration to guarantee that Americans’ consciences and our religious freedom are not harmed by these regulations.”

Obviously, if the Bishops ultimately sign off on this proposal then the issue is closed. The statement, however, makes it seem as if there is at least some negotiation still to be had here.

With the White House under fire for its new rule requiring employers including religious organizations to offer health insurance that fully covers birth control coverage, ABC News has learned that later today the White House — possibly President Obama himself — will likely announce an attempt to accommodate these religious groups.

The move, based on state models, will almost certainly not satisfy bishops and other religious leaders since it will preserve the goal of women employees having their birth control fully covered by health insurance.

Sources say it will be respectful of religious beliefs but will not back off from that goal, which many religious leaders oppose since birth control is in violation of their religious beliefs.

There’s no word on what form this compromise will take, but it will apparently not go as far as the so-called “Hawaii Rule” that allows religious institutions to opt out of the requirement as long as they provide employees with information regarding the availability of additional coverage for contraceptives:

Sources say it will involve health insurance companies helping to provide the coverage, since it’s actually cheaper for these companies to offer the coverage than to not do so, because of unwanted pregnancies and resulting complications.

So, instead of the employer picking up the cost of coverage, insurance companies would. The devil is, as always, in the details, but this may be a way out of what has become something of headache for the Administration.

Doctor Science reacts to a proposal “giving all couples a civil union and leaving marriage up to churches and other religious institutions.”

 I have been civilly married for almost 25 years. In what respect is my marriage not “marriage” enough to keep the name — and the protection of a very large and well-established system of law? I haven’t been able to find good numbers, but I saw a vague estimate that 1/4 to 1/3 of US marriages are civil ceremonies. Have the people saying “government should get out of the marriage business and leave it up to the religions” completely forgotten about secular, civil marriages? Or do they really, in their hearts, believe that my marriage isn’t important, that I wouldn’t lose anything if it was defined away?

My late wife and I were married in a civil ceremony as well and, naturally, considered ourselves to be “married.”

As I understand such proposals, however, all that would change is the label. That is, all of the legal rights that currently go along with “marriage,” whether performed in a civil or religious ceremony, would continue to exist–we’d just call them “civil unions” or “domestic partnerships” or something other than “marriage.”

The rationale for this is that, for some very large segment of the society–likely an overwhelming majority, although it’s inexorably shifting in the other direction–have religious or moral objections to same-sex marriages and strongly believe that “marriage” is an institution that should consist of “one man and one woman.” Referenda on this question inevitably pass overwhelmingly, even in relatively liberal states like California. So, libertarians argue, we solve the problem by giving equal civil rights to all unions, whether same- or opposite-sex, and use the more religious label “marriage” within the confines of various churches.

When this notion started being bandied about eight or nine years ago in response to the first states legalizing same-sex unions, this struck me as a sensible solution to the problem. The more I’ve thought about it, though, the sillier it seems.

First, as Doctor Science makes clear, some very large number of people would be outraged at being told that they’re no longer “married” but in an identical relationship with a less hallowed name. The notion of “marriage” is simply too ingrained into our culture at this point to strip it away at this point.

Second, it’s a hell of a big change to go through to make a few people feel better about themselves. While I’ve long since stopped giving a damn about whether a couple of dudes got married, I get that it’s an issue that others have incredibly strong feelings about. But so what?

Third, it’s a transparently silly notion. People who feel strongly that people of the same sex shouldn’t be allowed to marry one another aren’t going to be fooled by being patted on the head and told, “No, no–they’re not “marrying” one another, they’re just getting married. I mean, civil unioned.” The underlying prejudice, revulsion, or moral outrage isn’t going to disappear.

Via Patrick Appel. Gay marriage image by Shutterstock.

The White House may be open to compromising on a new rule that requires religious schools and hospitals to provide employees with access to free birth control, a senior strategist for President Obama said on Tuesday morning.

David Axelrod, who serves as a top adviser to Mr. Obama’s re-election campaign, said on MSNBC’s “Morning Joe” program that the president would “look for a way” to address the vocal opposition from Catholic groups who say the rule forces them to violate their religious beliefs against contraception.

“We certainly don’t want to abridge anyone’s religious freedoms, so we’re going to look for a way to move forward that both provides women with the preventative care that they need and respects the prerogatives of religious institutions,” Mr. Axelrod said.

As I noted yesterday, this is a potential political landmine for Democrats so it wouldn’t be at all surprising to see the Administration try to find a way to resolve this in a manner that tones down a controversy that, in the end, didn’t need to happen.

In the meantime, the negative reaction to the decision continues to mount, with Democratic pundit Kristen Powers being the latest to call the decision itself baffling:

I’m not Catholic. I support contraception. But this is madness.

The administration wants to remind us of their benevolence: they are giving institutions with religious objections a whole year to implement a government rule that violates the core tenets of their faith. Gee, thanks!

“In effect, the president is saying we have a year to figure out how to violate our consciences,” Cardinal-designate Timothy M. Dolan, archbishop of New York and president of the U.S. Conference of Catholic Bishops told The Washington Post.

If religious institutions choose to ignore the mandate by dropping their insurance plans, they will face exorbitant fines under the Affordable Care Act that could force them to close their doors. Smith tells me that for one of the Becket Fund’s clients, the fine for the first year would be more than $300,000, and for the second year, more than $500,000.

One thing we can be sure of: the Catholic Church will shut down before it violates its faith. We saw that recently when Catholic adoption and foster-care services closed in Massachusetts and Illinois rather than comply with state mandates that they place children with gay parents. Who lost? Parentless children.

The administration has to know this, so why would it force the hand of Catholic institutions that have traditionally filled in the gaps in social services that the government failed to provide? The people who will suffer if they close their doors are the poor, refugees, the homeless, orphans, and the elderly.

(…)

Regardless of how the courts rule, the administration has planted its flag on the wrong side of history on this issue. The government’s disregard for the fundamental right of freedom of religion is chilling and should cause all Americans concern.

It’s reactions like these, and the fact that even people who normally support the Obama Administration are speaking out against this, that leads me to think that we’re going to see this regulation withdrawn and something else put in its place that gives Church-run organizations more latitude in opting out.

For the second weekend in a row, Catholic parishioners across the United States were read a message from the U.S. Conference Of Catholic Bishops on the recent decision by the Obama Administration to extend to church-run institutions such as hospitals a requirement that employer-provided health insurance include coverage for contraceptives:

(Reuters) – American Catholic clergy called on the faithful to write Congress to protest new birth control rules from President Barack Obama’s administration, stepping up a campaign that began a week ago with denunciations from the pulpit at Masses across the country.

The U.S. Conference of Catholic Bishops, posted an “Urgent Action Alert” over the weekend calling on Catholics to write to their U.S. lawmakers protesting the rule.

The fight is over a provision of the health reform law announced on January 20 that would require health insurance plans — including those offered by institutions such as Catholic-affiliated hospitals and universities — to offer free birth control including sterilization.

At Immaculate Conception Catholic church in the Philadelphia suburb of Jenkintown, Pennsylvania, Monsignor David E. Diamond read the congregation a letter on Sunday from Philadelphia Archbishop Charles J. Chaput parishioners to contact members of Congress.

“Write them, call them, visit them – and help them understand the deep resistance of Pennsylvania Catholics to this dangerous ruling,” the letter said.

Perhaps sensing a political opportunity, pretty much all of the Republican candidates for President have been hitting the Obama Administration for this decision, with Newt Gingrich being the most vociferous in claiming that the decision constitutes a war on the Roman Catholic Church. While that rhetoric is, in a word, absurd, there’s no doubt that this decision caused more controversy than the Obama Administration seems to have anticipated, although one is not at all clear how they could have not anticipated that this would be a problem for the Church regardless of how you try to spin it. It’s an issue that has the potential to cross ideological lines as well. MSNBC host Mika Brezinski, who is generally quite supportive of the Administration but also happens to be Catholic, said this morning on Morning Joe that she thought the Administration was wrong to push this button not just with the Church, but with Catholic voters.

A piece in CNN last week wondered that same point:

(CNN)-After years of bridge building with the Catholic Church, the Obama administration may have damaged some of the good will it built up with the nation’s 70 million Catholics, which could have steep consequences at the polls in November.

Some rank and file Catholics are beginning to express the same frustrations as clergy about a new U.S. Department of Health and Human Services policy requiring all employers, including religious ones, to pay for FDA-approved contraceptives, such as the birth control pill and Plan B, through health insurance plans. Churches are exempt but hospitals and schools with religious affiliations must comply. The new policy goes into effect August 1, 2012, but religious groups who oppose contraception have been given a yearlong extension to enforce the policy.

“What’s offensive is that we’re being told, our Catholic institutions which serve this nation well, are being told you who find these things offensive, you should pay for them, in fact you must pay for them,” Cardinal Donald Wuerl, the archbishop of Washington, told CNN.

Catholic teaching opposes the use of contraceptives.  Wuerl acknowledged the clergy and the faithful have been at odds over the teachings on contraceptive use. But on this policy he said both are in lockstep over what is being perceived as a violation of religious liberties.

“This time around what people are seeing this isn’t a question of one moral teaching or another, it’s being able to teach at all. Our freedom, and everyone has a stake in freedom in this country, and I think that’s why this resonates across the board,” he said.

And yesterday in The Wall Street Journal, Peggy Noonan argues that the President has entered a battle that he cannot win:

There was no reason to make this ruling—none. Except ideology.

The conscience clause, which keeps the church itself from having to bow to such decisions, has always been assumed to cover the church’s institutions.

Now the church is fighting back. Priests in an estimated 70% of parishes last Sunday came forward to read strongly worded protests from the church’s bishops. The ruling asks the church to abandon Catholic principles and beliefs; it is an abridgement of the First Amendment; it is not acceptable. They say they will not bow to it. They should never bow to it, not only because they are Catholic and cannot be told to take actions that deny their faith, but because they are citizens of the United States.

If they stay strong and fight, they will win. This is in fact a potentially unifying moment for American Catholics, long split left, right and center. Catholic conservatives will immediately and fully oppose the administration’s decision. But Catholic liberals, who feel embarrassed and undercut, have also come out in opposition.

The church is split on many things. But do Catholics in the pews want the government telling their church to contravene its beliefs? A president affronting the leadership of the church, and blithely threatening its great institutions? No, they don’t want that. They will unite against that.

(…)

There was no reason to pick this fight. It reflects political incompetence on a scale so great as to make Mitt Romney’s gaffes a little bitty thing.

There was nothing for the president to gain, except, perhaps, the pleasure of making a great church bow to him.

Enjoy it while you can. You have awakened a sleeping giant

As Noonan goes on to point out, Catholics made up 27% of the national electorate in 2008 and Obama won Catholics at the national level 54% to 45%. There’s no reason to think that the Catholic vote has any particular loyalty to President Obama because of the outcome in 2008, Four years earlier, the Catholic vote had gone 52% to 47% for George W. Bush, and if you track the exit polls going back to 1980 you’ll see that Catholic voters fluctuated between majority Republican and majority Democratic as much as the general electorate has over that time. The Catholic vote also played an important role in many of the swing states that Obama picked up in 2008 that allowed him to score a victory that few Democrats have seen since Richard Nixon was President. In Ohio, for example, Catholics accounted for 23% of the electorate and Obama won them 52% to 47%.  In Florida, Catholics made up 23% of the vote and Obama won that demographic 50% to 49%.  The results were similar in other states and, in many cases, it wouldn’t have taken much of a switch in loyalty for the Catholic vote to have sided with McCain and, if this decision does generate the kind of antipathy that some are anticipating, then it could play a huge role in the outcome of the vote in the swing states that President Obama will need to hold on to if he’s going to be re-elected.

David Friedman comments:

On the one hand, I suspect that many, probably a majority, of American Catholics do not  accept the church’s position on contraception—are, for one thing, willing to use it themselves. One might expect them to accept the requirement, perhaps to approve of it. That might be what Obama is counting on.

On the other hand …  . Human beings have a very strong aversion to being pushed around. I can easily imagine a Catholic who would be delighted if the church dropped its opposition to contraception, who is entirely willing to use contraception, but who is badly offended by having the U.S. government compel the church to pay for services that violate church doctrine.

That, essentially, is the political gamble that the Obama Administration is making here. One can disagree with the Church’s teaching on contraception, and many American Catholics do, but if the perception becomes that this is an example of the heavy hand of the state imposing its will on a religious organization regardless, then the fact that American Catholics support contraceptive use may end up being irrelevant.

They didn’t have to make this choice, of course. They could have followed the example of states like Hawaii that grant a broad exemption on contraceptive coverage for any religious institution, with the only requirement being that they are required to provide their employees with information on where they could obtain such coverage at low cost. Another option would have been to require them to notify employees that they could provide a rider to the basic employer-provided coverage that would cover contraception provided that the employee picked up the entire cost of that additional coverage. Instead, they choose to go this route for reasons that seem inexplicable from a political and policy point of view.

As I said last week, I’m not at all persuaded by the religious liberty arguments that have been made against this decision. These claims will be litigated, however, and it will be interesting to see how they’re treated by the Courts. As a matter of politics, though, the Administration’s decision strikes me as a dumb and inappropriate one that didn’t need to be made.

Photo via Politico

One Million Moms — a project of the American Family Association — is very angry at JC Penney.

[...]

"Funny that JC Penney thinks hiring an open homosexual spokesperson will help their business when most of their customers are traditional families," the million (or so) moms write on their website. "DeGeneres is not a true representation of the type of families that shop at their store. The majority of JC Penney shoppers will be offended and choose to no longer shop there."

[...]

The moms want JC Penney "to replace Ellen DeGeneres as their new spokesperson immediately and remain neutral in the culture war."

The odds, of course, that indeed a million moms (or, indeed, people in general) are involved here is dubious.  And one might reasonably note that drawing attention to the AFA is giving them free publicity that they want but do not deserve.  However, I think that they need publicity, although of the negative sort. This kind of behavior is simply reprehensible as well as tiresome.  It also needs to be called out, especially since this is hardly new behavior.

For example, Doug Mataconis blogged the following last year:  Christian Radio Host Wants To Put New Apple CEO In Jail For Being Gay.  And not only in the organization anti-gay, it is rather rabidly anti-Muslim.  For example: Apparently, Hating Muslims Is Now A Family Value.

The notion that upholding family values, let alone promoting a religion that is supposed to be based in grace, love, and forgiveness, is accomplished through tearing other people down is an odd one, to put it  mildly.

Ultimately, I am unclear as to how having Ellen DeGeneres flack for JCP will lead to anyone’s family being compromised or how having her as a spokesperson promotes, to quote AFA from the Reuters’ piece, “the immorality, violence, vulgarity and profanity the entertainment media is throwing at your children.”

Beyond even that, if one were to apply strictly rigid morality tests (e.g., no homosexuals, no adulterers, no fornicators, etc.)  to one’s consumer activities, one would quickly find it impossible to shop anywhere, yes?  Further, one shops at JCP to get cheap stuff, not to have morals taught/affirmed.

Last week, the Obama Administration announced that it would enforce a rule that is part of the PPACA requiring employer-provided health care insurance to cover contraceptives even if the employer in question happens to be a religious institution that objects to contraception like the Roman Catholic Church. The rule doesn’t apply to a religious institutions core functions, and religious organizations are being given more time to comply than secular employer, but any Church-run hospital, school, or the like would have to comply. The reaction to this on the right has been about what you’d expect it to be and, yesterday, the Catholic Church itself weighed in via a letter that was read to parishioners in very Catholic Church in the country. The letter itself was fairly strongly worded:

I write to you concerning an alarming and serious matter that negatively impacts the Church in the United States directly, and that strikes at the fundamental right to religious liberty for all citizens of any faith. The federal government, which claims to be “of, by, and for the people,” has just been dealt a heavy blow to almost a quarter of those people — the Catholic population — and to the millions more who are served by the Catholic faithful.

The U.S. Department of Health and Human Services announced last week that almost all employers, including Catholic employers, will be forced to offer their employees’ health coverage that includes sterilization, abortion-inducing drugs, and contraception. Almost all health insurers will be forced to include those “services” in the health policies they write. And almost all individuals will be forced to buy that coverage as a part of their policies.

In so ruling, the Obama Administration has cast aside the First Amendment to the Constitution of the United States, denying to Catholics our Nation’s first and most fundamental freedom, that of religious liberty. And as a result, unless the rule is overturned, we Catholics will be compelled to either violate our consciences, or to drop health coverage for our employees (and suffer the penalties for doing so). The Obama Administration’s sole concession was to give our institutions one year to comply.

We cannot—we will not—comply with this unjust law. People of faith cannot be made second class citizens. We are already joined by our brothers and sisters of all faiths and many others of good will in this important effort to regain our religious freedom. Our parents and grandparents did not come to these shores to help build America’s cities and towns, its infrastructure and institutions, its enterprise and culture, only to have their posterity stripped of their God given rights. In generations past, the Church has always been able to count on the faithful to stand up and protect her sacred rights and duties. I hope and trust she can count on this generation of Catholics to do the same. Our children and grandchildren deserve nothing less.

The letter prompted E.J. Dionne, who is anything but a conservative, to chide the Obama Administration for what he called a breach of faith:

Speaking as a Catholic, I wish the Church would be more open on the contraception question. But speaking as an American liberal who believes that religious pluralism imposes certain obligations on government, I think the Church’s leaders had a right to ask for broader relief from a contraception mandate that would require it to act against its own teachings. The administration should have done more to balance the competing liberty interests here.

Dionne goes on to note that there was a compromise proposed that mirrored a program in Hawaii that allows religious institutions that wish to decline offering insurance that includes contraceptive coverage by informing employees and prospective employees of this and giving them information on how to obtain additional coverage that includes contraceptives a modest cost. Another option would be to make contraceptive coverage a rider to the employer-provided plan that an employee could select, but for which they would have to pay on their own. Ultimately, the Obama Administration refused to do this, and this seems to be the root of Dionne’s problem with the program and the reason that he supports the Church’s position.

Kevin Drum disagrees:

I guess I’m tired of religious groups operating secular enterprises (hospitals, schools), hiring people of multiple faiths, serving the general public, taking taxpayer dollars — and then claiming that deeply held religious beliefs should exempt them from public policy. Contra Dionne, it’s precisely religious pluralism that makes this impractical. There are simply too many religions with too many religious beliefs to make this a reasonable approach. If we’d been talking about, say, an Islamic hospital insisting that its employees bind themselves to sharia law, I imagine the “religious community” in the United States would be a wee bit more understanding if the Obama administration refused to condone the practice.

In the end, I think Drum is correct here. Religious liberty is an important principle, one that I take very seriously, but it doesn’t mean what Dionne and the Catholic Bishops seems to think it means. Operating a hospital or a school or an adoption agency is not a religious undertaking in the same way that, well, operating a church is, and there’s simply no merit to the argument regulations regarding how you operate an institution that is essentially secular in nature are somehow a violation of religious liberty. More importantly, operating such institutions while taking government money (i.e., Medicare and Medicaid) means accepting at least some regulation about how that money is used. As I noted when discussing the issue of Catholic Churches getting ending adoption services rather than provide equal consideration to gay couples, there’s not such thing as a right to receive government money:

Religious liberty does not mean the right to take public money without having to comply with the law because the teachings of your faith tell you those laws are wrong. That’s not how you live in a civil society, and if the Church cannot comply with that simple rule then it needs to rethink its priorities.

I’d also note that it strikes me that the Church is making a fairly bizarre argument here. Providing contraceptive coverage in employer provided insurance is orders of magnitude different from, say, being required to perform abortions, an issue on which I personally think Catholic hospitals should be given wide latitude and the right to object for reasons of conscience if they choose. All it means is that your employees, many of whom might not even be Catholic, have a certain insurance benefit. Considering that there are often medical reasons that women are put on contraceptives that have nothing to do with preventing pregnancy, the relationship between the mandate and Church teaching is tangential at best.

Finally, Drum’s makes a point that is worth noting. Taking the religious liberty argument to its logical conclusion would mean that an Islamic hospital would be able to require its employees, Muslim or not, to adhere to Sharia law. Is that really what the First Amendment means?

As a policy matter I don’t support requiring any employer to provide any specific type of insurance policy. I have doubts that such a requirement is even Constitutional (yes, yes, I know the Commerce Clause, etc. etc). At the very least, perhaps the kind of opt-out that Dionne talks about would have been the better choice. Calling this a matter of “religious liberty,” though, is simply ridiculous. It’s a bad law, yes, but it’s not a violation of the First Amendment.

It is, I suppose, amusing that the guy who was raised Lutheran, became a Baptist in college, and converted to Catholicism after marrying the third wife he’d been carrying on an extra-martial affair with gets the support of a plurality of those who think a candidates religious beliefs matter. However, the opposing numbers for Romney raise the possibility that his Mormonism, or to put it more precisely evangelical bigotry toward Mormons, is still an issue. How that impacts the race going forward is an open question.

H/T: Buzzfeed

Rival presidential candidate Rick Santorum’s Iowa coalitions director, Jamie Johnson, sent out an email saying that children’s lives would be harmed if the nation had a female president. He wrote it in June, but it surfaced on the campaign trail in the fall.

“The question then comes, ‘Is it God’s highest desire, that is, his biblically expressed will, … to have a woman rule the institutions of the family, the church, and the state?’ ” Johnson’s email said.

Johnson said the email was meant to be a private message to a friend, that he sent it from his personal email account, not his campaign account, and that he hadn’t intended it to be read by anyone else.

Did Iowa’s Christian conservatives hamper Bachmann’s campaign? Such accusations are counterbalanced by Iowans’ willingness to give her the straw poll crown, the first woman in history to claim that throne.

But in the final weeks of the campaign, as Bachmann’s poll numbers hovered in single digits, her national aides and evangelical organization team privately complained that sexism coursed through Iowa’s religious conservative community, even as the aides publicly rebuffed questions on the topic.

“We did believe that sexism — I use the stronger word misogyny — was at play,” said Peter Waldron, Bachmann’s faith outreach coordinator.

Three influential pastors called for her to bow out of the race, and numerous others said “that a female could not be a civil magistrate,” said Waldron, who lives in Florida and has worked six presidential campaigns dating to Ronald Reagan’s in 1980.

One wonders what they think of Margaret Thatcher and Golda Meir.

As James Joyner noted yesterday, a weekend meeting of leading evangelical leaders sponsored by Focus on the Family ended with a decision throw the support of a number of socially conservative leaders and organizations behind former Pennsylvania Senator Rick Santorum. Tony Perkins, the head of the Family Research Council, sought to put a positive spin on the event in an interview with The Wall Street Journal, but the signs of dissent were already there:

After three ballots, Mr. Santorum emerged with the votes of about 75 percent of the conservatives, with Mr. Gingrich gathering the remaining 25 percent, according to Tony Perkins, the head of the Family Research Council and unofficial spokesman for the meeting.

“Many people were surprised that the group came to a pretty strong agreement on a candidate,” Mr. Perkins said. “It will have some influence on the process. How much of an impact? We’ll see.”

Others said the inability of the group to settle on a single candidate means that the socially conservative wing of the party will split among several candidates in next week’s South Carolina primary. Sixty percent of voters in South Carolina’s 2008 GOP primary called themselves evangelical Christians, exit polls showed.

“I’m just saying that if you really, really want to elect a conservative, and not only win the election but the battle for the party, then everyone should get behind one candidate,” said Keith Appell, a Washington consultant for several conservative groups.

Even if the Christian leaders meeting in Texas had agreed to endorse a single candidate, it is not clear whether voters would follow.

“I don’t think what happened in that meeting will have any impact at all right here in South Carolina,” said Al Phillips, a pastor at First Baptist Church North Spartanburg. “I think people here make up their own minds.”

Mr. Phillips said, “The one thing that almost all of the members of my church agree on is that they are uncomfortable with Romney” due to his Mormon faith and what some say are his evolutions in policy on some social issues.

But he said that voters are split among Messrs. Santorum, Gingrich and Perry. “Santorum has really come on, but I don’t see him becoming the consensus choice, so I think what we are going to get is a Romney win here,” Mr. Phillips said. “I don’t like that, but you really don’t have a candidate who can draw all those people.”

The signs of dissent were apparent from the beginning really. Reports from those who were part of the conference call that Perkins held after the event concluded stated that there was confusion from the start over what the vote totals actually were for any of the ballots conducted, as well as over the question of what exactly happened on the final ballot. This may have been a sign that Perkins was trying to paper over differences between members of the meeting that have already become apparent in only the 48 hours since the event took place. Or, based on some of the allegations that have come out since then, it may be evidence that the vote itself was never really legitimate. At the very least, the unity that Perkins was trying to project clearly doesn’t exist, and it seems as though any effort to get social conservatives united behind a single candidate has been an utter failure.

The Washington Times suggests, for example, that something akin to a civil war has erupted between those who attended the meeting over what exactly happened, and what it means:

The meeting was called to avoid a continued division within social conservatives’ ranks.

But in back-and-forth emails, Protestant fundamentalist leaders who attended – most of them backing former House Speaker Newt Gingrich to be the anti-Romney candidate — are accusing Catholic participants of conniving to rig the vote.

They said they were conned into leaving after the second ballot on Saturday. They said pro-Santorum participants held a third ballot which Mr. Santorum won with more than 70 percent of the vote — far higher than the nine-vote margin he won on the first ballot.

“My view is that the vote was manipulated,” said a prominent social conservative who asked not to be named.

Now, a prominent evangelical political organizer is saying to others confidentially he has evidence that in a least one instance a participant was seen writing Mr. Santorum’s name on four separate ballots and putting them in the ballot box.

Evangelicals who left after the second ballot are now calling on Bob Fisher, a leader of the proceedings, to hold a recount.

Mr. Fisher has asked for a conference call Monday morning with Mr. Santorum and those who attended the Saturday meeting.

While the allegations of trickery cannot be corroborated, or at least haven’t been as of this moment, it is true that the total number of people voting dropped off in the third and final round of balloting, a fact which Perkins acknowledged in the conference call on Saturday. Whether this was due to people who had to leave early, which seems odd , or because they were tricked somehow into leaving so that Gingrich would be denied support. The other interesting dynamic, of course, is the Protestent-Catholic divide, partly because Gingrich himself is a Catholic just as Santorum is. What’s more, Gingrich converted to Catholicism after growing up Baptist. To the extent that what we’re seeing here is some kind of residual anti-Catholicism (and yes, such sentiments still exist among some evangelicals) it’s an odd way for it to play out.

It’s not hard to see why some evangelicals might want to manipulate the proceedings in Mr. Santorum’s favor. After all, he’s the one who has been rising in the polls of late, he has a far less tainted personal history, and he shares the evangelical vehement disdain for homosexuals. If these groups are going to stake their credibility on a candidate, Santorum seems like a far safer bet than Newt Gingrich.

Meanwhile, more than a few leaders who attended the meeting today reiterated their support for Newt Gingrich notwithstanding the vote in favor of Santorum:

Four Christian conservative leaders who attended a meeting of evangelicals in Texas last week issued a statement Monday reiterating their firm support for Newt Gingrich.

After the meeting ended on Saturday, Tony Perkins, president of the Family Research Council, announced that a “supermajority” had coalesced around Rick Santorum in the hope that a more unified evangelical vote could stop Mitt Romney and result in the nomination of a more reliable conservative. He said that participants had voted 85 to 29 to support Mr. Santorum.

But Mr. Gingrich’s supporters called the tally misleading because several pro-Gingrich participants had left before the final vote. While acknowledging that Mr. Santorum had won majority support, they said that initial news accounts of a “consensus” were incorrect.

“It is unfortunate that early press reports incorrectly stated that there was a consensus for Santorum, or that the ’150 leaders endorsed Santorum.’ Such was not the case. Many there were and still are for Newt Gingrich,” said a statement issued Monday by J.C. Watts, a former Oklahoma congressman and a leading African-American conservative who is now a consultant; George Barna, a prominent Christian political analyst; the Rev. Jim Garlow, pastor of Skyline Church in La Mesa, Calif., and a leader of the campaign against same-sex marriage; and Richard Lee, a prominent Baptist pastor in Atlanta.

“While we truly respect both Rick Santorum and Rick Perry, we believe Newt Gingrich to be the only candidate that has the intellectual strength and the capacity to stop the left’s attack on morality, the economy, basic freedoms and our religious liberty.”

If nothing else, this would suggest that the weekend meeting was much more of a failure than Perkins portrayed to the media. The unity that he has tried to project since Saturday did not exist, and the effort to unify social conservatives behind a single candidate has, at least for the moment, failed. None of this is really surprising. As I noted this morning, there are already signs that even conservatives are starting to accept the inevitability of Romney winning the nomination. Given that, the fact that even these hardline leaders of the evangelical communities are unwilling to unite behind a single candidate is significant. It means that they know that whatever “Stop Romney” effort they mount now will be too little, too late so, rather than go all-in, they’re retreating to their corners and fighting their turf battles.

The big winner here, of course, is Mitt Romney. As we head into the final days before the South Carolina Primary, the more divided the conservative vote in the state is, the better off he is. Right now, Rick Santorum and Newt Gingrich are essentially dividing the evangelical vote, with some small portion going to Rick Perry. This allows Romney to concentrate on the voter-rich areas along the coast, which are less  dominated by evangelicals, and increasingly include transplanted retirees from the Northeast and Midwest, a constituency that seems to be going for Romney quite strongly.

Perhaps these groups would have put more effort into the race if they’d been able to find a viable candidate earlier on. Rick Perry was supposed to be that guy, the two-and-a-half term Governor with broad appeal among social conservatives and a solid record on the issues they care about. Unfortunately for them, Perry self-destructed in September (and October, and November) and has never seemed to be able to recover from that. The other candidates that courted the evangelical vote, Michele Bachmann and Herman Cain principally, simply weren’t up to the task of being a serious candidate for President. So, social conservatives are left with Rick Santorum and Newt Gingrich, and it’s too late for them to make much of a difference. As someone who isn’t exactly sympathetic to what these people want to accomplish, I’ve got to say I find the whole thing pretty darn amusing.

As I noted in my earlier post, Denver Broncos Quarterback Tim Tebow has become, in a very short period of time, some kind of weird symbol of the cultural wars. On the one side you’ve got secularists like Bill Maher who openly cheer when Tebow performs badly as if that by itself confirms their atheism. On the other side we have religious conservatives who seem to view every Tebow victory, or even the mere coincidence that his number of passing yards is similar to a particular Bible verse, to be proof of their own beliefs. Observing all of this from mostly the sidelines, I’ve found the entire thing to be more than a little ridiculous. The idea that God, if such a thing actually existed, would care one way or the other about the outcome of a sporting event has always struck me as profoundly silly and on a level with the ancient animistic religions that saw divine intervention every time there was thunder and lightening.

It is perhaps because he’s gotten caught up in this weird cultural/political war that Tebow has become such a focus of media attention, although the fact that he’s telegenic and winning football games in dramatic fashion probably has something to do with it too. In any case, whatever side you take in the culture wars, it’s worth noting that Tebow himself is far more sanguine about his success than either side in this weird debate that has swept across the country:

As he prepares for Saturday night’s NFL playoff game between Denver and New England, Broncos quarterback Tim Tebow told “The NFL Today” host James Brown that his parents taught him the perspective he brings to the sport:

“I think number one is, what my mom and dad preached to me when I was a little kid: Just because you may have athletic ability and you may be able to play a sport doesn’t make you any more special than anybody else,” Tebow said. “Doesn’t mean God loves you more than anybody else.

“We play a sport. It’s a game. At the end of the day, that’s all it is, is a game. It doesn’t make you any better or any worse than anybody else. So by winning a game, you’re no better. By losing a game, you’re no worse. I think by keeping that mentality, it really keeps things in perspective for me to treat everybody the same.”

“The guy is a wonderful young man,” Brown told Charlie Rose. “There is no phoniness in him at all. What you see is what you get. He’s been the same way, Charlie, from Pop Warner football. If you can win over a testosterone-laden locker room where there’s some crusty hard-nosed guys in there, bottom line is, he’s a winner.

“He does come to the NFL level, the highest form of football, without a polished skill set that’s associated with an elite level quarterback. But he’s overcome challenges each and every step of the way. And hey, if he’s learning at the NFL level and he’s got his team in the post-season, that’s a pretty good athlete in my book.”

“The NFL Today” host described the quarterback as self-effacing, who does not want to discuss his charity, such as helping young people with serious health problems. “The big thing with Tebow, he says, ‘I’m using football as a platform for bigger and better things,’ and who can argue with that?” said Brown.

By all accounts, Tebow is genuine in his beliefs and the same in person as he comes across in public, which is itself a rarity in professional sports. On some level, though, I think it’s unfair to him that he’s has been turned so quickly, by others, into something more than what he actually is, which is a football player. It doesn’t appear to me that it’s a role he ever asked for. Yes., he’s been public about his faith but that’s his right. The fact that his pre-game sideline prayer ritual has become an internet meme actually strikes me as a bit insulting to him given that it takes something that is important to him and trivializes it so that people can post pictures of themselves on the Internet doing something other than planking. It even became the subject of a bet between the Mayors of Denver and Pittsburgh before last weeks AFC Wild Card Game. The prayer ritual doesn’t mean that much to me, but mocking it in that manner strikes me as pretty dumb.

In other words, Tebow is being more mature and more level-headed about this than any of the people who have adopted him as either a cultural hero or enemy. Perhaps they could all take a clue from him and just enjoy the game. The Broncos are currently 13.5 point underdogs heading in to Foxboro, which isn’t surprising considering that Denver lost the last game against the Patriots by nearly 20 points. It’s going to take another stellar performance to pull off a win this weekend,  and personally I doubt Tebow will be able to do it. Whichever way it turns out, though, lets not pretend that it means anything. Other than deciding which team goes on to the AFC Championship Game, that is.

Yesterday a unanimous Supreme Court handed a strong rebuke to the Obama Administration by rejecting an effort by the EEOC to enforce a provision of the Americans With Disabilities Act against a religious organization:

WASHINGTON — In what may be its most significant religious liberty decision in two decades, the Supreme Court on Wednesday for the first time recognized a “ministerial exception” to employment discrimination laws, saying that churches and other religious groups must be free to choose and dismiss their leaders without government interference.

“The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” Chief Justice John G. Roberts Jr. wrote in a decision that was surprising in both its sweep and its unanimity. “But so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission.”

The decision gave only limited guidance about how courts should decide who counts as a minister, saying the court was “reluctant to adopt a rigid formula.” Two concurring opinions offered contrasting proposals.

Whatever its precise scope, the ruling will have concrete consequences for countless people employed by religious groups to perform religious work. In addition to ministers, priests, rabbis and other religious leaders, the decision appears to encompass, for instance, at least those teachers in religious schools with formal religious training who are charged with instructing students about religious matters.

Douglas Laycock, a law professor at the University of Virginia who argued the case on behalf of the defendant, a Lutheran school, said the upshot of the ruling was likely to be that “substantial religious instruction is going to be enough.”

Asked about professors at Catholic universities like Notre Dame, Professor Laycock said: “If he teaches theology, he’s covered. If he teaches English or physics or some clearly secular subjects, he is clearly not covered.”

The case, Hosanna-Tabor Church v. Equal Employment Opportunity Commission, No. 10-553, was brought by Cheryl Perich, who had been a teacher at a school in Redford, Mich., that was part of the Lutheran Church-Missouri Synod, the second-largest Lutheran denomination in the United States. Ms. Perich said she was fired for pursuing an employment discrimination claim based on a disability, narcolepsy.

Ms. Perich had taught mostly secular subjects but also taught religion classes and attended chapel with her class.

“It is true that her religious duties consumed only 45 minutes of each workday,” Chief Justice Roberts wrote, “and that the rest of her day was devoted to teaching secular subjects.”

“The issue before us, however, is not one that can be resolved with a stopwatch,” he wrote.

Instead, the court looked to several factors. Ms. Perich was a “called” teacher who had completed religious training and whom the school considered a minister. She was fired, the school said, for violating religious doctrine by pursuing litigation rather than trying to resolve her dispute within the church.

The teacher went to the EEOC, which pursued a claim on her behalf under the ADA despite a long-standing rule that had been followed by previous Administrations that employment discrmination laws do not apply to so-called “ministerial” employees of religious organizations, a defense the Church raised in subsequent litigation. The EEOC, meanwhile, aided by the Obama Justice Department, took the position that there should be no exemption to the application laws for ministerial employees at all:

During the oral argument, Leondra Kruger, the U.S. solicitor general’s assistant who represented the Equal Opportunity Employment Commission, was asked whether the high court should accommodate even a limited ministerial exception. Kruger responded that the justices should make no distinction between secular or religious employers.

“That is extraordinary,” Justice Antonin Scalia responded. “We are talking here about the free exercise clause and about the establishment clause, and you say they have no special application?”

More significantly, the liberal Justice Elena Kagan was also startled by the government’s stance. “I, too, find that amazing,” Justice Kagan remarked.

The comments by the justices increased the likelihood that the ministerial exception would survive this unprecedented challenge.

Indeed, it may well have been the Government’s insistence on a hardline no-exemptions position that pushed the Court to not only decide this case unanimously but to come to the position that it did. The logical extension of the government’s position, for example, would have been that a woman would have theoretically had a cause of action under applicable to civil rights laws to sue the Roman Catholic Church for refusing to ordain her has a Priest, and it would have actually lent undue merit to the fears of some opponents of same-sex marriage who claim that legalizing the institution would be a threat to religious liberty.

Chief Justice Roberts, writing for the unanimous Court, laid out the Ministerial Exception as grounded in, and indeed required by, the First Amendment itself:

Until today, we have not had occasion to consider whether this freedom of a religious organization to select its ministers is implicated by a suit alleging discrimination in employment. The Courts of Appeals, in contrast, have had extensive experience with this issue. Since the passage of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., and other employment discrimination laws, the Courts of Appeals have uniformly recognized the existence of a “ministerial exception,” grounded in the First Amendment, that precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers.

We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

The EEOC and Perich acknowledge that employment discrimination laws would be unconstitutional as applied to religious groups in certain circumstances. They grant, for example, that it would violate the First Amendment for courts to apply such laws to compel the ordination of women by the Catholic Church or by an Orthodox Jewish seminary. Brief for Federal Respondent 31; Brief for Respondent Perich 35-36. According to the EEOC and Perich, religious organizations could successfully defend against employment discrimination claims in those circumstances by invoking the constitutional right to freedom of association—a right “implicit” in the First Amendment. Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984). The EEOC and Perich thus see no need—and no basis—for a special rule for ministers grounded in the Religion Clauses themselves.

We find this position untenable. The right to freedom of association is a right enjoyed by religious and secular group alike. It follows under the EEOC’s and Perich’s view that the First Amendment analysis should be the same, whether the association in question is the Lutheran Church, a labor union, or a social club. See Perich Brief 31; Tr. of Oral Arg. 28. That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.

(…)

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important.But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

Roberts is careful to note in the opinion that the Court is not setting a hard-and-fast rule regarding what kind of positions fall under this “Ministerial Exemption,” clearly that is a matter that will have await the consideration of future claims by other litigants. As a preliminary matter, though, it seems clear that any position that involves a religious function is likely to be covered by the exemption even when, as in this case, the position in question also includes secular activities that take up the majority of the employee’s average day. To take the extreme examples, a congregation’s decision on who to hire as a Deacon or Pastor would clearly be covered, it’s decision on who to hire as part of the Janitorial staff at a church-run school or shelter would seem to clearly not be covered. In between that are the grey areas that the Courts and the EEOC will have to work out on a case-by-case basis.

On the whole, it seems rather obvious that the Court got it right here. While the civil rights laws are not to be ignored, they are a matter of statute while the Free Exercise and Establishment Clauses are part of the Constitution. Government involvement in the decisions that religious institutions make in hiring, firing, and compensation employees involved in their religious endeavors would clearly implicate, and violate, both of these provisions. This is why the Administration’s position before the Court was so puzzling. Given the opportunity by the Justices to endorse at least a limited ministerial exemption, the Solicitor General’s office instead chose to take the extreme position that no exemption at all should exist and that religious organizations could rely upon the vague notion of “freedom of association” to protect themselves from undue government intrusion. Ironically, had the Government taken a more moderate position on appeal then the Court’s decision, uniting Justices that are usually on opposite sides in religious liberty cases, would probably not have been as sweeping as it is. Instead, they got a decision that likely means that most efforts to apply non-discrimination laws to sectarian institutions will be impossible. And that’s a good thing.

Beyond this case lies the interesting question of what this might portend for the the future, both politically and legal. David Sessions, for example, argues that yesterday’s decision should cause religious conservatives to recognize that the Courts are their greatest protection against undue government intrusion:

Rather than constantly prophesying the tyranny of American institutions, it would make much more sense for religious conservatives to celebrate the U.S. judiciary’s unique commitment to religious freedom. Religious liberty is one of the few areas where American citizens are granted substantially more constitutional protection than those of other Western nations. The United Kingdom, often and absurdly presented by theoconservatives as the harbinger of evils to come to the U.S. judiciary, has no constitutionally prescribed freedom of religion. Across continental Europe, guarantees of religious freedom are interpreted narrowly. While European nations enact prejudicial laws against Muslims in the wake of 9/11, American courts have doggedly resisted discrimination against minority religions. (Discrimination supported, ironically, by many of the very same people who fret about liberty for their own majority religion.)

While they’re at it, defenders of religious liberty should praise the Court for doing something else they’d like us to believe it never does: deliver a limited ruling that doesn’t amount to a sweeping change in the law. In the Hosanna-Tabor case, the court refused to establish a test for who is and is not a “minister,” and declined to rule on speculation about other foreseeable situations where a church might use its prerogative to fire an employee who, for example, reported illegal activity by church members or officials. “There will be time enough to address the applicability of the exception to other circumstances if and when they arise,” the Court wrote.

Some Christians are already responding admirably, warning religious institutions not to use their firing prerogative to mask discrimination. A whole lot of others should take the opportunity to admit their overwrought prognostications about the downfall of religious liberty have been wrong, and that American believers enjoy one of the friendliest legal environments on earth.

Indeed. As I noted above, much of the discussion about issues such as same-sex marriage usually ends up devolving into fears that churches and other religious organizations will at some point be forced, by either state or federal anti-discrimination laws, to solemnize such marriages despite the fact that their stated doctrine stands in opposition to them. If this decision stands for anything, it stands as a reminder of just how overwrought that concern actually is. Just as the Court has smacked down the effort to apply the civil rights laws to religious positions, it is fairly clear that any effort to force, say, a Catholic Priest to perform a same-sex marriage in his Parish would be shot down as an improper government intrusion into religious affairs, which is exactly how it should be treated. Of course, there’s a certain advantage to whipping up the masses with fears such as this so I’m not at all certain that cases like this will bring such mindless speculation to an end. At the very least, though, it’s an example that proponents of same-sex marriage can point to as counter-evidence for the paranoid rantings of their opponents.

Over at First Things, a blog published by The Institute On Religion and Public Life, Matthew Franck sees potential implications from this decision in other areas:

There may be a straw in the wind in yesterday’s ruling, with respect to the Obama administration’s determination to compel the coverage of contraceptive and abortifacient drugs in health insurance policies, even ones for religious institutions. The only “religious exception” offered so far by the Department of Health and Human Services to its contraceptive coverage mandate is an exemption so narrow, for religious organizations that employ and serve only their own co-religionists, that even the ministry of Jesus would not qualify. It is as though the Obama administration is staffed by people who have never encountered the ministry to the world that is so common among religious folk—especially but not uniquely among Christians.

(…)

Justice Alito, in a concurring opinion joined by Justice Kagan, wrote that “we have long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs.” Courts, he wrote, must avoid inquiring into whether religious reasons given for internal governance decisions are merely “pretexts” for evading legal obligations. “In order to probe the real reason . . . a civil court—and perhaps a jury—would be required to make a judgment about church doctrine.” Just imagine a “civil factfinder sitting in ultimate judgment of what the accused church really believes, and how important that belief is to the church’s overall mission.”

This is just what the Obama HHS is trying to do with its insurance mandate—make a political judgment that the beliefs of Catholics and others regarding contraception and abortion are not really important to the “overall mission” of religious hospitals, schools, and soup kitchens—as the government understands that mission. This struggle looks more like Hosanna-Tabor than like Smith. The Obama administration deserves to be rebuked for the hostility to religious liberty in its proposed HHS rules, for the same reasons its EEOC lost yesterday.

That’s a case that will have to wait for another day to be argued, of course, and it’s likely that the Court will not be quite as united in a ruling on such facts. What items are covered in an employer-provided health insurance plan is a far different matter than the hiring decisions that a religious institution makes in hiring religious employees. Nonetheless, the Alito/Kagan concurrence does raise an interesting point. When evaluating cases such as this one, the Court is going to be hard pressed to substitute its judgment as to what constitutions a “religious” function or a what the core beliefs of a particular sect happen to be for that of the institution itself. Would it really be proper, for example, for a future court to determine if a church’s claim that opposition to same-sex marriage is really a tenant of its faith beyond accepting the institutions statement of what its doctrine is? Once you start doing that, you end up in the dangerous position of the government, in this case the Court, determining what religious doctrine is. That would be simply unacceptable.

Justice Thomas makes this point in his own concurrence:

As the Court explains, the Religion Clauses guarantee religious organizations autonomy in matters of internal governance, including the selection of those who will minister the faith. A religious organization’s right to choose its ministers would be hollow, however, if secular courts could second-guess the organization’s sincere determination that a given employee is a”minister” under the organization’s theological tenets. Our country’s religious landscape includes organization swith different leadership structures and doctrines that influence their conceptions of ministerial status. The question whether an employee is a minister is itself religious in nature, and the answer will vary widely. Judicial attempts to fashion a civil definition of “minister” througha bright-line test or multi-factor analysis risk disadvantaging those religious groups whose beliefs, practices, and membership are outside of the “mainstream” or unpalatable to some. Moreover, uncertainty about whether its ministerial designation will be rejected, and a corresponding fear of liability, may cause a religious group to conform its beliefs and practices regarding “ministers” to the prevailing secular understanding. See Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 336 (1987) (“[I]t is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission. Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission” (footnote omitted)). These are certainly dangers that the First Amendment was designed to guard against.

I think Thomas gets it mostly right here. Second guessing churches on what constitutes a minister, or what their core beliefs are, leads us down the road of established, government-approved, religion being the only acceptable form of religion. That’s not what the First Amendment means.

Here’s the opinion:

Hosanna Tabor Evangelical Lutheran Church v. EEOC

In 2010, Oklahoma voters passed a referendum blocking state judges from considering Islamic or any other form of international law when rendering decisions in Oklahoma courts. Despite widespread criticism, the referendum passed by a wide margin in what was widely attributed to the same kind of hysteria over Islam that we had seen the previous summer during furor over the so-called “Ground Zero” mosque. Almost immediately, legal scholars noted that the law had serious legal flaws and it wasn’t long before a lawsuit was filed. Munweer Awad, a Muslim-American resident of Oklahoma filed a federal lawsuit alleging that the law violated his religious liberty in that it prevented him from abiding by Muslim principles in matters such as property distribution at death. The U.S. District Court blocked the law from being implemented, in a ruling that accepting the majority of Awad’s argument. Today, the 10th Circuit Court of Appeals upheld that decision:

The 10th Circuit Court of Appeals​ today upheld a ruling that blocked the implementation of an Oklahoma initiative barring judges there from considering Islamic law in court decisions.

The Denver-based appellate court, one rung below the U.S. Supreme Court, said it is likely the initiative will be found unconstitutional because it singles out Islam for discrimination. The court said Oklahoma hasn’t shown any reason for the need to specifically ban Islamic law.

“Given the lack of evidence of any concrete problem, any harm seek to remedy with the proposed amendment is speculative at best,” 10th Circuit Judge Scott Matheson, writing for a three-judge panel of the court, concluded.

Oklahoma voters overwhelmingly approved the initiative in 2010. The measure prevents judges from basing rulings on international law and then mentions Islamic law — known as Shariah — specifically.

After the election, Muneer Awad, the executive director for the Oklahoma chapter of the Council on American-Islamic Relations, sued.

Awad argued that the initiative stigmatizes Islam and also denies him rights that are available to people of other religions. For instance, Awad said his will instructs a judge to look to Islamic precepts in situations where Awad’s wishes aren’t clear. The initiative, Awad said, would prevent a judge from doing that, even though the judge could do that for people who are Christian or Jewish.

“This is an important reminder,” Awad said today in a statement, “that the Constitution is the last line of defense against a rising tide of anti-Muslim bigotry in our society.”

A federal judge in Oklahoma granted a preliminary injunction last year that blocked the initiative from being certified. The state appealed that decision to the 10th Circuit.

Today’s ruling means the injunction will stay in place while Awad’s lawsuit goes forward.

In it’s ruling, which dealt principally with whether the injunction issued by the District Court should remain in effect, the 10th Circuit held that the state of Oklahoma had not demonstrated any compelling state interest for the law:

Appellants provided only one sentence on compelling interest. They simply assert that “Oklahoma certainly has a compelling interest in determining what law is applied in Oklahoma courts.” Aplt. Supp. Br. at 16.

Oklahoma’s asserted interest is a valid state concern. But this general statementalone is not sufficient to establish a compelling interest for purposes of this case. Appellants do not identify any actual problem the challenged amendment seeks to solve. Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma. See Awad, 754 F. Supp. 2d at 1308; Aplt. App. Vol. 1 at 67-68.

Given the lack of evidence of any concrete problem, any harm Appellants seek to remedy with the proposed amendment is speculative at best and cannot support compelling interest.15 “To sacrifice First Amendment protections for so speculative a gain is not warranted . . . .” Columbia Broad. Sys., Inc. v. Democratic Nat’l Co., 412 U.S. 94, 127 (1973).

Because Appellants have failed to assert a compelling interest, they have failed to satisfy strict scrutiny. Mr. Awad has therefore made a strong showing that he is likely to prevail in a trial on the merits.

Additionally, as I noted shortly after the law was passed, the ban covered far more than Sharia Law and threatened to harm the interests of more than just the 10,000 or so Muslims who live in Oklahoma:

Native American tribes based in Oklahoma have already expressed concerns that the law will limit their ability to enforce tribal law on their reservations, for example. Additionally, business contracts have traditionally included what are called “Choice of Law” provisions which require that the law of a particular state would be applicable in interpreting it’s provisions. In an increasingly international business world, those provisions have expanded to include laws of other countries. If , for example, an Oklahoma company seeks to enforce the terms of a contract that provide that Canadian (or Mexican) law would apply, then this law would make it illegal for a Court to abide by the terms of the contract.

Clearly, though, it was Islam that was the primary target of the law and paranoia over the non-existent threat of Sharia Law that was used to stoke voter fear on this issue. Additionally, ignorance about Muslims and plain old bigotry surely played a role in this mess.

The Court concluded:

As the Ninth Circuit explained, when a law that voters have approved “affronts the federal Constitution—the Constitution which the people of the United States themselves ordained and established—the court merely reminds the people that they must govern themselves in accordance with the principles of their choosing.” Id.; see also Williams v. Rhodes, 393 U.S. 23, 29 (1968) (“[T]he Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution.”). Appellants admitted at the preliminary injunction hearing that they did not know of any instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures. See Awad, 754 F. Supp. 2d at 1308; Aplt. App. 157-58. Delayed implementation of a measure that does not appear to address any immediate problem will generally not cause material harm, even if the measure were eventually found to be constitutional and enforceable.

This isn’t over yet, of course. Upholding the injunction merely means that the case returns to the District Court for a trial on the merits, unless the State of Oklahoma decides to appeal this to the Supreme Court that is. While nothing is guaranteed, though, it seems fairly apparent that it will be next to impossible for the state to win this case at trial. Which is exactly as it should be.

Here’s the opinion:

Munweer Awad v. Paul Ziriax et al

HuffPo “Cee Lo Green Changes ‘Imagine’ Lyrics To ‘All Religions,’ Fights Twitter Anger”

Cee Lo Green’s small change to the lyrics to John Lennon’s song “Imagine” is causing a very big uproar.

Charged with singing Lennon’s famous solo-era tune on NBC’s New Year’s Eve show shortly before the ball dropped in Times Square , Green changed the lyrics from “Nothing to kill or die for, And no religion too” to “Nothing to kill or die for, And all religion’s true.”

The change didn’t go unnoticed, and to preempt criticism, he soon tweeted, “Yo I meant no disrespect by changing the lyric guys! I was trying to say a world were u could believe what u wanted that’s all.”

That did little to comfort angered Lennon fans, who lashed out over Twitter. Watch the performance below and then read the angry exchanges over Twitter.

This is followed by a HuffPo classic: a 21 page slideshow capturing Twitter quotes to drive up pageviews.

I find the notion expressed by many commenters that this is some horrendous insult to Lennon and his legacy absurd. His version has been preserved for the ages and been played countless times over the decades since it was released. Green has the artistic license to change is around a bit to put his spin on it.

While my sympathies are with Lennon on this one, Green’s alternate is interesting. On the one hand, it’s a sweet sentiment. On the other, it’s an absurdity: the major religions directly contradict one another on major doctrinal tenets; they can’t all be true.

At any rate, the video’s below. Green’s performance begins at the 3:56 mark.