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Monday, June 30, 2014

Capitol Hill responds to Supreme Court religious freedom ruling

This morning the Supreme Court announced its ruling in a landmark case involving religious freedom. While I am presently immersed in reading the decision, I wanted to relay to you the word from Capitol Hill, where pro-life legislators are reacting enthusiastically to the decision, which comports with a two-decades-old Religious Freedom Restoration Act, passed on a bipartisan basis by Congress.
Today the Supreme Court issued its decision in Burwell v. Hobby Lobby Stores, Inc. and Conestoga Specialties Wood Corp. v. Burwell.  In a 5-4 decision the Court ruled that the HHS preventive services mandate imposed an undue burden on the religious freedom of the Green and Hahn family businesses under the Religious Freedom Restoration Act (RFRA). The ruling applies specifically to closely-held corporations and the contraceptive mandate.
Today’s decision is not the end of litigation on the HHS preventive services mandate. 51 non-profit cases, including the case brought by the Little Sisters of the Poor, are still under consideration.  These plaintiffs are specifically contesting an application of the HHS mandate that only applies to objecting nonprofit religious organizations and requires them to sign a document saying they object to all or some of the mandated services, but triggers their insurance company to provide the coverage to their employees anyway.
Highlights from the decision:
 “We doubt that the Congress that enacted RFRA—or, for that matter, ACA—would have believed it a tolerable result to put family-run businesses to the choice of violating their sincerely held religious beliefs or making all of their employees lose their existing healthcare plans.” (p.35, Opinion of the Court)
 “Because the contraceptive mandate forces them to pay an enormous sum of money – as much as $475 million per year in the case of Hobby Lobby – if they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs.” (P.38, Opinion of the Court)
Press releases from Members of Congress and law firms involved in the cases:

Friday, June 6, 2014

We all need to learn to love and listen to those who differ with us

As a USA Today article, "Victories propel gay-marriage movement" indicates, some recent court rulings have disallowed the rational basis for keeping marriage between a man and a woman.[i] By advancing the narrative pushed by some same-sex marriage advocates that everyone opposing their agenda are biased bigots, such rulings will fuel the firings, censure, lawsuits, denial of government funds,[ii] loss of student organization privileges, removal of professional license and privileges and other retaliations and discrimination against those who speak in favor of marriage as between a man and a woman.[iii]
It is no victory for tolerance and diversity to simply shift intolerance and discrimination from one group to another.
For millennia, societies and governments have rationally recognized the singular benefits derived from marriage that is a comprehensive union of will and body, a permanent and exclusive commitment and uniquely designed for procreation and the benefits of family life. Research evidences the benefits to children raised by both a mother and a father,[iv] economic factors favoring traditional families[v] and the high cost to government and society when marriage breaks down.[vi]
The issue of marriage, far from decided, provides Americans with an opportunity to shun incivility and intolerance and instead embrace a rational and respectful debate. We all need to learn to love and listen to those who differ with us.

[i] For example, in declaring unconstitutional a federal law upholding "traditional moral teaching" regarding marriage, the United States Supreme Court maintained that protecting conjugal marriage only "seeks to injure" non-heterosexual couples, to "impose a disadvantage, a separate status and so a stigma," to "impose inequality," "to degrade or demean" and "to disparage and to injure." United States, petitioner v. Edith Schlain Windsor, in her capacity as executor of the Estate of Thea Clara Spyer, et al., Justice Kennedy's delivery of the majority opinion of the Court, June 26, 2013.
[ii] The Obama administration recently issued a new "Federal Recognition of Same-sex Spouses/Marriages" grant policy requiring that "all grant recipients will be subject to a term and condition that instructs grantees to recognize any same-sex marriage legally entered into in a U.S. jurisdiction that recognizes their marriage." See, for example, this link to a HRSA grant.
[iii] Thomas M. Messner, "Religious Freedom and Marriage in Federal Law," Heritage Backgrounder #2865,
[iv] See, for example, Mark Regnerus, “How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study,” Social Science Research, Vol. 41, No. 4 (July 2012), and Loren Marks, “Same-Sex Parenting and Children’s Outcomes: A Closer Examination of the American Psychological Association’s Brief on Lesbian and Gay Parenting,” Ibid.
[v] See, for example, Patrick Fagan, “The Wealth of Nations Depends on the Health of Families,” Public Discourse, February 6, 2013.
[vi] A study by the Brookings Institution, for example, revealed that between 1970 and 1996, $229 billion in welfare expenditures could be attributed to social problems related to the breakdown of marriage.

Jackbooted "Tolerance"

The Obama administration appears prepared to enforce its ideology regarding same-sex marriage with trademark inflexibility and atypical efficiency. Administration officials have begun inserting into federal grants notices and other official policies sweeping new requirements and definitions of marriage. 
While the new policies cite as their rationale a need to implement the Supreme Court's recent Windsor decision on same-sex marriage, the way agencies are applying that viewpoint to grants appears aimed at eliminating from the public square any groups that disagree with the administration's ideology. 
Exactly what this flood of apparently inflexible new policies means to groups with values that differ from the Obama administration will play out in the upcoming months and meanwhile requires legal analysis. The broad, sweeping language of the new policies make it difficult to determine precisely how and in what specific areas the Obama same-sex doctrine will be applied. 
Meanwhile, the outlook appears ominous, for example, for:
  • Faith-based organizations that maintain fidelity to Judeo-Christian sexual norms in their policies and personnel practices.
  • Sexual education programs that emphasize the benefits of saving sex for (traditional) marriage.
  • Adoption agencies that recognize in their policies the benefit to children of having a father and mother.
  • Health organizations that emphasize the health benefits of male-female monogamy.
Policies enforcing the administration's marriage ideology (conveniently couched in the context of Windsor) are cropping up across federal agencies:

 Federal Recognition of Same-sex Spouses/Marriages
The following policy applies to:
• all grants except block grants governed by 45 CFR part 96, part 98, and grant awards made under titles IV -A, XIX and XXI of the Social Security Act.
• programs which base eligibility or otherwise make distinctions in program participation or content on such terms as "marriage," "spouse," "family," "household member," or similar references to familial relationship.
A standard term and condition of award will be included in the final Notice of Award (NOA); all grant recipients will be subject to a term and condition that instructs grantees to recognize any same-sex marriage legally entered into in a U.S. jurisdiction that recognizes their marriage, including one of the 50 states, the District of Columbia or a U.S. territory, or in a foreign country so long as that marriage would also be recognized by a U.S. jurisdiction, when applying the terms of the Federal statute(s) governing their awards. This applies regardless of whether or not the couple resides in a jurisdiction that recognizes same-sex marriage. 
Accordingly, recipients must review and revise, as needed, any policies and procedures which interpret or apply Federal statutory or regulatory references to such terms as "marriage," "spouse," "family," "household member," or similar references to familial relationship to reflect inclusion of same-sex spouses and marriages. Any similar familial terminology references in HHS statutes, regulations, or policy transmittals will be interpreted to include same-sex spouses and marriages legally entered into as described herein.

This guidance is intended to implement a post-Windsor policy of treating same-sex marriages on the same terms as opposite-sex marriages to the greatest extent reasonably possible. Family support and parent engagement activities should be inclusive and supportive of single, coupled, and married LGBT parents.

For Federal tax purposes, the terms “spouse,” “husband and wife,” “husband,” and “wife” include an individual married to a person of the same sex if the individuals are lawfully married under state law, and the term “marriage” includes such a marriage between individuals of the same sex.

In keeping with the Supreme Court’s analysis and reasoning in United States v. Windsor, this guidance implements a policy of treating same-sex marriages on the same terms as opposite-sex marriages to the greatest extent reasonably possible. The AFI program now recognizes as family members and spouses any individuals in same-sex marriages as long as they have been lawfully married under the law of a state, territory, or foreign jurisdiction, as long as it would be recognized in at least one state. In other words, same-sex spouses are recognized so long as they have entered into a valid marriage in the jurisdiction in which they were married, regardless of whether they currently reside in a state that does not recognize same-sex marriages.
Within days, the Supreme Court will announce its decisions in cases involving the Obama administration's trampling of religious freedom in its drive to enforce its ideology regarding contraception and abortion. The administration's new policies enforcing its ideology regarding same-sex marriage will make good summer reading for the justices, since they can expect a raft of related cases next term.