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No Country for old Free Exercise Clauses

No Country for old Free Exercise Clauses

Commenter CWLsun put together a list of links in the Tip Line regarding the explicit plan of various law school branches of Students for Reproductive Freedom to establish secular contraceptive policies at Catholic educational institutions.

I don’t have a problem with that when it is done without using the force of government.

If Sandra Fluke had convinced Georgetown to change its policy, that would be one thing.  But Georgetown rejected her multi-year effort, so she turned to Democrats in Congress to try to force her will on that Catholic institution.

Religious institutions are not immune to civil laws.  But using government power to force policies on religious institutions or even private citizens which violate religious beliefs is highly problematic.

Commenter stevenwhitemd, long before anyone heard of Sandra Fluke, was on to what really was happening with the contrived contraception issue:

The contraception issue, of course, isn’t about contraception at all….

It’s not about preventing conception.

It’s about power.

In any left revolution, be it progressive, bolshevik, socialist, fascist, maoist, or bolivaran, it is necessary to knock down organized religion. The Catholic Church competes for the hearts and minds of people and does so effectively, as do the evangelical Protestant churches, etc. Further, the Church is organized and so can put out a message of opposition.

So at some point the revolution has to take the Church on, or lose.

Notice the relative quiet in the media, with the exception of Fox News (video below), as to the religious liberty angle:

 “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ….”

The media and liberal activist groups view the Establishment Clause of the First Amendment as expansive, yet act as if the Free Exercise Clause is a quaint anachronism, or as Ezra Klein might say, “old“.

Alternative post title:  “Against Catholics’ Will.”


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Yep. Under the Collectivist First Amendment–

Free exercise of conscience…old and busted attempt to control womyns.

Rank pornography…new and now “political expression”.

IMO Hitler and Stalin had an easier time of it because the institutions of civility had been so battered and weak by the time they made their biggest moves.

JimMtnViewCaUSA | March 6, 2012 at 11:55 am

Also, part of what’s going on is crony capitalism–
“Forget for a minute the religious question and look at who wins big here: Big Pharma. This mandate is not really about condoms or generic versions of ‘the pill,’ which are available free or cheap in lots of places. This is about brand-name birth control drugs and other devices that some consumers swear off because they are too expensive. The Health and Human Services (HHS) mandate requires health-insurance companies provide contraceptive coverage for all ‘FDA approved contraceptive methods.’ It does not insist on generics. And it does not offer any cost containment. . . . It’s important to point out that among President Obama’s biggest financial backers are precisely the Big Pharma companies who benefit from the mandate.

There’s also a deeper problem here and that is the narrative that sex is essential to life, as essential as air itself. As such, Consequence free sex is neccesary. It’s a remarkably stupid argument easily refuted (and look someone else has already done that: )

    Uncle Samuel in reply to tsrblke. | March 6, 2012 at 12:34 pm

    Very STRONG point – tsrblke.

    Uncle Samuel in reply to tsrblke. | March 6, 2012 at 12:49 pm

    Book: Book – “Abortion, Secular Dogma, and the Sacrament of Sex: Another Failed Attempt to Impose Moral Idiosyncrasies Through the Ruse of Argument” Griffin Trotter

    Love that point in the title about the Ruse of Argument. True, their idea of argument is ad hominem attack, straw man, accusation, distraction and if all else fails, violence.

    Here is an article with a similar thesis as this worthwhile book:
    SACRED DOGMA OF THE LEFT – “Compared with religious freedom and the First Amendment, the out-of-pocket expense of contraceptives might seem like a minor issue. But for the left, it’s a matter of dogma. And that dogma is sexual liberation.”

      tsrblke in reply to Uncle Samuel. | March 6, 2012 at 6:02 pm

      I’m glad someone else is pointing out that this is all very “Sanger-ian” in it’s approach. When I make the neo-eugenics argument to my “intellectual friends” they get all uppity and call me crazy. I guess I’m just not that eloquent about it.

      Also Disclosure: I did not write the article I linked, I happen to respect the man who did, but I’m not him. (I don’t want confusion!)

A question for you, professor: Since Sandra Fluck lied in her Capitol Hill speech about contraception in Georgetown, should she be denied access to the Bar?

    Uncle Samuel in reply to edgeofthesandbox. | March 6, 2012 at 12:36 pm

    If her statements were a sworn deposition, even if they were not before Congress, would this make her guilty of perjury and keep her from becoming a lawyer?

    (That would be such delicious justice, esp. with their excoriation of Rush)

Far more likely, she will be nominated for an award or medal by the ABA here in the next few months.

(don’t think that her “testimony” was sworn, in any event.)

Probably the best piece I’ve seen written on this so far Professor. Hitting all the right issues, with all the right caveats.

Uncle Samuel | March 6, 2012 at 12:40 pm

‘Religious Freedom’ means – “No government can come between man, his conscience and God.”

This applies to the government violating conscience, as the Constitution was designed, it meant the faith of traditional Jewish and Christian practice. Religious pacifists were not forced to bear arms or to serve their country in combat.

However, there are reasonable and necessary limits to religious freedom.

Religious freedom does not include the freedom to practice certain behaviors that characterize pagan religions and cult groups that violate the US Constitution, law and human rights that cannot our civil government cannot and will not accomodate.

Among these are:

Human sacrifice
Animal sacrifice, animal maiming, torture
Human torture and ritual abuse
Sexual abuse, exploitation
Forced marriage, pregnancy or abortion
‘Honor’ killings
Genital mutilation of females
Involuntary imprisonment
Coercion, forced participation and forced conversion
Mental and emotional abuse, instilling fear, dependency, domination, etc.
Brain-washing, indoctrination, ‘programming’ to elicit conditioned responses
Financial abuse and exploitation
Blasphemy laws (punishment for dissent, disagreement)
Punishment/death for leaving a religion
Violence and aggression, threats against person, property, job and family
Identity theft, coerced identity/name change
Slander, false accusations, character assassination

    Uncle Samuel in reply to Uncle Samuel. | March 6, 2012 at 12:43 pm

    Many of those religious abuses on the list in my comment are actually identifiers or characterists of CULTS.

    Google characteristics of cults for more information.

    BannedbytheGuardian in reply to Uncle Samuel. | March 6, 2012 at 7:42 pm

    Well Jonah -he lived in a whale,

    Yeah Jonah he lived in a whale ….

    What you say Samuel ain’t necessarily soooo.

    BTW some pagans believe in faeries? Iz dey baaaad?

In my opinion, Republican/Conservative women, in particular elected officials, need to step up to the plate here with a effective strategy.

Democrats (Democratic women) were brilliant strategically in this maneuver to get the fight between the Obama Administration/Planned Parenthood (Cecile Richards) alliance and the Catholic Church Bishops replaced as the issue by a fight between the Catholic Universities and one female student. Their media syncophants, of course, are doing their part.

“So, in terms of my efforts that led to this point, I’ve been part of a group of students who have been working on this for several years. And in fact, there have been students working on it for decades at Georgetown and at universities all over the country. Many religious universities have struggled in this way. And we’ve just done everything we can. We’ve surveyed our students about the impact it has on them, had extensive meetings with the administration. We have considered whether or not there are state laws that could protect us. And at this point, you know, we’ve been met with a deaf ear, and that’s why we’re so grateful for these regulations and for this compromise, because we think that it really achieves our most important goal, which was to make this important basic healthcare accessible to women to prevent the medical tragedies that I talked about, like my friend.”

Uncle Samuel | March 6, 2012 at 1:28 pm

Did you know that Rush and Hannity have spoken in support of Newt?

This is one of the best of his campaign spots:

[…] commenter over at Legal Insurrection pretty well summed up the matter: In any left revolution, be it progressive, bolshevik, socialist, […]

Thanks for the you tube link Uncle Samuel.

It was a great video.

The downside that the Progressives haven’t come around to is that ObamaCare will severely impact Roe v Wade. Previously, the government had little involvement on your private medical matters and Roe v Wade was based on keeping that privacy private, but it is pretty clear that ObamaCare changes that completely (single payer would completely obliterate that privacy).

Just a question. Why is viagra covered by insurance and contraception is not? Why are vaccines covered by insurance and contraception is not?

I have read the arguments that erectile dysfunction is a medical condition; preventing pregnancy is not.

Hmmm if the Jesuits really wish to be consistent, they should require that their insurance only pay for viagra for married men. To be really hard line, it should be pay for it only for married men who are attempting to procreate, with appropriate safeguards to ensure that procreation is indeed the goal. (I do understand that more liberal Roman Catholic theologies make space for sex for the purpose of pleasure for married people. But more liberal RC theologies also make room for birth control so we are not operating in that space.)

So we are not operating in an even handed, rational world here. We are operating in a context of an anthopological theology that is profoundly sexist. And is not a core RC doctrine (on the order of the dual nature of Christ, etc).

And the federal government does have a mandate to afford equal protection where discrimination is clear.

(btw one can make the case that for a woman who does not wish to be pregnant, pregnancy is indeed a medical condition — one that causes a great deal of physical pain, physical disability, and even a risk of death. A more serious condition than erectile dysfunction to be sure. We have vaccines to prevent other medical conditions. Insurance pays for them. And again, insurance pays for Viagra. There is no reason other than sexism for insurance companies to refuse payment for contraception.

And finally, the RC Church will NOT be paying directly for contraception. Its insurance company will. The ruling is about insurance companies, not the RC Church.

This is not about ‘freedom of religion’ this is about unequal treatment on the sole basis of gender.

    CWLsun in reply to jytdog. | March 6, 2012 at 2:35 pm

    It is about power. It is about freedom. Our power is in our freedom, endowed by our Creator. We are protected as Americans under our Constitution to not have to bow to government power or religious power or any other power. It is our Declaration. We the people declare it. We agree to live as free people endowed by our Creator…which of course is not the government or state or even a religious organization, obviously.

    Awing1 in reply to jytdog. | March 6, 2012 at 4:15 pm

    Because ED meds and vaccinations do not prevent pregnancy, and several religions, most prominently the Catholic Church, believe strongly that you should not use artificial means to prevent sex from resulting in pregnancy.

    The proper analogy is not to ED meds, but to vasectomies, which the Church also does not allow. They’re not discriminating based on gender.

      jytdog in reply to Awing1. | March 11, 2012 at 10:02 am

      The teaching about contraception falls under RC theological anthropology, under the general rubric of human sexuality and its purpose.

      “Finally, this love is fecund. It is not confined wholly to the loving interchange of husband and wife; it also contrives to go beyond this to bring new life into being. “Marriage and conjugal love are by their nature ordained toward the procreation and education of children. Children are really the supreme gift of marriage and contribute in the highest degree to their parents’ welfare.” (8)”
      Humanae Vitae

      “Unlawful Birth Control Methods

      14. Therefore We base Our words on the first principles of a human and Christian doctrine of marriage when We are obliged once more to declare that the direct interruption of the generative process already begun and, above all, all direct abortion, even for therapeutic reasons, are to be absolutely excluded as lawful means of regulating the number of children. (14) Equally to be condemned, as the magisterium of the Church has affirmed on many occasions, is direct sterilization, whether of the man or of the woman, whether permanent or temporary. (15)

      Similarly excluded is any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation—whether as an end or as a means. (16)

      Neither is it valid to argue, as a justification for sexual intercourse which is deliberately contraceptive, that a lesser evil is to be preferred to a greater one, or that such intercourse would merge with procreative acts of past and future to form a single entity, and so be qualified by exactly the same moral goodness as these. Though it is true that sometimes it is lawful to tolerate a lesser moral evil in order to avoid a greater evil or in order to promote a greater good,” it is never lawful, even for the gravest reasons, to do evil that good may come of it (18)—in other words, to intend directly something which of its very nature contradicts the moral order, and which must therefore be judged unworthy of man, even though the intention is to protect or promote the welfare of an individual, of a family or of society in general. Consequently, it is a serious error to think that a whole married life of otherwise normal relations can justify sexual intercourse which is deliberately contraceptive and so intrinsically wrong.”
      same link

    retire05 in reply to jytdog. | March 6, 2012 at 4:19 pm

    I keep hearing that Viagra is covered by insurance companies, so I called mine (UHC) and asked about it. I was told that it was covered but only under certain medical conditions. That would make it like Georgetown U’s student health care plan that even Ms. Fluke admitted covered constraceptives for certain medical conditions.

    And I have to question your familiarity with Catholic doctrine since you have made a few [uneducated] statements about it.

    “And finanally, the RC church will not be paying directly for contraceptives. Its insurance company will be.”

    Please, tell me that you are not so delusional that you think any insurance company, public or privately funded, is going to just hand out benefits for free at a cost to them? Tell me you are not so clueless that you are not aware that health insurance premiums are based on benefits provided. So you think the insurance companies are just going to absorb the cost and not bill the carrier for those services? What is next? Requiring insurance companies to provide free cancer treatment without billing the carrier for it?

    If Obama has the authority to require insurance companies to provide benefits at zero cost to the carrier, or the insured, then it also has the authority to require my city to provide life-saving water (which I cannot live without) for free. And it has the authority to require Kroger to provide free food, since I cannot sustain life without food. How about free electricity because if I have to live in the dark it could trigger a physical ailment better known as “cabin fever”? And then, I need a free car since the nearest grocery store, where I am going to get my free food is too far away to walk and there is no public transportation system in my small town. And I need free shelter, as well, to protect me from the elements and prevent physical damage from living in the open.

    Hey, everybody, free everything. It’s the Obama way.

      jytdog in reply to retire05. | March 11, 2012 at 10:03 am

      Right, the medical condition is “erectile dysfunction”, with which your doctor will diagnose you before he/she prescribes the Viagra/Cialis etc.

      jytdog in reply to retire05. | March 11, 2012 at 10:06 am

      I am interested to hear what statements I made that you believe are incorrect. I have graduated from seminary and have read quite a bit of theology, encyclicals, etc.

Sorry, guys. I do not believe that Georgetown is a “Catholic” university. It’s certainly not acting like one in most of its activities. It doesn’t apparently require adherence to the Catholic faith or doctrines as part of the requirements to be employed or attend. It allows (and may fund) gay and lesbian groups. It allowed pro-choice groups on campus. Etc. Etc. Etc.

So I don’t believe that forcing Georgetown to offer contraceptions is a violation of its First Amendment rights.

Nothing stops Georgetown from deciding not to admit non-Catholics or from deciding to hire only Catholics who agree to comply with the principles of the Catholic faith as a continuing employment requirement. If Georgetown all of a sudden is getting “serious” about its religion, that’s the place to start. Otherwise, I will continue to believe that Georgetown (like the Catholic church in general) is only serious about its faith when it thinks doing so will help its financial bottom line.

BTW, you may not know this, but churches and religious institutions are permitted to discriminate in favor of persons of their religion under the federal employment laws.

Midwest Rhino | March 6, 2012 at 3:44 pm

It IS about condoms on one level … it is consistent with Obama’s promising to give something to the voter if they elect him.

Last time it was a like what, $500 tax rebate?

Now it’s “Free contraception”, more bribery from Barack. All he has to do is dictate to insurance companies to provide it for “free”. But the mean Republicans will take it away, cuz they hate women, doncha know.

Because ED meds and vaccinations do not prevent pregnancy, and several religions, most prominently the Catholic Church, believe strongly that you should not use artificial means to prevent sex from resulting in pregnancy.

The proper analogy is not to ED meds, but to vasectomies, which the Church also does not allow. They’re not discriminating based on gender.

BannedbytheGuardian | March 6, 2012 at 9:07 pm

I ask you guys something because no one else has.

Do you really really think your everyday American is impressed with this? By now it must be trickling down .

Gallup’s Approve /dissing for general adults is down to 43 -the lowest of any poll since early November.

This is hurting Obama.

So why is Obama winning in the opinion polls?

    BannedbytheGuardian in reply to jimbo3. | March 7, 2012 at 2:46 am

    The facts are as I stated. Gallup had Obama 43 approval. Go see.

    Yesterday it was down .43 is low for Gallup .

    This is not a poll you can win. It does not even mean those approving will vote for him or anyone.