While the Affordable Care Act’s individual mandate was the center of attention during the first round of constitutional challenges to it, its “contraception mandate” stars in two cases currently before the Supreme Court, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. Under health care reform, large employers must now provide employees with health insurance that covers basic preventive care. For women, basic preventive care includes access to FDA-approved contraception. The Obama administration has totally exempted churches from this requirement, and essentially exempted nonprofits from it, so it really only applies to for-profit corporations. Hobby Lobby Stores, Inc., a chain of arts and crafts stores, and Conestoga Woods Specialties Corp., a cabinet manufacturer, argue that they are religiously opposed to certain forms of contraception and that consequently the contraception mandate violates their religious liberty.
Actually, there are two types of plaintiffs in these cases. First, there are the for-profit corporations who claim that the contraception mandate violates the corporations’ religious rights. Second, there are the owners of the for-profit corporations who claim that the contraception mandate violates their individual religious rights. Both plaintiffs should lose, but for different reasons. The corporations should lose because for-profit corporations do not and should not have religious liberty rights. The owners of the corporations should lose because their claims have no merit.
Starting with the corporate plaintiffs: the reasons individuals and churches are granted religious liberty rights simply do not apply to for-profit corporations. Why do we protect individual religious conscience? Religious people might respond that we protect individual religious conscience so that people can fulfill their obligations to God. Failure to do so can cause great suffering now and in the hereafter. Corporations, of course, cannot not suffer, have no soul, and certainly have no relationship with God. Secular people might respond that we protect people’s decisions about their spirituality because it is a way of respecting their individual autonomy and inherent dignity. But while people are ends in themselves and possess an inviolable dignity, corporations do not. They are merely a means to an end, and possess no inherent dignity that we must respect. In short, religious rights only make sense when applied to actual people. Corporations lack the fundamentally human attributes, such as a relationship with God or inviolable dignity, which justify religious liberty protection.
This week, the American Civil Liberties Union advised the U.S. Court of Appeals for the Ninth Circuit to reject an Arizona law denying bail to immigrants in the country illegally. While those defending the law claim that it is meant to “improve public safety, not punish people for federal immigration violations,” the ACLU maintains that “Latino detainees are [being] unfairly held while other nationalities are allowed to put up bond.” Paul Elias of the The Associated Press has the story.
In Shelby County v. Holder, the Supreme Court struck down Section 4 of the Voting Rights Act, which required select jurisdictions to submit all changes in voting rules to the Justice Department for review. Writing for MSNBC, Adam Serwer comments on the role Chief Justice John Roberts played in the controversial decision and the implications of “equal sovereignty.” For further analysis on Shelby County, please see ACSbloganalysis by Spencer Overton, former ACS Board Member and the President and CEO of the Joint Center for Political and Economic Studies.
At CPRBlog, James Goodwin follows the developing legal dispute concerning Duke Energy’s violation of the Clean Water Act. Goodwin explains why “federal prosecutors are now looking into whether North Carolina’s environmental regulators engaged in any criminal activity in their efforts to shield Duke.”
Steven R. Morrison at PrawfsBlawg notes “a rare move in terrorism (and all criminal) cases” concerning former Al-Qaeda spokesman Sulaiman Abu Ghayth.
On C-SPAN, Supreme Court Justice Elena Kagan reflects on her “life and career” in a conversation with Georgetown University Law Center students.
Senate Select Committee on Intelligence Chair Dianne Feinstein (D-Calif.) accused the Central Intelligence Agency of illegally searching her committee’s computers. Mark Mazzetti and Jonathan Weisman of The New York Times report on the controversy that has “one of the C.I.A.’s staunchest defenders deliver[ing] an extraordinary denunciation of the agency.”
The conviction of William Jeffrey Dumas on three counts of rape was overturned last week by Judge Christopher McFadden of the Georgia Court of Appeals. Dumas was accused of raping a woman who is diagnosed with Down syndrome. David M. Perry at CNN describes how this “troubling case reveals the intersections between rape culture and the way we strip agency from people with disabilities.”
Ronald K. L. Collins at Concurring Opinions explains why, when it comes to the issue of cell phone privacy and First Amendment rights, “there is more here than meets the constitutional eye.”
Secretary of Homeland Security Jeh Johnson is testifying this week on the White House’s 2015 DHS budget request. Georgeanne M. Usova at ACLU’s Blog of Rights answers the major questions on immigration.
At Dorf on Law, Michael Dorf explains why granting certiorari and ruling for the petitioners in Elane Photography, LLC v. Willock“would open up a pandora's box of businesses seeking exemptions from anti-discrimination law.”
Fifty years ago yesterday, the Supreme Court expanded First Amendment rights in the landmark case of New York Times Co. v. Sullivan. Former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter as well as Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter Geoffrey R. Stone discusses the case that “re-framed the constitutional law of libel” at The Huffington Post. For more anniversary coverage of Sullivan, read Katie Townsend’s guest post at ACSblog.
At the Constitutional Accountability Center’s Text & History Blog, CAC and their co-counsel Ben Cohen of The Promise of Justice Initiative discuss the certiorari petition they filed in Jackson v. Louisiana. The Sixth Amendment case considers “whether an individual may be convicted of a crime even if the jury in his case cannot reach a unanimous verdict.”
AtPrawfsblawg, Sarah Lawsky reviews a study by Loyola-Chicago Law School ‘s Alexander Tsesis which examines last year’s entry-level law school hires.
At Womenstake, Emily Martin, Vice President and General Counsel at the National Women’s Law Center, discusses the importance of the West Virginia Pregnant Workers’ Fairness ers’ Fairness
Religious freedom is crucial to the American experience. Indeed, a longing for the right to worship according to the dictates of conscience is one of the reasons our nation exists.
Religious freedom encompasses many concepts. Fundamentally, it means the power to choose where and how you will worship—or if you’ll worship at all. It also means that the government has no right to compel anyone to take part in religious exercises or force its citizens to directly subsidize houses of worship. It means that decisions about faith are private and belong firmly anchored in what Supreme Court Justice Tom Clark once eloquently referred to as the “inviolable citadel of the heart.”
That’s what religious freedom is. Here is what it is not: a tool to control others or to diminish their rights. Yet, increasingly, this is how some Americans are defining religious liberty. Because religious freedom is central to our democracy, it’s important that we get this right.
I wrote Taking Liberties: Why Religious Freedom Doesn’t Give You the Right to Tell Other People What to Do because I was concerned that a noble principle designed to protect individual freedom was being warped into an instrument of mass oppression. This must not happen.