Religion clauses

  • May 1, 2012

    by Jeremy Leaming

    Tennessee lawmakers appear to be itching for national attention, regardless of how buffoonish their actions. Or more likely the lawmakers that passed measures attacking science education and making a sham of sex education are only interested in pleasing localized interests, such as Christian right activists.

    Yes, the rest of the country has taken note of the fatuous measures successfully pushed by state Rep. Jim Gotto and Sen. Bo Watson.

    Gotto’s measure, which has been sent to the governor, declares that only abstinence can be discussed in sex education courses, meaning no discussion of so-called “gateway sexual activity,” which according to the bill is “sexual conduct encouraging an individual to engage in non-abstinent behavior.” TPM reports that groups like Planned Parenthood that provide sex education information to the schools “could face $500 fine,” for violating the measure.

    Will Gotto’s prudish measure do anything other than draw ridicule? On the national stage, ridicule is likely all Gotto’s measure will garner. But his measure is likely not aimed at curbing unwanted pregnancies or garnering praise from other states. It’s all about pleasing a constituency stuck somewhere in the 1950s. If the representative were truly concerned about teenage pregnancy and birth rates, he would have not have advocated for abstinence-only rhetoric.

    Studies overwhelmingly show abstinence-only policy is not sound education. Late last year researchers from the University of Georgia found that states using abstinence-only programs in public schools have far higher teenage pregnancy and birth rates than those states that have comprehensive sex education programs. Kathrine Stranger-Hall, a science professor at the university, said, “Our analysis adds to the overwhelming evidence indicating that abstinence-only education does not reduce teen pregnancy rates.”

    The other bill, pushed by Sen. Watson, has already become law, and also harkens to the past. Tennessee has a history of fighting science, but it is not alone in fighting evolution, the cornerstone of biology. Kansas drew nationwide attention in the late 1990s and again in 2005 for its effort to push evolution from the science curriculum.

    Since the U.S. Supreme Court ruled that the Bible’s creation story could not be taught alongside evolution in science courses, Christian Right activists have been working year after year to find a way to circumvent the Supreme Court.

  • March 20, 2012
    Guest Post

    By Leslie Griffin, Larry & Joanne Doherty Chair in Legal Ethics at the University of Houston Law Center


    Before the Second Vatican Council (1962-1965), the Catholic Church condemned the separation of church and state and taught that only Catholics had the right to public worship and religious liberty. In a series of nuanced essays written from 1940-1965, the New York Jesuit Catholic priest John Courtney Murray developed a historical argument that the prohibition on separation was not a timeless, universal norm, but was best understood as a response to the anticlerical liberalism of modern Europe. Hence, Murray concluded, American Catholics could favor the separation of church and state even though Rome (mistakenly) opposed it. Senator John F. Kennedy consulted Murray as he prepared his famous 1960 campaign address to Houston Baptist ministers pledging his commitment to the separation of church and state. The speech set the stage for Kennedy’s election as the first Catholic president of the United States.

    The bishops of the Roman Catholic Church approved the Declaration on Religious Freedom, Dignitatis Humanae (DH), at the last session of the Council in December 1965. DH changed prior Catholic teaching by affirming that religious liberty is the right of every human person, not a right of Catholics only. Murray was the lead drafter of the declaration.

    Murray told reporter Robert Blair Kaiser in 1965 that the “resolution of the religious liberty issue had ‘transferential implications’ for those trying to work out the birth control question.” The “birth control question” asked if the church should revise its prohibition on artificial contraception. After extensive debate and reports from a papal commission, the church did not do so. Pope Paul VI instead reaffirmed the immorality of contraception in his 1968 papal encyclical Humanae Vitae (HV).

    HV is the intellectual source of the Catholic Church’s current battle with the Obama administration over the provision of contraceptive insurance to its Catholic and non-Catholic employees. The church teaches that contraception is morally wrong as a matter of natural law for all men and women, Catholic and non-Catholic, married and non-married, without regard to whether they choose to believe or accept the teachings of the Catholic Church.

    No one doubts that the bishops are sincere in their commitment to the anti-contraception moral principle. They are mistaken, however, to believe that the religious freedom protected by the U.S. Constitution entitles them to enforce their moral beliefs on others through force of law. Murray and Kennedy had a better sense of what the Constitution protects.

  • February 22, 2012

    by Jeremy Leaming

    Though leaders of the Maryland Senate have delayed consideration of Gov. Martin O’Malley’s marriage equality bill, The Washington Post reports the measure is still expected to pass the chamber and reach the governor by week’s end.

    The Senate’s Minority Whip Edward R. Reilly (R-Anne Arundel), the newspaper reports, obtained the delay so amendments to the equality measure could be prepared. Senate President Thomas Miller Jr. said he expects the measure to pass the Senate, as it did last year.

    O’Malley (pictured) is pushing hard to add Maryland to the list of states that have legalized same-sex marriage. Following last week’s approval of the measure by the Maryland House of Delegates, the governor said “we’re prepared to redouble our efforts” as the Senate considers the measure.

    “The common thread,” he continued, “running through our efforts together in Maryland is the thread of human dignity; the dignity of work, the dignity of faith, the dignity of family, the dignity of every individual.”

    As in Washington, where Gov. Chris Gregoire recently enacted marriage equality legislation, Christian evangelical lobbyists in Maryland are vowing to drag marriage equality before voters, if need be.

    The Maryland Marriage Alliance, representing a gaggle of Christian evangelical interests, is loudly arguing that marriage must remain exclusive to men and women. In a missive on the group’s website, it claims that houses of worship that refuse to conduct weddings for gays and lesbians will place their tax benefits in jeopardy. Maryland’s equality bill, however, contains and exemption for houses of worship, much like the one that passed last year in New York. The Md. bill explicitly states that houses of worship, which receive generous government tax benefits, can play be different rules, and discriminate against gays and lesbians if they wish.

  • February 13, 2012

    by Jeremy Leaming

    Catholic bishops and right-wing pundits and politicians are still slathering over the Obama administration’s contraception rule that requires health insurance policies to provide free contraceptives for employees at religious affiliated universities, hospitals and charities.

    On Friday after announcing a tweak to the rule – requiring insurance providers, not the religiously affiliated institutions to pay for the contraceptives – the United States Conference of Catholic Bishops issued a statement blasting the change as “unacceptable,” and continued to tar the policy as a violation of their religious liberty rights. (The religious liberties violation is a canard. The policy applies generally to all groups, secular and religious. As ACSblog noted last week there are numerous laws of general applicability that impact religious practice without amounting to a violation of the First Amendment’s free exercise clause. The contraception policy from the White House already exempts houses of worship, allowing them to provide inadequate health care coverage to their employees if they wish.)

    Nonetheless, Religious Right outfits, and not surprisingly many politicians, aren’t letting go of this one.

    For example, U.S. Rep. Connie Mack (R-Fla.) dished up hyperbole in a discussion of the Obama administration’s health care policy on CNN. Video of the segment is below.

    Rep. Mack claimed the flare-up over the contraception rule proved that the Obama “administration doesn’t believe that the Constitution and that personal freedoms and liberties matter. And it is an assault on our freedoms. So whether it is Obamacare forcing people to buy something they may not want to buy, and now this reaching into the church, and forcing the church to do something that is against its own tenants, this shows an arrogance.”

    “He’s a lawyer,” Mack continued, “and he is showing that the words of the Constitution don’t matter to him.”

    Regarding the administration’s landmark health care reform law, the Affordable Care Act, numerous constitutional law scholars have argued that the law’s minimum coverage provision, which starting in 2014 will require people who can afford it to obtain minimum health insurance coverage or pay a penalty, is a lawful regulation either under Congress’s power to regulate commerce or its taxing power.

    For more on the constitutionality of the Affordable Care Act’s minimum coverage provision see this ACS Issue Brief by the National Senior Citizens Law Center’s Simon Lazarus.

  • February 10, 2012

    by Nicole Flatow

    Following sharp attacks from religious and conservative groups of the health care rule that would require insurance plans to cover contraceptives, the White House has announced a minor alteration to the rule that maintains free access to birth control.

    The change would shift the onus of providing the contraceptive services from the employer to the insurance provider. If a religiously affiliated employer objects to providing that coverage in its benefits package, the insurance company will be required to reach out directly to the beneficiary to offer full contraceptives coverage.

    “No woman’s health should depend on who she is or where she works or how much money she makes,” Obama said in announcing the change today. He added:

    I understand some in Washington want to treat this as another political wedge issue. But it shouldn’t be. I certainly never saw it that way. … We live in a pluralistic society where we’re not gonna agree on every single issue or share every belief. That doesn’t mean we have to choose between individual liberty and basic fairness.

    Today's shift, described by one official as an “accommodation” rather than a “compromise,” was quickly endorsed by the Catholic Health Association, one of the original critics of the rule, as well as Planned Parenthood and NARAL Pro-Choice America.

    But the announcement is not likely to satisfy some of the most committed critics. Just last night during a webcast, the Family Research Council blasted the contraception rule as “not only an attack on the consciences of employers and employees, but a direct attack on religious freedom.”

    Throughout the week, constitutional experts have reiterated that the contraception rule did not violate the Constitution’s religious liberty clauses.   

     "There isn't a constitutional issue involved," prominent litigator David Boies told MSNBC’s Lawrence O’Donnell. “There isn’t anything in the Constitution that says an employer, regardless of whether you are a church employer or not, isn’t subject to the same rules as every other employer.”

    “One thing I think is crystal clear — there is no First Amendment violation by this law,” Adam Winkler, a constitutional law professor at UCLA, told TPM. “The Supreme Court was very clear in a case called Employment Division v. Smith, written by none other than Antonin Scalia, that religious believers and institutions are not entitled to an exemption from generally applicable laws.”

    Atlanta Journal-Constitution columnist Jay Bookman highlights some excerpts from the Smith decision in which Scalia, “himself a devout and very conservative Catholic,” makes the case for Obama. Scalia wrote: