The Supreme Court ruling on BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. v. HOBBY LOBBY STORES, INC. has now opened up the precedent (ignoring how narrowly tailored the ruling was to only contraception) that under the RFRA, even if its a compelling government interest, the state cannot mandate any firm with sincere religious beliefs to carry out a requirement, so long as the government can pick up the slack? It seems like the least restrictive means will always be making the government do it instead and not restrict at all anyone’s religious beliefs.
On page 46 of the opinion, Alito writes: “Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.”
This certainly leaves open the possibility that the Court could rule differently on the “least restrictive means” issue in the future, but his language in section V-B, which discusses the “least restrictive means” test, seems to indicate that it is a difficult standard to pass. On page 41 of the opinion, he indicates that “the most straightforward way of [meeting the least restrictive means test] would be for the Government to assume the cost.” He also says that “HHS has not shown … that this is not a viable alternative.” This seems to indicate that if such a challenge were to come up regarding vaccination or blood transfusions, or whatever else, the burden would be on the Department of Health and Human Services to show that it would be impractical for the Government to cover the cost. That would be quite the burden for the Government to prove.
Ginsberg seems to agree with that reading in her dissent. On page 29 on the dissent, she writes, “And where is the stopping point to the ‘let the government pay’ alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, … or according women equal pay for substantially similar work…? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?” In addition to indicating that the Court’s logic could prove problematic in the future, she asserts that it is flawed at present, saying, “In sum, in view of what Congress sought to accomplish, i.e., comprehensive preventive care for women furnished through employer-based health plans, none of the proffered alternatives would satisfactorily serve the compelling interests to which Congress responded.”
I agree with Justice Ginsberg on many points here, especially the last few pages of her dissent. Justice Alito attempts to narrow his ruling as much as possible, but leaves a lot of questions unanswered as to the basis for his narrow ruling. To me, the most compelling arguments come from sections III-4 and IV (pages 27-35) of Ginsberg’s dissent. She basically asserts that the Court’s ruling has much broader implications than it intends, and poses quite a few questions about the basis for the narrow ruling.
I am also inclined to agree with her reasoning that the Court should have no business in determining which religious views are legitimate and which are not, and that religious exemptions from generally applicable law should be reserved for groups that are organized “for a religious purpose” and/or “engaged primarily in carrying out that religious purpose”.
The Supreme Court ruling can be found here: http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf
Justice Ginsburg’s dissent here: http://www.scribd.com/mobile/doc/231974154
The purpose and intent of the 2nd was to provide for the overthrow of government in the case of tyranny.
For the early founding fathers, that specifically meant having weaponry accessible to citizens. Here’s Hamilton in Federalist 29:
This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress.
Notice the word “arming” in there. But Hamilton also viewed the 2nd amendment as a collective right. Some early laws were also based on the idea of arming the populace as part of a collective right. The 1792 Act of Militia is a good example of what I’m talking about.
That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service,
So, the founders viewed armament a lot more similarly to how the Swiss view it today: an individual responsibility as part of a collective right.
So what changed? In a lot of ways, the Civil War changed things. The NRA was actually formed after the Civil War. The Civil War, and the 14th Amendment, was actually what sort of gave rise to the view of the Bill of Rights as being individual rights rather than collective ones. As Akhil Reed Amar, a con law professor at Yale, explains here:
The NRA is founded after the Civil War by a group of ex-Union Army officers. Now the motto goes, when guns are outlawed, only klansmen will have guns. Individual black men had to have guns in their homes because they couldn’t count on the local constabulary. It’s in the text of the Freedman’s Bureau Act of 1866 that we actually see the reinterpretation of the original Second Amendment. It becomes about original rights.
So, to take things back a ways. Originally, the Second Amendment was viewed much more as a collective right. The important thing was that individuals be armed as part of a group responsibility. In other words, you needed to have a gun in case you were needed to help overthrow a tyrannical government.
After the Civil War, the whole discussion about collective versus individual rights changed, and having a gun became much more about self defense. This was in direct response to the newly Reconstructed South.
Your individual state could regulate your guns, but the feds couldn’t. Projecting the phrase “gun rights” back in time is really problematic, pretty much for this reason. It was somewhat common in the south for it to be illegal for Black men to own guns–even free Blacks. To a much lesser extent, the same was true for women. It wasn’t so much that you had “gun rights” so much at all, since there was no thought that taking guns away from Blacks was in any way threatening the gun ownership of Whites.
Here’s a list of laws/proposals relating to guns, militias and armies from the English Bill of Rights to the 2nd Amendment. I thought the progression in the wording was interesting.
English Bill of Rights (1689)
- That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law
- That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law
Virginia Declaration of Rights (May 1776)
- Section 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
Massachusetts Constitution (1780)
- XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.
Gun related requests from States to Congress for Original Amendments:
- No request
- That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.
- That the militia should not be subject to martial law, except in time of war, rebellion, or insurrection.
- That standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that at all times the military should be under strict subordination to the civil power.
- 17th. That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms, is the proper, natural and safe defence of a free state. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to and governed by the civil power.
James Madison’s original version of the 2nd Amendment
- The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.
Final version of the 2nd amendment
- A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
I found the progression interesting. My favorite parts were:
- The founders started from a position before the revolution of statements like ‘armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature’ but by the late 1780s that language is missing.
- The 2nd amendment originally had the clause ‘but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person’ but it was removed.
- The original wording of the 2nd amendment started ‘The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country’ – They reversed it but I have no idea why. It seems the original was stronger though it is impossible to know their intent unless their discussions were written down.
The modern conservative movement isn’t about being conservative at all, its about pandering to religious groups, saying you oppose anything the Democrats do while spending just as much money. There are no conservatives in Washington. A true conservative believes in the constitution. They would support the separation of church and state, the freedom of speech, the right to bear arms. They would support equal legal protections for all, meaning they would support a woman’s right to choose, and gay marriage. But again, there are no true conservatives in Washington, only partisan hacks using abortion and gay marriage as wedge issues to stay in office and keep raking in that sweet sweet lobbyist cash.
Here are three things Barry “Mr. Conservative” Goldwater said during his life as a politician:
“On religious issues there can be little or no compromise. There is no position on which people are so immovable as their religious beliefs. There is no more powerful ally one can claim in a debate than Jesus Christ, or God, or Allah, or whatever one calls this supreme being. But like any powerful weapon, the use of God’s name on one’s behalf should be used sparingly. The religious factions that are growing throughout our land are not using their religious clout with wisdom. They are trying to force government leaders into following their position 100 percent. If you disagree with these religious groups on a particular moral issue, they complain, they threaten you with a loss of money or votes or both.”
“I’m frankly sick and tired of the political preachers across this country telling me as a citizen that if I want to be a moral person, I must believe in “A,” “B,” “C” and “D.” Just who do they think they are? And from where do they presume to claim the right to dictate their moral beliefs to me? And I am even more angry as a legislator who must endure the threats of every religious group who thinks it has some God-granted right to control my vote on every roll call in the Senate. I am warning them today: I will fight them every step of the way if they try to dictate their moral convictions to all Americans in the name of ‘conservatism.'”
“Mark my word, if and when these preachers get control of the [Republican] party, and they’re sure trying to do so, it’s going to be a terrible damn problem. Frankly, these people frighten me. Politics and governing demand compromise. But these Christians believe they are acting in the name of God, so they can’t and won’t compromise. I know, I’ve tried to deal with them.”
Two historical propositions important to the legal analysis of discrimination of the LGBT community: (1) no consistent historical practice singles out same-sex behavior as “sodomy” subject to proscription, and (2) the governmental policy of classifying and discriminating against certain citizens on the basis of their homosexual status is an unprecedented project of the twentieth century, which is already being dismantled.
In colonial America, regulation of non-procreative sexual practices – regulation that carried harsh penalties but was rarely enforced – stemmed from Christian religious teachings and reflected the need for procreative sex to increase the population. Colonial sexual regulation included such non-procreative acts as masturbation, and sodomy laws applied equally to male-male, male-female, and human-animal sexual activity. “Sodomy” was not the equivalent of “homosexual conduct.” It was understood as a particular, discrete, act, not as an indication of a person’s sexuality or sexual orientation. Not until the end of the nineteenth century did lawmakers and medical writing recognize sexual “inversion” or what we would today call homosexuality. The phrase “homosexual sodomy” would have been literally incomprehensible to the Framers of the Constitution, for the very concept of homosexuality as a discrete psychological condition and source of personal identity was not available until the late 1800s. The Court in Bowers v. Hardwick misapprehended this history. Proscriptive laws designed to suppress all forms of nonprocreative and non-marital sexual conduct existed through much of the last millennium. Widespread discrimination against a class of people on the basis of their homosexual status developed only in the twentieth century, however, and peaked from the 1930s to the 1960s. Gay men and women were labeled “deviants,” “degenerates,” and “sex criminals” by the medical profession, government officials, and the mass media. The federal government banned the employment of homosexuals and insisted that its private contractors ferret out and dismiss their gay employees, many state governments prohibited gay people from being served in bars and restaurants, Hollywood prohibited the discussion of gay issues or the appearance of gay or lesbian characters in its films, and many municipalities launched police campaigns to suppress gay life. The authorities worked together to create or reinforce the belief that gay people were an inferior class to be shunned by other Americans. Sodomy laws that exclusively targeted same-sex couples were a development of the last third of the twentieth century and reflect this historically unprecedented concern to classify and penalize homosexuals as a subordinate class of citizens.
Since the 1960s, official and popular attitudes toward homosexuals have changed, though vestiges of old attitudes – such as the law at issue here – remain. Among other changes, the medical profession no longer stigmatizes homosexuality as a disease, prohibitions on employment of homosexuals have given way to antidiscrimination protections, gay characters have become common in movies and on television, 86 percent of Americans support gay rights legislation, and family law has come to recognize gays and lesbians as part of non-traditional families worthy of recognition. These changes have not gone uncontested, but a large majority of Americans have come to oppose discrimination against lesbians and gay men.