Oh, so the main thrust of the RFRA was about contraception, then? Was this made explicit, so that we can relax, knowing that it won’t be applied to other matters?
How about that “prayng away the gay” crapola? Somebody just passed a law making that illegal therapy, seeing how it was condemned as stupid and counterproductive, earning the scorn of doctors and psychiatrists everywhere. So, this law means that practitioners of this lie can sue to be permitted to fuck over gay people to their hearts content? They certainly claim that this is an “exercise of religion”.
That isn’t “contraception”, so we don’t have to worry about that? Or destructive faith healing in general, only faith based contraception is affected?
No. As I clearly said, and have repeated above, and will repeat again here, the Religious Freedom Restoration Act applies to contraception. But I did not say it applies to only contraception. It applies to every single federal law. The main thrust of the RFRA is to limit every single single federal law.
So if a federal law requires contraception, the RFRA applies. If a federal law requires anything at all, the RFRA applies. If a federal law forbids anything at all, the RFRA applies.
Is it a federal law?
If it is, then the RFRA applies to it.
Every single federal law.
This does not mean that the RFRA will result in some given effect. The RFRA says that federal government cannot substantially burden the exercise of religion, unless the burden is narrowly tailored to advance a compelling federal government interest.
Plenty of RFRA challenges to federal laws have failed, because the government’s interest was held to be compelling and the government solution was the least restrictive way of advancing that interest. Other challenges have failed because the asserted religious exercise was held to be grounded in an insincere belief.
And of course, where the challenger was able to show that the government did burden a sincere religious exercise, and that the scheme used by the government was not narrowly tailored, then the challenge was successful.
Once more: I said, “The Religious Freedom Restoration Act applies to contraception.”
You asked, “Oh, so the main thrust of the RFRA was about contraception, then? Was this made explicit, so that we can relax, knowing that it won’t be applied to other matters?”
The RFRA applies to all federal laws. The ‘main thrust’ is to ensure that all federal laws are limited in how they may burden religion.
Your confusion on this point is especially puzzling, elucidator, because of this exchange:
So back on July 5th, you were aware that the RFRA applied to all Acts of Congress, not just contraception.
Yet today, you asked essentially the same question, wondering if contraception was some special case, even though I had just told you that the RFRA applied to every single act of Congress, every single federal law.
Asking the question a second time, with seemingly no recollection of the first time, is a puzzling approach. How did this happen?
Ms. Ginsburg seems to share our confusion, perhaps you should take the time to clarify the issues for her so that she would not worry her pretty little head about it? Or perhaps if she took the time to read friend Bricker’s cogent and clear analysis, she would reverse her opinion.
(Can she do that? Can she file a writ of “my bad!” and expunge her written dissent?)
excerpts from Justice Ginsburg’s dissent
To my befuddled mind, these appear to be valid criticisms, but that may simply be because she and I both fail to grasp the Olympian clarity of such minds as Alito, Thomas and Scalia.
And, while we’re about it, Bricker, your answer to my question about contraception omits the actual question. Once again, you answer the question you would prefer to answer rather than the one actually posed. My question centers on the example of “gay restorative therapy”, which is universally and unanimously regarded by professional therapists as quackery and humbug.
However, many sincerely religious people refuse to accept that, just like Scientologists refuse to accept psychiatry and psychiatric medicine.
Can a sincerely religious Scientologist refuse to pay for health insurance that covers such treatment? Can a sincerely religious person refuse to permit his closely held corporation to pay for insurance that does not accept “gay restorative therapy” as a valid and useful therapy? And if not, why not? *
Your answer was about contraception, my question was not. Since you are not a stupid man, I immediately and justifiably expect that your answer is a rhetorical evasion, hence, the snark.
Perhaps you and John can collude on an open letter to disabuse poor Ms Ginsburg of her misunderstanding of what is so starkly clear to you both?
Keeping in mind that the Hobby Lobby objected to four forms of birth control that it regards as abortion. The science on that has been muddled, but if the medical and scientific community does not classify them as “abortifacients”, does sincere religious belief trump that?
Nonsense! The decision clearly outlines the objective criteria to certify sincere religious opinion. Only befuddled minds, like yours, or drug addled minds, like mine, fail to see that. Perhaps Bricker will point those objective criteria out for us, if we ask politely enough.
No. The points Justice Ginsburg raised in her dissent fall into two categories: predictions of future problems with the Court’s ruling (which you quoted) and her rationale for feeling the Court should have ruled differently (which you have neither quoted nor echoed.)
In short: she does not share your confusion.
They are criticisms, but criticisms which the majority opinion answers.
A Scientologist employer who harbors a sincere religious belief that procuring psychiatry or psychiatric treatment for other burdens his exercise of religion is, under the RFRA, entitled to make a claim. How that claim pans out depends upon the government’s answer to two questions: “Is their interest in seeing psychiatric treatment covered by insurance a compelling government interest?”
And “Does the government’s proposed method constitute the least restrictive means of accomplishing that interest?”
I can give you my speculation for the answers, but HHS has not been asked to provide their answers to those questions. You’re asking me for my opinion, which is not the same as asking HHS to supply their best arguments. In the Hobby Lobby case, of course, HHS was able to marshal their best defense of their position.
But in my opinion, there’s probably a less restrictive means, analogous to the Hobby Lobby solution: shift the cost to the Third Party Administrator (TPA).
Can a sincerely religious person refuse to permit his closely held corporation to pay for insurance that does not accept “gay restorative therapy” as a valid and useful therapy?
Here, I think the answer is “no.” The employer is not objectioning to providing other therapies. He is welcome to shop around until he finds insurance that will cover “gay restorative therapy,” if any such insurance exists. But he must also purchase insurance to cover the HHS mandated list, because he has not identified any religious exercise that is burdened by covering the HHS list. He simply wants insurance that does HHS-mandate PLUS gay restorative therapy, and the government is not blocking him from doing that.
(As an aside: you mentioned in your prior post that laws have been passed forbidding that kind of therapy. Although you do not fully develop this argument, I wonder if you might have been vaguely picturing an RFRA challenge to those laws: “My religious exercise involves curing gays, and your law is stopping me!”
If you were picturing such an argument, you can stop: the RFRA binds only federal laws; the bans against gay conversion therapy are from California and New Jersey, respectively).
Yes. At best, the science now says it’s extremely unlikely that three of the four will cause a failure of implantation. (The FDA still has not adopted this view, by the way, and still carries abortifacients warnings for each one of the four),
But a moment’s thought will make this clear: the Jewish prohibition against mixing meat and dairy together arises from the Biblical prohibition against seething the flesh of the cow in the milk of its mother.
In today’s world, the chances of a given piece of dairy coming from the milk of the mother of a given piece of beef are…even more miniscule than the chances of any of the four contraception methods causing a failure of implantation.
But that rule of Jewish practice cannot be vitiated by the observance that it’s extremely unlikely.
In the same way, the Hobby Lobby beliefs cannot be vitiated by the observation that it’s extremely unlikely. They get to define the lines, not you.
Hobby Lobby acknowledges that each method is contraceptive. But, they say, each method also has a chance, albeit a small one, of causing the fertilized embryo not to implant. That’s not the medical definition of an abortion, but Hobby Lobby’s position is that the fertilized embryo is a human life, which is, of course, not a popular medical position either.
So, yes, I accept Hobby Lobby’s actual claim: that the four treatments in question have a slight chance of causing a failure of the embryo to implant in the uterine wall. That is a view consistent with the science.
No, my question has little if anything to do with Talmudic law. My question is (to oversimplify): if the scientific and medical community is of one opinion and sincere religious belief demands another, who wins?
And this:
Not quite sure what you mean here, and you are oftimes a bit slippery. Do you mean that the majority opinions so definitively rebut those criticisms that we may safely ignore them? Or only the five is more than four, so “neener-neener”?
No, I doubt it. Justice Ginsburg’s opinion is quite clear. Many commentators who have reported on her opinion have made great efforts to confuse it, but her opinion is pretty clear. I suspect that elucidator’s confusion comes from other sources.
She says that, notwithstanding the plain text, Congress never intended to extend RFRA protections to for-profit companies. She points to the fact that no decision of the Court prior to Hobby Lobby had ever extended RFRA protections to for-profit companies, and she would read the RFRA to draw a line between non-profit religious organizations and for-profit corporations. She argues persuasively, although ultimately not persuasively enough for the majority, that this distinction is what Congress intended all along, and that this is the proper “context” that the Dictionary Act evokes.
And that’s a perfectly defensible position. It’s not a textualist one, but of course she’s not a textualist. She says, in effect, if we interpret the RFRA to include for-profit corporations, all sorts of bad effects may ensue, and Congress never intended to protect for-profit corporations anyway, so the decision should be to craft a line onto the RFRA that stops at non-profit, religious corporations.
But I gave you an example in which the scientific and medical community is of one opinion, but Talmudic law runs counter to that opinion.
Why, then, isn’t Talmudic law relevant to your question?
To answer you: sincere religious belief wins. Catholics are entitled to believe in the Real Presence, despite the weight of scientific evidence that says, “It’s still bread and wine.”
And Hobby Lobby is entitled to say, “We don’t like the risks of ‘only a very tiny chance,’ that the scientific and medical community is saying.”
I mean the majority opinion provides an answer for how each of those criticisms will be handled by the framework constructed by the majority opinion. Since they were questions, not statements, they cannot be “rebutted.”
For what it’s worth, any attempt to force Hobby Lobby to hand out contraceptives at work will get no support from me, no-sir-ree, bob, that’s for sure!
They decide that since Hobby Lobby believes that life begins at conception, and that since that belief is sincere, a Congressional requirement to pay for insurance that includes the types of contraception that also interfere with implantation is a substantial burden to their religious exercise.