# SSM debate and separation of church and state **URL:** \ **Category:** Great Debates\ **Created:** [July 15, 2015, 12:15am UTC](https://boards.straightdope.com/t/ssm-debate-and-separation-of-church-and-state/725187 "2015-07-15T00:15:45Z")\ **Posts on this page:** 11\ **Page:** 15
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [July 20, 2015, 2:25pm UTC](https://boards.straightdope.com/t/ssm-debate-and-separation-of-church-and-state/725187/281 "2015-07-20T14:25:58Z")
> [@Robert163](#): > > Yeah that was kind of an interesting thread. But we are getting distracted. The point is this is supposed to be a modern, technological, enlightened, scientific country. They don’t have these religious debates in Europe or Japan. They have outgrown primitive supersition. Is Northern Ireland part of Europe? Because I remember them having some religious debates there. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [July 20, 2015, 2:41pm UTC](https://boards.straightdope.com/t/ssm-debate-and-separation-of-church-and-state/725187/282 "2015-07-20T14:41:14Z")
> [@Robert163](#): > > Well, it is the exact wording used by the Supreme Court. That would make it a legal term with a legal standard. No, its not. Its what we call dicta. Its just shit judges put in opinions that are not legally binding because they are not necessary to getting to the conclusion of the case. You are just glomming onto a phrase (that frankly doesn’t mean what you think it means) and claiming all sort of legal authority from it. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [July 20, 2015, 3:05pm UTC](https://boards.straightdope.com/t/ssm-debate-and-separation-of-church-and-state/725187/283 "2015-07-20T15:05:37Z")
> [@Robert163](#): > > 1- that comment might be relevant if you weren’t defending bigoted close minded people How the hell is THAT comment relevant to the debate? Other people’s legal rights do not depend on those people thinking like you. > [@](#): > > 2- it will often be a reaction due anger about the past but it is also, probably just as much or more, about correcting a social injustice So you must punish people who are exercising their legal rights because you want to keep them from exercising those rights or because you want to change those legal rights? > [@Robert163](#): > > I wasn’t aware the first amendment was designed to promote and defend discrimination It was designed to defend the free exercise of religion. I don’t see the word discrimination anywhere in the constitution. Do you? > [@Robert163](#): > > no, actually, you couldnt say that. Why not? ---
**Author:** ![Hiker](https://avatars.discourse-cdn.com/v4/letter/h/3be4f8/32.png) [@Hiker](https://boards.straightdope.com/u/Hiker)\ **Post date:** [July 20, 2015, 3:45pm UTC](https://boards.straightdope.com/t/ssm-debate-and-separation-of-church-and-state/725187/284 "2015-07-20T15:45:11Z")
> [@Damuri\_Ajashi](#): > > You don’t get to tell people what their religious beliefs require or require that their religious beliefs pass your analytical review. You get to tell them that it is legally protected or not. The RFRA protects a lot of religious objection that in my opinion ought not be protected but it protects it all the same. I have not tried to tell anyone what their religious beliefs require, and I certainly do not ask that anyone’s religous beliefs pass \*my \*analytical view. Can you tell me what gave you the impression that I did? The question was always, whether the Religious Freedom Restoration Act or the First Amendment protect Hobby Lobby’s right to be exempt from a specific government programme. I have given my reasoning for why I do not agree with the Supreme Court’s decision. It is obvoius that companies are not allowed to be exempt from all public programmes based on their owner’s religous convictions but they have been allowed to be exempt from this one. There may be a convincing reason for that, but if there is, I have not seen it yet. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [July 20, 2015, 4:36pm UTC](https://boards.straightdope.com/t/ssm-debate-and-separation-of-church-and-state/725187/285 "2015-07-20T16:36:26Z")
> [@Hiker](#): > > My objection to the Supreme Court decision is that Hobby Lobby was never asked to directly partake in the practices that they object to on the grounds of their religion. All they were asked to do was to pay for an insurance that in turn would pay for the means to be used in that practice. Pretty indirect. To me that sounds the same as if a person whose religious beliefs are strictly pacifist refused to pay taxes on the grounds of these taxes being used to fund an army. > [@Hiker](#): > > I have not tried to tell anyone what their religious beliefs require, and I certainly do not ask that anyone’s religous beliefs pass \*my \*analytical view. Can you tell me what gave you the impression that I did? > > The question was always, whether the Religious Freedom Restoration Act or the First Amendment protect Hobby Lobby’s right to be exempt from a specific government programme. I have given my reasoning for why I do not agree with the Supreme Court’s decision. It is obvoius that companies are not allowed to be exempt from all public programmes based on their owner’s religous convictions but they have been allowed to be exempt from this one. There may be a convincing reason for that, but if there is, I have not seen it yet. [Here’s the decision](http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf); below is the portion addressing the issue of the indirectness precluding a claim of a substantial burden: > [@](#): > > HHS argues that the connection between what the objecting parties must do and the end that they find to be morally wrong is too attenuated because it is the employee who will choose the coverage and contraceptive method she uses. But RFRA’s question is whether the mandate imposes a substantial burden on the objecting parties’ ability to conduct business in accordance with _their religious beliefs_. The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable. In fact, this Court considered and rejected a nearly identical argument in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707. The Court’s “narrow function . . . is to determine” whether the plaintiffs’ asserted religious belief reflects “an honest conviction,” id., at 716, and there is no dispute here that it does. Tilton v. Richardson, 403 U. S. 672, 689; and Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 248–249, distinguished. Pp. 35–38. ---
**Author:** ![Hiker](https://avatars.discourse-cdn.com/v4/letter/h/3be4f8/32.png) [@Hiker](https://boards.straightdope.com/u/Hiker)\ **Post date:** [July 20, 2015, 4:47pm UTC](https://boards.straightdope.com/t/ssm-debate-and-separation-of-church-and-state/725187/286 "2015-07-20T16:47:10Z")
> [@Human\_Action](#): > > [Here’s the decision](http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf); below is the portion addressing the issue of the indirectness precluding a claim of a substantial burden: Thank you. That is indeed interesting. I understand the SCOTUS decision was split 5-4. Do you happen to know why the minority did not want to follow the argument you quoted? ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [July 20, 2015, 5:09pm UTC](https://boards.straightdope.com/t/ssm-debate-and-separation-of-church-and-state/725187/287 "2015-07-20T17:09:51Z")
> [@Hiker](#): > > Thank you. That is indeed interesting. I understand the SCOTUS decision was split 5-4. Do you happen to know why the minority did not want to follow the argument you quoted? Justice Ginsberg, in her dissent, basically reached the same conclusion you did: > [@](#): > > Undertaking the inquiry that the Court forgoes, I would conclude that the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial. The requirement carries no command that Hobby Lobby or Conestoga purchase or provide the contraceptives they find objectionable. Instead, it calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under comprehensive health plans. Those plans, in order to comply with the ACA, see supra, at 3–6, must offer contraceptive coverage without cost sharing, just as they must cover an array of other preventive services. > > Importantly, the decisions whether to claim benefits under the plans are made not by Hobby Lobby or Cones-toga, but by the covered employees and dependents, in consultation with their health care providers. Should an employee of Hobby Lobby or Conestoga share the religious beliefs of the Greens and Hahns, she is of course under no compulsion to use the contraceptives in question. But “[n]o individual decision by an employee and her physician—be it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense [her employer’s] decision or action.” Grote v. Sebelius, 708 F. 3d 850, 865 (CA7 2013) (Rovner, J., dissenting). It is doubtful that Congress, when it specified that burdens must be “substantia[l],” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed. Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the wo-man’s autonomous choice, informed by the physician she consults. (She had other objections as well, which can be read [here.](https://www.law.cornell.edu/supremecourt/text/13-354#writing-13-354_DISSENT_5) I’m not a lawyer or legal scholar, but in my lawman’s opinion I agree with the majority opinion. The question of whether enabling others to sin is itself a sin is a purely religious issue. It’s not for the court to rule on matters of theology. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [July 20, 2015, 5:15pm UTC](https://boards.straightdope.com/t/ssm-debate-and-separation-of-church-and-state/725187/288 "2015-07-20T17:15:57Z")
Make that _layman_’s opinion, I’m no lawman. ---
**Author:** ![Hiker](https://avatars.discourse-cdn.com/v4/letter/h/3be4f8/32.png) [@Hiker](https://boards.straightdope.com/u/Hiker)\ **Post date:** [July 20, 2015, 5:59pm UTC](https://boards.straightdope.com/t/ssm-debate-and-separation-of-church-and-state/725187/289 "2015-07-20T17:59:34Z")
> [@Human\_Action](#): > > Justice Ginsberg, in her dissent, basically reached the same conclusion you did: > > (She had other objections as well, which can be read [here.](https://www.law.cornell.edu/supremecourt/text/13-354#writing-13-354_DISSENT_5) > > I’m not a lawyer or legal scholar, but in my lawman’s opinion I agree with the majority opinion. The question of whether enabling others to sin is itself a sin is a purely religious issue. It’s not for the court to rule on matters of theology. Thank you again for your cites. You are right, my personal view is pretty much the same as that which Justice Ginsberg has expressed. One thing that I want to emphasisze is that I do not deny or reject the idea that the Hobby Lobby owners experience a conflict with their beliefs when they are being made to pay - however indirectly - for the morning after pill. It is not my place to be the judge of that. But the state has neither the obligation nor the capacity to \*entirely \*prevent its citizens from experiencing such conflicts. In the case at hand Hobby Lobby’s legitimate interest to avoid such conflict had to be weighed against the Government’s legitimate interest to provide a speific item of healthcare to its citizens (and to have a workable mode of financing it). When goods as these have to be weighed against each other, the decision is rarely easy. What I have tried to express with my earlier posts is, that in my view the indirect way in which Hobby Lobby was made to contribute to the morning after pill should have tipped the balance to the other side. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [July 20, 2015, 7:03pm UTC](https://boards.straightdope.com/t/ssm-debate-and-separation-of-church-and-state/725187/290 "2015-07-20T19:03:05Z")
> [@Hiker](#): > > Thank you again for your cites. You are right, my personal view is pretty much the same as that which Justice Ginsberg has expressed. > > One thing that I want to emphasisze is that I do not deny or reject the idea that the Hobby Lobby owners experience a conflict with their beliefs when they are being made to pay - however indirectly - for the morning after pill. It is not my place to be the judge of that. But the state has neither the obligation nor the capacity to \*entirely \*prevent its citizens from experiencing such conflicts. In the case at hand Hobby Lobby’s legitimate interest to avoid such conflict had to be weighed against the Government’s legitimate interest to provide a speific item of healthcare to its citizens (and to have a workable mode of financing it). When goods as these have to be weighed against each other, the decision is rarely easy. What I have tried to express with my earlier posts is, that in my view the indirect way in which Hobby Lobby was made to contribute to the morning after pill should have tipped the balance to the other side. That’s a reasonable position. The legal standard that the court was interpreting, though, is much narrower than your reasoning allows for. It consists of the following prongs: 1. Whether the law in question is a substantial burden to the individual’s exercise of a sincere religious belief. 2. If so, whether the burden is related to a compelling government interest. 3. If so, whether the law is the least restrictive way the government interest can be achieved. As you can see, the precise or relative degree of the burden doesn’t matter. Either it is substantial, or it isn’t. If so, the other prongs must be applied. If not, then the law passes the test. The prongs aren’t balanced against each other. Therefore, I feel that the court reached the correct decision, _given the test that the RFRA mandates_. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [July 20, 2015, 7:44pm UTC](https://boards.straightdope.com/t/ssm-debate-and-separation-of-church-and-state/725187/291 "2015-07-20T19:44:30Z")
> [@Hiker](#): > > I have not tried to tell anyone what their religious beliefs require, and I certainly do not ask that anyone’s religous beliefs pass \*my \*analytical view. Can you tell me what gave you the impression that I did? > > The question was always, whether the Religious Freedom Restoration Act or the First Amendment protect Hobby Lobby’s right to be exempt from a specific government programme. I have given my reasoning for why I do not agree with the Supreme Court’s decision. It is obvoius that companies are not allowed to be exempt from all public programmes based on their owner’s religous convictions but they have been allowed to be exempt from this one. There may be a convincing reason for that, but if there is, I have not seen it yet. It seemed like you were saying that their religious beliefs don’t make sense or are not internally consistent or logical. Welcome to the world of religion, donation can be made in the basket to your left. The dividing line is called strict scrutiny. The RFRA requires any law to pass strict scrutiny when applied to overcome a religious objection unless congress specifically legislates that the RFRA doesn’t apply to a particular piece of legislation. The issue in Hobby Lobby was never whether Obamacare’s restriction on contraceptives passed strict scrutiny. It was clear that this was not the most restrictive means of doing what they wanted to do considering that there was already a process in place to deal with the religious objections of folks like the catholic church and most people were fairly certain that a sole proprietorship could invoke the RFRA to do what Hobby Lobby wanted to do. The reason Hobby Lobby was such a horrible decision IMHO is because a corporation is supposed ot be a distinct legal entity. It is not an extension of its owners, but Hobby Lobby said that it is if the corporation is closely held at least with respect to religious beliefs. [Previous page](https://boards.straightdope.com/t/ssm-debate-and-separation-of-church-and-state/725187.md?page=14)