Speakers hopeful post-Scalia court will have religious liberty advocate

| Kurt Jensen | April 19, 2016 | 5 Comments
Hannah Smith, a lawyer with the Becket Fund for Religious Liberty, speaks on a March 22 panel at the Newseum in Washington about the legacy of Justice Antonin Scalia, who died Feb. 13. The panel concluded that even without Scalia, there's still hope for a strong religious liberty advocate on the U.S. Supreme Court. CNS photo/Maria Bryk, courtesy Newseum

Hannah Smith, a lawyer with the Becket Fund for Religious Liberty, speaks on a March 22 panel at the Newseum in Washington about the legacy of Justice Antonin Scalia, who died Feb. 13. The panel concluded that even without Scalia, there’s still hope for a strong religious liberty advocate on the U.S. Supreme Court. CNS photo/Maria Bryk, courtesy Newseum

Even without Justice Antonin Scalia and with the likelihood of deadlocks by an eight-member Supreme Court for some time to come, there’s still hope for a strong religious liberty advocate, a panel of speakers concluded.

And the next leading light on the issue might be Justice Elena Kagan, who typically disagreed with Scalia’s statements.

That was the conclusion of Hannah Smith, a lawyer with the Becket Fund for Religious Liberty. She spoke at a recent discussion of Scalia’s legacy at the Newseum in Washington.

Scalia’s views on the prominence of religious faith in American public life were his trademark. “He really didn’t hold anything back,” Smith said. “He had a very clear idea that religion must be protected on the public stage.”

Scalia went further than that in his last public speech Jan. 2, just over a month before his unexpected death at a Texas resort.

He told his audience at Archbishop Rummel High School in Metairie, Louisiana, that the idea that government must be neutral between religion and an absence of religion had “no place … in our constitutional tradition.”

“Where did that come from?” he asked. “To be sure, you can’t favor one denomination over another but can’t favor religion over non-religion?”

“God has been very good to us,” he continued. “That we won the Revolution was extraordinary. The Battle of Midway (in World War II) was extraordinary. I think one of the reasons God has been good to us is that we have done him honor. Unlike the other countries of the world that do not even invoke his name, we do him honor. In presidential addresses, in Thanksgiving proclamations and in many other ways.

“There is nothing wrong with that and do not let anybody tell you that there is anything wrong with that,” he said.

“I disagree with almost everything that Justice Scalia did,” said J. Brent Walker, executive director of the Baptist Joint Committee for Religious Liberty. He said the Establishment Clause of the First Amendment does not specifically favor religion, but rather, religious liberty for all.

The example that gave Smith so much hope for Kagan was in the 2011 oral arguments in Hosanna-Tabor vs. Equal Employment Opportunity Commission.

A teacher who had been fired by Hosanna-Tabor Evangelical Lutheran School in Redford, Michigan, challenged the “ministerial exception” of the Civil Rights Act. The exception prohibits most employment-related lawsuits when employees perform religious functions at schools. The teacher, Cheryl Perich, was what is known as a “called” teacher, having met criteria of the church for a level of religious training.

Hosanna-Tabor argued that because Perich taught some religion classes, she was a ministerial employee and therefore exempt from federal law.

Chief Justice John Roberts asked Leondra Kruger, the government’s attorney, whether the court could accommodate even a limited ministerial exception. Kruger responded that the justices should make no distinction between religious employers and those with “expressive associations.”

“That’s extraordinary … that’s extraordinary,” Scalia retorted.

Kagan, “to her credit,” Smith noted, jumped in as well: “I too, find that amazing, that you think that … neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church’s relationship with its own employees.”

“There’s nothing in the Constitution that explicitly prohibits the government from mucking around in a labor organization,” Scalia said, adding, “There — black on white in the text of the Constitution — are special protections for religion. And you say that makes no difference?”

The court eventually ruled unanimously in favor of the school, saying that churches, their schools and other religious groups “must be free to choose their teachers and employees when their primary duties consist of teaching, spreading the faith, church governance, etc., without government interference.”

Regardless of what happens with President Barack Obama’s nomination of Chief Judge Merrick Garland, of the U.S. Court of Appeals for the District of Columbia Circuit, to replace Scalia, “I think what we should be hopeful for is that we have justices like Justice Kagan who said, ‘I, too, find that remarkable,'” Smith said.

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  • Charles C.

    It was a unanimous opinion. Not even the most ardent critics of religious liberty voted against it. Yes, it’s good that Kagan was willing to make a tough comment during oral argument, but how is she in the cases which aren’t slam dunk?

    During oral arguments in the Little Sisters of the Poor case she appeared to take the side of the government, against the Little Sisters

    “Justice Elena Kagan said she could not understand how the Catholic
    charities could refuse to even notify the government they would not
    provide contraceptive coverage to their employees. You “object to
    objecting,” she said.”

    Kagan is not our next Scalia, nor is she a strong religious liberty advocate.

    If you are really concerned about the makeup of the Supreme Court, don’t vote for the party that says religious freedom is subordinate to the government’s desires and must be subject to any anti-discrimination law.

  • Paula Ruddy

    I think all the current Supreme Court Justices are strong advocates for religious liberty. It is a First Amendment protection they have sworn to uphold. The Court has to balance the interests of the government legislation with the burden the law places on the free exercise of people’s religion. If we really valued freedom, I don’t think we would be so quick to want the law to force people to behave the way we think they ought to behave. Why won’t the Little Sisters respect the freedom of conscience of their employees, as long as they do not have to pay, to arrange for, or to implement the insurance coverage? Is it about freedom or is it about keeping people from using contraceptives? I think the bishops should be honest about that.

    • Maria Wiering

      Thanks, Paula! As a note, it is our policy not to allow links in our comments, as we can’t monitor where they lead. It’s fine for you to refer to people to your source, just not provide a URL.

    • Charles C.

      Dear Paula,

      As usual, you raise several interesting points, and as usual you confuse me a bit. But that’s fine because I’m easily confused.

      It seems that you think this case has something to do with forcing the employees to behave as we want them to behave, when actually, it’s about forcing the Little Sisters to behave as the government wants them to behave. The Little Sisters aren’t (as far as I know) telling their employees that they can’t take contraceptives or even have abortions.

      Which makes me wonder about your comment about the employees’ “Freedom of Conscience.” They can do whatever they want to do or whatever their conscience tells them to do. Nothing is preventing that. The employees still have total freedom of conscience.

      “as long as they do not have to pay, to arrange for, or to implement the insurance coverage” Unfortunately, the Little Sisters DO have to do that. Remember that the government is arguing that if the Little Sisters don’t (sign a form, write a letter, do a dance, or whatever) the contraceptive coverage won’t be available. That means the government is saying that it’s an action of the Little Sisters which will put abortifacients into the hands of people, paid for by the insurance companies.

      “Here, the government has given religious ministries, like the Little Sisters, three choices: (1) comply directly with the HHS Mandate by paying for the abortifacients themselves; or (2) sign a form that will make an insurance provider pay for and provide the abortifacients; or (3) pay an enormous financial penalty for failing to do either (1) or (2).”

      One federal judge wrote:
      “I am aware of no precedent holding that a person’s free exercise was not
      substantially burdened when a significant penalty was imposed for
      refusing to do something prohibited by the person’s sincere religious
      beliefs (however strange, or even silly, the court may consider those
      beliefs).”

      The Little Sisters are facing fines of $70 million dollars, that’s a significant penalty.

      By the way, ExxonMobil, Pepsi, Chevron, Visa, Inc, the US Military, are exempt from the requirement that all their plans include contraceptive pills. It has been estimated that about a third of Americans don’t have contraceptive coverage in their health plans.

      The Little Sisters are asking why, if Pepsi which has no religious objection, can get regulations written which exempt them, why can’t they get one?

      What is it about? Simply that the government should not have the power to force people to perform acts which violate sincere religious beliefs by threats of massive fines. The Little Sisters aren’t keeping anyone from using contraceptives, they just don’t want to take part in getting them.

      • Paula Ruddy

        “The Little Sisters aren’t keeping anyone from using contraceptives, they just don’t want to take part in getting them.”
        Objecting to the government’s plan that their employee’s insurance can cover contraception makes it more difficult for the women who want coverage to get it. I think that is the point of their objecting. The government does not need the Little Sisters’ authorization to regulate the insurance industry. The government is the authority triggering the coverage. The ethical burden of making contraception free and easy falls on the government in this case. Moreover, Catholic moral reasoning would not hold the employer morally responsible for any employee’s use of contraceptives or for the government’s mandating the coverage. How does it differ from a male employee going to his insurance covered physician for a vasectomy? Were the Catholic employers covering insurance for contraceptives and vasectomies before the ACA mandate? Rather than fighting the legal system, I think it would be better for the U.S. bishops to reason with their people directly about family planning, finding out the sense of the faithful about the problems and what the best moral solutions might be.