Category Archives: Religious Liberty

Hobby Lobby

Now, before you all lose your collective shit, I want to remind everyone of one critical fact:

The Supreme Court doesn’t exist to make the morally right decision.

I’m going to repeat that, blockquote it, and bold the damn thing because it’s that important.

The Supreme Court doesn’t exist to make the morally right decision.

Now, I know that this may come as a shock to most of America. But then, Americans have never exactly had a good grasp of civics. In fact, some of the worst law comes from the Supreme Court trying to work a moral decision into the law. When you already know the outcome you want, and you start looking for any legal justification you can muster for that outcome, you’re bound to stretch in the wrong places.

No, the Supreme Court exists to make the legally right decision. And no matter your view on Obamacare, the mandate, religious liberty, and contraception, I think the Court in this case made an entirely justifiable decision that is consistent with the law.

Let’s break it down.

  1. Congress has declared in the ACA a compelling government interest in ensuring that women have insurance coverage for contraception.
  2. They have created a national health insurance mandate forcing employers (of a certain size, etc etc) to cover the cost of said contraception.
  3. In 1993, Congress passed the Religious Freedom Restoration Act, which requires that laws which violate someone’s religious beliefs must pass two conditions:
    • The law must be furthering a compelling government interest.
    • The law must be the least intrusive method of accomplishing its goal.
  4. Congress has created an exemption to the contraception mandate. If the mandate violates the religious beliefs of certain types of organizations, they have passed the burden of cost to the insurance provider or to the government itself.

So what’s the takeaway? Nothing in Hobby Lobby decision will stop women from having access to birth control. In fact, the way the system is set up, they will still have insurance coverage for free birth control!

Congress’ exemption ensures that insurance will cover these costs, even for women working for Hobby Lobby. This cost will not come out of the worker’s pocket. In fact, the very alternative accommodation that Congress created was pretty much the only reason that the Supreme Court didn’t force Hobby Lobby to pay for the insurance (from Lyle Denniston’s analysis @ SCOTUSblog):

Is that enough of an accommodation of the owners’ religious objection? The two key opinions on Monday seemed, literally speaking, to say it was.

Justice Alito wrote: ”An approach of this type . . . does not impinge on the [companies’ or owners’] belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves [the government’s] stated interests equally well.” (The government’s interest here is to assure that women have access to the birth-control services.)

Alito’s opinion for the Court went on, saying that the dissenters’ on Monday had identified “no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.”

Justice Kennedy, in his separate concurring opinion, made the same point. And, in fact, he was more emphatic. Taking note of the “existing accommodation the government has designed, identified, and used for circumstances closely parallel to those presented here,” Kennedy said flatly that “RFRA [the Religious Freedom Restoration Act] requires the government to use this less restrictive means.”

It is rather difficult to read those comments by those two Justices as anything other than a declaration that religiously oriented owners of closely held companies must be satisfied with letting the “middle man” take on, in their place, the obligation to provide the birth-control coverage. That, the comments seem to say, is good enough.

If there was no alternative accommodation in the law to cover the cost of insurance for contraceptives, the correct legal result would have been to force Hobby Lobby to pay for it. After all, I don’t think any justice disputed the idea that an insurance mandate for contraceptive coverage was NOT furthering a compelling government interest. The only question was whether the compelling government interest was satisfied in the least intrusive means consistent with the RFRA. The Court found that it was.

Now, back to the lede. Many of you out there think that it’s absurd that a corporation would be exempted from providing basic health insurance because God says contraception is abortion. And many of the rest of you think that it’s unconscionable that someone be forced to pay for something that goes against their most closely held religious beliefs; in essence funding murder. And the libertarians out there worry that if the government can make you pay for something that violates one of your First Amendment rights, there’s nothing they can’t make you pay for. These are all moral questions. These are not legal questions. The Supreme Court didn’t even try to answer these questions.

The Supreme Court found a legally consistent way to accommodate the compelling government interest declared in the ACA and the least restrictive means test demanded by the RFRA. And at the end of the day, lest I repeat it one more time, the net result is that Hobby Lobby employees will still have insurance coverage for all the free contraceptives they care to use.

Seems pretty cut and dried to me. This is much ado about nothing.

UPDATE: Now that I’ve actually read the ruling, I see an error in the above. The HHS accommodation for employers who have religious objection to these methods of contraception TODAY only applies to religious non-profits. It doesn’t apply today to for-profits. The argument of the court is that applying the accommodation to for-profit employers is a less-restrictive means to achieve the compelling government interest than the mandate, and for that reason the mandate violates RFRA. I would expect the HHS to quickly expand their accommodation in response to this ruling.

Freedom, Group Identification, and Consequences

To anyone trying to make the Cliven Bundy issue, or the Donald Sterling issue, or the Brendan Eich issue about freedom of speech…


They are unrelated, and MOSTLY irrelevant, to free speech.

None are a question of freedom of speech.

All three are a question of bad PR and violating contract terms.

These idiots are not victims of oppression… at least as far as speech goes.

“Well, that’s just your perspective… this is mine”

No… You can have your own opinions, you cannot have your own facts.

This is not an opinion or a perspective, it is a fact. In making this argument, you are entirely and completely incorrect, in both fact and in principle…

That’s not so bad… it’s OK to be wrong… everyone is wrong about many things, every day.

What IS so bad, and why you must be corrected, is that by passionately advocating such a patently false viewpoint, and making weak and specious arguments to support it, you weaken the very important ACTUAL battle to restore and maintain free speech.

Using bad arguments for your cause HURTS your cause, it does not help it.

There are some very serious threats to free speech in this country, particularly on college campuses and in schools. There are supreme court cases in this session, and coming up addressing these issues right now… and the picture is decidedly mixed.

    We are dangerously close to criminalizing, or at least accepting some kind of official sanction, on “hate speech” in this country. We already HAVE criminalized “suspect motivations”, through “hate crime” law.
    The Government is spying on and intimidating reporters, with the DOJ going after those it perceives as enemies.
    Witnesses are being suppressed out of fear of government retaliation.
    The IRS has gone after conservative political groups, simply for being conservative.
    We have enacted insane regulations about who can say what, when, and with how much and whose money, when it comes to politics and elections.


By equating things which are not about rights and freedoms, to things which are, you weaken rights and freedoms, and make them more difficult to defend.

Freedom of speech means you have the right to say as you damn well please and the government can’t stop you or punish you for it (except in some very strictly limited ways).

It doesn’t mean that private persons or organizations have to publish you, support you, employ you, associate with you, provide you with a forum or an audience, or listen to you.

Freedom of speech does not mean freedom from consequence.

If you can’t back everything you say, and accept the consequences, then perhaps your problem is not one of lack of freedom, but of lack of courage.

“But… but… political correctness… thought police… BAD”


I never said that political correctness WASN’T a chilling force on freedom of speech and even freedom of conscience… Of course it is.

…But that is not the same as government using force against you because of it (though with “hate speech” and things like campus “speech codes”, we have to be very careful of that).

The problem with believing in freedom is that you have to believe in it for everyone, including people you don’t like, or whose ideas you don’t like, or who do bad things with it.

Private individuals and organizations can choose who they wish to associate with freely, and who they wish to support or oppose freely (or at least they are supposed to be able to).

That means both things and people that you like, and things and people that you don’t.

That means you can be fired for expressing yourself. It means you can be fired for your political and social views. It means you can be fired for your private behavior. It means you can lose your customers, your money, your reputation…

In fact, everything but your life, and your freedom.

A free society means we have to put up with that.

We don’t have to like it, but we DO have to put up with it.

And many of us actually have very little problem with it… so long as it’s aligned with THEIR personal beliefs.

Frankly, I don’t see very many “social conservatives” complaining very much when it’s “progressives”, gays, atheists, muslims, “perverts” etc… who experience negative consequences for their beliefs (admittedly, that is certainly not true of all. Some do decry all of this as suppression of free speech and freedom of conscience).

Most “social conservatives” aren’t complaining when church groups or conservative groups try to get certain things banned, or removed from libraries or schools, or have teachers, or school administrators, or abortion providers fired…

…because you don’t like their ideas or how they express them.

…Really, most anyone who you would identify as the enemy, or the “other side” or whatever other outgroup identification it may be…. seems it’s ok to you if THEY have to live with the consequences of their choices, actions, and words…

Most of you are only complaining when it’s happening to those you identify as YOUR ingroup, or for people whose opinions and ideas you agree with.

Again, not always, not everyone… but most.

The same of course is true of “the other side”… starting to see the point yet?

So really… What you’re asking for is not “freedom of speech”, it’s “freedom of speech that you like”, and freedom FROM both speech, and consequence that you don’t.

That’s not freedom. That exactly the same as “the other side”… you just like the opinions better.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

The own goal of Okcupid

The ousting of Brendan Eich from his post as CEO of the Mozilla Foundation is seen by many as a blow against intolerance. It is in fact the opposite, and if gay rights groups expand such ‘outings’ as a tool to suppress opposition, they risk deepening the antagonism and resistance by people who view them as a threat to our culture.

Let us start by examining Eich.  Eich is a well regarded software developer, one of the numerous people whose brilliant inventions have made the Internet the powerful, revolutionary tool it is.  In 1995, he was hired by Netscape to produce a tool for an upcoming release.  Rather than producing the limited implementation that his bosses had envisioned, Eich invented a new scripting language, now known as Javascript.  Javascript allowed local browsers to execute code to control browser behavior.  It revolutionized the Internet; rather than browsing through static web pages served by an overworked server, it allowed a website to push logic such as form validation to a user’s computer, allowing web pages to become dynamic entities that interacted with a user.  Javascript continues to be actively developed and is used universally to this day. Anyone who spends more than a few hours on the Internet a week is almost certain to benefit from it, and thus is the beneficiary of Eich’s wonderful invention.

Given his nearly two decades of experience in maintaining and improving a critical piece of the Internet infrastructure, Eich was a logical choice to lead the Mozilla foundation.  The flagship product of this non-profit is the Firefox browser, which traces its lineage to the Netscape browser, and Eich had been one of the people who had shepherded the project as it grew like a phoenix from the ashes of a defunct company.

Now let us turn to the OKcupid complaint that was served to people using Firefox.

Mozilla’s new CEO, Brendan Eich, is an opponent of equal rights for gay couples. We would therefore prefer that our users not use Mozilla software to access OkCupid.

Politics is normally not the business of a website, and we all know there’s a lot more wrong with the world than misguided CEOs. So you might wonder why we’re asserting ourselves today. This is why: we’ve devoted the last ten years to bringing people—all people—together. If individuals like Mr. Eich had their way, then roughly 8% of the relationships we’ve worked so hard to bring about would be illegal. Equality for gay relationships is personally important to many of us here at OkCupid. But it’s professionally important to the entire company. OkCupid is for creating love. Those who seek to deny love and instead enforce misery, shame, and frustration are our enemies, and we wish them nothing but failure.

If you want to keep using Firefox, the link at the bottom will take you through to the site.

However, we urge you to consider different software for accessing OkCupid.

Now, let us be clear: the complaint against Eich had nothing to do with his job. Firefox was not an anti-gay software platform.  In fact, I doubt that it’s codebase contains any logic pertaining to sexual orientation.

The Mozzilla Foundation produces open source tools that allow people to publish informsation and communicate with each other via the Internet.  If anything the Mozilla Foundation has and will continue to help members of marginalized groups or groups that are discriminated against to connect with and support each other.

That wasn’t going to change with Eich at the helm.

So, OKCupid wasn’t upset at the way Eich was doing his job, they wanted to fire him because they hated that he had once supported a political movement they hated. They wanted nothing but failure for him.

But what was his crime?  The political movement he had given $1,000 to that lost in the courts.  Proposition 8 cratered.  Completely.  And with changing demographics, it will be decades before something like it has a chance of winning at the polls and being upheld by the courts.

In short what the senior officers of OKCupid were hoping to do was to intimidate the opponents of gay marriage into silence.  Rather than being gracious victors who foster peace, they wished to continue fighting.  And in doing so, they will only embolden their opponents in the culture war to fight harder.

Most of the opponents of gay marriage fear the cultural upheaval that would result from such a massive change to an institution that they see as the foundation of society.  The way to get them to accept the change is by showing them that the inclusion of homosexual relationships in the set of legally sanctioned unions will not destroy society, that their lives will continue, their communities prosper, and their children will be allowed to grow to realize their potential.

Attempting to destroy their livelihoods and drive them out of civil society will go against that goal.  Persecuting them will only harden their hearts against those who persecute them.   OK Cupid did not strike a blow for tolerance.  Rather, they flamed the fires of intolerance, and who knows what those flames will consume should those fires burn out of control.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

ACLJ Threatens Lawsuit Against Public School that Supports Muslim Missionary/Charity Efforts

The following, unbelievable story is happening in America of all places!

DEARBORN, MI This past fall, Emily Sanders enrolled her son Adam into Haigh Elementary School in Dearborn. Emily a devout Evangelical Christian is a single mom trying to make ends meet and faces additional challenges as a minority in a majority Muslim community. “I don’t normally let these kinds of [religious] differences bother me,” Emily said. “But when my child brought home a note from the school requesting a donation to a Muslim charity with an agenda to spread their faith with my tax dollars, I had to take a stand.”

The letter Emily is referring to one sent to all the parents from the school’s principal, George Ellis. Part of the letter read: “We are very proud to be part of this charity that provides hope to poor children of Somalia. Please send a care package (shoe boxes work great!) filled with toys, candy, coloring books, crayons, and other such goods along with a $7 check (to cover shipping) made out to Crescent Hope. We will be collecting these donations, Friday, December 5th during Eid al-Adha.”

Emily, being unaware of the Islamic holiday Eid al-Adha and the charity Crescent Hope at first shrugged it off. “Sending toys and candy to poor children sounds like a great thing at first glance but when I saw that there was more to this charity than this, the alarm bells started going off.”

The alarm bells were triggered primarily from a key section of text on Crescent Hope’s home page: “We provide spiritual and physical aid to the children of Somalia with the purpose of sharing the Prophet Muhammad’s message of hope and peace.” Further down on the home page reads: “[T]he children receive the packages, each complete with a pledge they are encouraged to sign that states that they agree to the statement: ‘There is no god but Allah and Muhammad is his prophet.’”

Upon reading this, Emily decided to take action by contacting the American Center for Law and Justice (ACLJ), a religious rights advocacy organization which primarily files lawsuits on behalf of Christians who have been victims of religious discrimination. The very next day, Emily was contacted by the ACLJ’s Chief Council Jay Sekulow. After about an hour long conversation with Emily, Sekulow promised to take action against the school.

On Wednesday, November 20th, Sekulow made good on this promise sending the school’s principal a cease and desist letter. After mulling over his options, Principal Ellis announced to the school children that the packages would be returned to the students and no other donations would be accepted adding: “It’s disappointing some meaningful efforts of our students were misinterpreted.”

Manahil Al-Asmari, mother of three students who attend Haigh Elementary had a typical response of many of the parents: “I don’t understand why the ACLJ wants to deny these gifts to these poor children. I mean the school wasn’t forcing any of the students to participate who didn’t want to participate.” Another mother who didn’t want to be named said: “This is discrimination against Muslims pure and simple! If this was for a Christmas toy drive, no one would bat an eye.” Her son agreed adding “This is the definition of bullying.”

Others such as the Dearborn Chapter President of CAIR, Aahil Muhammad is organizing a protest against the school’s decision. “Whether the Christians like it or not, this is a majority Muslim community and they are the minority. We shouldn’t be denied our religious freedom because the minority is offended by our beliefs. I should also point out that it was the student body who decided to support Crescent Hope and the administration supported that decision – at least until ACLJ came along.”

Outrageous isn’t it? The idea taxpayer funded government schools can be used as a vehicle to promote a religious agenda different than your own? Before you continue reading, think about what you are feeling at this moment. Is this right or should Emily have just respected the will of her community?
» Read more

Gay Marriage, Religious Rights, and Freedom of Association

(Re-post: originally posted November 23, 2008)

California’s Proposition 8, the ballot measure aiming to outlaw same sex marriage, passed on a very close vote. Prop 8’s supporters* pushed a campaign of fear, misinformation, and a complete distortion of the meaning of individual liberty. This campaign commercial is typical of the intolerance and hysteria being promoted from the “yes” campaign.

Argument #1: Churches could be forced to marry gay people.

Argument #2: Religious adoption agencies could be forced to allow gay couples to adopt children; some adoption agencies would close their doors as a result.

Argument #3: Those who speak out against gay marriage on religious grounds will be labeled “intolerant” and subjected to legal penalties or social ridicule. Careers could be threatened.

Argument #4: Schools will teach students that marriage is between “party a” and “party b” regardless of gender. Schools also teach health and sexuality and would now include discussions of homosexuality.

Argument #5: There will be “serious clashes” between public schools and parents who wish to teach their children their values concerning marriage.

Argument #6: Allowing gays to marry will restrict or eliminate liberties of “everyone.” (Example: Photographers who do not want to work at same sex weddings)

Argument #7: If Prop 8 fails, religious liberty and free speech rights will be adversely affected.

My response to these arguments is that we should be advocating for more freedom for everyone rather than restrict freedom of a group or class of people. The state should recognize the same contract rights** for a gay couple as it would between a man and a woman. To get around the whole definition of marriage issue, I would propose that as far as the state is concerned, any legally recognized intimate relationship between consenting adults should be called a “domestic partnership.” From there the churches or secular equivalent to churches should have the right to decide who they will marry and who they will not (just as they do now).

Rather than subject an individual’s rights to a vote or either party forcing their values on the other, we should instead advocate freedom of association and less government in our everyday lives. Somewhere along the way, we as a people decided that the government should involve itself more and more into the relationships of private actors. The government now has the ability to dictate to business owners quotas of who they must hire, family leave requirements, how much their employees must be paid, and how many hours they work (among other requirements). For the most part, businesses which serve the public cannot deny service to individuals for fear of a lawsuit.

A return to a freedom of association society would remedy arguments 1, 2, 6, and 7 from this ad. As to Argument #3, the anti-gay marriage folks are going to have to realize that in a free society, they are going to have to deal with “social ridicule”*** or being called intolerant. Anyone who takes a stand on any issue is going to be criticized and called names. In a freedom of association society, an employer would have every right to decide to layoff individuals who hold views or lifestyles they disagree with.

While we’re on the subject of intolerance, perhaps we should take a moment to consider if people who would deny equivalent rights which come with marriage are intolerant. This ad is exactly the same as the previous ad except that the words “same sex” and “gays” have been replaced with “interracial.”

Believe it or not, there was a time in this country when there were such laws against interracial marriage. Those who argued against interracial marriage made very similar arguments to what the anti-gay marriage people are making now. Today most of us would say those people were intolerant.

Intolerance aside, Arguments 4 and 5 can also be answered by reducing the role of government in our lives. What the “yes” people should be arguing for is a separation of school and state. While we as a nation are trending toward more government involvement in K-12 education, those who do not want the government schools to teach their children the birds and the bees or enter into discussions of homosexuality can put their children in private schools which share their values or home school. School Choice is the obvious answers to these concerns.

Prop 8’s supporters have turned the whole idea of individual liberty on its head. They claim that in order to preserve the rights of the greatest number of people a minority of people necessarily must sacrifice their rights. This is absurd and dangerous. Perhaps it is this complete misunderstanding of individual rights among Californians which contributed to Prop 8’s passage.

When explained properly, the rights of life, liberty, and property is the easiest concept to understand.

Hat Tip: The Friendly Atheist

Posted Elsewhere:

Dan Melson @ Searchlight Crusade has written a very thought provoking post on this issue. Some of his arguments I agree with, others I don’t but all of his points are well argued.

» Read more

1 2 3 4 5 17