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July 10, 2014 Justia.com - When I was in third grade, my family moved from Richardson, Texas, to Wheaton, Illinois. It was an eye-opening move for this Presbyterian, because I had had no sense of being an outsider in Richardson, but felt acutely out-of-place in the city of Wheaton, which was controlled by Wheaton College and the Wheaton Bible Church. The city was dry; the pervasive ethos was that you needed to be “saved” to make it to Heaven; and there were “true believers” and then the rest of us.
Many of my friends were part of the evangelical culture, and eventually I was “saved” at an enormous Billy Graham event and joined, for a period of time, the youth group at the Bible Church. I will never forget being invited to a Bible study one afternoon after school. We gathered in an apartment living room filled with fellow students sitting on the floor, chairs, and the couch. I do not even remember the Bible verse that prompted the comment, but early in the event, the prayer leader declared that “all Catholics are going to hell.” Heads bobbed up and down around the room.
I stood up and left, never to return.
Wheaton College Demands RFRA Accommodation to Avoid Providing Some Reproductive Coverage for Its Female Employees
I honestly don’t know whether Wheaton evangelicals have changed their minds about Catholics’ chances at salvation, but as the National Catholic Reporter
notes, there is now a shared political universe of the two faiths in the Republican Party. Thus, perhaps it was inevitable that after the male Catholic members of the Supreme Court (a majority of the Court) declared that closely held corporations have souls and, therefore, can use their faith to deprive their female employees of reproductive health coverage in Burwell v. Hobby Lobby, the next organization to step into the spotlight was Wheaton College. And wouldn’t you know it: the men who interpreted RFRA to force accommodation of for-profit nonreligious corporations in Hobby Lobby granted the college an injunction—barring the government from enforcing the Administration’s accommodation measures for nonprofit organization—while the case was pending on the merits.
Wheaton College is seeking to avoid having to self-certify to its insurance provider that it objects to covering some contraception; it is the self-certification to which Wheaton objects, just as the University of Notre Dame had objected. Notre Dame lost in the Seventh Circuit, so in that circuit Wheaton should have lost as well, except that the Supreme Court protected it for the time being.
The Hobby Lobby majority actually played games with this accommodation, implying at one point that the nonprofit accommodation would pass muster under RFRA while dropping a footnote saying it wasn’t deciding the issue. Justice Kennedy’s concurrence also implied it was constitutional. Yet, the Court’s issuance of the injunction raised concerns that this accommodation might fail as well as the Obama Administration’s refusal to accommodate for-profit nonreligious corporations. The Court’s statement that the injunction was not a decision on the merits was cold comfort for women.
It was, all in all, a pretty bleak week for female employees across the country. The three female members of the Supreme Court, who dissented in Hobby Lobby, also dissented spiritedly from the Court’s apparent siding with Wheaton College.
The Rancor at the Court Shines a Light on RFRA’s Faults
From where I am sitting, though, there is finally some light at the end of the tunnel. After litigating Boerne v. Flores, I came to understand the dangers inherent in extreme religious liberty in ways few others could. It was not an easy education, nor always welcome, but it was impossible to ignore. So, after the Religious Freedom Restoration Act (“RFRA”) was declared unconstitutional in Boerne, I thought, “Good, that’s that.” But then, of course, the religious lobbyists ran back to Congress and demanded another bite of the apple of extreme religious protection. As the propaganda and misdirection swirled once again through the halls of Congress about the First Amendment and free exercise, I contacted every group I could think of that would be negatively affected by a new RFRA.
It was a classic case of shouting into the wind. I was a newly tenured upstart who had just won a big case at the Supreme Court, but big deal. In that era, it was still taboo to say that religious believers could be dangerous. Some groups politely thanked me, others hung up on me, while still others agreed with me privately but made it clear they would never oppose “religious liberty” in the public square—it was too politically risky, regardless who would be harmed. What was an academic to do? Over time, I gathered facts, started files, and wrote the first edition of God vs. the Gavel. And wrote column after column, and spoke, and wrote some more.
Now, some of those groups are in the forefront of fighting RFRA and the Hobby Lobby decision in Congress, with some demanding repeal and others demanding amendment. Music to my ears! It is a relief to me that the Supreme Court showed RFRA’s true light in Hobby Lobby, and then reinforced RFRA’s divisiveness with its quick Wheaton College ruling. In case anyone thought for a second that Hobby Lobby was a one-time gift for a couple of employers, Hobby Lobby and RFRA are a “gift” that will never stop taking until the latter is repealed.
For those thinking that we only need to protect women from this pernicious law, I can only tell you that that is beyond short-sighted. Don’t worry; I won’t be making any cold calls this time around. I am hoping, though, that the hundreds of organizations and millions of Americans who are enraged with the Hobby Lobby decision shift their attention from the Court and train it where it needs to be instead: on the members of Congress who are responsible for the religious rancor, the discrimination, and the shameful treatment of employees and women engendered by RFRA.
Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts, www.RFRAperils.com, and statutes of limitations for child sex abuse, www.sol-reform.com. Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is firstname.lastname@example.org.