The Freedom From Religion Foundation (FFRF) has placed a full-page advertisement in the July 3 issue of the New York Times, protesting against the Supreme Court’s recent decision (in Burwell vs. Hobby Lobby) that two for-profit corporations with sincerely held religious beliefs do not have to provide a full range of contraceptives at no cost to their employees, pursuant to the Affordable Care Act. The two companies in question are closely held corporations, like 90 per cent of all businesses in the United States. Brett Logiurato, writing for Business Insider, points out that closely held companies comprise 52% of the American workforce, citing a 2002 study from New York University. Writing in National Review Online (July 1, 2014), Matt Bowman argues that the Supreme Court decision would apply to all contraceptives, and not just those which also act as abortifacients. A new Rasmussen poll find that most Americans agree with the Supreme Court’s decision: 49% believe a business should be allowed to opt out of providing coverage for contraceptives if providing such health insurance coverage violates the religious beliefs of the business’ owner, 39% disagree, while 12% are undecided.
Mistake #1: FFRF gets its science wrong
Ball-and-stick model of the Levonorgestrel molecule. Levonorgestrel is the active ingredient of Plan B and the morning-after pill. According to the Website of the manufacturer of Plan B, the drug works mainly by stopping the release of an egg from the ovary, but “may also work… by preventing attachment (implantation) to the uterus (womb).” Image courtesy of Wikipedia.
The Freedom From Religion Foundation, in its advertisement, declares:
The Supreme Court’s ultra-conservative, Roman Catholic majority — Justices Roberts, Scalia, Alito, Kennedy and Thomas — has sided with zealous fundamentalists who equate contraception with abortion. (Emphasis mine – VJT.)
A similar criticism was voiced by Sally Kohn, writing in the Daily Beast (Hobby Lobby: Sex, Lies, and Craft Supplies, July 2, 2014):
What the majority ruling also doesn’t question is Hobby Lobby’s assertion that Plan B, Ella, and IUDs are “abortofacients” (sic – the Supreme Court decision correctly spells the word as “abortifacients” – VJT). This is unquestionably, factually wrong. Even if you believe that preventing the implantation of a fertilized egg constitutes abortion (itself a hotly debated issue even among anti-abortion adherents), there is very little evidence that these forms of contraception work that way. Every scientific and medical study says so, as does the FDA. In fact, says Susan Wood, a former assistant commissioner at the FDA, these medicines’ “only connection to abortion is that they can prevent the need for one.”
Three quotes will suffice to refute this nonsense. The first is from an online article titled, Plan B’s Manufacturer: Pills Can Be Abortifacient (April 27, 2013) by Dr. Dianne N. Irving. Dr. Irving is a former career-appointed bench research biochemist/biologist (NIH, NCI, Bethesda, MD), an M.A. and Ph.D. philosopher (Georgetown University, Washington, D.C.), and Professor of the History of Philosophy, and of Medical Ethics. She writes:
It is frankly mind-blowing that there is even a question about whether or not the “emergency contraceptive” Plan B can be abortifacient. Does no one read the manufacturer’s own website? Here it is, on Barr Pharmaceutical’s own website:
as of April 27, 2013
How does Plan B One-Step® work?
Plan B One-Step® is one pill that has a higher dose of levonorgestrel, a hormone found in many birth control pills that healthcare professionals have been prescribing for several decades. Plan B One-Step® works in a similar way to help prevent pregnancy from happening. It works mainly by stopping the release of an egg from the ovary. It is possible that Plan B One-Step® may also work by preventing fertilization of an egg (the uniting of the sperm with the egg) or by preventing attachment (implantation) to the uterus (womb).
If THEY don’t know, then nobody knows. Thus why aren’t these known, admitted scientific facts by the very manufacturer of Plan B used as the basis for determining if Plan B is possibly abortifacient or not? As they themselves state, sometimes IT IS abortificient, because it can “prevent attachment (implantation) to the uterus (womb)”. Did anybody look it up?
As readers can verify for themselves, the manufacturers of Plan B still say the same thing on their Website, even today.
My second quote is taken from an embryology textbook cited by Dr. Dianne Irving in an online article titled, “Contraceptive” and “Morning After” Pills: Women and Young Girls, You’re On Your Own (April 5, 2013):
Although life is a continuous process, fertilization … is a critical landmark because, under ordinary circumstances, a new, genetically distinct human organism is formed … Fertilization is the procession of events that begins when a spermatozoon makes contact with a secondary oocyte or its investments, and ends with the intermingling of maternal and paternal chromosomes at metaphase of the first mitotic division of the zygote. … Fertilization takes place normally in the ampulla (lateral end) of the uterine tube. [Ronan O’Rahilly and Fabiola Muller, Human Embryology & Teratology (3rd ed.)(New York: Wiley-Liss, 2001), p. 31] (emphases added)
My third quote is taken from Margaret Sanger, the FFRF’s anointed
champion of women’s reproductive freedom:
Any attempt to interfere with the development of the fertilized ovum is called an abortion.
(Family Limitation, Sixth Edition, 1917.)
Mistake #2: Margaret Sanger – Not Pro-Choice, and Not a Champion of Reproductive Freedom
Margaret Sanger in 1922. Image courtesy of Wikipedia and Underwood & Underwood – Library of Congress Prints and Photographs division.
Right at the top of their advertisement, the Freedom From Religion Foundation display a photo of birth control pioneer Margaret Sanger, and a quote from her writings:
“No woman can call herself free who does not own and control her body.”
Dr. Jerry Bergman has written an excellent biographical essay on Margaret Sanger, which I would recommend to readers who want to know her real life story.
I find it ironic that the FFRF chose to present Sanger as their heroine. It turns out that she wasn’t pro-choice – she even referred to abortion as “killing of babies.” In addition, Sanger, like many eugenicists in her day, advocated the sterilization of mentally handicapped people, and she thought that people with hereditary diseases had a duty not to reproduce. Influenced by the “scientific racism” of her contemporaries, she also viewed other races as inferior. Most incredibly of all, she believed that rapists weren’t responsible for their bad behavior – they simply couldn’t help it. I am reminded of the old saying: “With friends like these, who needs enemies?”
(a) Sanger was never pro-choice
The Freedom From Religion Foundation appears to be blissfully unaware of one awkward fact: Margaret Sanger was never pro-choice. She saw abortion as inevitable, so long as women were denied access to birth control, and she did not condemn women who sought abortions, viewing them as “martyrs” rather than “criminals.” Nevertheless, she viewed abortion as the killing of an “unborn child,” and she never advocated its legalization. Sanger regarded abortion as justifiable only in rare medical cases. As she wrote in her book, Woman and the New Race (New York: Brentano’s, 1920):
While there are cases where even the law recognizes an abortion as justifiable if recommended by a physician, I assert that the hundreds of thousands of abortions performed in America each year are a disgrace to civilization.
The effects of such operations upon a woman, serious as they may be, are nothing as compared to the injury done her general health by drugs taken to produce the same result. Even such drugs as are prescribed by physicians have harmful effects, and nostrums recommended by druggists are often worse still.
Even more drastic may be the effect upon the unborn child, for many women fill their systems with poisonous drugs during the first weeks of their pregnancy, only to decide at last, when drugs have failed, as they usually do, to bring the child to birth…
There is the case in a nutshell. Family limitation will always be practiced as it is now being practiced — either by birth control or by abortion. We know that. The one means health and happiness — a stronger, better race. The other means disease, suffering, death.
The woman who goes to the abortionist’s table is not a criminal but a martyr — a martyr to the bitter, unthinkable conditions brought about by the blindness of society at large.
(Chapter 10, Contraception or Abortion?)
In her book Family Limitation, Sanger wrote that “no one can doubt that there are times when an abortion is justifiable but they will become unnecessary when care is taken to prevent conception. This is the only cure for abortions” (p. 5).
During her American speaking tour in 1916, Sanger delivered a speech titled, Women and Birth Control, in which she referred to abortion and infanticide as “the killing of babies”:
But during all the long years this matter has been discussed, advocated, refuted, the people themselves—poor people especially—were blindly, desperately practicing family limitation, just as they are practicing it today. To them birth control does not mean what it does to us. To them it has meant the most barbaric methods. It has meant the killing of babies—infanticide,—abortions,—in one crude way or another.
(Reprinted in My Fight for Birth Control, 1931, page 133.)
In her work, An Autobiography (New York, NY: W. W. Norton & Company, 1938), Margaret Sanger describes how she and her colleagues advised groups of women seeking information about birth control back in 1916:
To each group we explained what contraception was; that abortion was the wrong way — no matter how early it was performed it was taking life; that contraception was the better way, the safer way — it took a little time, a little trouble, but was well worth while in the long run, because life had not yet begun. (page 216)
Finally, this is what Sanger wrote on the handbills advertising her first birth control clinic, which opened in Brooklyn, New York, October 1916:
Can you afford to have a large family?
Do you want any more children?
If not, why do you have them?
DO NOT KILL, DO NOT TAKE LIFE, BUT PREVENT
Safe, Harmless Information can be obtained of trained nurses at 46 AMBOY STREET
NEAR PITKIN AVENUE-BROOKLYN.
Tell your friends. All mothers welcome.
A registration fee of 10 cents entitles any mother to this information.
The reader will notice that Sanger warned mothers against abortion in unmistakable terms, urging them to use contraception rather than take human life: “DO NOT KILL, DO NOT TAKE LIFE, BUT PREVENT.”
(b) Sanger advocated compulsory sterilization of mentally handicapped people
A U.S. eugenics poster advocating the removal of genetic “defectives” such as the insane, “feeble-minded” and criminals, and supporting the selective breeding of “high-grade” individuals, at the Philadelphia Sesqui-Centennial Exhibition, 1926. Margaret Sanger argued that “feeble-minded” individuals should be sterilized, in her books. This fair-use image is courtesy of Wikipedia and Steven Selden, author of “Transforming Better Babies Into Fitter Families” (2005, Proceedings of the American Philosophical Society, June 2005; 149(2):199-225).
In her book, The Pivot of Civilization (New York: Brentano’s, 1922), Margaret Sanger openly advocated the compulsory sterilization of mentally handicapped people:
The lack of balance between the birth-rate of the “unfit” and the “fit,” admittedly the greatest present menace to the civilization, can never be rectified by the inauguration of a cradle competition between these two classes. The example of the inferior classes, the fertility of the feeble-minded, the mentally defective, the poverty-stricken, should not be held up for emulation to the mentally and physically fit, and therefore less fertile, parents of the educated and well-to-do classes. On the contrary, the most urgent problem to-day is how to limit and discourage the over-fertility of the mentally and physically defective. Possibly drastic and Spartan methods may be forced upon American society if it continues complacently to encourage the chance and chaotic breeding that has resulted from our stupid, cruel sentimentalism.
(Chapter 1: A New Truth Emerges)
The emergency problem of segregation and sterilization must be faced immediately. Every feeble-minded girl or woman of the hereditary type, especially of the moron class, should be segregated during the reproductive period. Otherwise, she is almost certain to bear imbecile children, who in turn are just as certain to breed other defectives. The male defectives are no less dangerous. Segregation carried out for one or two generations would give us only partial control of the problem. Moreover, when we realize that each feeble-minded person is a potential source of an endless progeny of defect, we prefer the policy of immediate sterilization, of making sure that parenthood is absolutely prohibited to the feeble-minded.
This, I say, is an emergency measure. But how are we to prevent the repetition in the future of a new harvest of imbecility, the recurrence of new generations of morons and defectives, as the logical and inevitable consequence of the universal application of the traditional and widely approved command to increase and multiply?
(Chapter 4, The Fertility of the Feeble-Minded)
In chapter 4 of the book, which is titled, The Fertility of the Feeble-Minded, Margaret Sanger approvingly quotes a doctor who describes mentally handicapped people as “a permanent menace to the race”:
[Dr.] Tredgold points out that the number of children born to the feeble-minded is abnormally high. Feeble-minded women “constitute a permanent menace to the race and one which becomes serious at a time when the decline of the birth-rate is… unmistakable.” Dr. Tredgold points out that “the average number of children born in a family is four,” whereas in these degenerate families, we find an average of 7.3 to each.
In chapter 5, titled, The Cruelty of Charity, Sanger sharply criticized philanthropic assistance to starving people in foreign countries:
The people of the United States have recently been called upon to exercise their traditional generosity not merely to aid the European Relief Council in its efforts to keep alive three million, five hundred thousand starving children in Central Europe, but in addition to contribute to that enormous fund to save the thirty million Chinese who find themselves at the verge of starvation, owing to one of those recurrent famines which strike often at that densely populated and inert country, where procreative recklessness is encouraged as a matter of duty. The results of this international charity have not justified the effort nor repaid the generosity to which it appealed. In the first place, no effort was made to prevent the recurrence of the disaster; in the second place, philanthropy of this type attempts to sweep back the tide of miseries created by unrestricted propagation, with the feeble broom of sentiment.
In “Woman and the New Race” (New York: Brentano’s, 1920), Sanger forthrightly declared that no individuals with hereditary diseases, whether physical or mental, should reproduce:
By all means, there should be no children when either mother or father suffers from such diseases as tuberculosis, gonorrhea, syphilis, cancer, epilepsy, insanity, drunkenness and mental disorders. In the case of the mother, heart disease, kidney trouble and pelvic deformities are also a serious bar to childbearing…
No more children should be born when the parents, though healthy themselves, find that their children are physically or mentally defective. No matter how much they desire children, no man and woman have a right to bring into the world those who are to suffer from mental or physical affliction. It condemns the child to a life of misery and places upon the community the burden of caring for it, probably for its defective descendants for many generations.
(Woman and the New Race, New York: Brentano’s, 1920, Chapter 7).
In an article titled, A Plan for Peace (Birth Control Review (April 1932, pp. 107-108), Margaret Sanger urged Congress to appoint a Parliament of Population, made up of qualified scientists, whose job would be “to direct and control the population through birth rates and immigration, and to direct its distribution over the country according to national needs consistent with taste, fitness and interest of individuals.”
In her proposal, Sanger spelt out the objects of this “Parliament of Population”:
The main objects of the Population Congress would be:
a) to raise the level and increase the general intelligence of population.
b) to increase the population slowly by keeping the birth rate at its present level of fifteen per thousand, decreasing the death rate below its present mark of 11 per thousand.
c) to keep the doors of immigration closed to the entrance of certain aliens whose condition is known to be detrimental to the stamina of the race, such as feebleminded, idiots, morons, insane, syphilitic, epileptic, criminal, professional prostitutes, and others in this class barred by the immigration laws of 1924.
d) to apply a stern and rigid policy of sterilization and segregation to that grade of population whose progeny is tainted, or whose inheritance is such that objectionable traits may be transmitted to offspring.
e) to insure the country against future burdens of maintenance for numerous offspring as may be born of feebleminded parents, by pensioning all persons with transmissible disease who voluntarily consent to sterilization.
f) to give certain dysgenic groups in our population their choice of segregation or sterilization.
g) to apportion farm lands and homesteads for these segregated persons where they would be taught to work under competent instructors for the period of their entire lives.
In a 1957 interview with Mike Wallace, Sanger revealed: “I think the greatest sin in the world is bringing children into the world that have disease from their parents, that have no chance in the world to be a human being practically: delinquents, prisoners, all sorts of things, just marked when they’re born. That to me is the greatest sin that people can — can commit.” (The interview makes for fascinating viewing, 57 years after it was aired. The quote is about 70% of the way along in the interview.)
(c) Sanger: a racist who thought the Australian Aborigines were just one step above chimpanzees, and who also believed that rapists couldn’t be held responsible for their behavior
Margaret Sanger was also a racist who believed that Australian Aborigines were “the lowest known species of the human family, just a step higher than the chimpanzee in brain development”, and to make matters worse, she added that they had almost no control over their sexual behavior. She believed that rapists had no control over their behavior, either. Here’s what she said in Part VI of an 11-part article titled, “What Every Girl Should Know” (New York Call, Dec. 29, 1912):
It is said a fish as large as a man has a brain no larger than the kernel of an almond. In all fish and reptiles where there is no great brain development, there is also no conscious sexual control. The lower down in the scale of human development we go the less sexual control we find. It is said that the aboriginal Australian, the lowest known species of the human family, just a step higher than the chimpanzee in brain development, has so little sexual control that police authority alone prevents him from obtaining sexual satisfaction on the streets. According to one writer, the rapist has just enough brain development to raise him above the animal, but like the animal, when in heat knows no law except nature which impels him to procreate whatever the result. Every normal man and Woman has the power to control and direct his sexual impulse. Men and women who have it in control and constantly use their brain cells in thinking deeply, are never sensual.
(In the interests of fairness, I should add that Margaret Sanger did not tolerate bigotry among her staff at the birth control clinics she founded, and that a quote that has wrongly been taken to mean that she wished to “exterminate the Negro population,” actually indicates that she did not. That said, Tanya Green’s article, The Negro Project: Margaret Sanger’s Eugenic Plan for Black America makes for chilling reading: it reveals Sanger’s belief that the less intelligent members of a race should be discouraged from reproducing.)
I have to ask the Freedom From Religion Foundation: what were you thinking, when you decided to feature Margaret Sanger in an advertisement for women’s reproductive freedom?
Mistake #3: Do corporations have a right of conscience?
The official SCOTUS portrait of Ruth Bader Ginsburg, Associate Justice of the Supreme Court of the United States. Although she dissents from the recent Hobby Lobby ruling, Justice Ginsburg nevertheless recognizes non-profit organizations as persons. Image courtesy of Wikipedia.
In its advertisement, the Freedom From Religion Foundation asserts that the recent Supreme Court decision places the spurious rights of corporations over those of women:
In Citizens United, the Supreme Court ruled that corporations are people. Now, the Supreme Court asserts that corporations have “religious rights” that surpass those of women. In the words of Justice John Paul Stevens, “Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires” — but real women do.
Allowing employers to decide what kind of birth control an employee can use is not, as the Supreme Court ruled, an “exercise of religion.” It is an exercise of tyranny.
Sean Davis wrote a scathing retort to this argument in his article, 6 Stupid Arguments About Hobby Lobby From Dumb Liberals (The Federalist, June 20, 2014):
Right. Because nothing “denies access” like paying employees a wage that they can then use to buy whatever they want.
Davis also points out that the very people who believe that bosses should not make health decisions for their employees also support Obamacare’s employer health care mandates, making them guilty of an inconsistency in their thinking:
Oddly enough, a great way to prevent employers from making health care decisions for their employees is to not pass laws requiring employers to make health care decisions for their employees. Crazy, right?
For many purposes, corporations are people
Ilya Somin, Professor of Law at George Mason University School of Law, rebuts the fallacious and oft-repeated argument that “corporations are not people” in an article in the Washington Post titled, Hobby Lobby and the legal rights of people organized as corporations (June 30, 2014). Professor Somin emphasizes that he has no personal axe to grind:
Perhaps I should add that I am not religious myself and – like the vast majority of Americans – have no moral objections to contraception. But religious freedom, like other important rights, cannot be limited to those cases where the majority approves of the beliefs of those exercising it.
As Professor Somin observes, the reason why the law recognizes corporations as people in a case like Hobby Lobby is that it recognizes that people don’t lose their constitutional rights when they act through corporations (emphasis mine):
The fundamental point here is that people organized as corporations are people too. Even the dissent by Justice Ruth Bader Ginsburg partially recognizes this, since she accepts that RFRA does apply to nonprofit religious corporations, such as those established by churches. The latter, of course, are no more natural “persons” than for-profit corporations are. In modern society, people routinely use corporations for a wide range of activities. Numerous employers, churches, schools, newspapers, charities, and other organizations use the corporate form. When they do so, their owners and employees should not have to automatically check their constitutional and statutory rights at the door.
Later in the majority opinion, [Supreme Court Justice] Alito also effectively addresses the dissent’s argument that for-profit corporations cannot “exercise religion” because their purpose to make money, not uphold religious principles. As Alito points out, the law permits commercial corporations to pursue a wide range of objectives and does not require them to sacrifice all other goals to maximizing profit. If such corporations can, for example, pursue charitable objectives, they can also pursue religious ones…
[I]t is important that the Court has reaffirmed the important principle that people do not lose vital statutory and constitutional rights when they act through corporations.
The last sentence gets to the nub of the fundamental injustice of denying closely held corporations the right to exercise freedom of conscience. A business set up by two brothers could legitimately fall under the definition of a “closely held corporation” – indeed, it has been pointed out that the Koch brothers’ business, Koch Industries, qualifies as a closely held corporation. (Incidentally, the Koch brothers’ views on some social issues are surprisingly liberal, and the brothers would be better described as libertarians than conservatives.) I have to ask: why should two brothers lose their rights to exercise their freedom of conscience when they start a business together?
In his article, Somin makes another telling observation:
There are many other ways that the federal government can expand access to contraception, including directly subsidizing it (as the Supreme Court majority points out), and legalizing the sale of birth control pills over the counter.
And precisely because the Health and Human Services Department (HHS) has already offered an accommodation to faith-based nonprofit organizations that allows them to sign a waiver giving a third-party administrator permission to take care of the birth control coverage, with no further involvement by the religious group, it appears likely that the Little Sisters of the Poor will not be able to take comfort from the Supreme Court Hobby Lobby ruling.
In her sharply worded dissent (see page 60) from the Supreme Court’s Hobby Lobby ruling, Justice Ginsburg warned that “religious employers” might object to “blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)” (see pages 92-93). I have to say that this strikes me as a specious argument. After all, the Fourteenth Amendment to the U.S. Constitution explicitly recognizes that individuals have a right to life. It is therefore perfectly appropriate for the State to forbid employers to deny their employees access to potentially life-saving treatments. Obviously, birth control does not fall into this category.
Joe Heschmeyer, a seminarian and former attorney, helpfully explains why corporations originally came to be designated as people, in a blog article titled, 4 Things You Probably Have Wrong About the Hobby Lobby Decision (June 30, 2014):
Do you know who decided that corporations are people, too? Congress. To see that, you don’t need to read any further than 1 U.S.C. §1, the very first law on the books. It reads: “In determining the meaning of any Act of Congress, unless the context indicates otherwise […] the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”
And guess what? That’s the whole point of a corporation. They enter into contracts, as if they’re people. They’re allowed to own property, as if they’re people. They have to pay income tax, as if they’re people. If you got rid of these rights and duties, you would be eliminating the entire purpose of corporations existing, which is why no one who understands corporate law seriously proposes changing this part of 1 U.S.C. §1.
But having said that, corporations aren’t really people, and there are some rights that they don’t enjoy (for example, the right to vote). So the task of the Supreme Court was to figure out whether the religious freedom protections of RFRA is one of those rights. In today’s decision, they determined that it was, at least for a closely-held corporation (that is, a corporation in which 5 or fewer people control a majority of the shares).
Heschmeyer goes on to expose the faulty legal reasoning employed by the Department of Health and Human Services (HHS) in the Hobby Lobby case (emphasis mine):
The HHS admitted that a nonprofit corporation can be a “person” under RFRA. But the HHS’ position was that a nonprofit corporation could exercise religion, but that a for-profit corporation couldn’t. So if you’re a Christian non-profit, you can exercise religion, but if you’re a for-profit Christian bookstore, you can’t.
As the Supreme Court noted, such a distinction makes no sense. That position also would make it very hard for activist corporations to exist: the HHS’ position amounts to saying that for-profit corporations can only exist for the sake of profit.
How, I ask, can the Freedom From Religion Foundation defend such an arbitrary position, which gives some corporations the rights to exercise their owners’ collective conscience, but not others?
Mistake #4: Is the Religious Freedom Restoration Act unconstitutional?
This tipi is used for Peyote ceremonies in the Native American Church, one of the main religions affected by the Religious Freedom Restoration Act, which was recently invoked by the Supreme Court in its Burwell vs. Hobby Lobby decision. Image courtesy of Wikipedia.
In its advertisement, the Freedom From Religion Foundation denies the very constitutionality of the Religious Freedom Restoration Act, passed by Congress in 1993, and invoked by the Supreme Court majority when they issued their recent ruling in Burwell vs. Hobby Lobby.
CONGRESS MUST REPEAL RFRA
EMPLOYERS SHOULD HAVE NO RIGHT TO IMPOSE
THEIR RELIGIOUS BELIEFS UPON WORKERS
The Hobby Lobby ruling is based not on the Constitution, but on the Religious Freedom Restoration Act, misguidedly enacted by Congress in 1993. RFRA radically redefines “religious freedom,” according believers extreme religious liberty, exempting them from laws they claim create substantial burdens on their free exercise of religion. Read the Freedom From Religion Foundation’s amicus brief against Hobby Lobby, written by noted state/church attorney Marci A. Hamilton, to learn why RFRA is unconstitutional: ffrf.org/Hamilton
However, in a recent article in the Washington Post titled, Is RFRA unconstitutional? (July 1, 2014), Sasha Volokh, an associate professor of law at Emory University, makes the following revealing admissions about the Religious Freedom Restoration Act, of which he is personally not a great fan (emphasis mine):
It’s true that RFRA passed unanimously in the House and nearly unanimously in the Senate — in 1993, when Congress was controlled by Democrats — and was signed by Bill Clinton, and everyone now on the Court seems to accept the constitutionality of RFRA (see, e.g., the O Centro case from 2006, or Cutter v. Wilkinson). Justice Stevens is the only one who ever showed any sympathy for the argument that RFRA violates the Establishment Clause, in his concurrence in City of Boerne v. Flores.
As Professor Volokh correctly points out, Justice Stevens once argued that the RFRA was a “law respecting an establishment of religion,” that violated the First Amendment to the Constitution. But that was in 1997, and Justice Stevens appears to have changed his mind since then.
In a recent article titled, Democrats were in favor of religious freedom before they were against it in American Thinker (July 4, 2014), Dr. Brian Joondeph documents the extensive level of support that the Religious Freedom Restoration Act enjoyed among Democrats when it was passed by Congress in 1993:
The RFRA was introduced following an unpopular SCOTUS decision curbing the religious freedom of Native Americans to use peyote. Congressman Charles Schumer introduced the bill in March 1993, a time when liberals were strongly in favor of religious freedom. The bill was cosponsored by many of the same Democrats braying the loudest about the SCOTUS decision, including Rosa DeLorio, Luis Gutierrez, Nancy Pelosi, and Maxine Waters. The Senate passed this bill by a vote of 97-3. Voting in favor were Senators Biden, Boxer, Feinstein, Reid, and Mikulski among many others…
At the signing, then-President Bill Clinton remarked, “We all have a shared desire here to protect perhaps the most precious of all American liberties, religious freedom.” He also noted that “our laws and institutions should not impede or hinder but rather should protect and preserve fundamental religious liberties.” Commenting on the Founders, he observed that they “knew that there needed to be a space of freedom between Government and people of faith that otherwise Government might usurp.”
The Freedom From Religion Foundation is thus objecting to an Act which is now recognized by all of the Supreme Court Justices, and which was passed almost unanimously in the House of Representatives and the Senate in 1993. I do not claim any expertise in law, but it would be a rash soul indeed who would argue that such a law violates the First Amendment, given its strong level of bipartisan support.
Mistake #5: Portraying President James Madison as an opponent of the Supreme Court’s Hobby Lobby ruling
James Madison, fourth President of the United States, is often called the Father of the Constitution. This portrait was painted by John Vanderlyn (1775–1852). Image courtesy of Wikipedia and the White House Historical Association.
In its New York Times advertisement, The Freedom From Religion Foundation concludes by citing a passage from President James Madison, the Father of the American Constitution:
“Liberty may be endangered by the abuses of liberty as well as by the abuses of power.”
– James Madison, The Federalist, #63
In fact, James Madison was an eloquent advocate of the rights of conscience. In 1789, he proposed the following amendment to the U.S. Constitution, which was to be inserted into article 1, section 9, between clauses 3 and 4 (emphasis mine):
The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.
Unfortunately, Madison’s bid to amend article 1 of the Constitution was unsuccessful; nevertheless, it gives the lie to the claim made by the Freedom From Religion Foundation, that Madison would have opposed the Supreme Court’s recent Hobby Lobby ruling.
Again I ask: why should an individual lose their rights to exercise their conscience when they enter a business partnership with another like-minded individual and set up a closely held corporation?
But the most articulate expression of James Madison’s sentiments with regard to the rights of conscience comes from his Essay on Property (29 March 1792, Federalist Papers 14:266-268), where he wrote (emphasis mine):
Conscience is the most sacred of all property; other property depending in part on positive law, the exercise of that, being a natural and unalienable right. To guard a man’s house as his castle, to pay public and enforce private debts with the most exact faith, can give no title to invade a man’s conscience which is more sacred than his castle, or to withhold from it that debt of protection, for which the public faith is pledged, by the very nature and original conditions of the social pact.
It should be obvious that President James Madison would have vehemently disapproved of any law requiring the members of a family to act against their conscience, when conducting their business dealings as a closely held corporation. The Freedom From Religion Foundation is twisting James Madison’s words.
I’d like to close by wishing my American readers a happy Independence Day.