Everyone should obey the law. Obeying the law protects peace, public order, and good health.
The First Amendments Religion Clauses were designed to protect such a legal system. They aimed to keep a diverse population at peace by giving them one shared system of law. That system sensibly arose from the terrible Wars of Religion, which are the main historical background to religious freedom in the United States. Religions always disagree, and frequently dispute their disagreements. Therefore, the common law cannot be religion-based, and everyone must follow it. Professor Ellis West made this point in his book, The Free Exercise of Religion in America: Its Original Constitutional Meaning, when he concluded it is highly unlikely that early Americans believed that the free exercise of religion entails a right to religion-based exemptions from civil laws that the government has a right to pass (p. 305).
Occasionally the Supreme Court understands this point, as it did in Employment Division v. Smith, the sensible, yet controversial, case that ruled everyone must obey the law, without judicially-concocted religious exceptions. Smith is frequently criticized, and may be overruled soon. Post-Smith, moreover, Congress and many state legislatures granted legislative exemptions to religions through their federal and state Religious Freedom Restoration Acts (RFRAs).
It was the federal RFRA, not the Free Exercise Clause, that granted employers the right to refuse contraceptive insurance to their employees in Burwell v. Hobby Lobby. Even though using contraceptives is a constitutional right, and even though the government was trying to pass universal health care coverage in the Affordable Care Act, i.e., health care coverage that would cover everyone, RFRAs religious exemption gave many employers the right to disobey health law and set their own no-contraception standard. President Donald Trump has expanded the exemption so that even more employers can deny their employees the insurance coverage. The employers no longer have a responsibility to report their denials to the government or the insurance company. Trump also threatened to cut off all federal health aid to California because it has a law that requires insurance companies to cover constitutionally-protected abortions.
Trump has also enlarged medical conscience against patients rights. Medical personnel already enjoyed extensive conscience clause protection, a legal right given to protect them from providing any service they do not want to provide. Trumps new religious freedoms policies allow medical personnel to refuse patients for any reason of conscience. The medical conscience trumps the health of women, LGBTQIs, people of color, minorities, the poor, or anyone the doctors or nurses conscience dislikes. The more appropriate, follow-the-law, standard would be to recognize that health law is supposed to protect patients health first, not consciences of medical providers.
LGBTQIs are a special object of discrimination. The dissenting justices in the gay marriage case, Obergefell v. Hodges, urged the protection of anti-gay conscience. Next term, the Supreme Court will hear a case, Fulton v. Philadelphia, in which Philadelphia refused to fund Catholic adoption agencies because they discriminated against same-sex couples in the placement of children. Philadelphia correctly wants the same antidiscrimination laws to apply to everyone. The religious freedom asked for in the case gives Catholics the possibility of winning a case in which Smith is overturned, and they earn a right to set the law their own way instead of obeying the law as it is.
Vaccines are needed by everyone in order to preserve herd immunity and protect each other from disease. States are learning what happens if they hand out religious or philosophical exemptions, letting people be vaccine-exempt for any personal reason. Outbreaks of measles in California, New York and other states have taught that everyone needs to be vaccinated. States have been changing their laws to require vaccination, realizing only everyones obedience to the health laws can protect everyone else.
For many years, religious sex abusers hid their abuse under the argument that the First Amendment protected them from the law. That claim allowed them to hide their abusers records, and to protect the abusers instead of the abused. Gradually the courts learned in many abuse cases that religious people of any status need to be sued and to be required to obey the laws that protect children. Unfortunately, not all states allow these lawsuits to proceed. There is still the wrong idea that unlawful religions are protected from court scrutiny by the First Amendment.
Due to numerous court decisions from both state and federal courts, the First Amendment now leaves religious organizations free to discriminate against anyone they call a minister. According to the Court, the right to discriminate on the basis of age, disabilities, gender, sexual orientation, race and all the other antidiscrimination laws belongs to religions. This rule is called the ministerial exception, which is an affirmative defense. It generally protects employers instead of employees because the case never gets to trial if the affirmative defense is met.
The Ninth Circuit recently ruled, correctly, that a Catholic laywoman and a non-Catholic woman were teachers, not ministers, and so able to sue their employers for disabilities and age discrimination. The Supreme Court was originally scheduled to hear oral argument in the two cases, St. James School v. Biel and Our Lady of Guadalupe School v. Morrissey-Berru, on April 1, but due to the COVID-19 pandemic, has postponed argument. We wait to see if the Court will affirm the Ninth Circuit, or will instead expand the ability of employers to turn their religious employees into ministers who can never sue for wrongdoing.
It is hard to imagine a peaceful United States that allows religions a constitutional or statutory right to discriminate against all types of people. A system that, at the same time, allows them tax benefits. Church status with the IRS gives churches tremendous advantages, allowing churches to keep private much information about them. A whistleblower recently complained that the privacy of the tax laws allowed the Latter-day Saints to make $100 billion in a supposedly tax-exempt investment fund requiring the funds to be distributed.
Bob Jones should have set that issue straight. In 1983, the Supreme Court, 8-1, upheld the IRSs decision to revoke Bob Jones Universitys tax-exempt status because the school discriminated on the basis of race. Justice Samuel Alito asked in the oral argument at Obergefell if Bob Jones would apply to cases involving sexual orientation discrimination:
Well, in the Bob Jones case, the Court held that a college was not entitled to taxexempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?
The answer to that question should be yes, but the IRS has not yet moved to make it so. The non-exempt rule should be applied to all organizations that violate antidiscrimination laws. They should not have a constitutional right to break the laws and be tax exempt while they do it.
Imagine what that a law-obeying country would look like. Everyone would obey the laws banning racial discrimination. All employers would provide contraceptive insurance. All employers and stores would respect LGBTQI rights. No law would protect child abuse or abusers. Everyone would be vaccinated to protect their own and everyone elses health. Conscience clauses would not provide medical providers a reason to deny sterilization, contraception, abortion, the right to die, or any other medical procedure to any patient.
Thats what would happen if everyone would follow the law.
Link:
Obey the Law - Justia Verdict
- Senate Passes TikTok Ban Bill, Setting Up Legal Battle Between App and U.S. on First Amendment Issues - Variety - April 24th, 2024 [April 24th, 2024]
- How the TikTok ban could survive a court challenge - Platformer - April 24th, 2024 [April 24th, 2024]
- Senate Passes TikTok Ban Bill, Setting Up Legal Battle Between App and U.S. on First Amendment Issues - AOL - April 24th, 2024 [April 24th, 2024]
- Eighth Circuit Affirms Denial of Qualified Immunity to Mayor and Police Chief of Missouri City in First Amendment ... - Law.com - April 24th, 2024 [April 24th, 2024]
- Get the Facts: How far does the First Amendment go? - WMTW Portland - April 24th, 2024 [April 24th, 2024]
- Say 'Yes' to the First Amendment Minding The Campus - Minding The Campus - April 24th, 2024 [April 24th, 2024]
- Civics lesson: First Amendment rights are broad, but there are limits - Tennessean - April 24th, 2024 [April 24th, 2024]
- SCOTUS won't review decision that ratchets up legal risk at protests - Reporters Committee for Freedom of the Press - April 24th, 2024 [April 24th, 2024]
- NPR Against the First Amendment - The New York Sun - April 24th, 2024 [April 24th, 2024]
- NPR boss once called the First Amendment a 'challenge' and 'reverence for the truth' a distraction - Fox News - April 24th, 2024 [April 24th, 2024]
- Here are the winners of the inaugural Poynter Journalism Prizes - Poynter - April 24th, 2024 [April 24th, 2024]
- Can Congress actually ban TikTok? - Vox.com - April 24th, 2024 [April 24th, 2024]
- New Stablecoin Bill Faces Criticism for Stifling Innovation and Breaching First Amendment Regulation Bitcoin News - Bitcoin.com News - April 24th, 2024 [April 24th, 2024]
- Elon Musk's Plan To Fund National Signature Campaign In Support Of First Amendment Met With Praise - Yahoo! Voices - April 24th, 2024 [April 24th, 2024]
- Trump: First Amendment protects efforts to overturn election - USA TODAY - March 29th, 2024 [March 29th, 2024]
- To Fight Ban Bill, TikTok's Best Hopes Lie in First Amendment Challenge - The Information - March 29th, 2024 [March 29th, 2024]
- Supreme Court must rely on the First Amendment, not its own precedent, when deciding government censorship case - Washington Examiner - March 29th, 2024 [March 29th, 2024]
- FIRST AMENDMENT VIOLATION?: Man removed from Cape council meeting files lawsuit - FOX 4 News Fort Myers WFTX - March 29th, 2024 [March 29th, 2024]
- Trump team's First Amendment argument is 'so weak' in Georgia election interference case - MSNBC - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - The Associated Press - March 29th, 2024 [March 29th, 2024]
- A national TikTok ban and the First Amendment - National Constitution Center - March 29th, 2024 [March 29th, 2024]
- Trump attorney says Georgia election case hinges on First Amendment Deseret News - Deseret News - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - The Atlanta Journal Constitution - March 29th, 2024 [March 29th, 2024]
- Courts Should Affirm First Amendment Rights of Youths in the Digital Age: The Case for a 21stCentury Tinker - Cato Institute - March 29th, 2024 [March 29th, 2024]
- Trump legal news brief: Prosecutors tell Judge McAfee that First Amendment doesn't apply to Trump's 'criminal intentions' - Yahoo! Voices - March 29th, 2024 [March 29th, 2024]
- Trump attorney tries to have Georgia case dismissed on First Amendment grounds - MSNBC - March 29th, 2024 [March 29th, 2024]
- Trump attorney, prosecutors spar over move to have Georgia case dismissed on First Amendment grounds - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- Donald Trump Georgia court motions hearing today live stream - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - Bowling Green Daily News - March 29th, 2024 [March 29th, 2024]
- First Amendment protects Trump from Fani Williss election interference charges, attorney argues - Washington Examiner - March 29th, 2024 [March 29th, 2024]
- Judicial Rulemaking and Lucidity: Justice Barrett's First Amendment Opinion in Lindke v. Freed - American Enterprise Institute - March 29th, 2024 [March 29th, 2024]
- First Amendment protects Trump from Fani Willis's election interference charges, attorney argues - Colorado Springs Gazette - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting election interference charges - Southernminn.com - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - messenger-inquirer - March 29th, 2024 [March 29th, 2024]
- Lawyers for the State argue against Trump First Amendment challenge in Georgia case - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- OPINION: The possible TikTok ban is an infringement on our First Amendment rights - The Suffolk Journal - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - Times Daily - March 29th, 2024 [March 29th, 2024]
- An iPhone, YouTube & the First Amendment: Man in St Louis tests boundaries of constitution through videos - First Alert 4 - March 29th, 2024 [March 29th, 2024]
- Lawyer argues Georgia election RICO case against Trump be dismissed over First Amendment - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- Abridging, Not Coercing, Is The First Amendment's Yardstick for Speech Violations - Reason - March 29th, 2024 [March 29th, 2024]
- Judge hears Trump's First Amendment challenge to Georgia charges: Watch live - Yahoo Singapore News - March 29th, 2024 [March 29th, 2024]
- Trump's attorney says election inference case should be thrown out over 1st Amendment protections - Yahoo! Voices - March 29th, 2024 [March 29th, 2024]
- Judge hears Trump's First Amendment challenge to Georgia charges: Watch live - AOL - March 29th, 2024 [March 29th, 2024]
- Judge sets new hearing date in 2020 Georgia election interference case - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- Biden Wants To Avoid a First Amendment Showdown Over WikiLeaks - Reason - March 22nd, 2024 [March 22nd, 2024]
- Justice Ketanji Brown Jackson raises eyebrows with comment that First Amendment 'hamstrings' government - Fox News - March 22nd, 2024 [March 22nd, 2024]
- West Texas drag show becomes a First Amendment battleground - The Texas Tribune - March 22nd, 2024 [March 22nd, 2024]
- Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - The Associated Press - March 22nd, 2024 [March 22nd, 2024]
- The First Amendment, the Fourth Amendment, and Substantial Encouragement - Reason - March 22nd, 2024 [March 22nd, 2024]
- News/Media Alliance Joins Brief Defending First Amendment Editorial Rights of Documentarians - News/Media Alliance - March 22nd, 2024 [March 22nd, 2024]
- The State of the First Amendment: Free Speech - University of Colorado Boulder - March 22nd, 2024 [March 22nd, 2024]
- Justices Seem Likely to Side With N.R.A. in First Amendment Dispute - The New York Times - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court Justice Kavanaugh loses patience with the judiciarys far right - Vox.com - March 22nd, 2024 [March 22nd, 2024]
- Justice Jackson ripped for worrying about the First Amendment 'hamstringing' government: 'Literally the point' - Fox News - March 22nd, 2024 [March 22nd, 2024]
- Analysis: SCOTUS Oral Arguments Bode Well For NRA First Amendment Claim [Member Exclusive] - The Reload - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court to hear First Amendment challenge to New York's financial 'blacklisting' of NRA - Fox News - March 22nd, 2024 [March 22nd, 2024]
- NRA Goes To The Supreme Court Today In First Amendment CaseHere's What To Know - Forbes - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court to hear case of former Castle Hills councilwoman who claims First Amendment rights were violated - KSAT San Antonio - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court to hear arguments in key First Amendment case challenging Biden admin teamwork with Big Tech - Fox News - March 22nd, 2024 [March 22nd, 2024]
- "Black Lives Mat[t]er" + "Any Life" Drawing "Not Protected by the First Amendment" in First Grade - Reason - March 22nd, 2024 [March 22nd, 2024]
- Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - KXLY Spokane - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court hears free speech case that united the NRA and the ACLU - The Washington Post - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court Wary of States' Bid to Limit Federal Contact With Social Media Companies - The New York Times - March 22nd, 2024 [March 22nd, 2024]
- Opinion: A First Amendment Fizzle at the U.S. Supreme Court - The Atlanta Journal Constitution - March 22nd, 2024 [March 22nd, 2024]
- The First Amendment is under attack in Americas Oceania - Washington Examiner - March 22nd, 2024 [March 22nd, 2024]
- Education Institutions Grapple With Overlap of First Amendment and Anti-Discrimination Laws - JD Supra - March 22nd, 2024 [March 22nd, 2024]
- Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - The Caledonian-Record - March 22nd, 2024 [March 22nd, 2024]
- Note to Justice Jackson: First Amendment Should Hamstring Biden - Daily Signal - March 22nd, 2024 [March 22nd, 2024]
- Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - KEYT - March 22nd, 2024 [March 22nd, 2024]
- The First Amendment Supreme Court case right wingers are crazy for - The Independent - March 22nd, 2024 [March 22nd, 2024]
- Ketanji Brown Jackson concerned First Amendment is hamstringing government from censorship - Washington Examiner - March 22nd, 2024 [March 22nd, 2024]
- Justice Jackson: First Amendment "Hamstringing" Federal Response To "Threatening Circumstances, From The ... - RealClearPolitics - March 22nd, 2024 [March 22nd, 2024]
- Opinion: Sen. Chuck Grassley should stand up for the First Amendment and support the PRESS Act - The Gazette - March 18th, 2024 [March 18th, 2024]
- The Supreme Court must protect the First Amendment in Murthy v. Missouri - Washington Examiner - March 18th, 2024 [March 18th, 2024]
- A Hillsborough judge invokes the First Amendment in a case related to a 2022 election campaign - WMNF - March 18th, 2024 [March 18th, 2024]
- John Stockton's lawyer claims first amendment violation as basis for COVID-19 lawsuit - KXLY Spokane - March 18th, 2024 [March 18th, 2024]
- Scientology Scores A First Amendment Win Over Leah Remini, But Harassment Claims Against Church Still Stand, Judge Rules - Deadline - March 18th, 2024 [March 18th, 2024]
- Supreme Court to hear First Amendment cases, weigh in on Texas immigration law - MSN - March 18th, 2024 [March 18th, 2024]
- 7 Expert Takeaways As the Supreme Court Considers Government Influence on Content Moderation - Just Security - March 18th, 2024 [March 18th, 2024]
- Conflict between First Amendment and discrimination on Broadway | Strictly Legal - The Cincinnati Enquirer - March 18th, 2024 [March 18th, 2024]