Religion clauses

by Jeremy Leaming

Over the weekend The New York Times’ Sheryl Gay Stolberg provided a relatively glowing profile of Brian Brown, the leader of the rabidly antigay group called the National Organization for Marriage.

Brown, Stolberg tells us, has “an open face and easy laugh that belie his status as a divisive figures in the culture wars” and a “keen sense of strategy and a polished speaking style, traits that unnerve his opponents.”

Beyond lavishing praise on Brown’s lobbying abilities, Stolberg had to provide us a bit of information about his arguments against same-sex marriage – and those arguments are hardly polished or keen. They’re Christian Right retreads. Legal recognition of same-sex marriage will threaten religious liberty and undermine the sacredness of marriage, the Christian Right argues.

For example, Brown said, “When you knock over a core pillar of society like marriage, and then try to redefine biblical views of marriage  as bigotry, there will be consequences.” He then asks will a push to “normalize pedophilia occur.”

Like other Christianists Brown also comes around to the topic of children – if lesbians and gay men can legally wed they’ll adopt even more children and according to Christian Right groups that’s really bad news for children.

These arguments regarding the ability of gay couples to raise children and the supposed threats to religious liberty are more than overwrought, they’re inaccurate. But peddling this nonsense has been a high priority for Brown and his allies in the Christian Right community for a long, long time.

Boston College law school professor Kent Greenfield in a piece for The American Prospect titled “Weird Friends of the Court,” highlights a few of the “friend-of-the-court briefs” lodged by religious groups in both cases – Hollingsworth v. Perry and U.S. v. Windsor – that the Court will hear oral argument in this week.

Greenfield notes upfront that controversial cases, such as the Perry and Windsor, “bring out the crazies, and crazies can hire lawyers to write a brief. And sometimes the crazies are the lawyers.”

And then Greenfield gives us some examples. The far-right Thomas More Society declares gay people can’t have sex. “A man and woman, and only a man and a woman, are capable of engaging in sexual intercourse.” Greenfield adds, “Now that’s going to come as a surprise to some people.” No kidding.

Fortunately there are likely many more serious, thoughtful briefs lodged before the Supreme Court. This blog has noted some of them here and here.

Georgetown Law Center Professor Nan Hunter and Columbia Law School Professor Suzanne Goldberg have lodged briefs in both cases. During a recent interview with ACSblog, Goldberg briefly described some arguments advanced in those briefs.  

by Leslie C. Griffin, William S. Boyd Professor of Law, UNLV Boyd School of Law

The Obama administration recently offered more accommodations to the religious employers who oppose women’s reproductive freedom and seek exemption from the Affordable Care Act’s mandate that employee insurance coverage extend to contraception and sterilization. The employers won two big victories. First, the definition of religious employer was expanded to include not only organizations where everyone shares one faith but also those that employ or provide services to individuals who are not members of the same religious community. Second, the employers will not have to provide the coverage. Instead, the insurance companies will independently contact employees and make separate contraceptive policies available to them at no charge. The insurance companies will cover the costs of this new arrangement and, presumably, pass them on to other consumers.

The new rules are responsive to repeated and vociferous complaints about the president’s war on religion. As soon as the Secretary of Health and Human Services, Kathleen Sebelius, first announced that religious employers would be expected to provide contraceptive and sterilization coverage at no cost to employees, the nation’s Catholic bishops attacked the president for his unprecedented assault on religious freedom. Those critics ignored the fact that the idea of requiring employers to protect women’s equality by providing insurance was not new or unprecedented. Twenty-six states have similar laws, and the highest courts of New York and California upheld their women’s contraceptive equity statutes against First Amendment claims.

With the federal act currently under challenge in 45 lawsuits, however, the administration chose to compromise rather than to press the legality of its actions on behalf of women’s equality. The strategy of compromise has been unsuccessful. Even the new accommodations have not satisfied the administration’s critics. The Catholic bishops still believethat the president should compromise even more by extending the exemption to secular, for-profit corporations run by religious individuals. And Kyle Duncan, the general counsel of the Becket Fund for Religious Liberty, which has sponsored much of the litigation against the mandate, stated that the new rules do “nothing to protect the religious freedom of millions of Americans.”