Liberal Dan Radio 3/26/2014: Hobby Lobby and Birth Control

On the March 26, 2014 episode of Liberal Dan Radio:

I will discuss Hobby Lobby and their views on birth control. That is it. The entire hour will be devoted to the problems and flaws that the Hobby Lobby case has and the arguments made before the Supreme Court. See the previous blog post for more information on where I will be coming from on the podcast.

So tune in at 8pm Central and/or download the podcast afterwards.

 

6 thoughts on “Liberal Dan Radio 3/26/2014: Hobby Lobby and Birth Control

  1. Dan,

    Thanks for the invitation to continue the Twitter exchange here on the blog. Appreciated the chance to hear your radio show too.

    Listening to the show, I was thinking “poor Conestoga Wood.” That’s the Hahn family’s Mennonite cabinet-making business in Pennsylvania and the other party in the case almost everyone knows as the “Hobby Lobby case”. Their arguments and positions aren’t identical to the Green family’s, but almost everyone seems either lump them together with the Greens or overlook them entirely. Can’t be helped, I suppose.

    So, in this post I thought I’d write a bit about the significance of the question of EC’s disputed potential to interfere with implantation. I hesitate somewhat to touch on the science because it risks creating the impression that the scientific issues are more relevant to a proper outcome of the proceedings than is actually the case. I think the law and jurisprudence in this area reasonably clear that, in Chief Justice Warren Burger’s words, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others” in order to deserve legal protection. That absolutely does not mean, of course, that any religious-based claim of this sort will legally succeed; just that its success or failure won’t turn on how rational or fact-based it seems to a court. Accordingly, whether a plaintiff believes that EC can or might impede implantation to some degree, or whether she believes that it will jinx the zygote or risk bringing a plague of locusts, would not appear to be relevant (and it would appear to be unconstitutional to treat it as relevant). Does this mean that legal outcomes should not be based on facts? Obviously not. Legal outcomes should and must be based on those facts that are pertinent to the allegations that must be proved in order to establish the elements of a particular kind of legal claim, defense or the like – and they should and must ignore other facts.

    That said, my impression is that you overstated on the show what’s in the NYT article, as have a lot of other people.

    Like most folks, I’m not a medical or pharmacological expert. I can’t form, based solely on my own authority, an opinion on biological/chemical esoterica. One thing I can generally do, though, when confronted with a statement of fact (S2) that purports to derive from the authority of one or more other statements/sources (S1), is examine and compare S1 and S2 and gauge the extent to which S2 is consistent with, fairly expresses, and/or can be inferred from S1.

    I suggested in a tweet that there was a clue up front in the very headline of the article: “Abortion Qualms on Morning-After Pill May Be Unfounded.” Now, we know newspapers well enough not to assume that a headline always accurately conveys the tenor of the article over which it appears, but does anyone think that the NYT, which has made its opinion preferences on these matters clear on the editorial pages, would slap such a noncommittal headline on the article, if the article itself could fairly support a more conclusive and less equivocal one?

    I hope you’ll reread the NYT article and take closer note of the nuanced and qualified language that characterizes it (both in the quoted sources and in the authors’ own statements): “Studies have not established”, “Probably”, “Strong evidence”, “Less is known… However, some data suggest”, “Absolute proof may be elusive”, “evidence was persuasive”.

    The other major source I’ve read on this, which I’ve also seen given as a source for strong statements disputing even the occasional possibility of EC having a post-conception but pre-implantation effect, is an amicus brief of certain medical professionals on these specific issues, supporting the government and opposing Hobby Lobby, that was submitted in the Tenth Circuit appeal below. It can be found here: http://www.scribd.com/doc/187287249/Brief-of-Amici-Curiae-Physicians-for-Reproductive-Health-et-al-in-Support-of-Petitioners

    You’ll note that, like the NYT article, there are a surprising number of less-than-conclusive statements in the brief:

    “As established by the weight of the scientific evidence, LNG [Plan B] and UPA [Ella] function primarily, if not exclusively, by inhibiting ovulation, thereby preventing fertilization from occurring.”
    “[W]hether, in fact, ella has an effect sufficient to prevent implantation of a fertilized egg is unknown and assertions that ella works in this way are speculative at best.”
    “… not been shown to have a statistically significant effect…”

    And bear in mind that this is from an actual advocacy document (unlike – we’ll assume – the NYT piece), openly intended and professionally designed to bolster one side at the expense of the other! If you were ever going to find something unequivocal, you’d expect it to be that amicus brief.

    My point here is not to attack the scientific statements or opinions reported in the NYT article or proffered in the amicus brief, but simply to observe that there is a disconnect between the article and subsequent statements we’ve heard a lot of, of the sort “science now knows”, “it is unequivocal fact”, etc. Now, in most cases I can’t independently determine whether such statements are true or false, which requires scientific expertise – all I can do is take note of the fact that if they are true, their truth must be based on the authority of sources other than the NYT article or that amicus brief, because such inferences are not warranted by and go beyond the statements in those sources.

    In this regard, I note that there’s no obvious reason why an effect too weak or a result too uncommon to be statistically significant for purposes of a scientific study can’t be morally significant for purposes of an examination of conscience. In saying this, I’m suddenly reminded, Dan, of something else you tweeted, to the effect that the Greens can’t even prove a 0.1% chance of EC affecting a zygote before implantation. Let’s assume just for a moment, though, for the sake of argument in this paragraph, that this is actually true and EC affects implantation in one in 1,000 cases on average. Now, given the other possible causes of non-implantation, the likely size range of the test groups or datasets to date, and other relevant considerations, what do you think the likelihood of scientists having been able to detect with confidence such a weak effect if one existed? I’d guess slim to none. In fact, if we were to observe the effects of EC on 1,000 unimplanted human zygotes (which seems high, frankly), there would be a significantly greater than not chance that the phenomenon wouldn’t even have occurred during the study, much less be correctly detected and separated from statistical noise.

    Looked at in that way, doesn’t that at least suggest the possibility that what’s really going on from an empirical scientific perspective is that a hypothetical weak/rare effect below a certain threshold (perhaps insignificant from the standpoint of statistics or medical effectiveness, but not necessarily insignificant to a moral decision-maker) not only hasn’t been ruled out, but can’t even be effectively looked for yet? (Which could conceivably change in the years or decades to come, as datasets increase and as more sophisticated measures and targeted experimental protocols are developed.)

    Before turning to my next point, I note that I should be interested to know your take on the argument section of a different scientific amicus brief, this one from the Supreme Court proceeding: http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/13-354-13-356_amcu_ddc-etal.authcheckdam.pdf

    (If you do read that one, note the citing of Dr. Trussell, the same expert quoted in the NYT article and the earlier pro-government amicus brief.)

    Moving on, I’d like to propose a hypothetical scenario I think might be useful to the analysis. (Kindly suspend your disbelief at its improbability.)

    A person – let’s call her Jane – may have strong reason to believe (by various measures and evidence) that a discarded refrigerator box in her backyard does not have a child playing in it, and no specific evidence that it does. However, because Jane’s moral code would seriously condemn the harming of a person, she judges that that code also imposes a duty on her not to fire a gun across the yard at the box unless and until she were certain there is no potential for the box to be occupied on this occasion. (Why would she want to take potshots at the box? And can’t she easily go confirm it’s empty? Doesn’t matter for our purposes.) “Better safe than sorry,” says Jane, “I’m not comfortable with the idea of taking a shot unless I know, even if that means never.”

    It strikes me as problematic to conclude that that’s a grossly unreasonable stance for someone in Jane’s epistemic position to take.

    Let me anticipate and dispatch some potential objections. In the remotely possible event that there is a child in the box and Jane shoots it, Jane’s causal and (under many moral codes) moral proximity to the harmful act would be greater than scenarios where Jane’s role in the incident is more attenuated, as would arguably be the case with EC. That is irrelevant to the purpose of the hypothetical, however, which more to suggest that if the existence of a phenomenon would be morally significant, the unverified but unexcluded possibility of its existence, however speculative, can also be morally significant.

    Second, it may be objected that Jane’s scenario is different because we know that guns can kill a person. So I hasten to add that the gun is not intended as a stand-in for the EC pill in this scenario. Jane knows that guns can kill; the uncertainty that troubles her is the possibility that the box, albeit improbably, might be occupied this time. EC objectors know that non-implantation kills a human zygote; the uncertainty that troubles some of them is the possibility that EC could have a post-fertilization effect that, in some case, could mean the difference between implantation and non-implantation.

    Turning back to the matter of science before I wrap up, you generally seemed in the radio show to characterize the moral position of some EC objectors as unscientific. But if a person concludes that the mere possibility that EC at times could have adverse pre-implantation effects on a zygote is a compelling consideration, can that position fairly be described as unscientific? Of course not, because science is descriptive, not prescriptive. It’s not going to instruct anyone as to exactly what level of empirical certainty is sufficient to remove moral qualms in a given case, just as it’s not going to tell us how much value to place on human life or any other thing or concept.

    At any rate, all of this really only addresses one or two major points from the show; if time permits, maybe I’ll be able to circle back to comment on some others.

    Whew! This sort of thing definitely can’t be done on Twitter; you were right about that. I appreciate the time, Dan!

    • “I hesitate somewhat to touch on the science because it risks creating the impression that the scientific issues are more relevant to a proper outcome of the proceedings than is actually the case.”

      Well, I think that the scientific issues are important as the proper outcomes should include a discussion on if beliefs that are not proven by science should be able to have control over other people and the benefits they are obtaining.

      Now, when dealing with science, and politics mind you, I am not a huge fan of the word “may”. If I am going to use something as an excuse to avoid a law, think I should have to rest my argument on something more than “may”.

      “Before turning to my next point, I note that I should be interested to know your take on the argument section of a different scientific amicus brief, this one from the Supreme Court proceeding:”

      Well they use the FDA pages that are cited in the NY Times article that the NIH, the makers of Plan B, and others object to because those disagree with the wording used.

      So to me that is problematic. I don’t know why the FDA insisted on putting something that “may” happen when other scientists (in the same government) saying that there is no may.

      I don’t think the argument “hey, the FDA says it may happen so therefor it is a justification of my religious beliefs” should hold.

      Now, for the woman shooting a box example, I think it is apt if you add one thing. The person who shoots the box gets paid from their employer for work provided. The case that Hobby Lobby is making would say that if a person shoots a box and a kid is hiding in it that the employer who paid the person the money that enabled them to buy that bullet should be in some way responsible. That, of course, is ridiculous. The employer is in no way responsible for what is purchased with the salary received from work provided to that employee. And since there is no difference between a dollar paid as a pre tax deduction for health insurance and a dollar that is spent prior to being paid as a premium paid in lieu of salary, there is no reason the employer should be at all responsible for items obtained from the salary or the benefits.

  2. Dan, during the podcast you also queried whether, if Hobby Lobby and Conestoga Wood were right, could someone invoke “Sammy Hagarism” as a religious justification for being exempt from the ordinary highway speed limits.

    Excellent question. I got a kick out of the “Sammy Hagarism” idea. But there are a few things worth knowing so you’re ready when that big black and white comes and crushes your groove again.

    First, you shouldn’t expect the Hobby Lobby and Conestoga Wood cases to have any effect on this. Whatever success (or lack thereof) you could expect from invoking Sammy Hagarism today, you can expect the same success (or lack thereof) after the Supreme Court decides the current cases. The applicable standards themselves are not up for review in this case. (Whether a for-profit business can benefit from those standards in raising a RFRA challenge is one question that is being reviewed by the Supreme Court, however.)

    What are those standards, and how would they apply to your attempt to get out of a speeding tickets by claiming adherence to Sammy Hagarism?

    You’d have to show that your Sammy Hagarism is a “sincerely held religious belief”. This technically has two parts; showing that the belief is “religious” and that it is “sincerely held”. The standard for what’s “religious” is very broad but not meaningless. The standard for “sincerely held” also favors the claimant but neither of these, especially “sincerely held”, is by any means a given. Under unusual or suspicious circumstances a court will really dig in on this one. You might have to give testimony under penalty of perjury describing the beliefs and practices of Sammy Hagarism, when you embraced it, etc.; produce sworn affidavits from potential witnesses who might have knowledge of your adherence to Sammy Hagarism and have observed your adherence to it; and so forth. Then a court would have to weigh that evidence of your adherence to Sammy Hagarism and see if the evidence is credible.

    You next have to show that the law you’re seeking an exemption from substantially burdens your exercise of Sammy Hagarism. This would generally mean that the law requires you not to do something that, for religious reasons of Sammy Hagarism, you believe must do, or requires you to do something you believe you mustn’t do, or makes important benefits or rights available to you only on the condition that you do something you feel violates your religious beliefs.

    Even if you can do all of the above, you still haven’t won your Sammy Hagarism-based exemption. The government gets the opportunity to show that denying your Sammy Hagarism-based exemption is necessary to serve a compelling government interest. Hopefully when you get to court you’ll have an excellent argument why the government has no particularly compelling interest in ensuring that Dan of the Church of Sammy Hagar drives 55, or at least why enforcing the speed limit against you is not the least restrictive means of achieving that interest.

    I believe I mentioned in a Tweet that in the Hobby Lobby and Conestoga Wood oral argument, Paul Clement (arguing against the government) addressed Sammy Hagarism-type worries head-on, noting that it’s not uncommon, for example, for people arrested with large quantities of pot in their possession to claim that they should benefit from a legal exemption because they belong to the Church of Marijuana, or some such thing. (Another common source of court challenges seeking exemptions based on suspiciously convenient and unusual “religious beliefs” is prison inmates.) Such cases already arise and are dealt with efficiently by courts, and merely being able to make such a claim hardly means that it will succeed.

    To sum up, RFRA has been around for 20 years, allowing people to try their luck with claims of “Sammy Hagarism” and all that jive, if they’re really so inclined; and the rule of law hasn’t disintegrated into chaos as a result of that. We handle such things just fine when they come up.

    At any rate, as the Supreme Court said in its unanimous benchslap to the government in the O Centro case, “[t]he Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.”

    • First let’s start off with the understanding that the idea of Sammy Hagarism is an absurd argument meant to prove a point. Obviously Van Halen was much better with David Lee Roth. If anything I would be a Rothite.

      Now, in our discussions we have determined that religious beliefs can be sincerely held without much proof at all. According to your arguments the religious beliefs need not be based in any sort of fact, logic or reason. My believing them is enough. The Greens are not required in this case to show that they actually believe that oral contraception causes abortions. All they have to do is say that it does and that is enough for the court. But if I would be required to show that Sammy Hagarism is a religion that I fervently hold I would just have to lay out the rules of Hagarism and show that I have followed them. The rules of the religion need not be complex either. I could just say that Lord Hagar laid out the rules himself and that the only rule required to practice Hagarism is to not drive 55. To show that i sincerely held this beliefs I could show evidence of a previous traffic citation proving that I indeed was not driving 55. I could also show that while government has a compelling argument for public safety that they are not using the least restrictive means by showing other jurisdictions have speed limits on highways that are greater.

      Now, on to the case. What the Greens are doing here is not just saying that as Christians they shouldn’t have to pay for oral contraception*. They are saying that as Christians they believe that oral contraception causes abortion and for employee plans to cover those pills is a violation of their religion. Well, shouldn’t they have to prove that this is, in fact, a tenet of their religion? Shouldn’t they have to show in the bible somewhere? If not, then people can just make up anything they want and say “Hey, as Christians we feel we shouldn’t be forced to do X” and as long as they prove they are Christians you seem to say that it should be allowable. That doesn’t fly in my book.

  3. “Well, I think that the scientific issues are important as the proper outcomes should include a discussion on if beliefs that are not proven by science should be able to have control over other people and the benefits they are obtaining.”

    Right off the bat, I think putting the question in those terms is problematic because I’ve yet to see a persuasive explanation, from any source, of why the benefit grantor’s choice of what in-kind benefits it will enter into an agreement to extend, constitutes control over the beneficiary in any legally cognizable sense. But …let’s leave that aside for a moment.

    Aren’t a huge number of religious, moral and philosophical beliefs (including concepts like right and wrong, justice and injustice, etc.) not proven by science? Indeed, any prescriptive or value statement (e.g. “we should X”, “the government ought to Y”, “it would be good if Z”) expresses a belief that can’t be proved by science.

    Your comment above includes several such statements (“are important”, “should include”, “should be able”), none of which is has been (or, I think, can be) proven empirically and which, by your logic, would also have to be excluded from any legal outcomes. However, as the Supreme Court – wisely, I think – “Men may believe what they cannot prove” (U.S. v. Ballard) and “In applying the Free Exercise Clause, courts may not inquire into the truth, validity, or reasonableness of a claimant’s religious beliefs” (Hobbie v. Unemployment Appeals Commission). Thus, for example, if someone raised a free exercise objection to having a DMV photo taken because they believe cameras steal your soul, we would not expect the outcome of a RFRA case to turn on whether studies showed that the kind of camera used at the DMV had soul-stealing capabilities.

    “Well [the authors of the 10th Circuit pro-Hobby Lobby medical amicus brief] use the FDA pages that are cited in the NY Times article that the NIH, the makers of Plan B, and others object to because those disagree with the wording used.”

    Well, that was one thing they referred to, but not the only thing. They also cited one of the same experts the NYT cites, only here (p.7) he’s flat-out stating EC may sometimes prevent implantation. And, they cite a number of other experts. Indeed, they themselves are associations of experts. You and I aren’t experts, of course, and we can’t really resolve a battle of opposing experts, but we can observe two things (i) there seems to be some disagreement among experts over how to characterize the evidence, and (ii) the “no post-fertlization effect on embryo” statements in the record turn out to be much less definitive and much more heavily qualified, on examination, than they’re being made out to be.”

    “I don’t know why the FDA insisted on putting something that ‘may’ happen when other scientists (in the same government) saying that there is no may.”

    But the studies (at least from the sources we’ve been referring to) aren’t actually going so far as to say that there is “no may”, are they? From examination, the sources are saying *less* than that. When you read the pro-government amicus brief and re-read the NYT article, I assume you saw all the equivocal language I was trying to point out.

    Moreover, for reasons I explained earlier, unless the existing relevant datasets on the effects are way bigger than I expect they are, there does seem to be ground to suspect that we’re not even statistically at a point where effects that are weak/rare below a certain threshold can even be studied.

    “Now, for the woman shooting a box example, I think it is apt if you add one thing. The person who shoots the box gets paid from their employer for work provided. The case that Hobby Lobby is making would say that if a person shoots a box and a kid is hiding in it that the employer who paid the person the money that enabled them to buy that bullet should be in some way responsible. That, of course, is ridiculous. The employer is in no way responsible for what is purchased with the salary received from work provided to that employee. And since there is no difference between a dollar paid as a pre tax deduction for health insurance and a dollar that is spent prior to being paid as a premium paid in lieu of salary, there is no reason the employer should be at all responsible for items obtained from the salary or the benefits.”

    This is missing the point of the example, or at least it’s making a different point than the one I was chiefly trying to address with the example. Jane’s example is designed to address the idea of subjective thresholds of acceptable/unacceptable risk, not the economic aspects.

    That said, does fact that there may be no economic difference between a dollar paid in wages and a dollar’s worth of in-kind benefits does mean there can be no other conceptual difference, such as a possible moral difference. I think not. And indeed, this is going to depend largely on someone’s particular moral belief system.

    Remember the claimant in Thomas v. Review Board? In evaluating how far he felt he had to disassociate himself from potential acts of war, Thomas interpreted his religion to require him to draw the line somewhere in between a job fabricating steel some of which would go into tanks (which he felt sufficiently insulated him from moral guilt), and a job actually making the tanks (which he felt did not). The Supreme Court basically said courts can’t second-guess where he decided to draw that line.

    Here, the Greens and the Hahns have interpreted their respective religious codes to require them to draw the line somewhere in between (1) paying the employees in cash rather than in kind, and (2) insuring, as an in-kind benefit, a couple of particular drugs/devices (though at least the Greens have taken the position that they have a religious duty to provide health insurance generally). If they crossed that line, they wouldn’t be responsible under a legal code, or even responsible under most people’s moral codes, but – and this is the key – they would be responsible under their own religious consciences. I sort of get the impression that you’re suggesting that there is no room in between those two actions in which they could draw a moral dividing line because the actions must be morally indistinguishable. If so, I disagree, but anyhow the Constitution prevents a court from taking a position on the question.

  4. “First let’s start off with the understanding that the idea of Sammy Hagarism is an absurd argument meant to prove a point. Obviously Van Halen was much better with David Lee Roth. If anything I would be a Rothite.”

    You and me both!

    “Now, in our discussions we have determined that religious beliefs can be sincerely held without much proof at all. According to your arguments the religious beliefs need not be based in any sort of fact, logic or reason. My believing them is enough. The Greens are not required in this case to show that they actually believe that oral contraception causes abortions. All they have to do is say that it does and that is enough for the court. But if I would be required to show that Sammy Hagarism is a religion that I fervently hold I would just have to lay out the rules of Hagarism and show that I have followed them. The rules of the religion need not be complex either. I could just say that Lord Hagar laid out the rules himself and that the only rule required to practice Hagarism is to not drive 55. To show that i sincerely held this beliefs I could show evidence of a previous traffic citation proving that I indeed was not driving 55. I could also show that while government has a compelling argument for public safety that they are not using the least restrictive means by showing other jurisdictions have speed limits on highways that are greater.”

    I don’t think it quite works like that. Merely showing a previous speeding ticket would only establish that you engaged in a behavior, not why you engaged in it. And “least restrictive means” would mean the least restrictive means for getting people not to exceed the 55 mph limit the state believes is safe, not that 55 mph is necessarily the least restrictive safe driving speed. For example, in the Hobby Lobby and Conestoga Wood case, one question will be what is the least restrictive means for getting EC/IUDs into people’s hands, not whether the HHS mandate’s criteria for heath insurance plans are the least stringent possible criteria for a decent plan, or what have you.

    But what I think you haven’t addressed here is: Why should this matter now, since it is already the law? In fact, I think that might be the most important take-away point from all this Sammy Hagarism discussion. Since we (or at least I) haven’t noticed over the last 20 years all manner of legal chaos and miscarriages of justice resulting from the fact that people sometimes raise RFRA claims along the lines of “Sammy Hagarism”, “Church of Marijuana”, etc., I think we’re probably OK. But either way, that ship sailed in 1993. Congress could call it back to some extent, of course, at least up to the limits of pre-RFRA Free Exercise jurisprudence.

    “Now, on to the case. What the Greens are doing here is not just saying that as Christians they shouldn’t have to pay for oral contraception*.”

    Not sure if that asterisk at the end was intentional. Did you mean to acknowledge that the Greens do pay for lots of oral contraception (such as the Pill), just not Plan B and Ella?

    “They are saying that as Christians they believe that oral contraception causes abortion and for employee plans to cover those pills is a violation of their religion.

    “Well, shouldn’t they have to prove that this is, in fact, a tenet of their religion? Shouldn’t they have to show in the bible somewhere?”

    Since that isn’t one of the open issues in the appeal, it’s not really relevant now to this particular case. I’m not sure if this was established in the trial court, or if the government conceded it from the very beginning. However, let me quote a generally useful passage from a law treatise (internal single quotation marks are the author quoting SCOTUS language):

    “Since the ‘States are entitled to assure themselves that there is an ample predicate for invoking the Free Exercise Clause, they may require that a professed belief be sincerely held. The relevant determination may be far from easy to make. In that context, ‘[c]ourts should not undertake to dissect religious beliefs because the believer admits that he is struggling with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.’ And ‘[i]t is not within the judicial ken to question the ‘centrality’ of particular beliefs or practices to a faith.’ … ‘Undoubtedly, membership in an organized religious denomination…[may] simplify the problem of identifying sincerely held religious beliefs.’ Nevertheless, the Court has rejected the notion that, ‘to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization.’ ‘Intrafaith differences…are not uncommon among followers of a particular creed… [T]he guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect. Particularly in this area, it is not within the judicial function and judicial competence to inquire whether a person has correctly perceived the commands of his faith. Courts are not arbiters of scriptural interpretation.

    “’If judicial inquiry into the truth of one’s religious beliefs would violate the free exercise clause, an inquiry into one’s reasons for adopting those beliefs is similarly intrusive. So long as one’s faith is religiously based at the time it is asserted, it should not matter, for constitutional purposes, whether that faith derived from revelation, study, upbringing, gradual evolution, or some other source.’”

    (Those paras. are from I. Dimitrakopoulos’ Individual Rights and Liberties Under the U.S. Constitution: The Case Law of the U.S. Supreme Court.)

    “If not, then people can just make up anything they want and say ‘Hey, as Christians we feel we shouldn’t be forced to do X’ and as long as they prove they are Christians you seem to say that it should be allowable. That doesn’t fly in my book.”

    It’s merely the first step in meeting the criteria for an exemption; there are still the other RFRA criteria to satisfy before anyone can get an exemption from what would otherwise be a legal requirement. And more to the point, these objections you’re raising here seem basically to be objections to existing law; not to anything that is up for grabs in the Hobby Lobby and Conestoga Woods cases.

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