Ellen KolbJuly 3, 2015Leave a comment

Quite a Fortnight, with more religious-liberty questions than before

It’s appropriate, no matter which side one supports, that the Supreme Court’s decision on marriage came down during Fortnight for Freedom. It also came just a couple of days after this blog linked to a provocative speech on the difference between freedom of worship and freedom of religion.

Liberty Bell replica, New Hampshire State House (E. Kolb photo)

Liberty Bell replica, New Hampshire State House (E. Kolb photo)

The marriage decision seems to bump into that difference. Here’s something from Justice Kennedy’s opinion, addressing dissenters from the decision. Substitute “abortion rights” or “contraceptive mandate” for “same-sex marriage” and see how it sounds. This statement is now part of constitutional law. If it applies to differing beliefs about marriage, it ought to apply to other issues as well.

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. 

So if “it must be emphasized,” I’ll do so:

…religions, and those who adhere to religious doctrines, may continue to advocateThe First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths …

So does “proper protection” mean protecting freedom of worship or freedom of religion? Do “advocate” and “teach” refer to speech and action in the public square, or merely the right to advocate and teach within the walls of a house of worship or a private home?  Just how does all this translate into the daily give-and-take of civic action?

It’s not lawyers who have to make these decisions in the first instance. Ordinary citizens (and I count myself as one) going about their business day-to-day are the ones wondering if they have what the Court calls proper protection. It’s fitting that long before the marriage decision came down, the country’s Catholic bishops chose “freedom to bear witness” as the theme of this year’s Fortnight for Freedom.


The Fourteenth Amendment now covers marriage between any two consenting adults. The First Amendment covers religion (or is it worship?), presumably including the religions that hold to one-man-one-woman marriage. So what happens when lawsuits and criminal charges are filed against business owners who decline on religious grounds to participate in same-sex marriage ceremonies? Early signs are not encouraging for the business owners. One can take either side of the proposition that Jesus would bake the cake, and still see that for the people who are now marriage dissenters, Justice Kennedy’s reassurance that they may “advocate” for their view is a little shaky.


Abortion rights rest on a “penumbra” of constitutional rights adding up by some judicial calculus to “privacy.” Abortion dissenters have the First Amendment, including, for those who so choose, a right to pray outside abortion facilities – or do they? New Hampshire legislators seeking to discourage pro-life presence outside abortion businesses could have resorted to any of several methods that have been found to be constitutional. Instead, in 2014, with the full cooperation of the governor, the legislature made it illegal for most people regardless of intention or behavior to stand on public property outside an abortion facility for any reason, at times and locations to be determined by the abortion facilities’ management. Legislators actually left the interpretation and implementation of the buffer zone law up to abortion providers.

To the surprise of no one but the law’s sponsors, the law has been enjoined by a federal judge. It has not yet had a full hearing in court. It’s still on the books, and a repeal effort failed this year. I have yet to hear any of the buffer zone’s fans in New Hampshire announce a change of heart on the basis of Justice Kennedy’s assurance that advocacy of dissent may continue. What’s to stop any legislative body from following New Hampshire’s egregious example of supporting a law to suppress peaceful demonstrations?

The HHS mandate

Obamacare’s HHS/contraceptive mandate is in place, buffeted but not bowed. The President and the members of Congress who passed Obamacare allowed HHS regulations to define contraception as “preventive care.” There are people who own businesses and who out of religious belief do not wish to participate in the provision of contraceptives and abortion-inducing drugs to female employees. In the face of the HHS regulations enforcing the Affordable Care Act, they hold the dissenting view that women aren’t broken and that it’s not “preventive care” for women to be chemically altered. The Administration has issued accommodations in a piecemeal manner to certain institutions dissenting from the mandate, and Hobby Lobby won at the Supreme Court on behalf of owners of closely-held businesses.

Yet litigation goes on, because religious institutions still must wait for a determination that they’re religious enough to be covered under one of the Administrations “accommodations,” and it’s still an open question whether those accommodations are adequate. Are owners of public-stock corporations going to be accommodated? Fines will be punitive for anyone who dissents, sues, and loses. Are dissenting business owners being given proper protection for their advocacy of their beliefs? Or so Justice Kennedy’s words mean must that advocacy remain private?

The Court majority that gave us Obergefell left Americans with much to think about beyond a definition of marriage. At the end of another Fortnight for Freedom, only days after a landmark Supreme Court decision, the religious-liberty landscape remains unsettled. Are Justice Kennedy’s words true reassurance that each American is free to exercise a religion, publicly as well as privately?

There’s a way to divert attention from this question: call marriage dissenters bigots. Say that people opposed to the Affordable Care Act want to deny health care to their neighbors. Claim that opponents of buffer zones are endangering women (never mind that six of the seven plaintiffs challenging the New Hampshire buffer zone law are women). Say anything – just keep that pesky First Amendment offstage.

Justice Kennedy won’t let me. He says the First Amendment gives us all proper protection. We have yet to see what that means.

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Ellen KolbJune 30, 2015Leave a comment

SCOTUS term is over – but they suspended Texas abortion regs before leaving

Abortion regulation, the HHS/Obamacare contraceptive mandate, and the death penalty got some attention from the U.S. Supreme Court (SCOTUS) before the Court’s term ended Monday. The day was somewhat anticlimactic in view of last week’s decision re-defining marriage nationwide.

Justice Anthony Kennedy (supremecourt.gov photo)

Justice Anthony Kennedy (supremecourt.gov photo)

> New Texas abortion regulations are on hold by order of the Court, pending a full hearing of the case – possibly next term. The vote was 5-4. Stop me if you’ve heard this one: Justice Anthony Kennedy joined with “the Court’s liberals” (Politico’s term, not mine) in the majority.

> In the latest order – again, not a decision – on Obamacare’s insurance-coverage contraceptive mandate, the Court upheld for now a Solomonic decision by the Third Circuit that figuratively splits the baby. A group of Catholic entities in Pennsylvania challenged the mandate. The Third Circuit upheld the mandate, but okayed a mother-may-I procedure for religious entities objecting to it. Whether the Constitution allows mother-may-I is yet to be decided by the top court. I’ll let the legal eagles at SCOTUSblog summarize this one.

“First, the religious groups must provide some type of notice to the federal Department of Health and Human Services that they want and are entitled to a religious exemption from the mandate.   If the groups do that, the government may not enforce the mandate directly against them, while the Court is pondering whether to review the case itself.

“Second, the women who are employed by or are students at the religious organizations are assured that they will have access, at no cost to them, of birth control methods and devices approved by the federal Food and Drug Administration.   The government can go ahead, the Court made clear, and make arrangements for the health insurance plans in effect for the religious groups to assure free access to the contraceptives.  The government will reimburse the cost.

“The Court’s order stressed that it did not mean that the Justices were ruling on the correctness of the Third Circuit decision.   That will be the issue if the Court grants review in the pending case of Zubik v. Burwell (docket 14-1418).”

> This one was a full-blown decision: in Glossip v. Gross, the Court upheld the use of a particular drug for executions. Challengers had claimed it amounted to cruel and unusual punishment. Among the original petitioners, according to Justice Scalia, was someone convicted of the rape and murder of an 11-month-old baby. I feel nothing but revulsion at that; “cruel and unusual” seems just about right for such a criminal. My opposition to the death penalty, though, doesn’t depend on how lovable the criminal might be.

Justice Stephen Breyer (supremecourt.gov photo)

Justice Stephen Breyer (supremecourt.gov photo)

I have to wonder whether “humane” execution is designed for the prisoner’s sake or the onlookers’. The less we squirm, the better – is that the idea? Justice Breyer – not a man whose decisions respect any right to life for preborn children – dissented from the Glossip decision, and he apparently didn’t parse the which-drugs-are-better question. He flat-out asked for a briefing on the constitutionality of capital punishment.

This wasn’t the case for that. Apparently, the Court is cautious about overreaching on the death penalty. Their delicacy is amusing in view of their marriage decision. Perhaps I’ll live to see a day when boldness prevails in defense of the right to life.


Ellen KolbJune 29, 20151 Comment

Time to tweak the budget

From www.supremecourt.gov

From www.supremecourt.gov

What does a Supreme Court decision on marriage have to do with pro-life work? Directly, nothing. Indirectly, though, the Obergefell v. Hodges decision is bound to mean changes in which organizations the IRS deems worthy of the tax status known as 501(c)3. That sort of thing is very much in Caesar’s domain, so to speak. So are property taxes, and while they’re local, I suspect any tax exemption for a charitable organization’s property is linked to the c3 status of the organization.

So what are you going to do about that, if you itemize your deductions on your tax return? Would you still donate to a pro-life ministry even if it didn’t have c3 status? How about if you’re a board member of a church-affiliated pro-life agency, and your church dissents from the Court fiat on marriage? If I were a donor to such agencies – and I have been – I’d want to know what they’re doing to prepare for loss of tax-exempt status.

No scare tactics here. I simply think it’s inevitable that churches holding to one-man-one-woman marriage, and thereby dissenting from the Supreme Court, will have their exemptions yanked over the next few years. Many of those churches operate ministries for support of pregnant and parenting young people, hospice care, respite care, emergency housing, education… the list could go on. Those ministries are invaluable. People rely on them daily.

Sign on the National Mall at 2013 March for Life

Sign on the National Mall at 2013 March for Life

It would be inexcusable for those agencies not to have a plan in place to keep operating in the event of a shift in tax policy. That shift is going to cause a lot a displacement, I’m sure. Are you prepared as a donor? Are you prepared as a board member or employee of a currently tax-exempt human services organization? Are you prepared to act without bitterness but with calm pragmatism?

I’m not an attorney or a tax expert, but if I were running a tax-exempt organization, even a small one, I’d make sure at this point that I had at least one of each on call.

The time to tweak the budgets is now, not at the moment the IRS and local tax assessor come calling. Plan what to give, free of a tax deduction. Plan what to spend, with taxes as a line item. Litigate if you can afford it (abortion advocacy agencies can show you how that’s done), but be prepared in case of a loss. Caesar’s awake and on the prowl.

Maybe Dorothy Day was right. If I understand correctly, she was deeply suspicious of special federal tax status for charitable work, including her own. She reportedly quoted St. Hilary: “The less we ask of Caesar, the less we will have to render to Caesar.”



Ellen KolbJune 26, 2015Leave a comment

Life & marriage & equal protection

You may have heard that the Supreme Court handed down a significant decision today regarding marriage. Like everyone else, I have an opinion.

manhattandeclaration1) I have endorsed the Manhattan Declaration and will continue to do so.

2) I’m Catholic, and I’m with Pope Francis (among others) on this one.

3) Five justices agreed that marriage between two consenting adults is a matter of equal protection under the Fourteenth Amendment, I’ll continue to work toward the day when we can muster five judges to agree that the right to life is a matter of equal protection as well.

Peace to all, whether you agree with or dissent from the Court.


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