Monday, December 18, 2017
News Roundup

Justices openly talk about faith in their lives

WASHINGTON — There's something that makes the current Supreme Court different from some of its recent predecessors.

The justices got religion.

Or at least they seem more open about their faith, appearing before devout audiences and talking more about how religion shaped their lives or guides them now.

As the court this week weighs religious conviction versus legal obligation in the latest challenge to the Affordable Care Act, those who study the court say the change is hard to quantify but easy to notice.

Chief Justice John Roberts and Justice Samuel Alito are devout Catholics who faced questions during their confirmations about how their faith would affect their jurisprudence. Justice Clarence Thomas is a former seminarian who says God saved his life.

Justice Antonin Scalia is the most outspoken. He has urged fellow intellectuals to be "fools for Christ" and used an interview last fall to underscore his belief in the existence of the Devil, whose latest maneuver, he said, "is getting people not to believe in him or in God."

Justice Elena Kagan, not religious like the others, nonetheless has reminded Jewish groups she undertook years of three-days-a-week religious instruction as a child. She negotiated with her rabbi to be the first girl to have a bat mitzvah at New York City's Lincoln Square Synagogue. "It was good, not great," she quipped.

Much attention has been given to the religious makeup of the current edition of the Roberts court. With six Catholics and three Jews, it is the first without a Protestant member.

But in what is likely to be the signature case of the term, the issue is not affiliation but devotion.

The justices on Tuesday will hear two cases in which business owners say they would violate their religious principles if they had to provide female employees with cost-free insurance coverage for all contraceptives.

This requirement under Obamacare is being challenged by David and Barbara Green, the evangelical Christian owners of the giant Hobby Lobby craft store chain, and a small woodworking company in Pennsylvania named Conestoga Wood Specialties, owned by a Mennonite family.

One federal appeals court agreed with Hobby Lobby that the requirement violated the Religious Freedom Restoration Act (RFRA). The 1993 act forbids federal laws that impose a "substantial burden" on the exercise of religion unless there is a "compelling governmental interest" and the measure is the least-restrictive means of achieving that goal.

A different appeals court ruled against Conestoga, saying the RFRA covers individuals, not profit-making companies, and that the religious principles of business owners were not affected by an employee's decision to use a certain method of birth control.

The cases present a complicated set of issues. These include whether corporations have the same rights as individuals - as the Supreme Court ruled they do in the landmark Citizens United vs. FEC case for the purposes of political speech - and equal treatment for female employees. There's even disagreement about whether the emergency contraception and intrauterine devices the challengers find objectionable induce early abortions or simply prevent pregnancies.

But the cases start with the business owners' claims that the law's requirement forces them to choose between violating their religious beliefs and paying millions of dollars in government fines.

And that puts a focus on the court itself. "It is literally impossible to answer" whether a justice's religious views affect his or her decision-making, said Richard Fallon, a Harvard law professor who is a scholar of the court.

He is among those who agree that the religious views of those on the current court are far more on display than those of the justices in the early 1980s, when he served as a clerk on the court.

Lawyers who practice before the court take note of it. "Certainly any lawyer would keep that in mind and not do anything that would look anything less than respectful" of the religious perspective, said one lawyer who asked not to be named because of his participation in a brief supporting the government's position in the contraceptive cases.

The Obama administration seems to have taken that into account as well. Solicitor General Donald Verrilli goes out of his way — repeatedly — to acknowledge the depth of the religious beliefs on the other side.

"The Greens' sincerely held religious opposition to certain forms of contraception is not subject to question in these proceedings, and their personal beliefs merit the full protection that the Constitution and laws provide," Verrilli wrote.

The rise of religious conservatives on the court corresponds with the rise of the religious right in Republican politics. Seven of the 11 justices who joined the court since 1980 were nominated by Republican presidents, including the five Catholic men who are the current court's most consistent conservatives.

But they were not chosen for their religious affiliations, experts agree. "It didn't matter that Alito was Catholic," said Eric Mazur, a professor of religious studies at Virginia Wesleyan College. "What mattered was his ideology."

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