Posted by Brad A. Greenberg
The Supreme Court yesterday declined to hear challenges to the Affordable Care Act (aka Obamacare) brought by Liberty University, a Christian school founded by the late Rev. Jerry Falwell. But the Court agreed last week to hear two related religious exemption cases regarding the Affordable Care Act's contraception mandate.
One of those cases, involving craft store Hobby Lobby, has received a lot of attention because it has been leading the fight against employers being required to provide contraception to employees. The other is being consolidated, and the facts are similar. Significantly, Hobby Lobby is a closely held family company -- i.e., no shareholders to report to. The company's leaders have asserted that religious beliefs prohibit providing contraception to employees, and thus the Affordable Care Act infringes on their religious exercise, entitling them to an exemption from the contraception mandate.
“My family and I are encouraged that the U.S. Supreme Court has agreed to decide our case,” said Mr. Green, Hobby Lobby’s founder and CEO. “This legal challenge has always remained about one thing and one thing only: the right of our family businesses to live out our sincere and deeply held religious convictions as guaranteed by the law and the Constitution. Business owners should not have to choose between violating their faith and violating the law.”
The case has yet to be argued, and because it is controversial, I wouldn't expect a decision until late in the term. It touches on both First Amendment and Religious Freedom Restoration Act claims. (The Court already heard in October another case involving whether prayers before municipal meetings violate the First Amendment's establishment clause. I've written about this issue before, and will again.) And it presents some interesting legal issues, on which new scholarship seems to be popping up on SSRN weekly.
The outcome of this case will have broad effects, both doctrinally and practically. The circuit courts have split on whether a for-profit corporation can bring a religious exercise claim. Mark Tushnet illuminates but does not answer that threshold question here. Indeed, the answer is unclear -- one reason this case seemed destined for the Supreme Court.
*UPDATED: Add the University of Notre Dame to the organizations claiming the Obama Administration is violating its free exercise of religion. Notre Dame, famously Catholic, is challenging the contraception mandate for employees and students in a lawsuit filed today. Birth control is prohibited by the Catholic Church.
12.3.13 at 7:11 am | The Supreme Court granted certiorari in ...
11.25.13 at 8:55 am | Judge Crabb ruled that the clergy housing. . .
11.23.13 at 7:46 pm | A time-lapse starting with Hinduism in 5,000 BC. . .
11.16.13 at 10:41 am | His kebab cafe on hard times, Zablon Simintov. . .
11.4.13 at 8:04 pm | The all-time leader in games played among ...
10.30.13 at 7:14 pm | Panorama magazine is reporting that the National. . .
11.23.13 at 7:46 pm | A time-lapse starting with Hinduism in 5,000 BC. . . (253)
12.3.13 at 7:11 am | The Supreme Court granted certiorari in ... (126)
4.3.08 at 12:35 pm | (117)
November 25, 2013 | 8:55 am
Posted by Brad A. Greenberg
In a surprising ruling, a federal judge held Friday that the nearly century-old housing allowance exemption for "ministers of the gospel" violates the First Amendment's Establishment Clause "because the exemption provides a benefit to religious persons and no one else, even though doing so is not necessary to alleviate a special burden on religious exercise."
Judge Barbara Crabb of the U.S. District Court for Western Wisconsin further stated that in Freedom From Religion Foundation v. Lew:
Because a primary function of a “minister of the gospel” is to disseminate a religious message, a tax exemption provided only to ministers results in preferential treatment for religious messages over secular ones. ... If Congress believes that there are important secular reasons for granting the exemption in § 107(2), it is free to rewrite the provision in accordance with the principles laid down in Texas Monthly and Walz so that it includes ministers as part of a larger group of beneficiaries. ... As it stands now, however, § 107(2) is unconstitutional.
In other words, a broader housing allowance exemption that extended beyond ministers could be constitutional, such as that found in § 119, which is applicable when "the employee is required to accept such lodging on the business premises of his employer as a condition of his employment”.
Paul Caron at the TaxProf Blog has a nice round-up of the reactions from legal thinkers and earlier scholarship on the topic. And Sarah Pulliam Bailey at Religion News Service has an excellent account of the consequences of Judge Crabb's account for religious employers and ministers:
The clergy housing exemption applies to an estimated 44,000 ministers, priests, rabbis, imams and others. If the ruling stands, some clergy members could experience an estimated 5 to 10 percent cut in take-home pay. . . .
Churches routinely designate a portion of a pastor’s salary as a housing allowance. So, for example, a minister that earns an average of $50,000 may receive another a third of income, or $16,000, as a tax-free housing allowance, essentially earning $66,000. Having to pay taxes on the additional $16,000 ($4,000 in this case), would mean an 8 percent cut in salary.
The exemption is worth about $700 million per year, according to the Joint Committee on Taxation Estimate of Federal Tax Expenditure.
To be sure, Judge Crabb's decision is not binding on other judges (and has been stayed in the case before her pending appeal). But if the Seventh Circuit affirms Crabb's decision, ministers in Illinois, Indiana and Wisconsin would be unable to claim the housing allowance exemption under § 107. That is, unless they need to live on the church property for their job, housing allowance would be part of their total taxable compensation.
But the Seventh Circuit also could reverse Judge Crabb's holding, as it did two years ago in a case likewise commenced by the Freedom From Religion Foundation. In the earlier case, Judge Crabb ruled that the National Day of Prayer was unconstitutional. The appellate court reversed because the Freedom From Religion Foundation lacked standing to bring the case.
Standing also tends to provide a high hurdle in claims brought generally by taxpayers, but ths Supreme Court has said there is a little more leeway for Establishment Clause cases involving taxpayer expenditures. (See "Legal Standing Under the First Amendment's Establishment Clause".) It will be interesting to see how this one plays out.
November 23, 2013 | 7:46 pm
Posted by Brad A. Greenberg
Last week, after it was shared by BuzzFeed, a time-lapse of every nuclear detonation since 1945 made the social media rounds. It's an incredibly arresting seven-minute video in which almost nothing happens.
The above time-lapse video might be more startling, simply because it synthesizes 5,000 years of history in one "World Religions Conquest Map." Hinduism had a big headstart, followed by Judaism's growth with the Israelites' taking over Canaan. Judaism then disperses among the Diaspora before the emergence of Buddhism. After Christianity and Islam join the scene, there is a centuries-long expansion and contraction for many of the world religions' domains, with battles for land in what looks like a zero-sum game until the discovery of the Americas.
Sure, it's easy to watch this and think of all the wars that have been fought over religion. (I can hear Bill Maher.) And, obviously, none of this information is new to someone familiar with world history or religions. (Nor did I verify each temporal detail.) But it's fascinating to see religious history charted on an interactive map.
What I found most interesting was the formation of Christianity. Unlike every other world religion, which largely grow outwardly in concentric circles from a core, Christianity formed in pockets along the Mediterrenean and Black seas.
The downside to the map is that it appears to focus only on each religion as it became the dominant political power. For no group is this more stark than Jews, who lacked power from the destruction of the Temple -- the map uses the First Temple in 586 BC as the point of reference but I would use the Second in 70 AD -- until the founding of the state of Israel in 1948.
Rather, I'd also be interested to see the proliferation of different religious beliefs as each spread throughout the globe, not just as it became the state religion.
November 16, 2013 | 10:41 am
Posted by Brad A. Greenberg
Eight years ago, Zablon Simintov became Kabul's last Jew when his arch rival, Ishaq Levin, died. But it's unclear how much longer he hold that title. Simintov says his kebab business has fallen on hard times:
Now the cafe, neat and shiny, faces closure because kebabs are not selling well - largely because of deteriorating security in Kabul that has made people frightened to eat out or visit the city.
Simintov used to rely on hotel catering orders but even these have dried up as foreign troops begin to withdraw from Afghanistan, further weakening security and investment.
"Hotels used to order food for 400 to 500 people. Four or five stoves were busy from afternoon to evening," he said. "I plan to close my restaurant next March and rent its space."
Naturally, he blames his poor sales on the United States. It seems that Simintov thought the troops would always be there, meaning more security and lots of mouths to feed; he also told Reuters that Americans are worse than dogs. The logic is a bit circular.
But Simintov said that if life in Afghanistan worsens, he may finally leave Afghanistan, which once boasted a vibrant Jewish community.
The decline of Afghani Jews is pronounced and near complete. But it's not unusual for the region. In Afghanistan and neighboring countries, non-Muslims generally have fared terribly.
No Afghani Christians remain. (Remember the South Korean missionaries?) Iraq too has seen its Jewish community dwindle to almost none and its Christian population plummet. Same too for Christians and Jews in parts of the Levant outside Israel.
Maybe its a western perspective, but this strikes me as a major loss. Pluralism fosters stronger, better reinforced, communities. And the presence of people from minority groups also says something to outsiders. Not that the presence of a lone Jew in Afghanistan is going to--nor should it--convince the rest of the world that the Taliban are pretty tolerant guys.
But what about outsiders who would visit and find in this Afghani anomaly something profound? Like Jonathan Garfinkel. He visited Simintov in Kabul three years ago, inadvertantly rediscovering the Jewish identity he'd rejected:
What was his Judaism, this congregation of one? He clung to it, life, whatever there was of it left. But what did he have? Kabul was a ruined city, bombed to shreds after four decades of war. Why wouldn’t he want to be in Israel with his family, his people?
“I won’t let Jewish history die in Afghanistan,” said Simintov.
He took me to the synagogue. It felt more like a museum than a place for sanctuary and prayer. The last Torah had been stolen by the Taliban. Books were charred and moldy. The walls were white, recently painted, and a thin blue gate encircled the bimah. Simintov took out a shofar from the ark, put it to his mouth, and posed.
He prayed alone, ate alone, lived alone. It was a life he chose. Simintov wasn’t exactly a biblical prophet in the style of Ecclesiastes or Jeremiah, alone in the desert waiting for revelation. But his stubborn independence was his Judaism. Maybe this is what it means to be Jewish, I thought. To go against the grain.
That, at the very least, is lost. And so too will be the last remnant of a once-bustling, if unfamiliar, Jewish community.
November 4, 2013 | 8:04 pm
Posted by Brad A. Greenberg
Brad Ausmus led a long and respectable career as a Major League catcher. He ranks among MLB's all-time leaders for games played, hits and RBIs. Among Jewish ballplayers.
“I wasn’t raised with the Jewish religion, so in that sense I don’t really have much feeling toward it,” Ausmus told me when he joined the Dodgers in 2009, his 17th season. “But, however, in the last 10 or so years, I have had quite a few young Jewish boys who will tell me that I am their favorite player or they love watching me play or they feel like baseball is a good fit for them because it worked for me or it worked for Shawn Green or other Jewish players at the Major League level. It has been a sense of pride. If you can have a positive impact on a kid, I’m all for it.”
After retiring from the game, Ausmus spent last year managing Team Israel in the World Baseball Classic. And now he's returning to MLB as the newly hired manager of the Detroit Tigers.
Replacing the legendary Jim Leyland will be no small task. But wearing the jersey of Hank Greenberg might prove a more challenging task.
But Jewish baseball managers have remained a rarity. The Forward explains:
In fact, before now there had only been five Jewish skippers in the entire history of the major leagues: Lipman Pike, who in 1874 hit .355 as the player/manager of the Hartford Dark Blues; Lou Boudreau, who led the Cleveland Indians to their last World Series championship in 1948, and later managed the Boston Red Sox, Kansas City Athletics and Chicago Cubs; Norm Sherry, who managed the California Angels during the second half of the 1976 season and the first half of 1977; Seattle Mariners/Arizona Diamondbacks/Oakland Athletics skipper Bob Melvin (whose A’s lost to the Tigers in this year’s ALDS); and Jeff Newman, who served as the Oakland A’s interim manager for 10 games in 1986. Ausmus is now number six.
Beyond the Team Israel experience, Ausmus has never managed a club. But part of his role with the Dodgers in 2009 and 2010 was as a veteran leader, a guy who rarely played -- 57 total games -- but served as a mentor to younger players.
He also has the fortune of taking over a stacked squad that was a pair of well-time Red Sox grand slams from appearing in the World Series last month.
October 30, 2013 | 7:14 pm
Posted by Brad A. Greenberg
Since the Edward Snowden surveillance document dump began in June, every few weeks seems to bring some horrifying new detail about the scope of the National Security Agency's surveillance programs.
Privacy and constitutional scholars -- not to mention most Americans -- have been appalled by the breadth of the NSA data collections and surveillance. I've been particularly stunned, based on the potential diplomatic consequences, by the NSA's efforts to snoop on foreign leaders. (Here and here and here and here.) Which brings us to today's news.
Without citing sources, Panorama magazine said the NSA intercepted calls in and out of the Rome residence where cardinals stayed before the papal conclave. Among them was Cardinal Jorge Mario Bergoglio, who was on the verge of being elected pope.
“There is the suspicion that the conversations of the future pope could have been monitored,” the magazine said.
Responding to the report, Vatican spokesman Father Federico Lombardi said, "We are not aware of anything on this issue and in any case we have no concerns about it."
It's significant that this story does not come from the leaked Snowden documents. There is no corroboration. And, of course, an NSA spokeswoman vigorously denied the claim.
But NSA officials -- starting at the top -- have shown a really propensity for being loose with the truth. Even under oath before Congress. More importantly, does it really matter at this point what the NSA did and didn't do? Many if not most people seem ready to believe the worst -- and I don't think anyone is giving it the benefit of the doubt.
Except maybe Pope Francis the Liberal.
October 28, 2013 | 5:53 am
Posted by Brad A. Greenberg
From the She-Must-Have-Seen-This-Coming Department
When a Tennessee state judge said in August that a little boy named Messiah had to change his name because Messiah is a title and it's a title that has only been earned by one person and that one person is Jesus Christ," she must have thought her colleagues wouldn't look kindly on the decision.
After all, a very basic precept of First Amendment jurisprudence is that the government can't endorse religion (whether any specific religion or the general idea of religion), and the rationale for Child Support Magistrate Lu Ann Ballew's decision seemed to do just that. Worse, it was using the religious belief, possibly that of the judge's, to determine whether a behavior was appropriate.
Seemed like a slam-dunk no-no, and last month a judge ruled that Messiah DeShawn McCullough could keep his name; Ballew's decision had been unconstitutional.
Now bad is getting worse for Ballew. A panel reviewing her decision cited her for inappropriate religious bias in violation of the Tennessee judicial code of conduct. Reuters reports that the state's disciplinary counsel has been directed to pursue sanctions against Ballew, who has 30 days to respond to the charges.
October 25, 2013 | 6:44 am
Posted by Brad A. Greenberg
Mark Driscoll, the pastor of Mars Hill Church, has long been a polarizing figure among Christians. In fact, when you type [Mark Driscoll] into Google, the first autofill suggestion is [Mark Driscoll controversy]. That's because he's stirred up so many. Needlessly.
Which is why Jonathan Merritt found the message of Driscoll's latest book so surprising. A press release claims that in A Call to Resurgence: Will Christianity Have a Funeral or a Future Driscoll "issues a prophetic warning to the church that 'dark days are ahead' if we don’t stop the in-fighting and refocus our efforts on preaching the gospel immediately.
Merritt then proceeds to recount some of Driscoll more memorable moments of Christian in-fighting.
Just this month Driscoll showed up at a conference run by John McArthur to stir up trouble, then lied about how security treated him. Last January, upon President Obama's second inauguration, Driscoll tweeted:
Praying for our president, who today will place his hand on a Bible he does not believe to take an oath to a God he likely does not know.
Before that there was Driscoll's query to his Facebook followers:
So, what story do you have about the most effeminate anatomically male worship leader you've ever personally witnessed?
And then here's a litany of insensitive and offensive comments about Catholics, Jews and Muslims.
All of which leads Merritt to this point:
I hope that Driscoll is having a change of heart, that he is reconsidering his past behavior and changing course. But the book’s jabs and the way he’s chosen to promote it seems to align more with the pattern of behavior he’s displayed for years.
So I agree with Driscoll’s book on its core message—Christians should learn to pick their battles better—but with such a long pattern of divisive rhetoric, name-calling, searing sarcasm, and downright offensive insults, I’m not convinced he’s the right messenger to carry it forward. If Mark Driscoll wants Christians to stop infighting, maybe he should start with himself.
(That seems particularly the case when just this week--that's right, after Driscoll began promoting his new intra-church peacemaking book--Driscoll attacked Christian pacifists with this message: "Jesus is not a pansy or a pacifist; he’s patient. He has a long wick, but the anger of his wrath is burning. Once the wick is burned up, he is saddling up on a white horse and coming to slaughter his enemies and usher in his kingdom. Blood will flow.")
Well worth reading Merritt's whole piece here.