"The Equality Act... explicitly overrides the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from 'substantially burdening' individuals’ exercise of religion..."

"... unless it is for a 'compelling government interest.' While enacted in 1993 with overwhelming bipartisan support, the RFRA in recent years has been most loudly championed by social conservatives. LGBTQ and civil liberties advocates say the RFRA has been used to allow discrimination. The Equality Act matches Americans’ fast-moving rejection of discrimination based on gender identity and sexual orientation. More than 6 in 10 Americans say business owners should not be allowed to refuse services to LGBTQ people on the basis of religion."

WaPo reports in "Equality Act is creating a historic face-off between religious exemptions and LGBTQ rights." 

WaPo wants to assure you that RFRA something only social conservatives cherish, but that is history rewritten. RFRA was a reaction to the 1990 case Employment Division v. Smith, which was written by Antonin Scalia, who articulated the strong, clear position that the Constitution does not require religion-based exemptions to laws that are written to be neutral and generally applicable. The dissenting opinions in that case were by the liberal Justices Brennan, Marshall, and Blackmun.

As I wrote on this blog a few years ago:

The RFRA bill was sponsored in the House by Congressman Chuck Schumer and in the Senate by Teddy Kennedy. (Each had a GOP co-sponsor). The Democrats controlled Congress, but the Republicans all voted for it too (with the sole exception of Jesse Helms).

From the NYT article in 1993 when President Bill Clinton signed RFRA into law:

President Clinton hailed the new law at the signing ceremony, saying that it held government "to a very high level of proof before it interferes with someone's free exercise of religion."...

President Clinton voiced wonder today at this alliance of forces that are often at odds across religious or ideological lines. "The power of God is such that even in the legislative process miracles can happen," he said.

It's absurd that it's so easy to forget what progressives valued in RFRA and why the liberal Justices dissented in Smith. It was about the rights of minorities. But there are minorities and there are minorities. You can't favor them all. RFRA chose religious minorities. The Equality Act favors gender identity and sexual orientation minorities. 

Scalia's Smith allowed Congress to shift back and forth like that. It merely said that legislatures can get away with laws that don't discriminate against religion, that it doesn't have to favor religion. RFRA is just a statute — even if Clinton pronounced it the work of God Himself — and it only takes a statute to change it. The requirement of religious exemptions could have been found in the Constitution's Free Exercise Clause, but the conservative Court did not see it.

"The Supreme Court ruled Wednesday teachers at religious schools are foreclosed from bringing workplace discrimination cases against their employers."

"The 7-2 ruling said the lawsuits could not move forward due to the “ministerial exception” and court precedent, which has held the First Amendment protects religious institutions from some workplace discrimination complaints."

The Washington Times reports.

AND: A second case announced this morning — "In Little Sisters of the Poor v. Pennsylvania, the justices upheld a federal rule exempting employers with religious or moral objections from providing contraceptive coverage to their employees under the Affordable Care Act." I'm seeing that announcement at SCOTUSblog. Thomas writes the majority opinion and there's also a concurring opinion by Kagan, who is joined by Breyer. Only Ginsburg and Sotomayor dissent. Full opinion here.

Excerpt from the majority opinion:

WaPo's Fact Checker gives 4 Pinocchios to Kamala Harris for her attack on Brett Kavanaugh.

Here's the Fact Checker, Glenn Kessler.

At the Senate Judiciary Committee hearings, Kavanaugh, asked to talk about a case he'd participated in on the D.C. Circuit, said:

“That was a group that was being forced to provide a certain kind of health coverage over their religious objection to their employees, and under the Religious Freedom Restoration Act, the question was first, was this a substantial burden on the religious exercise? And it seemed to me quite clearly it was.... It was a technical matter of filling out a form, in that case with -- that -- they said filling out the form would make them complicit in the provision of the abortion-inducing drugs that they were -- as a religious matter, objected to.”

Harris put out a tweet, with a video clip that left out the "they said" and making it seem that the plaintiffs' position was his own opinion, and — a day later — put out a second tweet with a full context video but — rather than any kind of correction or apology — a restatement of her original point:

Here is Kavanaugh's full answer. There's no question that he uncritically used the term "abortion-inducing drugs," which is a dog whistle term used by extreme anti-choice groups to describe birth control. pic.twitter.com/PMbZzu8DqD

— Kamala Harris (@SenKamalaHarris) September 8, 2018

Kessler writes:

Some might argue that it’s a judgment call, open to legal interpretation, as to whether Kavanaugh “uncritically” used a term that riles advocates of abortion rights.

But a plain reading of Kavanaugh’s answer during the hearings shows that it is broadly consistent with his written opinion. One can question why he used the phrase “abortion-inducing drugs” rather than “abortion-inducing products” or “abortifacients.” But it’s pretty clear from the context that he was quoting the views of the plaintiffs rather than offering a personal view.

Harris’s original tweet, with the “they say” language removed, was slightly mitigated by the second tweet a day later, providing the full context. But there was no acknowledgment by Harris that the original tweet was misleading. She earns Four Pinocchios -- and her fellow Democrats should drop this talking point.

Harris deserves the 4 Pinocchios, but something I'd like to examine is why do abortion-rights advocates keep acting ashamed of abortion? The drug in question does rid the body of a post-conception group of cells. What's the pro-choice reason for opposing calling that "abortion"? Is it just that you want to hide the facts from people who believe a post-conception entity should not be destroyed? What I see is a political fight over which words to use, with those who support abortion rights wanting to maintain a distinction between the terms "abortion" and "birth control" and to keep as much as possible on the "birth control" side of the line because that's most effective in maintaining the most autonomy for women who they believe are entitled to control what goes on inside their own bodies.

The abortion-rights advocates are fighting on the anti-abortion side's territory, which is the subtle and usually religious question of when life begins or when the unborn becomes a person.

Of course, Kavanaugh knows better than to talk about any of that. I couldn't bear to watch the whole hearings, and I know I could find a transcript and do a search, but I'm sure if he were asked when does life begin/when is the unborn a person, he'd say that the case law establishes that the question is not to be answered by judges. In the case under discussion, the question was the scope of religious freedom rights, and the sincere belief of the plaintiffs was that life begins at conception. The question whether life begins at conception was no more in issue than the question whether Jesus Christ saves us from our sins.

But let me get back to Harris's second tweet. It's got another problem that Kessler doesn't even talk about. She wrote that "abortion-inducing drugs" is "a dog whistle term used by extreme anti-choice groups to describe birth control," but it's only a term for some birth control, not birth control in general. It sounds crazy to call all birth control "abortion-inducing drugs." Harris makes her opponents sound much more extreme and anti-science than they are. The term "abortion-inducing drugs" refers only to drugs used on what many people sincerely believe is a new human life, the fertilized egg. I'd like to hear someone cross-examine Harris about whether she thinks people who think life begins at conception are "extremists."

And I'm saying that as someone who believes the woman is entitled to her bodily autonomy and — as the case law says — has the right to take action to avoid going through with a pregnancy.

"Being an elevationist [the term they’ve coined for the theology of the new {marijuana-based} church] means being an explorer."

"Our spiritual journey is one of self-discovery, not one of dogma. We believe there is no one-path solution to life’s big questions. This is simply a supportive place for each one of us to find a pathway to our own spirituality, whatever that may be.... There are as many pathways to being an elevationist as there are elevationists."

Says Lee Molloy, quoted in "Holy smoke! The church of cannabis/As congregations dwindle, a new religion is lighting up Denver, Colorado. Aaron Millar joins the ‘elevationists’ of the International Church of Cannabis who worship the weed" (The Guardian).

Don't miss the photograph at the link of the beautifully painted interior of the 113-year-old church building that Lee and others were going to convert into apartments. But with marijuana legalized in Colorado: “We started having these stupid, fantastical conversations. What if we kept it as a church?” And "the International Church of Cannabis opened its doors with its own chapel, theology and video game arcade."

The idea of a church of marijuana is old.

But, in fact, cannabis use has long been part of religion, from ancient Chinese shamans to modern-day Rastafarians: inducing altered states of consciousness has been a cornerstone of belief since time immemorial. And even without drugs, whether it’s spinning Sufi dancers or drumming voodoo priests, or even just simple prayer or meditation, taking the mind to a higher plane has always been a road to the divine, whatever you may conceive that to be.

Many years ago, I based a Constitutional Law exam on a case I'd read about, where people had formed a church around marijuana use with the hope of being able to argue that they were entitled under the Religious Freedom Restoration Act to an exemption from the federal criminal law. I seem to remember the name of the religion as "Our Church," but that might just have been the name I came up with for the exam.

Elevationists is a good name, referring to getting high. (The Anglicans have dibs on High Church.)

The key thing here isn't that they've thought of a new religion (or are screwing around with the idea of religion).  This is a story about real estate, interior design, and art.

"Kentucky court rejects government attempt to punish printer for refusing to print ‘Lexington [Gay] Pride Festival’ T-shirt."

Eugene Volokh — who worked on an amicus brief in the case — explains the opinions.

First, the panel split on whether the refusal to print a gay pride message was sexual orientation discrimination against particular individuals.... The majority said no....

So they didn't have to reach the question whether there was a free-speech right that supersedes the statute. (Volokh had argued in an amicus brief that there is: "The government may not require Americans to help distribute speech of which they disapprove.")

[The concurring judge] also reasoned that the ordinance was preempted by the Kentucky Religious Freedom Restoration Statute.... He concluded that the ordinance, as interpreted by the commission, burdened the [Hands On Originals] owners’ religious practice, and thus the owners were entitled to an exemption unless denying the exemption was the least restrictive means of serving a compelling interests — a showing the government could not make....

With Gorsuch, will the Supreme Court take the cake?

We've been waiting and waiting to see if they'll take the cake.

So this week’s conference will be the first for Gorsuch. That fact is reflected in this week’s unusually long roll of relists, which are plentiful enough that it appears that the court may have simply rolled over the entire “discuss list” from last week’s conference. Three of last week’s relists return again, including the closely watched six-time relist and potential blockbuster Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111, involving a cake decorator who refused on religious grounds to make a cake for a same-sex wedding....

"The law Pence signed — a Religious Freedom Restoration Act (RFRA) — has been around since President Bill Clinton approved a federal version of the law in 1993."

"Traditionally, RFRAs were used to protect religious minorities, including the Amish and Muslims. But as conservatives have lost battles over LGBTQ rights (particularly same-sex marriage), they have turned to religious freedom laws in an attempt to carve out methods to continue allowing discrimination."

From a Vox article titled "Mike Pence for Donald Trump's vice president? It's an extra awful choice for LGBTQ rights" that at least tries to reconcile the recent denouncement of RFRAs with the 1990s bipartisan support for religious freedom exemptions.

It's funny to say "Traditionally" when you're talking about legislation that's only been around for a couple decades, and if you make a law like that it has to treat all religious the same. You can't favor one religion over another! You can't pick and choose and be sentimental about the Amish and politically correct about the Muslims and then turn around and reject the principle of exemptions when they're demanded by groups that you like seeing get pushed around.

But there is some reason to judge politicians by what they think they are doing — by their motivations — and not by what the legislation they produce will actually do when its language is applied in real cases and constrained by constitutional law. Back in the 90s, people weren't talking about using religion as a basis for avoiding complying with anti-discrimination laws. And last year, in Indiana, they were.

I'm interested in seeing how these attacks on Mike Pence will play out. People don't seem to do very well at understanding RFRA and the constitutional law that surrounds it. But Bill Clinton is such a central character. As I wrote last year:

Look at how pleased Bill Clinton was to sign what was then perceived as important civil rights legislation.

And the late Justice Scalia — whose empty seat figures so prominently in the election — is a central character. He wrote the constitutional law opinion that rejected religious exemptions and triggered the legislative response that was RFRA. 

"I am pleased to announce that I have chosen Governor Mike Pence as my Vice Presidential running mate. News conference tomorrow at 11:00 A.M."

Tweets Trump.

From the NYT report on the tweet:

In his selection, Mr. Trump... gains a partner who is fluent in the ways Washington works, a background that complements Mr. Trump’s outsider status. Before his election as governor in 2012, Mr. Pence had served for six terms in Congress and rose to be the third-highest-ranking Republican in the House....

Mr. Pence brings credibility as a conservative, which should help Mr. Trump in the view of some on the right. A lawyer by training, Mr. Pence has described himself as “a Christian, a conservative and a Republican, in that order.”...

He was at the center of a national debate last year over religious freedom laws that critics said invited discrimination against gay couples. In Congress, he pushed to cut off federal funding to Planned Parenthood.

ADDED: Here's the post I wrote at the time of that religious freedom debate last year: "Why am I avoiding this Indiana RFRA story?"

I've got to examine my own soul! I see it — e.g., here —  and I know I'm avoiding it. There is something to examine. Why is Indiana getting into so much trouble over a type of law that used to be extremely popular? I guess it has something to do with Hobby Lobby and something to do with all that wedding cake business. There was a time when religionists had the ascendancy, and their pleas for relief from the burdens of generally applicable laws fell on the empathetic ears of conservatives and liberals alike.



Look at how pleased Bill Clinton was to sign what was then perceived as important civil rights legislation.

The tables have turned. And now all the liberals are remembering how much they love Antonin Scalia. I mean, not really, but to be consistent, those who are denouncing hapless Governor Mike Pence should be extolling Scalia who ushered in the era of "Religious Freedom" legislation when he wrote:

"U.S. District Judge strikes down Mississippi’s ‘religious freedom’ law."

WaPo reports on a preliminary injunction issued late last night.

“The State has put its thumb on the scale to favor some religious beliefs over others. Showing such favor tells ‘nonadherents that they are outsiders, not full members of the political community, and . . . adherents that they are insiders, favored members of the political community.’ ” Reeves wrote, citing precedent. “And the Equal Protection Clause is violated by HB 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons.”

The Mississippi law, which you can read here, is different from the federal Religious Freedom Restoration Act, which gives religious persons some exemptions from generally applicable law. That law applies to any religious belief that is substantially burdened. The Mississippi law specifies 3 particular religious beliefs it exempts: "Marriage is or should be recognized as the union of one man and one woman... Sexual relations are properly reserved to such a marriage... Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth."

About those RFRA and birth control cases, "The Court expresses no view on the merits..."

"In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest. Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans 'obtain, without cost, the full range of FDA approved contraceptives.'... The judgments of the Courts of Appeals are vacated, and the cases are remanded for further proceedings consistent with this opinion."

Just now, per curiam, in Zubik v. Burwell, the case about the religious burden of needing to fill out a form to object to the requirement to provide contraceptive coverage. This fizzle of an outcome happened, according to the Court, because the question came up at oral argument whether the government needed the form.

"For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics."

Writes Mark Tushnet, in part of a 6-point plan for "abandoning defensive-crouch liberalism" (energized, prematurely, by the 4-4 balance on the Supreme Court):

The culture wars are over; they lost, we won. Remember, they were the ones who characterized constitutional disputes as culture wars (see Justice Scalia in Romer v. Evans, and the Wikipedia entry for culture wars, which describes conservative activists, not liberals, using the term.)

Professor Tushnet doesn't bother to put in links. I found the Wikipedia entry for "culture wars," and it traced the term to "Culture Wars: The Struggle to Define America" by the sociologist James Davison Hunter. That was published in 1991, 5 years before Scalia, in Romer, wrote of the "Kulturkampf" ("culture war").

Does the war metaphor matter? Is there some idea that whoever called it a "war" first is — after the war ends — properly treated like a conquered enemy?

"Gov. Nathan Deal said he will veto the 'religious liberty' bill that triggered a wave of criticism from gay rights groups and business leaders..."

He said it "doesn’t reflect the character of our state or the character of its people" and: "Their efforts to purge this bill of any possibility that it would allow or encourage discrimination illustrates how difficult it is to legislate something that is best left to the broad protections of the First Amendment...."

But the First Amendment doesn't give "broad protections" against neutral generally applicable laws that burden religion. The idea of exempting for those with religious beliefs from following the law that applies to everyone else comes not from the First Amendment, but from statutes like the one Bill Clinton signed in 1993 and the one Nathan Deal is vetoing today.

The "startling moment" in the argument about Obamacare and religious accommodations when Justice Kennedy said the word "hijacking."

Lyle Denniston describes today's oral argument in  Zubik v. Burwell:

“Hijacking” is what a long list of religious institutions that object for reasons of faith to contraceptive methods have used to describe what they say the federal government will do to their health-care plans as it moves toward providing free birth control to those institutions’ female employees and college students...

Four Justices remain from the majority... in the ruling two years ago... [in] Burwell v. Hobby Lobby Stores...  [Justice Kennedy, one of the 4, wrote a separate opinion endorsing] the technique the government had used for non-profit religious institutions, to allow them to opt out of the birth-control mandate, and suggested it would work for for-profit companies, too.  But that is the very “accommodation” approach that, on Wednesday, he labeled a form of “hijacking” of non-profits’ health plans....

Kennedy's use of the word may suggest that he will not vote with the Hobby Lobby dissenters, and the prediction would be that there will be a 4-4 tie, setting no precedent and leaving the results from the Courts of Appeals in place. That is, the government's accommodation would work in most states but not in Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota — the 8th Circuit.

Imagine a restaurant that "believes in hamburgers" and just wants to "persuade you to eat them."

If you can do that, you're ready for Jonathan Chait's analogy, quoted in "The New Republic Is for Sale Again":

A business is something that is trying to make money. If you’re in a town and you’re trying to sell hamburgers, and everyone wants pizza, you’d switch to pizza. But The New Republic believes in hamburgers. We think you need hamburgers, and we will continue to make hamburgers and try and persuade you to eat them.

Maybe I could imagine a restaurant that believes in vegetables — believes to such a degree that just getting you to eat them is all they want. They? A restaurant is an "it." The "it" doesn't believe. There's a "they" there for any belief to be going on. And there can be people working through a corporation who intend to stick to their beliefs. It's hard to imagine people caring so much about other people eating hamburgers — thinking "you need hamburgers" — that they'd invest and work in a restaurant that only lost money. You know, maybe Chait's writing would be more persuasive if he made good analogies.

But let's upgrade the analogy to a restaurant that serves locally grown organic vegetables and refuses to switch to cheaper, commercially grown stuff. Now, that we've got something we can imagine, we're empowered to see what's really wrong with Chait's analogy. The people running that restaurant would still want to make money, and they sure wouldn't want to lose money. And it would be a business.

It's bizarrely anti-business to think that if something is a business, making money is its only value. This is the same problem we saw in the context of the Hobby Lobby case, where some people thought that a for-profit corporation could not be protected by the Religious Freedom Restoration Act. If it was for profit, they argued, how could the people working through it have any religious values worth protecting? The corporation should have to be not for profit to merit any protection.

The Supreme Court takes 7 cases seeking Religious Freedom Accommodation Act exemptions from Obamacare.

Explained, at SCOTUSblog, by Lyle Denniston. These cases all involve non-profit religious organizations, which the federal government has tried to accommodate. You may remember the Hobby Lobby case. That had to do with for-profit corporations, which the government argued (unsuccessfully) had no right to accommodations under RFRA. In the new cases, non-profit organizations say that the accommodations they've been offered do not go far enough:

[The government's] accommodation requires the institution to notify the government of its objection; that, the government argues, is enough to excuse that institution from any direct role in providing contraceptives to their female employees. From then on, it is the government, working with the institution’s health insurer, that actually provides the free access to contraceptives for those employees....

The religious institutions have countered that, because the plans that will provide for the access are those institutions’ own heath insurance systems, the government will “hijack” those to provide the contraceptives. The mere act of notifying the government of a religious objection, those institutions have contended, works as a “trigger” to the government to go forward with contraceptive coverage through their plans. That, the institutions have said, confronts them with the choice of violating their religious beliefs or paying the heavy fines.

The organizations argue that their exercise of religion is substantially burdened by this level of involvement in the process. If this need to avoid even direct participation counts as a substantial burden on religion, then the government must have a compelling interest and it must meet that interest with the "least restrictive means."

In Hobby Lobby, the Supreme Court didn't decide but assumed that "the interest in guaranteeing cost-free access" contraception was compelling. It said that the government had certainly not used the least-restrictive means, because it didn't even give the accommodation that it worked out for not-for-profit organizations.

In these new cases, the question is whether even that accommodation is the least restrictive, a question Hobby Lobby left open. As the Court wrote in that case, the "most straightforward" accommodation "would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections."

It's the first Monday in October, so the Supreme Court is back on the bench, and mainstream media are telling readers which upcoming cases to care about.

SCOTUSblog collects links.

I'll just read the one in The Washington Post, from Robert Barnes, which I'm choosing because the headline so perfectly sums up the reason mainstream media think you could or should care: "Supreme Court faces politically charged election-year docket."

The "politically charged" issues that might matter to an ordinary person — because they might affect how you'll vote in the presidential election (the all-important question of our time) — are: "the legality of racial preferences to encourage diversity; how far government must go to accommodate religious liberty; how far government may go to restrict a woman’s right to abortion."

I'm not an ordinary person. I'm a law professor, and I've been a law professor for a very long time. From that perspective, I'm going to home in on the language discrepancy between: "how far government must go to accommodate religious liberty" and "how far government may go to restrict a woman’s right to abortion."

The "must" is deceptive if not wrong. The cases about accommodating religious believers are not about what the Constitution requires — what government must do — but about the Religious Freedom Restoration Act ("RFRA") — which is a limitation that the federal government chose to take on and which the government may change by statute. We already know — and the current cases are not about — that the government need only treat religious believers the same as everybody else when it comes to regulating conduct. That's the constitutional law. As I've explained before on this blog, RFRA was a reaction to the Court's rejection of constitutionally required accommodation: "The RFRA bill was sponsored in the House by Congressman Chuck Schumer and in the Senate by Teddy Kennedy. (Each had a GOP co-sponsor). The Democrats controlled Congress, but the Republicans all voted for it too (with the sole exception of [arch-conservative] Jesse Helms)." President Clinton signed the bill, which he effused over: "The power of God is such that even in the legislative process miracles can happen."

The government — Democrats and Republicans — chose to accommodate religion, and the Court is simply stuck determining what their statute means. Government can repeal or amend RFRA or put language in statutes (e.g., the Affordable Care Act) saying RFRA doesn't apply, so we are not talking about how far government must go to accommodate religious liberty.

Adjust your presidential preferences accordingly.

"The Kentucky county clerk facing potentially stiff penalties for refusing to issue same-sex marriage licenses has been married 4 times..."

"... raising questions of hypocrisy and selective application of the Bible to her life," U.S. News reports.

She gave birth to twins five months after divorcing her first husband. They were fathered by her third husband but adopted by her second. [Kim] Davis worked at the clerk's office at the time of each divorce and has since remarried.

Davis has described her desire to strictly adhere to the Bible in stark terms and thus far has shown no sign of bending to court orders on same-sex marriage. She said Tuesday she fears going to hell for violating "a central teaching" of the Bible if she complies with the orders.

That's very interesting, but, from a legal standpoint, the scope of Davis's entitlement to relief from substantial burdens on her religion depends on her sincere belief in the religion not on whether she has committed sins within the terms of her religion or whether we think her beliefs are coherent.

In any case, Christians tend to believe that they are forgiven for their sins and to try to go forward without committing new sins, so is this evidence of the "selective application of the Bible to her life"?

It does make Davis a more ridiculous or contemptible person, for those who are inclined to think of her that way. To my mind, it's better simply to see her as someone who cannot hold onto the government job she wants unless she's willing to deal with the public in a manner consistent with our rights.

"The Denver-based Little Sisters of the Poor, who sued to avoid complying with the Obamacare contraception mandate..."

"... lost Tuesday in the 10th Circuit Court of Appeals, which ruled it must allow employees to have contraception coverage," the Denver Post reports.

The federal government adopted a regulation that exempts religious employers, such as churches, hospitals, universities, charities and other service providers such as the Little Sisters of the Poor, from covering contraceptives they oppose on religious grounds. However, these groups must actively seek an exemption. A third party then steps in to cover contraceptives for employees.

That is, the Sisters had an exemption, but argued they were burdened by having to go through the government's procedure set up to identify them as falling within the exemption.

They argued that being forced to file for the exemption made them part of "the scheme" to provide their employees access to contraceptives....

The court rejected the claim that complying with the law makes them "complicit" in delivery of contraception.

Here's the PDF of the opinion. Excerpt:

Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity.

But who decides what "complicity" is? That, itself, is a matter of religious belief. Why does  control over the meaning of complicity belong to the government and not to the individual?

"Why should a woman cook? So her husband can say, 'My wife makes a delicious cake,' to some hooker?"

From "61 Comedians Recall Their Favorite, First, and Life-Changing Jokes." That joke is from Joan Rivers, and the comedian who calls that her "favorite joke of all time" is Jen Kirkman. Most of the 61 comedians, by the way, don't identify a particular joke, so the headline is misleading. I chose Kirkman's joke for this post because it is a joke, it's funny, and it gives you something to think about.

You might think I chose it because CAKE! has been the subject of the week and the tendency of people to pay attention to CAKE!!! has been amply demonstrated. But I didn't. And I'm actually pretty sick of the cake-o-mania of the past week. I've got some really mixed feelings about this cake-focused exposure of the RFRA laws — laws I've studied and taught for many years. I feel as though I should explain things about which I have an overload of understanding, but I also feel hopeless about conveying that understanding. The political demagoguery will overwhelm the legal material. I'm absolutely convinced. I could do my professorly part, but why should I pour hopeless effort into the rehabilitation of RFRA laws, which I've never liked? When it's not hopeless, it's my practice to explain arguments for things I don't agree with. But it is hopeless here. The political noise is too loud.

Okay? Now, please acquire your cake somehow. Have cake and eat it and share it and stop being so obtuse about love.

 

AND: I wanted to replace that cake pic with a photograph of a cake that had "God is love" written on it. That would be a loftier ending for this post, but instead I'm going to return to the joke-y spirit I began with. Here's what Google gave me when I asked for a picture of a cake with "God is love" written on it:



What would Mitt Romney do?

What the Democrats' fund-raising over the Indiana RFRA looks like:

Why those 3? It makes me wonder how Scott Walker handled it. On Charlie Sykes's radio show on Wednesday he said:

I just think this is people who are chronically looking for ways to be upset about things instead of really looking what it is. I believe in protecting religious freedoms. It’s inherent in our state’s constitution. Heck, it’s inherent in our U.S. Constitution, and again, Wisconsin, we’ve done it, and we’re stronger for it.