Little Sisters of the Poor

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Upcoming U.S. Supreme Court case could be a huge religion-beat sleeper story

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Upcoming U.S. Supreme Court case could be a huge religion-beat sleeper story

The agenda for the U.S. Supreme Court term that began this month has zero cases involving the two religion clauses of the First Amendment.

That’s quite the change after the important religion rulings the past two years, not to mention religious conservatives’ and liberals’ agitation after the 2022 Dobbs decision, which overturned Roe , which had legalized abortion nationwide.

So religion-watchers may not be aware that the court soon takes up two potentially tectonic cases involving — would you believe it — small businesses that fish for herring off the New England coast and say they shouldn’t have to pay their federal monitors. The cases are Loper Bright v. Raimondo (docket # 22-451), newly combined Oct. 13 with Relentless Inc. v. Department of Commerce (docket #22-1219). Oral arguments could come as soon as January.

This gets into the weeds of administrative law, an area that normally does not set pulses pounding but here involves the hot political dispute over powers exercised by federal agencies. Conservatives assert that agencies have long been interpreting and enforcing laws in ways that Congress never intended or has never defined, thus usurping legislative prerogatives and violating the Constitution’s “separation of powers.”

Background: The two fishing companies seek relief by overturning the Court’s highly influential 1984 precedent in Chevron v. Natural Resources Defense Council. This unanimous decision granted wide deference to federal agencies in “reasonable” interpretations, applications and enforcement of ambiguous laws passed by Congress.

The list of Loper briefs posted by the invaluable SCOTUSBlog.com shows the variety of interests that include 48 of the 50 states lined up on the two sides and the Republican U.S. House of Representatives, along with e.g. the AFL-CIO, American Cancer Society, Environmental Defense Fund, Gun Owners of America and e-cigarette industry.

You are waiting for the religion-beat angle?


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Was the life of Dorothy Day too Catholic for the New York Times to grasp?

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Was the life of Dorothy Day too Catholic for the New York Times to grasp?

The New York Times veers close to self-parody in publishing “Was Dorothy Day Too Left-Wing to Be a Catholic Saint?”

The very deck beneath the headline undercuts it: “The Archdiocese of New York has asked the Vatican to consider the social activist for sainthood. But church leaders are not entirely comfortable with her politics.”

Actually, Day has always made Catholics on the right and left uncomfortable. The key is making sure that readers know why this is true.

What Liam Stack has to report is pretty straightforward.

Martha Hennessy was upset with what Cardinal Timothy Dolan preached during a Mass in Day’s honor:

“He has reduced her to ‘she lived a life of sexual promiscuity and she dabbled in communism,’” she said. “What worse enemy could we have, saying those things about her?” Ms. Hennessy is active in the [canonization] movement and did a reading at the Mass. “We have got to focus on her policies, we have got to focus on her practices.”

Stack’s report does not link to the cardinal’s homily, which is available on YouTube and embedded in this post (the homily begins at one hour and 15 minutes).

Viewers will note that there is no indication in Cardinal Dolan’s remarks that he is anything other than an admirer. He calls Day “one of our greats,” and mentions that he asked Pope Francis to declare her venerable: one major step toward becoming a saint.

While Dolan’s brief homily did not dwell on Day’s political life, he referred to the significant detail of her being on assignment by a Catholic magazine to report on a Hunger March in 1932 in the nation’s capital. Dolan added a detail omitted by the Times: after observing this march, Day prayed in the Basilica of the Immaculate Conception and took another step toward integrating her politics and her emerging faith.


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Washington Post explores Joe Biden's faith, while embracing language of Catholic left

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Any serious discussion of Catholicism and national politics has to include material from the 1960 speech by Democratic candidate John F. Kennedy to the Greater Houston Ministerial Association.

This would certainly be true — #DUH — of discussions of the life and times of President-elect Joe Biden. I would say the same thing about citing the “personally opposed, BUT … “ approach to doctrine seen in the 1984 speech by the late New York Gov. Mario Cuomo at the University of Notre Dame.

Right now, there are Catholics arguing about whether Biden is “a Roman Catholic.” It’s safer to say, at this point, that he is an American Catholic or even a Cuomo at Notre Dame Catholic.

This brings us to the must-read Washington Post story that ran the other day with this headline: “Biden could redefine what it means to be ‘a Catholic in good standing.’ Catholics are divided on whether that is a good thing.” The key words are “in good standing” — referring to Biden continuing to be active in the sacraments of the Catholic faith, as symbolized by him going to Mass and receiving Holy Communion.

In terms of journalism, the good news is that this Post story quotes Catholic voices on both sides of this doctrinal debate. The bad news is that key passages in this report are worded — oh so precisely — in ways that will please Catholics on the doctrinal left and infuriate those on the doctrinal right.

Hold that thought. First, what did Kennedy say in 1960? Here is a crucial summary passage, with JFK stressing that his personal Catholic beliefs would never force his hand when making political decisions.

… (These) are my views. For contrary to common newspaper usage, I am not the Catholic candidate for president. I am the Democratic Party's candidate for president, who happens also to be a Catholic. I do not speak for my church on public matters, and the church does not speak for me.

Whatever issue may come before me as president — on birth control, divorce, censorship, gambling or any other subject — I will make my decision in accordance with these views, in accordance with what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates. And no power or threat of punishment could cause me to decide otherwise.

Later, a witty critic noted (my online searches haven’t yielded the name) that anyone who knew anything about JFK’s private life would have to say this was the rare example of a presidential candidate making a campaign promise that it was absolutely certain that he would keep.

Kennedy makes his first appearance at the end of the Post article’s overture:


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Thinking about Xavier Becerra: A conservative Catholic checklist of sure-fire news stories

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First things first. Yes, the following think piece is from a conservative Catholic news source.

But there are times when doctrinally conservative Catholic folks need to read the National Catholic Reporter. And this is a time when doctrinally liberal Catholics — and journalists, especially — should read and mark up an article from the National Catholic Register.

Here’s why: This essay contains a long checklist of valid story ideas, as in issues from the past that are almost certain to come up again in the near future. You can see this in the long, long second line in this Register headline:

What a Xavier Becerra HHS Could Mean for Catholics

Becerra’s record in California shows that he, perhaps more than any other state attorney general, has been willing to wield the power of the state to enforce pro-abortion policies against religious and pro-life groups.

Now it’s true that, for conservative Catholics, this story is packed with potential public-policy nightmares, in terms of their impact on traditional Catholic groups and ministries. Can you say “Little Sisters of the Poor”?

At the same time, many — but not all — Catholic liberals will cheer if some of these policy showdowns come to pass.

In terms of doctrine and church-state law, Catholics on the left and right will have radically different views of Becerra being handed this crucial high ground in the culture wars. Evangelicals who lead colleges and universities will be concerned, as well.

But that’s beside the point, if one looks at this piece through the eyes of a religion-beat professional (or even an open-minded scribe on the political desk) who is looking for valid stories to cover. Journalists need to read all of this, but here are a few items that demonstrate what I am saying. Spot the potential stories in this passage:


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How should Biden-era Americans understand 'religious freedom' and First Amendment?

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THE QUESTION:

What does American “religious freedom” now mean?

THE RELIGION GUY’S ANSWER:

Protection of Americans’ “free exercise” of religion has been guaranteed by the Bill of Rights for 229 years and counting.

Until recently, people generally agreed on what this means. The debates involved whether this constitutional right should be exercised or restricted in specific, unusual situations. For example, the Supreme Court has permitted the Santeria faith to conduct ritual slaughter of animals, and exempted Amish teens from mandatory high school attendance laws.

Now this principle is swept up into culture wars that divide the population and the two political parties. In October, the Brookings Institution, a moderately liberal think tank, issued a lengthy white paper titled “A Time to Heal, A Time to Build” with recommendations on religion policy for the U.S. president. It states that the older consensus “began breaking down as new issues emerged, particularly around the struggle for LGBTQ equality.” Brookings consulted 127 experts on church and state for this document, though few were from the so-called “religious right.”

Consider some history: Back in 1993, Democrats were central in passage of the federal “Religious Freedom Restoration Act.” Then-Congressman Chuck Schumer, who is Jewish, introduced the bill in the House, where it won 170 co-sponsors and easily passed by voice vote. In the Senate, Ted Kennedy, a Catholic, was the Senate co-sponsor with Republican Orrin Hatch, a Latter-day Saint, and the act was approved 97–3. President Bill Clinton, a Protestant, enthusiastically signed it into law.

The act states that government cannot “substantially burden” the “exercise of religion,” even when the burden applies to people generally, unless limiting of the freedom is “the least restrictive means” to further a “compelling governmental interest.” Those whose freedom is wrongly suppressed have the right to “obtain appropriate relief” in court. (This restored prior U.S. Supreme Court doctrine that the court had shelved in its 1990 Smith ruling.)

That was then.


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That (overlooked) 2020 Al Smith dinner served up blunt appeals to Catholic swing voters

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That (overlooked) 2020 Al Smith dinner served up blunt appeals to Catholic swing voters

During a normal White House race, the Alfred E. Smith Memorial Foundation Dinner allows the candidates to don formal attire, fire snappy one-liners and make subtle appeals to Catholic voters.

But nothing is normal in 2020. Thus, Joe Biden and President Donald Trump used this year's virtual dinner to preach to Catholic voters in swing states like Ohio, Pennsylvania, Michigan and Florida. The event produced few headlines, coming a mere six hours before Trump announced his positive test for COVID-19.

Saluting Catholic progressive, Biden offered a litany about the pandemic, race, the recession and climate change. He warned that many Americans have lost faith "in one another, in truth, in science and reason."

The current pope, Biden stressed, embraced him during a 2013 White House visit, offering comfort shortly after brain cancer took his son Beau's life.

"Pope Francis took the time to meet with my entire family to help us see the light through the darkness," said Biden. "I live in an amazing country … where an Irish Catholic kid like me from Scranton, Pennsylvania, would one day befriend a Jesuit pope. But that's who we are as a country -- where anything is possible when we care for one another, when we look out for one another, when we keep the faith."

While stressing that he is guided "by the tenets of Catholic social doctrine" -- helping the "least of these" -- Biden didn't mention his vow to codify Roe v. Wade if the Supreme Court overturns that decision or his promise to reinstate policies requiring the Little Sisters of the Poor to cooperate in providing birth control and abortifacients to staff. He didn't mention his decision to officiate at the same-sex wedding of two White House colleagues, an action clashing with church doctrine.

It was logical for Biden to avoid providing fresh ammunition for critics. But the speech, once again, trumpeted his Catholic credentials.

"Joe Biden's choice to run explicitly on the claim that he is a faithful Catholic squarely places on the table his claim to be a faithful Catholic," stressed legal scholar Robert P. George of Princeton University, writing on Facebook. He is a Catholic conservative who has also been a consistent critic of Trump.

“No way out of this, folks," he added. "It's not, or not just, Biden's critics who have raised the issue. It's the Biden campaign. …


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Are the Sexual Revolution vs. religious liberty wars over at Supreme Court? Let's ask Bluto ...

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Want to hear a depressing question?

How many years, or even months, will it take for someone to pull the Little Sisters of the Poor back to the U.S. Supreme Court for another case linked to the status of Obamacare’s contraception mandate?

That’s right. The odds are good that we can brace ourselves for yet another Little Sisters of the Poor vs. the United States of America (or maybe the leaders of a blue-zip-code state or local government).

I predict that we will see Little Sisters of the Poor Round 4 in the headlines sooner or later, for reasons that host Todd Wilken and I discussed during this week’s “Crossroads” podcast (click here to tune that in).

For starters, in this recent case the high court upheld an executive order from the Donald Trump White House, as opposed to grounding its decision in the defense of a specific piece of legislation — as in the Religious Freedom Restoration Act (RFRA) of 1993. You may recall that this bill defending a liberal (in the old sense of that word) take on religious freedom passed with an impressive margin — 97-3.

One of the sponsors of that legislation — which was backed by a Clinton-Gore era coalition of liberals and conservatives — had this to say about its importance:

Today I am introducing legislation to restore the previous rule of law, which required the Government to justify restrictions on religious freedom. …

Making a religious practice a crime is a substantial burden on religious freedom. It forces a person to choose between abandoning religious principles or facing prosecution. Before we permit such a burden on religious freedom to stand, the Court should engage in a case-by-case analysis of such restrictions to determine if the Government’s prohibition is justified. …

This bill is needed because even neutral, general laws can unnecessarily restrict religious freedom.

That was U.S. Sen. Joseph Biden, of course, during an era when he was considered a moderate who tended to stand with the U.S. Catholic Bishops on quite a few social and moral issues.

The question now is this: What are the odds that one of the first things President Joe Biden’s team will do is erase most, if not all, of the Trump-era executive orders linked to religious liberty and the First Amendment?


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New podcast: What's next in terms of Sexual Revolution vs. religious liberty news?

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Decisions by the U.S. Supreme Court usually make headlines, especially when the court is bitterly divided. Few things cause as much chaos in American life than 5-4 decisions from on high.

Meanwhile, 9-0 decisions — which are actually quite common — often receive little attention. They are, however, extremely important because they display a unity on the high court that should, repeat “should,” be hard to shatter.

I bring this up, of course, because of the 6-3 SCOTUS ruling redefining the word “sex” in Title VII of the Civil Rights Act of 1964. In the wake of that historic victory for LGBTQ activists, reporters who cover legal issues, especially church-state conflicts, have to start thinking: Where is this story going now?

That’s precisely what “Crossroads” host Todd Wilken and I talked about in this week’s podcast (click here to tune that in). Journalists can expect clashes sooner, rather than later, when it comes to LGBTQ Americans presenting evidence that they were fired, or were not given a fair chance to be hired, at businesses operated by traditional Christians, Jews, Muslims, etc.

One could start a timer, methinks, to measure how long it will be until the first story of this kind breaks involving Hobby Lobby or Chick-fil-A. The more important story, however, will be how this new legislation passed by the Supreme Court will affect traditional religious believers across the nation who own and operate small businesses. Journalists looking for stories on the cultural left will want to visit businesses led by religious believers who stress that they have had no problems with their employees.

However, let’s go back to that other religious question: What is the next shoe that will drop?

With that in mind, reporters may want to ponder the implications of a 9-0 church-state decision at the Supreme Court in 2012 — which isn’t that long ago, in legal terms. I am referring to Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. That’s the case that strengthened the concept of a “ministerial exception” that gives doctrinally defined religious institutions great freedom in the hiring and firing of employees. The bottom line: The state isn’t supposed to become entangled in personnel decisions that involve doctrine.

Why does that matter right now? As I argued this week (“ 'But Gorsuch...' crashes at Supreme Court: Now watch for 'Utah' references in news reports“), debates about Title VII religious exemptions are looming in the near future. At that point, all roads lead to the 9-0 ruling on Hosanna-Tabor.

The question legal minds are asking: Are we about to see a drama with two acts?


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Journalists should be gearing up for big 'culture war' cases at U.S. Supreme Court

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The COVID-19 emergency shouldn’t divert the media from getting prepared for an unusual pileup of big “culture war” news that will break at the U.S. Supreme Court during the weeks through early July.

Pending decisions the media will need to interpret involve abortion, religious conscience claims, gay and transgender rights, taxpayer aid for students at religious school and (yet again) religious objections to mandatory birth-control coverage under Obamacare. Next term, the court will take up the direct conflict between LGBTQ advocacy and religious conscience, an uber-important problem.

These cases will show us how the newest justices, Neil Gorsuch (age 52, seated 2017) and Brett Kavanaugh (age 55, seated 2018), will be reshaping court edicts on religio-cultural disputes.

Here are the imminent decisions to be ready for.

Espinoza v. Montana (docket #18-1195) — This regards the venerable “Blaine amendments” in many state constitutions that forbid religion-related aid by taxpayers. Does a state violate the U.S. Constitution’s “equal protection” clause if it denies generally available public scholarships to students who attend religious schools?

Little Sisters of the Poor v. Pennsylvania, incorporating Trump v. Pennsylvania (19-431) — Last week, the court heard arguments in this case involving claims of religious rights vs. women’s rights. Did a Trump administration setup properly exempt religious objectors from the Obamacare mandate that requires employers to arrange birth-control coverage?

June Medical Services v. Russo (18-1323) — Louisiana requires abortion doctors to have admitting privileges at nearby hospitals, which pro-choice advocates say hobbles women’s access to abortion. In 2016, a Supreme Court with different membership threw out such a regulation in Texas

Our Lady of Guadalupe School v. Morrissey-Berru, incorporating St. James School v. Biel (docket # 19-267) — The court heard the argument on this Monday via a COVID-era telephone conference. This Catholic school case from California poses whether under the Constitution’s religious freedom clause schools and agencies can discriminate in hiring workers who are not officially ordained “ministers” but may carry out some religious functions. In a similar Lutheran case in 2012, the high court said yes.


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