Jul 13, 2014

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The First Amendment Decision Nobody's Talking About

While the Hobby Lobby case is higher profile, the Supreme Court's unanimous First Amendment decision last week has greater staying power.
 The Supreme Court decided an important First Amendment case this past week. But it wasn't Burwell v. Hobby Lobby. On Thursday, a unanimous Court struck down a Massachusetts law that restricted peaceful expression on public streets and sidewalks outside of abortion clinics. And those who care about religious liberty should know at least as much about that case, McCullen v. Coakley, as they do about the more narrowly decided case with which the Court ended its term.

To be sure, Hobby Lobby is an important decision. The Court rightly concluded that the Religious Freedom Restoration Act (RFRA) protects certain kinds of corporations from federal laws that substantially burden the exercise of religion. As Justice Alito wrote for the majority, "Congress enacted RFRA in 1993 in order to provide very broad protections for religious liberty."

But this also means Hobby Lobby was decided based on a federal law, not the Constitution. From the Court's point of view, the case had nothing to do with the First Amendment—and if it had, Hobby Lobby and its owners might not have prevailed. Indeed, the reason that Congress overwhelmingly passed RFRA in the first place (97-3 in the Senate, by acclamation in the House) was a disturbing Supreme Court decision in 1990, Employment Division v. Smith, which lowered the First Amendment's protections for religious liberty. The decision in Smith held that the First Amendment provided no special protection for religious liberty claims brought against "generally applicable laws."

Since most laws (possibly including the contraceptive mandate at issue in the Hobby Lobby case) are generally applicable, Smith in effect meant that the government could prevail over religious liberty objections in its laws and regulations. RFRA (and similar statutes enacted by some states) was designed to counteract that troubling constitutional standard. But RFRA's protections are not First Amendment protections. The Hobby Lobby majority acknowledged this, and Justice Ginsburg, writing in dissent, contended that "any First Amendment Free Exercise Clause claim Hobby Lobby . . . might assert is foreclosed by this Court's decision in [Smith]." We cannot know for sure how the Court as a whole might have decided Hobby Lobby's claims on First Amendment grounds, but the precedent in Smith gives us some reason to suspect that Justice Ginsburg is right.

McCullen, in contrast to Hobby Lobby, is squarely a First Amendment case. It involves a 2007 Massachusetts law that established a 35-foot buffer zone around abortion clinics that categorically excluded citizens from engaging in any expressive conduct. The buffer zones extended to public streets and sidewalks.

 A prolife woman named Eleanor McCullen, along with several others, challenged the law. The Court properly noted that McCullen and her fellow litigants were not "protesters" but people who sought "to inform women of various alternatives and to provide help in pursuing them," an objective they believed could be achieved "only through personal, caring, consensual conversations."

McCullen's activities were indisputably peaceable. Yet the Massachusetts law criminalized them. Had she approached a willing listener to discuss abortion in a covered zone, she would have been subject to three months' imprisonment for a first offense, and two and a half years' imprisonment for each subsequent violation. The statute also prevented McCullen from entering the covered zone to sing or pray quietly.

The Massachusetts law meant that "McCullen [was] often reduced to raising her voice at patients from outside the zone—a mode of communication sharply at odds with the compassionate message she wishes to convey." The zones "also made it substantially more difficult for [her] to distribute literature to arriving patients." The Court noted that these burdens "have clearly taken their toll," citing undisputed testimony that the law substantially reduced the success of McCullen and her fellow litigants in persuading women not to terminate their pregnancies.

In striking down the Massachusetts law, the Court properly emphasized that "it is no accident that public streets and sidewalks have developed as venues for the exchange of ideas." And responding to arguments from the state that the buffer zones helped with administrative enforcement, the Court noted that "the prime objective of the First Amendment is not efficiency."

McCullen was a unanimous decision—every justice agreed that the Massachusetts law was unconstitutional. But Justice Scalia, writing for himself and Justices Kennedy and Thomas, scolded the Court for failing to taking the opportunity to overrule Hill v. Colorado, a 2000 decision involving abortion protesters. Hill also involved a state law that restricted expression outside of abortion clinics, but the Supreme Court upheld that law.

In a brief filed on behalf of a broad coalition of religious groups, Stanford Law professor Michael McConnell and I argued that the Court should have used McCullen to overrule Hill. We weren't the only ones. A host of progressive organizations and scholars have also disavowed Hill. Harvard Law Professor Laurence Tribe—himself a defender of abortion rights—calls Hill "slam-dunk simple and slam-dunk wrong."

 The Court's failure to overrule Hill in McCullen is deeply disappointing. Justice Scalia suggested that the decision reinforced "an entirely separate, abridged edition of the First Amendment applicable to speech against abortion." But he also noted more optimistically that Hill is now a questionable precedent because the "unavoidable implication" of McCullen "is that protection against unwelcome speech cannot justify restrictions on the use of public streets and sidewalks." Indeed, we should not lose sight of the principles which McCullen upholds—First Amendment principles that are at least as important as the legal issues in Hobby Lobby. As Professor Tribe noted in a New York Times op-ed this past Friday, "The great virtue of our First Amendment is that it protects speech we hate just as vigorously as it protects speech we support." In McCullen, as Tribe observed, "all nine justices united to reaffirm our nation's commitment to allowing diverse views in our public spaces." That commitment reinforces the freedoms of the First Amendment, including speech, assembly, and the free exercise of religion.

Hobby Lobby, like McCullen, is a win for religious liberty. And RFRA is an important statute. As Kim Colby of the Christian Legal Society recently noted, "for two decades, RFRA has stood as the preeminent federal protection of all Americans' religious liberty." But RFRA is not a constitutional protection. Its protections could be withdrawn by Congress. And even in its current form, after some of its provisions were struck down by the Supreme Court in 1997, RFRA only applies to federal laws and regulations, not to state or local laws.

Hobby Lobby is an important affirmation of the aims of the Religious Freedom Restoration Act. But it is a narrow and in some ways precarious decision, subject to the whims of future legislators or a slight shift in the Court's current composition. And it is not a First Amendment decision. We should be glad for Hobby Lobby, but we shouldn't lose sight of the unanimous decision in McCullen, and its reminder that when it comes to the roots of our religious liberty, the First Amendment is what matters the most. –Christianity Today

Aborted Baby Jesus’ Dolls Hung in Hobby Lobby Store

A video has surfaced that appears to show an individual entering a Hobby Lobby store in Poughkeepsie, NY and committing an act of anti-Christian vandalism inside the store.

The video shows the individual placing several naked dolls with wire hangers going through their heads on one of the store’s shelves.  The naked baby dolls have long hair and beards and are adorned with labels which advertise the dolls as “Aborted Baby Jesus.”

The individual displays the dolls next to Easter decorations.

The video runs a little over one minute.  At the end of the video. a caption appears on the screen reading “Consume Like a real Christian at Hobby Lobby.”

The video entitled “Christian Consumerism” is almost certainly intended to make some sort of political statement, most likely in reference to Hobby Lobby’s pending lawsuit against the Obama Administration in opposition to Obamacare's birth control mandate.

While the identity of the individual perpetrating the act of vandalism in the video is unclear, the video itself was discovered on the website of artist, Ron English.  English is a popular American surrealist painter; well known in the artistic community for his use of pop culture icons—both fictional and otherwise—to make political statements.

English is perhaps best known for his painting “Abraham Obama” which morphed the faces of Barack Obama and Abraham Lincoln and was illegally posted all over the city of Boston in an effort to support Obama’s election in 2008.  -CNS News

Adventist Church Encouraged by Court's Hobby Lobby Decision

The Seventh-day Adventist Church in North America is encouraged with today’s ruling by the U.S. Supreme Court in the most anticipated case this term in which religious liberty and the right to healthcare intersected. Today’s decision, in what is referred to as the Hobby Lobby case, reaffirmed the Religious Freedom Restoration Act (RFRA), which safeguards the broad religious liberty protections available to all people of faith.

The court’s ruling was the result of appeals by two family owned, for profit companies – Hobby Lobby Stores and Conestoga Woods Specialties – that objected to providing certain forms of birth control as required under the Affordable Care Act (ACA). The question for the Court was whether these companies could claim an exemption from this requirement under the First Amendment and the RFRA.

The Hobby Lobby case presented a unique situation for some faith-based organizations, including family owned companies, as religious freedom and health issued intersected.

The Adventist Church’s commitment to religious freedom is well established and long standing. As one of many religious groups that advocated for the passage of the RFRA in 1993, the Church is concerned with any attempt to weaken or restrict the interpretation of the legislation, which protects religious freedom.

Additionally, the Adventist Church’s commitment to health has been clearly established since the Church’s founding. As the operator of one of the largest hospital systems in the U.S. and of hospitals and clinics around the world, the Church’s involvement in improving the health of all, including women, is similarly well established.

The Seventh-day Adventist Church, in its Fundamental Beliefs and teachings as based on the Bible, does not object to providing the methods of contraception at issue, and has fully complied with this provision of the AHA for its U.S. based employees. However, the Adventist Church has a long history of defending religious freedom not just for itself but all people of faith. The balancing of interest will always be a difficult task. Further, the Church is concerned that the weakening of religious liberty rights for any group threatens the rights of all people of faith.

The Adventist Church believes that while the provision of contraception is an important goal of the ACA, it is one the government can reach without forcing family held companies to violate their sincerely held religious beliefs. –Religious Liberty

10 Easiest To Grow Veggies


Looking to grow your own hyperlocal veggies to improve your foods’ nutrition and save some money this year? Although large, complex gardens do require a fairly hefty time investment, many veggies are so easy to grow that they practically care for themselves. If you’re hoping for a highly productive but low-maintenance veggie garden, try these 10 easy-growing veggies, perfect for beginner gardeners.

You can learn about different varieties by studying seed catalogs, which most companies send for free. One of my favorites, with a bounty of advice and beautiful color photos, is Johnny’s Selected Seeds. Visit the website or order a catalog, and start planning!

1. Salad Greens (arugula, lettuce, spinach and corn salad). Pick your favorite, or try a mix—many seed companies sell mixed packets for summer and winter gardening. Plant seeds in spring and fall, and you can pick salads almost year-round. Read more about all sorts of greens in our Field Guide to Salad Greens.

2. Potatoes. Potatoes store well when kept cool. A simple and low-maintenance approach is to plant potatoes directly in straw (with just a little dirt added) rather than soil. “Seeds” are whole or cut sections of potatoes. Only plant organic potatoes or those sold in nurseries as seed potatoes. Conventional grocery-store potatoes are sprayed with an antisprouting agent. Try this recipe for Roasted Red Potatoes.

3. Green Beans. Easy to grow and highly productive, green beans freeze well, and they’re delicious pickled as dilly beans. Start with seeds after danger of frost has passed. Green beans grow very well vertically on fences or trellises. Read more about vertical gardening techniques.

4. Radishes. Radishes do well even in not-so-great soil, and they’re ready to harvest in only a few weeks. Plant seeds in spring and fall. Enjoy a baby greens and radish salad with garlic-mustard vinaigrette.

Start with small plants. If they do well, you can harvest bulb onions. If not, you can eat the greens. Read a guide to growing onions.

5. Onions.

6. Strawberries. Perfectly ripe strawberries are luscious, and the plants are surprisingly hardy. Buy bare-root plants from your local garden center in early spring. Put this perennial in a sunny spot and weed often. Strawberries grow wonderfully in an old-fashioned strawberry barrel. Learn how to make one.

7. Peppers. Hot and bell peppers are both easy to grow. Start with seedlings and let peppers ripen for different lengths of time to get a range of colors and flavors—most peppers turn from green to red or purple over time, becoming sweeter along the way. Learn to dry, freeze, pickle, smoke and preserve peppers in oil.

8. Bush Zucchini. This squash won’t take up as much garden space as many other types, and it’s very prolific. Start from seeds or transplants. You won’t need more than a few plants for a bumper crop. Learn to make dried zucchini chips for snacking or rehydrating in soups and stews.

9. Tomatoes. There’s just no substitute for a perfectly ripe homegrown tomato, and it’s hard to go wrong when you start with strong plants (look for thick stems and healthy leaves). If you get a big crop, consider canning or freezing. Read a guide to growing amazing tomatoes.

10. Basil. Many herbs are easy to grow, but basil is among the easiest. It complements tomatoes in both the garden and the kitchen and grows well from seeds or transplants. –Care2

Census Bureau Shows More People Living in Areas of Poverty

Researchers find living in poor neighborhoods adds burdens to low-income families

A U.S. Census Bureau report released on Monday reveals that the proportion of people living in areas of poverty increased by 7.7 percentage points from 2000 to 2010. Latest figures collected by the American Community Survey from 2008 to 2012 showed that 1 in 4 U.S. residents lived in areas with a poverty rate of at least 20%.

The report, Changes in Areas With Concentrated Poverty: 2000 to 2010, compares new data with that collected in the 2000 Census Bureau to track income changes throughout the country. According to latest figures, 30% of the population lived in areas of poverty in the District of Columbia and 14 states — an increase from only four states and the District of Columbia in 2000. States that had experienced the greatest increase included Tennessee, Oregon, Arkansas and North Carolina.

Data also showed that the entire country was affected by the increase in poverty, regardless of race. Although the report indicated that minorities and households headed by single mothers were at the greatest risk of living in poverty, whites living in poor areas had the greatest proportional increase — from 11.3% in 2000 to 20.3% in 2008 to 2012.

The report’s lead author, Alemayehu Bishaw of the Census Bureau’s Poverty Statistics Branch, said in a statement that federal and government agencies would be able to use the data to provide assistance to those in need. “Researchers have found that living in poor neighborhoods adds burdens to low-income families, such as poor housing conditions and fewer job opportunities,” he said.

Despite the general rise throughout the country, the report found that the proportion of people living in poverty areas in West Virginia, Alaska, Louisiana, the District of Columbia and Hawaii actually decreased by at least 0.4 percentage points over the same period. –Time

Dalai Lama's Guide To Happiness

Israel’s Abortion Law Now Among World’s Most Liberal

Despite its conservative leanings, government approves free pregnancy termination for nearly all women, and it barely causes a ripple

Israel, a nation with a forceful religious lobby and a conservative prime minister, is poised to offer its female citizens some of the most liberal abortion coverage in the world.

The nation’s Health Ministry commission, led by Dr. Yonatan Halevy, last week announced its state-subsidized “health basket,” the package of medications and services that all Israeli citizens are entitled to under the nation’s health care system. It was approved by the cabinet on Sunday. The health basket is analyzed and amended on an annual basis, and among the many additional treatments to be offered to Israelis in 2014 are free-of-charge abortions for women ages 20-33.

Israel has always had a liberal stance on abortion, allowing women facing medical emergencies or those who are victims of rape or abuse to receive subsidies to help them terminate their pregnancies. Outside of those regulations, women can apply for abortions for reasons ranging from an emotional or mental threat caused by the pregnancy or for not being married to the baby’s father. All women who seek to end a pregnancy must appear before a three-member committee to state their case, but 98 percent of requests are approved. Women under the age of 20 or over the age of 40 were also previously eligible for subsidized abortions, regardless of the reason.

With the newly amended health care package, however, funding will now be available for more than 6,000 additional women seeking to terminate their pregnancies, at the cost at some NIS 16 million ($4.6 million). No medical reason for the abortion is required.

Halevy, director general of Shaare Tzedek Medical Center in Jerusalem, rejects the idea that the health commission’s move is in any way radical, and is quick to point out that the boost in abortion funding is but one small piece of several alterations to Israel’s state-sponsored health care, ranging from mental health care to the treatment of diabetes and beyond.

“We want large families in Israel. We definitely encourage birth,” he says. “But when pregnancy occurs and it is undesired or inadvertent, I think we should supply the means to end the pregnancy properly.”

Among Israel’s religious right wing, there have been low grumblings of protest against the new law, but for a nation where a woman’s hemline or her seat on a public bus can set off a firestorm, the response has been surprisingly muted.

Dr. Eli Schussheim, chairman of the pro-life group Efrat, likened the decision to theft, saying that by allocating funding for non-medically necessary abortions, the committee “is stealing… from sick people… and giving the money instead as a prize to 6,000 negligent women.”

His sentiments were echoed by Rabbi David Stav, head of the relatively liberal Tzohar group of Orthodox rabbis, who said there is “no question” that in the absence of a medical emergency, abortion is against Jewish law.

It is highly unlikely, however, that Israel will soon see protests that even come near those that target abortion clinics in the United States, where the legality of pregnancy termination remains one of that nation’s most polarizing issues. A backlash of societal shaming against abortion-seekers — such as in Spain, where some 60% of women are prompted to pay for the procedure privately rather than collect the available government funding — is also highly improbable.

The number of nations that now take a stance as liberal as Israel’s on abortion can be counted on one hand. In Canada, abortion is legal at any stage of a woman’s pregnancy, and those performed in hospitals (but not in private clinics) are for the most part covered by insurance. In Slovenia, abortion has been free since 1977, and in 2006, a government minister who tried to limit funding to only those women whose lives were at risk was promptly asked to resign his post.

While Israel may seem an unlikely party to such liberalism, global legislation on abortion proves that when it comes to the life of a fetus, a nation’s politics do not always jive with its attitude toward the controversial procedure.

Some stalwartly left-leaning nations are surprisingly rigid on their abortion laws, including Sweden, where women have only the first 18 weeks of their pregnancy to apply for the procedure before being barred except in cases of mortal danger. And in Russia, a nation whose conservative stance on issues like gay rights has prompted roiling protests ahead of the 2014 Olympic Games in Sochi, there are more abortions performed each year than there are live births.

The women set to benefit from the expansion of abortion benefits, Halevy says, will be those who need it most: single women, young women who are unable to ask their parents for the funds, or those who fall pregnant as the result of an extramarital affair but are financially dependent on their husbands. While he concedes that there have been some knee-jerk statements against the ruling, he says that “once you explain who the candidates are who are set to benefit from it, I didn’t hear much opposition.”

And he rejects the idea that easier access to abortion will create a laissez-faire attitude toward pregnancy, saying, “There is emotional and physical drama to pregnancy. I don’t believe someone would get pregnant just because her abortion could be financed.”

Despite the media focus to the abortion issue, Halevy says that what is radical about the new health care package – and is being lost in the din of debate – is sweeping new coverage for a range of oncological medications, and a cutting-edge, forward-thinking approach to mental health care, including the addition of a new and sorely needed treatment for schizophrenia that previously had to paid for out of pocket.

Other areas that have received a boost in funding are treatments for prostate cancer, diabetes and osteoporosis. The committee came to their recommendations after spending three months poring over more than 3,600 pages of new medical research from around the globe and then careful analyzing costs, prevalence of need, and recommendations made by Israel’s four health insurance funds as to what was most sorely needed.

“There is no country in the world where its citizens are entitled to public funding for such a wide basket of services,” Halevy says. “With the new mental health package, with some of the oncological diseases like melanoma and lymphona – we have made a lot of progress.” -Times of Israel

The Confession

After not having gone inside a church for who knows how long, a drunkard finally went to the church where practically everyone in town had been faithful parishioners. The church had been updated and modernized since he last set foot in it. He made a beeline for the confessional.

He pulled aside the curtain, entered, and sat himself down. To his astonishment, he found that it had a fully equipped bar with fine crystal wine glasses, the best vestry wine, Guinness on tap, cigars, liqueur, and even chocolates; and on the wall were photographs of sexy ladies who appeared to have mislaid their garments.

Suddenly, he heard a voice: "Yes, my child. . ."

Before the priest could say another word, the drunk immediately started: "Father, forgive me for it has been a very long time since I'd been to church and to confession. I must admit that the confessional box is much more inviting now than it used to be...."

Then, he heard the voice hiss: "Get out, you idiot. You're on my side of the confessional!"

~Contributed by Ralph