TIME faith

Is Alliance Defending Freedom the Next Hobby Lobby?

God Meets Profit as Justices Weigh Obamacare Contraceptive Rule
Paul Clement, lawyer arguing before the U.S. Supreme Court on behalf of Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp., center, speaks to the media with David Cortman, senior counsel and vice-president of religious liberty with Alliance Defending Freedom, right, following arguments in Washington, D.C., U.S., on Tuesday, March 25, 2014. Bloomberg—Bloomberg via Getty Images

Eric Yoffie was President of the Union for Reform Judaism from 1996 to 2012.

If a church or its religious leader wants to enter the partisan political fray and support a specific candidate, that is one step too far

Electioneering from the pulpit is a very bad idea, but champions of this particular bad idea seem to feel that its time has come. Let’s hope, for the sake of religion in America, that they are wrong.

On October 5, referred to by its organizers as “Pulpit Freedom Sunday,” more than 1,500 pastors preached sermons about political candidates and their views on matters before the electorate. The day was organized by Alliance Defending Freedom, a group that advocates the absolute right of clergy to endorse candidates or parties without interference from the government or the IRS.

According to IRS regulations, churches can speak out on issues and values; however, they are forbidden to participate in political campaigns or to intervene in any way on behalf of any political candidate. A pastor can give a sermon on poverty or health care, but violates IRS policy if he endorses a candidate. Breaking these rules can lead to the revocation of the church’s tax-exempt status.

The rules, supported by most Americans, are eminently sensible. Freedom of speech and religion are guaranteed by the Constitution, and a priest, rabbi or imam can say whatever he or she pleases from the pulpit. But the Constitution does not guarantee places of worship the benefits of tax exemption, which are considerable. According to Dylan Matthews in the Washington Post, these subsidies cost the government $80 billion in revenue every year. In short, the American people value religion and are prepared, by way of their government’s taxing authority, to foot the bill for much of the good work that places of worship do. But if a church or its religious leader wants to enter the partisan political fray and support a specific candidate, that is one step too far. In that case, the church is required to give up its tax exemption and pay for its electioneering itself.

But the Alliance disagrees. It contends that freedom of religion confers on clergy the right to endorse local, state and national candidates from the pulpit while their churches retain all of their tax benefits. And the purpose of its current campaign is to prod the IRS into taking action against a pastor who violates the rules, thereby generating a test case that it can carry to the U.S. Supreme Court.

One would like to think that the efforts of the Alliance are doomed to failure. Indeed, for most of the last half century, such a campaign would have seemed fanciful, if not absurd. Its goal, after all, is contrary to both established practice and common sense. Nonetheless, there is reason for concern.

In the first place, the IRS has not consistently enforced its own policies. While the overwhelming majority of clergy do not endorse political candidates, there are exceptions; conservative, Evangelical churches, such as those organized by the Alliance, are one example, and left-leaning African-American churches are another. It’s interesting that Pulpit Freedom Sunday was also the day that New York Governor Andrew Cuomo, running for a second term, visited churches in Queens and Brooklyn to ask for support from black congregants. At the Greater Allen A.M.E. Cathedral in Jamaica, Queens, the Rev. Floyd H. Flake, a former congressman, expressed his support for Cuomo, offering the equivalent of a political endorsement if not a formal one.

Part of the issue seems to be that the IRS does not want a challenge in the courts. Therefore, it has refused to be goaded into taking action by the law breakers, and in particular by the Pulpit Freedom Sunday participants, who have been holding an annual event and growing in numbers for six years. But ignoring enforcement is always a bad strategy. It breeds disrespect for the law and encourages more pulpit law breaking from every political direction.

In the second place, if the IRS finally stands its ground and the result is a legal challenge that reaches the Supreme Court, it is more likely now than before that the Supreme Court will be sympathetic to the Alliance arguments. In Burwell v. Hobby Lobby Stores, Inc., arguably the most significant case of the Supreme Court term, the Court granted a special status to religious objectors and religious freedom that was seemingly without basis in precedent. This is good in some ways, but not so good in others; freedom of religion is not absolute and needs to be balanced against other rights and freedoms. It is hard to imagine the legal grounds for a decision that would grant churches the unrestricted right to enter the political process while still benefiting from the financial largesse of the taxpayer, but such an outcome is no longer impossible.

Once ministers, priests, rabbis and imams are entitled to endorse candidates without restriction, they will be increasingly pressured to do so. The same people who pour money into political campaigns will direct their dollars to houses of worship. And churches, synagogues and mosques will no longer be places of worship; they will be political bazaars.

Rabbi Eric H. Yoffie, a writer and lecturer, was President of the Union for Reform Judaism from 1996 to 2012. His writings are collected at ericyoffie.com.

TIME Ideas hosts the world's leading voices, providing commentary and expertise on the most compelling events in news, society, and culture. We welcome outside contributions. To submit a piece, email ideas@time.com.

TIME Law

Supreme Court to Decide Whether Felons Can Sell Their Guns

Case will determine how much "ownership" felons have over their guns

The Supreme Court said Monday that they would decide the case of a convicted felon who attempted to sell his guns or transfer ownership to his wife after he was forced to relinquish them under federal law.

Tony Henderson is a former U.S. Border Patrol Agent who was convicted of felony drug offenses and served six months in prison in 2007. When he was arrested, he gave the FBI his 19 firearms, because felons are not allowed to own weapons. He later attempted to transfer ownership of the guns to his wife or sell them to a third party, which prompted a legal debate as to whether convicted felons relinquish all ownership rights when they turn over their weapons.

A federal judge refused Henderson’s request to transfer ownership, as did an appeals court, which led him to take the case to the Supreme court.

Henderson’s attorney told Reuters that if he doesn’t get the appeal overturned, it would “effectively strip gun owners of their entire ownership interest in significant, lawful household assets following a conviction for an unrelated offense.”

U.S. Solicitor General Donald Verrilli, who will argue the government’s case in front of the Supreme Court, says that allowing a felon to sell or transfer ownership of their guns presents a “significant risk” that he or she could still have access to them.

[Reuters]

TIME Television

John Oliver Mocks the Supreme Court’s Camera Ban by Dressing Up Dogs as Justices

Plus, he offers up some raw footage so you too can reenact your favorite Supreme Court cases

In the latest episode of Last Week Tonight, John Oliver criticized the Supreme Court’s refusal to allow cameras during oral arguments in the court chamber. The Court does release audio — but according to Oliver, this simply isn’t enough to get Americans as interested as they should be.

Oliver’s solution? Reenact SCOTUS activities with footage of cute animals instead of actual justices. The Last Week Tonight writers were inspired by the Internet’s beloved feline star Keyboard Cat, who paws away at a keyboard as terrible electronic music plays. “Think about it,” Oliver says. “If someone made you just listen to the audio of that, you would punch them repeatedly in the face. But the visual makes it irresistible. Why? Because a cat’s paws are doing things you wouldn’t expect them to do.”

After just a few seconds, Oliver proves this is a great idea. Scalia as a bulldog? Yes. The Notorious R.B.G. as a bespectacled chihuahua? Yes.

But wait — there’s more! Last Week Tonight put together a tool kit featuring 10 minutes of raw footage so we can all reenact our favorite Supreme Court cases. One guy already did a great job with Florida v. Harris:

Okay, everybody else. Get to work.

 

TIME Supreme Court

Ruth Bader Ginsburg Says She Has Quite a Large Supply of Notorious RBG Shirts

Ruth Bader Ginsburg
U.S. Supreme Court Justice Ruth Bader Ginsburg speaks with National Constitution Center president and CEO Jeffrey Rosen, Sept. 6, 2013, in Philadelphia. Matt Rourke—AP

"Now my grandchildren love it"

Supreme Court Associate Justice Ruth Bader Ginsburg is intimately familiar with the popular Tumblr created in tribute to her, Notorious R.B.G.

At an event at the 92nd St Y in New York Sunday evening, Ginsburg said she maintains “quite a large supply” of t-shirts bearing her face and the reference to the late rapper Biggie Smalls, known also as The Notorious B.I.G. In an interview with National Public Radio legal affairs correspondent Nina Totenberg, Ginsburg said she gives them out as gifts.

Totenberg: On a somewhat lighter note, I want to ask you about the Notorious RBG t-shirt.[Applause, Cheers]. I gather there are some people he who’ve worn them. I wear mine on the weekends all the time. And people will occasionally—The guy at the drug store said to me last weekend, he said, who is that woman, she looks very familiar, but who is she? I said she’s a supreme court justice. He said, oh good, I’ve learned something today. So how did you find out about the notorious RBG t-shirts.

Ginsburg: I think a law clerk told me about this tumblr and also explained to me what Notorious RBG was a parody on. And now my grandchildren love it and I try to keep abreast of the latest that’s on the tumblr. I have—and in fact I think I gave you a Notorious RBG—

Totenberg: Two of my three. I bought one.

Ginsburg: I have quite a large supply.

Totenberg: Do you have the one—what’s the one ‘you can’t have truth without Ruth'”

Ginsburg: Without Ruth. [nods]

Ginsburg offered high praise for Tumblr earlier this year in an interview with Yahoo News’ Katie Couric.

“Most of it I think is very funny. There is a rap song, and there is one using the words from the Hobby Lobby dissent. I haven’t seen anything that isn’t either pleasing or funny on the Web site,” she said. “I think she has created a wonderful thing with Notorious R.B.G. I will admit I had to be told by my law clerks, what’s this Notorious, and they explained that to me, but the Web site is something I enjoy, all of my family do.”

TIME LGBT

Federal Judge Strikes Down Arizona’s Same-Sex Marriage Ban

Arizona is the latest state where gay marriage is legal following an earlier Supreme Court move

Arizona is now the latest state with legalized same-sex marriage after a federal judge on Friday struck down the state’s ban on the practice and ordered that his decision take effect immediately.

In a concise four-page decision, U.S. District Court Judge John Sedwick cited rulings from higher courts to dismiss Arizona’s ban as unconstitutional.

“It is clear that an appeal to the Ninth Circuit would not succeed,” Sedwick wrote, referring to the higher court that has jurisdiction over a potential appeal in the case. The judge added that the United States Supreme Court has suggested that it would not hear an appeal in the Arizona case.

Arizona is the latest in a slew of states where same-sex marriage was effectively legalized after the Supreme Court earlier this month declined to hear cases addressing the issue. The court’s move effectively brought the total number of states with same-sex marriage to 30, while paving the way for legalization in other states as well.

TIME LGBT

Supreme Court Lifts Block on Idaho Gay Marriage

WASHINGTON (AP) — The Supreme Court says same-sex marriage can go ahead in Idaho.

The court issued an order Friday that appears to remove the last legal obstacle keeping gay and lesbian couples from getting married in the conservative state.

The federal appeals court in San Francisco on Tuesday declared gay marriage bans illegal in Idaho and Nevada.

Justice Anthony Kennedy temporarily blocked same-sex weddings in Idaho a day later after the state asked for a delay. Idaho officials said county clerks would be forced to issue marriage licenses to same-sex couples almost immediately without the high court’s intervention.

Kennedy offered no explanation for his order, but indicated it would not be lasting. The court issued no explanation for its order Friday, either.

TIME 2014 Election

Supreme Court Allows North Carolina Voting Law to Stand in Midterm

A voter displays their "I Voted" sticker on their lapel after voting as others wait in line for the first day of Early Voting on October 18, 2012 in Wilson, North Carolina.
A voter displays an "I Voted" sticker on her lapel after voting as others wait in line for the first day of early voting on Oct. 18, 2012, in Wilson, N.C. Sara D. Davis—Getty Images

Same-day registration and out-of-precinct voting are prohibited in the Tar Heel state this November

Voters in North Carolina will not have access to same-day registration or out-of-precinct voting in this midterm election, after the U.S. Supreme Court on Wednesday blocked an appellant court order to stay parts of a sweeping voting law that voting-rights advocates say could leave many voters disenfranchised come November.

“We are disappointed with the Supreme Court’s ruling today,” the Rev. Dr. William J. Barber II, president of the North Carolina State Conference of the NAACP, said in a statement. Tens of thousands of North Carolina voters, especially African-American voters, have relied on same-day registration, as well as the counting of ballots that were cast out of precinct, for years.”

The North Carolina State Board of Elections said that in 2010, over 21,000 voters registered and voted on the same day during the early voting period, and just over 6,000 voters were able to have their ballots counted even though they voted in the wrong precinct. During May’s 2014 primary, over 400 voters didn’t have their votes counted because these provisions were removed, Durham-based organization Democracy NC reports.

These measures are just two of many that the heavily GOP-backed law eliminated in 2013, in what supporters called an effort to prevent voting fraud in the Tar Heel state. Several organizations have filed a suit against the voting law in the hope of blocking it before this year’s election.

Critics of the law had cause for hope when an appellant court ruled last week that parts of the law should be blocked in November, but the state quickly appealed to the Supreme Court.

In an interview with TIME on Monday, Penda Hair, co-director of the Advancement Project which is representing the North Carolina NAACP in the case against HB 589, said they would “continue to fight this case” which goes to full trial next summer.

“We’re going to do everything we can to make sure voters do get registered and do get to the right precinct,” Hair said. “But, the problem is issues sometimes slip through.”

Early voting begins Oct. 23 in North Carolina. The voter registration deadline is Friday, Oct. 10.

TIME Supreme Court

Gay Marriage on in Nevada, Delayed in Idaho

Anthony Kennedy
Supreme Court Justice Anthony Kennedy speaks to faculty members at the University of Pennsylvania law school on Oct. 3, 2013, in Philadelphia. Matt Slocum—AP

(LAS VEGAS) — The uncertainty over gay marriage hit couples in the West as the U.S. Supreme Court allowed same-sex couples in Nevada to exchange vows but blocked those in Idaho from doing the same.

Justice Anthony Kennedy’s ruling allowed same-sex marriages to begin in the Silver State, clarifying an earlier order. Kennedy said Wednesday afternoon that he is temporarily putting on hold same-sex marriage in Idaho, where state officials have asked for the delay. Officials in Nevada didn’t request a stay.

Kennedy’s orders were the latest twist in the national drama unfolding as more states see same-sex unions made legal and others continue to fight such a change, leaving many couples in limbo.

The news of Kennedy’s initial stay in Idaho, delivered at 8:01 a.m. to about 10 gay couples and dozens of their supporters, left a crowded room in a Boise clerk’s office in silence, except for a small child asking, “Why?”

Amber Beierle, one of the eight women who sued Idaho over the gay marriage ban, had hoped to marry her partner, Rachael. They arrived at the courthouse before it opened at 8 a.m.

“We were past the metal detectors, we were just a few feet away from the clerk and then our attorney was handed a one-page document,” Beierle said. “Apparently it was Justice Kennedy telling us no.”

She said the hardest part was calling her mom to tell her she wasn’t going to be able to get married after all.

Rachael Beierle, who has had her last name legally changed, said the room was filled with emotions, but it was even more difficult listening to the children ask their parents what was going on.

“To hear a 4-year-old ask, ‘Why, Mommy? Why can’t you get married?'” she said. “We’re asking the same questions.

There has been a flurry of legal activity over gay marriage this week.

On Monday, the U.S. Supreme Court refused an appeal, which effectively made gay marriage legal in 30 states.

Then Tuesday, the 9th U.S. Circuit Court of Appeals ruled gay couples’ equal protection rights were violated by the gay marriage bans in both states.

Greg Flamer and Fletcher Whitwell, partners for more than 16 years and Las Vegas residents, had no designs on being among the first in line for a marriage license before the stay was ordered. They’ve got a wedding to plan and family to invite from Mississippi and New York.

“By that time all of these stays and all this legal nonsense will be gone and there won’t be any doubt,” Flamer said.

Idaho Gov. C.L. “Butch” Otter said in a statement he was “pleased” with Justice Kennedy’s early morning stay.

“I intend to be faithful to my oath of office and keep working to protect the Idaho Constitution and the mandate of Idaho voters in support of traditional marriage,” Otter said.

Both Otter and Idaho Attorney General Lawrence Wasden filed emergency motions early Wednesday morning in an effort to delay Tuesday’s ruling that declared gay marriage legal in Idaho and Nevada. Kennedy’s order came just over an hour after the motion was filed.

It’s unclear just how long the U.S. Supreme Court will keep the Idaho stay in effect.

“The next thing that is sure to happen is that the plaintiffs in this case will file their opposition to the stay, and then Justice Kennedy — probably sometime on Friday — will issue an opinion on whether the stay should be continued,” said Shaakirrah Sanders, an associate law professor with the University of Idaho’s College of Law in Boise.

The 9th U.S. Circuit’s decision to make its Tuesday ruling effective immediately was unusual, Sanders said, because it removed the procedural grace period that parties to a case normally have to appeal. The stay from Kennedy could be less about wanting to consider the results of the case and more about reminding the 9th Circuit that it shouldn’t skirt the rules, she said.

Officials at Lambda Legal, the gay rights advocacy organization that argued the Nevada case on behalf of eight same-sex couples, noted only Idaho sought the stay.

Jon Davidson, the group’s legal director, had called for the nation’s highest court to clarify whether Nevada can issue marriage licenses.

TIME Supreme Court

Meet the Lawyers Fighting for Religious Freedom Today Before the Supreme Court

The Becket Fund for Religious Liberty
Counsel for The Becket Fund for Religious Liberty outside of the Supreme Court in Washington. Courtesy Becket Fund

Arguing for a Muslim prisoner's right to grow a beard is just the latest effort for the firm that won the Hobby Lobby case

Gregory Houston Holt wants to grow a half-inch beard but he can’t, and that’s a problem. Holt is Muslim and he believes that wearing a beard is a requirement of his Salafi faith. But he’s serving a life sentence for attempted murder in Arkansas, where the Department of Corrections has banned beards as a potential security threat. On Tuesday, the U.S. Supreme Court will hear Holt’s case, and just as interesting as the outcome of his claim is who will argue it for him. Holt, who now goes by the name Abdul Maalik Muhammad, has put his faith not in a big name first amendment litigator nor in the secularist American Civil Liberties Union, but in the lawyers of the Becket Fund for Religious Liberty.

Holt’s faith in the Becket Fund is well founded. A small, non-profit public interest law firm, with just eleven litigating attorneys and a $5 million annual budget, the Fund is a rising star in Washington. Everyone from unknowns like Holt to corporate giants like Hobby Lobby, which this year won expanded religious exemptions from Obamacare, turns to Becket for high profile cases at the high court. Its lawyers are most famous for arguing the often politically incorrect view that the constitution’s protection of the free exercise of religion has been eclipsed in recent years by government deference to other parts of the constitution. That’s no easy task, since arguments over religious liberty can be some of the thorniest, and most heated, in America.

But the Becket lawyers are shaking up Washington for a simple reason: they win. Over 20 years, Becket has won 85% of its cases–from 1920-2000, the ACLU averaged a little over 65% in religion cases at the Supreme Court, according to the website procon.org. The Supreme Court repeatedly cites the Fund’s briefs in decisions, and Becket’s first case at the Court in 2012 was a 9-0 slam dunk, ruling that the government cannot interfere with a religious group’s choice of whom to hire, even when the employees claim they were discriminated against because of their physical disabilities. Becket is mastering a pattern, supporters say: identify religious litigants with strong claims, present compelling constitutional arguments, and recruit top free exercise litigators. The result is a resurgent ascendancy of religious freedom relative to other rights. “They have outsized success in these cases coming to the court and winning them at the court,” says Viet Dinh, former U.S. Assistant Attorney General and professor at Georgetown University Law Center. “In many ways I think of them as God’s ACLU.”

Every generation has its own fight over religious freedom—it’s a debate that has driven the American story from the day the pilgrims set sail on the Mayflower. The influx of Catholic immigrants after the Civil War prompted the rise of the Blaine amendments to stop public funding of religious education. Jehovah’s Witnesses who refused to salute the flag sparked national debates during World War II. Public school prayer, nativity displays, and the pledge of allegiance prompted the fights of the later 20th century.

It was in the midst of those debates, in 1994, that Kevin “Seamus” Hasson founded the Becket Fund. Hasson, a Catholic lawyer specializing in religious liberty law at Williams and Connolly, felt that the conversation about religion in America was becoming one great non sequitur—one side was arguing that religion was not a societal good while the other insisted that America was a Christian country. Hasson believed that religious liberty comes not from the government or from faith itself, but rather from human dignity. “What we require freedom for is to seek the true, the good, and the beautiful, embrace whatever it is we believe we have found, and express it according the full measure of humanity,” Hasson, who retired in 2011 due to Parkinson’s, says.

Though many of its recent and more prominent clients have been Christian, the Becket Fund has made a point of not pegging itself just to Christian interests, taking on Muslim and Jewish clients, and even more obscure religious causes, like those of a Santeria priest in Texas. Unlike commercial for-profit firms, Becket relies on donors to underwrite its free representation of clients. Some 70% of its donations come from individuals, usually in $25,000 to $100,000 chunks, says Becket Fund president Bill Mumma. The firm’s lawyers are first amendment religious liberty specialists, but the Fund requires they also all be faithful—employees include Mormons, Catholics, evangelicals, Muslims and others.

Becket broke onto the national scene thanks to the Affordable Care Act’s contraception mandate. Its clients Wheaton College, an evangelical liberal arts school, and Catholic organizations like the Little Sisters of the Poor and Eternal Word Television Network, are among the 319 plaintiffs claiming the law’s requirement to provide female employees with insurance plans that include payment for various contraceptives violates religious freedom. But Becket also focuses on low-profile, high-impact cases. The Fund defended Amish men in upstate New York who said local building regulations infringed on their traditional construction methods. It backed a Sikh woman who wanted to wear a kirpan, a small, religiously-symbolic knife, at her job in a government building. Becket has also mastered plain English press releases and media-savvy optics. When the Supreme Court ruled with Becket that Hobby Lobby should have a religious exemption from the contraception mandate, Becket’s female lawyers, not its male ones, were front and center on TV.

Ultimately, though, Becket’s success comes from higher courts’ openness to new interpretations of the First Amendment’s religious protections. For the last half of the 20th century, the Supreme Court read the amendment’s ban on state-established religion and its guarantee of free religious exercise largely as protecting minorities including smaller sects, women and others. Under recent, more conservative courts, Becket has found sympathy for the idea that majority Christian religions get those protections, too, especially when they face off against local, state and federal governments. That casts religious freedom in a similarly broad jurisprudential light as the First Amendment’s subsequent guarantee protecting free speech. “The overall trend is the court coming to a good place for the proper accommodation of religious views,” says Georgetown’s Viet Dinh, and “that is largely due to the work of the Becket Fund.”

The next big question for Becket is how broad that approach can go—and which other government-protected rights the Supreme Court believes should rank below religious freedom. America’s rapidly shifting views on sexuality, and the government’s willingness to protect same-sex relationships, will soon conflict with groups that believe their religious freedom includes the right to discriminate on the basis of sexual orientation. Mumma suggests his firm will remain on the front line of that fight. “Anytime the government moves strongly closer to or farther away from those big issues that religion occupies, you are going to get religious liberty cases,” he says. “I think we are not yet done with that sort of big round of religious liberty cases.”

For now, Becket’s small team of lawyers is already working on some 40 cases. Firm leaders say it has no plans to expand, instead maintaining its focus on finding and litigating high-impact cases. “When the music stops and we go into court, it really matters whether our lawyers have written a good brief, made a good argument, are able to present a case that’s compelling to judges of all political flavors,” says Mumma. “If we can’t do that it doesn’t matter how much public attention we get.” So far, that strategy is working.

TIME Supreme Court

Supreme Court Passes on Gay Marriage Debate for Now

Supreme Court of the United States
Supreme Court of the United States Phil Roeder—Getty Images

The top court could still decide to hear one of the seven gay marriage cases pending before it.

The Supreme Court skipped an early opportunity to wade back into the national debate on gay marriage Thursday.

The nation’s top court did not include the seven different pending cases regarding same-sex marriage on a list of arguments it has agreed to hear that was released Thursday, ahead of the beginning of a new term on Monday, USA Today reports.

But that doesn’t necessarily mean the Supreme Court won’t weigh in on the cases this term. The court often holds off on deciding whether to hear high-profile cases until later in its term.

The cases in question revolve around gay marriage bans in five states: Utah, Oklahoma, Virginia, Indiana and Wisconsin. The Supreme Court last year ruled that the federal government could not deny benefits to same-sex couples but did not take a position on whether states are constitutionally allowed to ban same-sex marriage.

According to USA Today, 31 states currently have marriage bans in place. But since last year’s Supreme Court ruling, judges in more than a dozen of those states have overturned the bans, leaving them in place pending appeals.

[USA Today]

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