Religious (or Non-Religious) Hypocrisy and the Contraceptive, Cake, & "Pro-Life Clinic" Cases, Among Others

On this day when billions celebrate the birth of God into absurdly humble form in a Bethlehem horse stall, one wonders what lessons of authenticity or humility this might have for current religion-related Supreme Court cases. Just like atheist pride and hypocrisy, religious (or pseudo-religious) pride and hypocrisy are horrible things. And while religious people have substantial freedom under American laws and traditions, those folks are not above blindness, self-service, or mere failure to consider other people's point of view, as discussed below.

I. Kennedy's Agonies in Masterpiece Cakeshop: Somewhat Self-Caused? and Easily Resolvable, Maybe

First off, one notes Justice Anthony Kennedy's varied anguishes in the oral argument for Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.One is where he says,

Commissioner Hess says that freedom of religion used to justify discrimination is a despicable piece of rhetoric.

Did the Commission ever disavow or disapprove of that statement?

. . . .

Do you disavow or disapprove of that statement?

MR. YARGER: I would not have counseled my client to make that statement.

JUSTICE KENNEDY: Do you now disavow or disapprove of that statement?

Oral Arg. at 52-53. Kennedy sounds like Joe McCarthy rattling on, "Are you now or have you ever been a member of the Communist Party?" An astounding performance.

But as, e.g., Marty Lederman notes, maybe the Commission was not that hostile to religion after all. And it is perfectly true that if, say, someone tried to use the Bible to justify extermination of modern-day Palestinians as descendants of the pagan Philistines, that indeed might seem like a hypocritical and hateful "freedom of religion used to justify discrimination".

So Kennedy, even if well-meaning, became a little overheated, maybe. He may also have overheated in a different direction earlier on, asking Solicitor General Noel Francisco,

[C]ould the baker put a sign in his window, we do not bake cakes for gay weddings? ... And you would not .... consider that an affront to the gay community?

Oral Arg. at 27-28. But if Kennedy voted to allow baker Jack Phillips his way--maybe because Kennedy thought the Colorado commission was anti-religious, as per his grilling of Yarger, supra--, what would be the worse "affront to the gay community": an informative sign, or Kennedy's own vote that helped allow that sign in the first place? So, is Kennedy potentially causing his own problems?

Indeed, Kennedy, while good-hearted and diligent, risks oversimplifying things. Phillips need not put up a sign at his bakery saying, "NO HOMO WEDDINGS SERVED HERE BUDDY"; an appropriate sign might be more like,

While we respect the good intentions of Colorado's anti-discrimination laws, this bakery does not make products which endorse or participate in: Halloween; anti-family themes like divorce; atheism; racism; obscenity; or non-traditional weddings or unions including polygamous, same-sex, incestuous, underage, extramarital, premarital, interspecies/bestial, or human-machine weddings or unions.

Even if this somehow disparaged gays, it would be "disparaging" a whole lot of other people, too, so might not be seen as a specific hate crime against gays, but more of a laundry list of multiple conscience exemptions. And might it not have been better to inform respondents Charlie Craig and David Mullins in advance, with a sign, than to sucker-punch them by telling them about their exclusion only after they were in Phillips' store?

Even sordid people like racist "Odinists", "Nazi-religious" people, might appreciate a Holocaust survivor putting up a sign warning them in advance, "This bakery does not make products which endorse or participate in Nazi religious ceremonies." It might be hypocritical not to put up the sign, if one is allowed.

Thus, "Lumière sans chaleur", light without heat, might be a good byword here. A thoughtful placard or banner at the bakery would let people know what's going on (including what the Court's eventual opinion allows to go on in the first place), being informative and civil, and not precluding compensation by the baker for his refusal of service, e.g., paying a small/moderate fine to the State and/or small/moderate damages to the refused customers.

Nor would a detailed report to the State from the baker about just why he is refusing to serve customers, be out of the question. Again, information, discussion and disclosure, not rancor. No one need hate anyone here, and the transaction (or refusal to transact) could be remarkably passionless, unobstructive, and without hypocrisy. (Employment Division v. Smith might have to be relaxed somewhat to allow this all to happen, though.)

...Some might make fun of Kennedy as being the Hamlet of the present Court, especially in difficult cases like Masterpiece Cakeshop; but if he agonizes, well, maybe he is being paid to do so, to think hard through hard cases. As explained above, though, a viable solution in Masterpiece might not be very difficult or involve much agony at all.

II. Not Reimbursing Women for "Religious" Cuts in Contraceptive Coverage, May Be a Big Godless Sexist Problem

The above is all the more relevant in light of recent court decisions overruling the Trump Administration's decision to let employers refuse offering contraception to female employees for religious/moral reasons. The present author does not mind employers' freedom of conscience, but why should those employers cutting contraceptives not then be required to, say, pay female employees a correspondingly higher wage with which they could buy an IUD, or fertile/infertile period-tracking software, or rosaries, or whatever they wanted?

Indeed, to have ever given religious groups a free pass to refuse contraceptive coverage to women, without mandating some sort of "cash compensation" for the refusal, may violate the Equal Protection Clause. Are men, and their "Viagra" or other ""male enhancers"", also punishable/excludable from medical coverage by those men's employers, or not? Why single out just women for denial of services? Isn't that cheating, or close??

Then, while we note supra that maybe Smith could be loosened slightly so as to let businesses not participate in expressive ceremonies like weddings, especially if the businesses pay a price for that exclusion: Smith could correspondingly be tightened slightly in other ways, or Religious Freedom Restoration Acts, "RFRAs", could be weakened slightly (which would be de facto strengthening Smith), so as to make sure that women, or others, cannot be denied medical service for "religious" reasons without due compensation. Maybe not the enormous fines that the Little Sisters of the Poor have decried, but, simply, compensation for what has been taken away.

Were there not compensation, then there might be religious hypocrisy, or even wage theft of a sort. See, e.g., 1 Timothy 5:18, "The worker is worthy of his [or her] wages."

III. Hypocrisy/Insensitivity on Both Sides? re "Pro-Life Pregnancy Clinics" and NIFLA v. Becerra

It is mildly unpleasant to discuss abortion on Jesus' birthday--what if Herod had forced Mary to have an abortion? where would Christianity be then??--, but an important case is coming up to the Court for oral argument in a few months, National Institute of Family and Life Advocates v. Becerra. Some California "pro-life pregnancy clinics", such as petitioner NIFLA, which try to dissuade pregnant women from abortion, are forced by state law to showcase at their clinic sites the phone numbers of state "reproductive health" services including abortion, and also to tell the public if the clinics are not licensed medical facilities.

In this case, there may be overreach, hypocrisy, or insensitivity on both sides. First off, the present author finds it bewildering that the State would force anti-abortion facilities to post, effectively, advertisements for abortion. This sounds not completely unlike mandating that Native American history museums post ads for a "Let's Create Another Painful Trail of Tears for the Cherokees Right Now Action Fund". Could not other places for state abortion services ads be found, besides pro-life clinics??

However, the clinics have complained about the other requirement, that the public know if clinics are not licensed medical facilities. But how would that be a problem? If some clinics have tried to fool women, or could do so, into thinking that a pro-life religious group are a bunch of registered doctors or nurses, when they really aren't, shouldn't the public receive some protection from that?

A natural "compromise" emerges, then, by which pro-life pregnancy clinics might not have to de facto advertise abortion, but they would have to let the public in on the secret that the clinics might not be licensed as medical providers. By the way, this might let California or other states still mandate that the clinics provide some information about reproductive health services, but only non-abortion services such as information on good nutrition during pregnancy, to keep the fetus healthy. One wonders why the clinics would want to refuse such information, if they do refuse it.

IV. The Death of Law--Cardinal Bernard Law

Fair compromises can avoid hypocrisy or meanness, then, by either side, religious or atheist, traditionalist or progressive, even Republican or Democrat. Without fair compromises, there is a certain "death of law", i.e., law and society do not provide the fairness they are supposed to. This reminds us about the lessons from another "death of Law", that is, the recent death of disgraced Boston Catholic cardinal Bernard Francis Law, and the sad lessons of his life.

Law--an ironic name for the man, in retrospect--was a high-ranking prelate in America's largest religious denomination, and in his youth, a hero in the civil rights struggle, in which he received death threats for his support for African-American rights. Somehow, though, he could not realize that he should have supported little children's "civil right" not to be molested by clergy under his care. Due to Law's tragic blindness, or self-imposed blindness, abuse flourished, and when the abuse was revealed, Law had to resign in disgrace. While he technically may not have broken any laws himself (Massachusetts law may not have mandated the appropriate disclosures from someone in Law's position until 2002), Law certainly fostered massive wickedness and lawlessness.

His recent death closes a chapter, but opens our minds again to the necessity not to let religious, or non-religious, persons, laws, or institutions be hypocritical or abusive. In the current clash between "conservative" and "liberal" forces in the U.S.A. over various legal issues, as seen in, e.g., the cases of Masterpiece, Hobby Lobby & Zubiket al., and NIFLA, there may be not only the room for, but even the necessity for, "compromises" which try to uphold everybody's rights and dignities.

V. Pastor Representative Dan Johnson and the "Johnson Amendment"

By the way, following the discussion of Cardinal Law's lawlessness supra: the Catholic Church gets a lot of flak, but ever since, e.g., Martin Luther's various "binges" of 1517 onward, including his insane anti-Semitism, and his breaking with his Church instead of just suggesting sensible reforms as many people such as St. Francis of Assisi had in the past, Protestants have sometimes behaved badly, too. For example, see the recent Kentucky lawmaker facing assault allegations commits suicide,

Dan Johnson, a Republican state lawmaker in Kentucky who defiantly denied allegations that he sexually assaulted a teenage girl in the basement of his home, died in an apparent suicide Wednesday night, the county coroner said. He was 57.

. . . .

. . . He won his election despite Republican leaders urging him to drop out of the race after local media reported on some of his Facebook posts comparing Barack and Michelle Obama to monkeys.

The pastor of Heart of Fire church in Louisville, Johnson sponsored a number of bills having to do with religious liberty . . . . But he was mostly out of the spotlight until Monday, when the Kentucky Center for Investigative Reportingpublishedan account from a woman saying Johnson sexually assaulted her in the basement of his home in 2013.

Id. So Catholics, or any religious group, do not have a monopoly on hypocritical and evil behavior.

The late "Pastor" Johnson's name reminds us of the Johnson Amendment, a wonderful piece of American tax legislation which prevents churches from openly endorsing political candidates without losing their tax-exempt status. The recent "tax reform" (or "deform", or what-have-you) passed by the Trump Administration almost got rid of the Amendment, but fortunately did not.

See, e.g., Dropping Johnson Amendment repeal was the right move,

Rabbi Jonah Pesner, a leader in the Reform branch of Judaism, puts it this way: “(The amendment) gives me the freedom, from the pulpit, to preach about values and policy, but to be protected from partisanship. Because if I were able to cross that partisan line as a preacher, I’d be under enormous pressure from stakeholders, from members, from donors. It would undermine my moral authority as a guardian of religious tradition.”

Id. Indeed, overturning the Johnson Amendment might have let churches turn themselves into prostitutes for political parties: acting like a harlot in the night, selling his or her wares, or even acting like a brazen strumpet strutting in the sunlight of broad day, auctioning off political favors like the Whore of Babylon skipping down K Street in Washington, D.C.

Americans must be vigilant to protect real religious freedom, but must also be careful to prevent religious freedom from being reduced to an excuse to enable corruption or hypocrisy.

VI. Conclusion: Keeping Religion Honest through Legal Means

Accused pedophile Roy Moore may just be a sad footnote in history now (even if he doesn't know it yet), but his sordid story reminds us that we may actually be doing religious people a moral favor by reminding them of their shortcomings when they are trying to act unfairly or seize unwarranted power. (E.g., Moore's recent defeat by Doug Jones might, hopefully, remind Moore about the need for repentance and humility.)

And religious institutions, like others, often love to receive worldly benefits: the recent Supreme Court Trinity Lutheran case was about a Missouri church being able to receive state funding to resurface a playground. But those who want to be part of society and receive its benefits, might consider that others in society might want their own benefits too.

One should respect the rights of bakers, nuns, or pro-life clinics not to be involved in evil (as they see evil), but those institutions should also show willingness to pay for the damage they do, or to avoid doing unnecessary damage. Such willingness would not only be "Christian" (or otherwise religious), but honest as well. After all, the Nazarene said that we should "render unto Caesar", so that the "religious" who look only for Caesar to render onto them, as the Missouri church looks for state money to be rendered onto it, might not be really living out their faith.

The Peanuts television special A Charlie Brown Christmas, at the end, has the gang singing Hark! the Herald Angels Sing, including the words, "God and sinners reconciled". Sometimes the worst sinners are the ones who claim to be most religious: Osama bin Laden, et al. So a final legal takeaway on this Christmas Day (and also respecting Hanukkah, Kwanzaa, etc.), is that when one is tempted to be a "law onto oneself", one should remember the origin, or one origin of that phrase, in Romans 2:14-15,

For when the Gentiles, which have not the law, do by nature the things contained in the law, these, having not the law, are a law unto themselves: Which shew the work of the law written in their hearts, their conscience also bearing witness, andtheirthoughts the mean while accusing or else excusing one another . . . .

Id. (King James Version) This, see id., seems to be an appeal to conscience, showing that even people ignorant of the law can show decency. By contrast, there are people, many of them "religious" like Dan Johnson, who know, or even make, the law in our litigious, legalistic society, and try to misuse legal process to serve themselves or their agenda without being really fair to other people. This is sanctimoniousness (at best), not sanctity.

But the Child of Bethlehem teaches, in his vulnerability and goodness, that we, in the legal community or otherwise, should humbly try for sanctity, as much work as it may be, rather than lose our sanctity through sanctimony, or even worse sins than sanctimony. And we can gently (or sometimes, not so gently) remind others, including those who want to manipulate the law wrongfully, that people should behave honorably, more like saints than like sanctimonious sinners.

May all readers have a peaceful and joyful holiday season, ----"void where prohibited by law" notwithstanding.