Rev. Barry W. Lynn: December 2008 Archives

Well, Jay, I think your "victory" in the Illinois pharmacy case may be short-lived.

First, on the merits, it seems unlikely that the courts will create some new "right" to allow licensed professionals to "opt out" of any practice they find religiously objectionable.  Second, to the extent that your suit alleges violations of federal regulations, I would hope that President Obama would move quickly to rewrite any regulations which you read to advance the kind of broad circumvention of professional responsibility you apparently desire.

As a number of comment posters have already indicated, once you open the "claim of conscience" exception to licensed professional conduct, it is extremely difficult to see where it can end.  Even conscientious objection to military service has raised concerns about whether religious objectors are given "preferential" treatment over those motivated by other non-theistic or even political worldviews.

I do find one element of your case, however, particularly fascinating.  The claims being raised by some pharmacists make it clear that they are not simply "anti-abortion"; they are really "anti-contraception."  I'm not aware of what you believe on this matter personally, but many on the "Religious Right" do oppose virtually all artificial contraception because they believe it to be the moral, legal, and medical equivalent of, say, a third term abortion.  (This was always the view of Nellie Grey, the founder of the March for Life.) I find this preposterous of course.

Increasingly, there is a renewed war on contraception.  Many would like to take us back to a time before Griswold v. Connecticut, when a state could even deprive a married couple from obtaining contraceptives.  This approach is well chronicled in a particularly good book called How the Pro-Choice Movement Saved America by Cristina Page. I commend it as pre-New Year's reading.

Well, Jay, Americans United won a very significant victory late last week in a case in South Carolina involving license plates.  U.S. District Court Judge Cameron McGowan Currie granted a preliminary injunction against the state continuing to market or actually send out plates with the phrase "I Believe" on them.  Lest anyone doubt what the metal signs are referring to, the plates contain both a yellow cross and a stained glass church window. Hint: they are Christian plates.  They were actually designed by a legislator, then approved by a unanimous vote of the legislature this summer, and were the focus of a marketing campaign this fall.

In temporarily halting the plates, the judge specifically noted that she didn't see how the plates met even one of the requirements of established Supreme Court jurisprudence in religion cases.  The plates, on the basis of the evidence presented so far, seem to promote religion, seem to have no secular purpose, and seem to entangle government with religion.

A few critics are now griping that if the plates are not allowed, the "free speech" of drivers will be impaired.  Spare me, please.  Long before the South Carolina legislature weighed in on this, many Christians in the state had bumper stickers on their cars affirming their faith or "fish" symbols attached to the car bodies.  No one can or should stop such displays.  No, this plate was not about free speech; it was one more shameless effort by legislators to adopt a religious symbol for political purposes. This is why religious leaders in the state were among the plaintiffs.

It is not yet known whether the state will bother to try to defend its decision on the merits.  Let's hope they don't.  It will save everybody a lot of time and South Carolinians a lot of money.

In my view, there is an inherent flaw in all of these religious holiday display cases ever since the Supreme Court allowed the city of Pawtucket, Rhode Island to put up as part of its "official" display a Nativity scene along with secular symbols including Santa, reindeer, and the ever popular Yuletide "blue bears".  According to a majority of the court this mix did not give passerbys the impression that the city was officially embracing religion.  Instead, the court should have told Pawtucket to lay off the religious references and been done with it.  Of course, since the "establishment clause" doesn't prohibit cities from promoting secular ideas it could have lured the shopping public downtown with Santa and his elves and reindeer.  (Purist alert: I am really not losing sleep over the fact that Santa may be related to Saint Nicholas.)  Just as obviously, cities should not be allowed to promote any sectarian ideas or icons.  (The manger scene is one; the Decalogue is another.)

In Olympia, Washington, the Governor did what she is required to do under an agreement with your friends, Jay, over at the Alliance Defense Fund (ADF).  Last year ADF lawyers demanded that a client be allowed to put up a Nativity scene in the capitol building because the state was already displaying a menorah.  Rather than just removing the menorah, the state agreed to allow pretty much anybody to put up his or her favorite seasonal message.  Thus, the ADF has achieved the result of preserving atheist rights this year by clearing the path to the "religion is a myth" solstice signage that is so upsetting to some in Washington state.  (What happened to their old argument: if you don't like a cross, or a creche, just "look away"?)

In regard to Pleasant Valley, I would refer back to my earlier posts on this matter.  If the Ten Commandments monument is in fact "government speech" then it violates the core constitutional principle that government cannot endorse a particular religious viewpoint.

I simply don't want to have to walk around everybody's religious and political paraphernalia when I want to visit any state capitol building.   States don't have to open all their facilities to everybody's "speech" and they shouldn't.

We obviously disagree fundamentally about the role of the courts in dealing with issues where fundamental rights (like marriage and equal protection) are at stake.  The "will" of the voters does not trump such rights and the courts exist to uphold them against just such a tyranny of the majority.

I'm also afraid, Jay, that in the big scheme of things, it is worse to construct a theological justification, or at least an apologia, for treating GLBT Americans as second class legal citizens than it is to interrupt a church service by showing up in pink underwear (which apparently occurred once in the past month). You know I don't condone disruptive activity.  However, the breath exhausted on condemning this by the Religious Right would have been better expended doing almost anything else, perhaps even having the constructive dialogues many Christians apparently need to have on GLBT issues.

On the legal front, there is a completely legitimate call for an inquiry into whether churches that did expend resources, as they are entitled to do, on passing Proposition 8 accurately reported those expenditures under state law. The group Californians Against Hate has filed a complaint with the California Fair Political Practices Commission which I believe is thoroughly appropriate, as does the New York Times.

Just like there needed to be a national effort against partisan politicking from the pulpit, perhaps there needs to be a parallel campaign demanding accountability and transparency on initiative funding. Treating all who get involved in these initiatives with the same scrutiny would not interfere with any legitimate "free exercise of religion" claim.  You can't be against such equal treatement, can you?

 I have been in the San Francisco area for several days.  My trip coincided with the thirtieth anniversary of the assassination of Harvey Milk.  The atmosphere would have been somber simply about that, but it was poisoned even more by the passage of Proposition 8, the reprehensible "amendment" to the California constitution that sought to prohibit same-sex marriages.

 The Religious Right was the overwhelming reason that this pernicious proposition gained its narrow majority.  The only real argument raised was that same-sex marriage was incompatible with Bible teachings.  Although made with differing levels of overt homophobia and distaste, the claim was uttered by Charles Colson ( who claimed failure to pass it would be "apocalyptic"), Rick Warren ( absurdly characterized by the media as a"new evangelical") and, well, even Fred Phelps.  These literalist-when-it-suits-them stalwarts have used any opportunities over the years to create a Scriptural justification for viewing the gay and lesbian communities as immoral.  They should never have been allowed to get away with claiming to have clean hands when their justifications helped lead others to acts of violence.  Of course we don't know the stories of most of these victims as well as we know those of Milk, Brandon Teena and Matthew Shepherd.  The absence of a feature film, however, doesn't make the pain any less for those who have shared it in real life.

 People in California have already done many of the right things to try to deal with Proposition 8. Several lawsuits have been filed to overturn the measure as an illegal "revision" of the Constitution by majority rule.  Revisions are major changes in the document that require action by a two-third vote of the legislature.  The Proposition 8 backers contend that since the change is only one sentence, the measure was a simple "amendment" which can be accomplished through initiative.  This bean counting approach is ludicrous.  "Slavery will be permissible" is even shorter; but would anyone seriously contend that the state of California could pass that by 50 percent plus one of the voters concurring? Here, the California constitution has been interpreted by its Supreme Court to require civil marriage for same sex couples based on twin core principles: equal protection of the law and the fundamental nature of the right to marry. Two central values cannot be curtailed by majority vote whether the change is attempted by one or 1000 sentences.

 It looks like oral arguments before the California Supreme Court will occur in the spring. With any luck that will put an end to this mischief.

 But is there even more to do, Jay?  I'd like your reaction to these lawsuit and then perhaps we can look at some other ideas up folks' sleeves.