Quite a Fortnight, with more religious-liberty questions than before

It’s appropriate, no matter which side one supports, that the Supreme Court’s decision on marriage came down during Fortnight for Freedom. It also came just a couple of days after this blog linked to a provocative speech on the difference between freedom of worship and freedom of religion.

Liberty Bell replica, New Hampshire State House (E. Kolb photo)
Liberty Bell replica, New Hampshire State House (E. Kolb photo)

The marriage decision seems to bump into that difference. Here’s something from Justice Kennedy’s opinion, addressing dissenters from the decision. Substitute “abortion rights” or “contraceptive mandate” for “same-sex marriage” and see how it sounds. This statement is now part of constitutional law. If it applies to differing beliefs about marriage, it ought to apply to other issues as well.

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. 

So if “it must be emphasized,” I’ll do so:

…religions, and those who adhere to religious doctrines, may continue to advocateThe First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths …

So does “proper protection” mean protecting freedom of worship or freedom of religion? Do “advocate” and “teach” refer to speech and action in the public square, or merely the right to advocate and teach within the walls of a house of worship or a private home?  Just how does all this translate into the daily give-and-take of civic action?

It’s not lawyers who have to make these decisions in the first instance. Ordinary citizens (and I count myself as one) going about their business day-to-day are the ones wondering if they have what the Court calls proper protection. It’s fitting that long before the marriage decision came down, the country’s Catholic bishops chose “freedom to bear witness” as the theme of this year’s Fortnight for Freedom.


The Fourteenth Amendment now covers marriage between any two consenting adults. The First Amendment covers religion (or is it worship?), presumably including the religions that hold to one-man-one-woman marriage. So what happens when lawsuits and criminal charges are filed against business owners who decline on religious grounds to participate in same-sex marriage ceremonies? Early signs are not encouraging for the business owners. One can take either side of the proposition that Jesus would bake the cake, and still see that for the people who are now marriage dissenters, Justice Kennedy’s reassurance that they may “advocate” for their view is a little shaky.


Abortion rights rest on a “penumbra” of constitutional rights adding up by some judicial calculus to “privacy.” Abortion dissenters have the First Amendment, including, for those who so choose, a right to pray outside abortion facilities – or do they? New Hampshire legislators seeking to discourage pro-life presence outside abortion businesses could have resorted to any of several methods that have been found to be constitutional. Instead, in 2014, with the full cooperation of the governor, the legislature made it illegal for most people regardless of intention or behavior to stand on public property outside an abortion facility for any reason, at times and locations to be determined by the abortion facilities’ management. Legislators actually left the interpretation and implementation of the buffer zone law up to abortion providers.

To the surprise of no one but the law’s sponsors, the law has been enjoined by a federal judge. It has not yet had a full hearing in court. It’s still on the books, and a repeal effort failed this year. I have yet to hear any of the buffer zone’s fans in New Hampshire announce a change of heart on the basis of Justice Kennedy’s assurance that advocacy of dissent may continue. What’s to stop any legislative body from following New Hampshire’s egregious example of supporting a law to suppress peaceful demonstrations?

The HHS mandate

Obamacare’s HHS/contraceptive mandate is in place, buffeted but not bowed. The President and the members of Congress who passed Obamacare allowed HHS regulations to define contraception as “preventive care.” There are people who own businesses and who out of religious belief do not wish to participate in the provision of contraceptives and abortion-inducing drugs to female employees. In the face of the HHS regulations enforcing the Affordable Care Act, they hold the dissenting view that women aren’t broken and that it’s not “preventive care” for women to be chemically altered. The Administration has issued accommodations in a piecemeal manner to certain institutions dissenting from the mandate, and Hobby Lobby won at the Supreme Court on behalf of owners of closely-held businesses.

Yet litigation goes on, because religious institutions still must wait for a determination that they’re religious enough to be covered under one of the Administrations “accommodations,” and it’s still an open question whether those accommodations are adequate. Are owners of public-stock corporations going to be accommodated? Fines will be punitive for anyone who dissents, sues, and loses. Are dissenting business owners being given proper protection for their advocacy of their beliefs? Or so Justice Kennedy’s words mean must that advocacy remain private?

The Court majority that gave us Obergefell left Americans with much to think about beyond a definition of marriage. At the end of another Fortnight for Freedom, only days after a landmark Supreme Court decision, the religious-liberty landscape remains unsettled. Are Justice Kennedy’s words true reassurance that each American is free to exercise a religion, publicly as well as privately?

There’s a way to divert attention from this question: call marriage dissenters bigots. Say that people opposed to the Affordable Care Act want to deny health care to their neighbors. Claim that opponents of buffer zones are endangering women (never mind that six of the seven plaintiffs challenging the New Hampshire buffer zone law are women). Say anything – just keep that pesky First Amendment offstage.

Justice Kennedy won’t let me. He says the First Amendment gives us all proper protection. We have yet to see what that means.

Life & marriage & equal protection

You may have heard that the Supreme Court handed down a significant decision today regarding marriage. Like everyone else, I have an opinion.

manhattandeclaration1) I have endorsed the Manhattan Declaration and will continue to do so.

2) I’m Catholic, and I’m with Pope Francis (among others) on this one.

3) Five justices agreed that marriage between two consenting adults is a matter of equal protection under the Fourteenth Amendment, I’ll continue to work toward the day when we can muster five judges to agree that the right to life is a matter of equal protection as well.

Peace to all, whether you agree with or dissent from the Court.

Born this date in 1924: Nellie Gray

Nellie Gray founded the national March for Life in 1974, probably not thinking that she would still be coming back to the National Mall annually for the next 38 years until her passing in 2012. In 1972, the U.S. Supreme Court Justices in their wisdom decided to hold over their Roe v. Wade decision until 1973, placing it not in the usual big-case time of late June but instead on January 22. The annual March thus takes place in weather that can be downright nasty. No problem, said Nellie; the March goes on regardless of such concerns.

If memory serves, I’ve been to three national Marches. Every one has been marked by the overwhelming presence of young people who come by bus from every Eastern state. Need evidence that the pro-life movement is not dying out but instead is growing? See you on the National Mall next January.

Here are some of my own photos from the 2013 March for Life, followed by a short video made by the national March for Life team in honor of Nellie Gray.

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States vs. DC, Roe v. Wade, & Blackmun vs. history

Happy Harry Blackmun week! The man who wrote Roe v. Wade was confirmed to the U.S. Supreme Court 44 years ago this week. Call it an observance rather than a celebration. Don’t pile all the blame on him, though. He had six colleagues sign on with him to the decision.

The author of Roe v. Wade (official photo)
The author of Roe v. Wade (official photo)

If Blackmun’s appalling handiwork were to be overturned today, we’d probably see thunderous press releases and not much else. Abortion law would devolve to the states, where abortion advocacy groups are already active and in some cases spectacularly successful. Some states keep abortion almost completely unregulated (hello, New Hampshire) while others put women’s health ahead of politics. Some states even go so far as to protect the right to life of children who survive attempted abortion. Other states – again, New Hampshire provides an apt example – quietly support the notion that a right to abortion means a right to a dead child, as opposed to a terminated pregnancy, and so children who survive attempted abortion are literally on their own.

In fact, federal courts have ruled over the years that a lot of things abortion advocates call “anti-choice” are actually consistent with Roe: parental involvement, with judicial bypass. The right of taxpayers not to be forced to fund abortions. Post-viability bans and restrictions (and state involvement at that point was explicitly okayed in Roe). Licensing of abortion facilities. Statistics collection. You get the idea. I can’t help but wonder why abortion advocates support Roe so strongly while tirelessly fighting the very things Roe has been interpreted by the courts to allow.

Back when I did a lot more media work, pre-Internet, I was on a WGIR-AM radio program as a representative of a pro-life group, being interviewed side-by-side with a NARAL-NH representative. The one thing we agreed on at the time was that fifty state battles would be a bad thing. From my transcript of the discussion:

NARAL spokesman (yes, a man): That would almost be the worst-case scenario, if it were just whittled away and we went back to a patchwork of laws around the country, as we had before.

Me: [The group I was representing] is not looking for fifty battles rather than one. The basic issue is, what is involved in abortion? Is it simply another medical procedure? If it were just another medical procedure. then a patchwork of state laws would be appropriate. But if it does indeed involve a human life – as it does – a human life that is helpless and unable to speak for itself, then it becomes an issue that should be decided on the national level. It is not merely a woman making a decision for herself. It is a woman making a decision for herself and that other life.

NARAL: I think the national approach works best. We agree there, but probably for different reasons….We’re talking about serious human rights. We’re talking about the rights of women to make choices for themselves. We’re talking about the Constitution guaranteeing rights to all citizens. That is a fundamental principle that needs to be applied consistently throughout the country.

Fast-forward twenty-five years. Where’s the action? In the state capitals. I’ll take it. That’s where the most protective legislation originates. Some states have recognized that women’s health is NOT protected by keeping the names and complaint records of specific abortion providers secret.  The state level in Pennsylvania is where the laws came from that finally nailed Kermit Gosnell. Statistics reporting comes from states. Most of the “anti-choice” restrictions that the Supreme Court has approved: state-level.

Is this what Blackmun envisioned? Who cares? This was a man who failed to envision more than fifty million dead children and an undetermined number of dead and injured women.

I say keep it up in the State Houses, wherever they may be. National efforts are worthwhile but aren’t enough. If the Supreme Court hasn’t shifted to respecting a basic right to life – and it hasn’t – go to state representatives. Nag. Goad. Persist. Persuade. Twenty-five years ago, I wouldn’t have said that. Now, without hesitation, I do.


Support for rushed abortions drops; Roe fan calls for free speech

Two particular items in the news feed this morning warrant attention, no matter where you are post-Roe.

Drive-through abortions losing public support

Among the abortion regulations gaining traction in various states is a 24-hour waiting period between the time a woman gets medical counseling for an abortion and the time the abortion is induced.

I heard operators of three of New Hampshire’s freestanding abortion facilities testify last year that by the time a woman arrives at an abortion facility – oops, a “full-spectrum reproductive health facility” – she already knows what she wants. Ergo, why waste time on barriers like finding out about who’s going to do the procedure, complication rates, and fetal development – not to mention pregnancy support options available in the community?

I call a one-stop pregnancy confirmation, counseling, and abortion process a drive-through abortion. Great for abortion facility revenue, lousy for women’s health. Evidently, I’m not the only one coming around to that view.

A recent Rasmussen poll of 1000 likely voters found that 49% favored some kind of waiting period before an abortion. 39% were opposed, while 11% were undecided. Rasmussen reports that support for a waiting period is at its highest level in two years.

Roe supporter criticizes “buffer zones” as case comes to Supreme Court

In today’s Wall Street Journal, a self-described supporter of Roe v. Wade strongly encourages the U.S. Supreme Court to strike down Massachusetts’s 35-foot “buffer” against peaceful pro-life witness outside abortion facilities. Read Floyd Abrams’s “Abortion Rights as a Free-Speech Flashpoint.”

On January 15, the Court will hear oral arguments in McCullen v. Coakley, the challenge to the buffer zone. (Note that the Massachusetts attorney general defending the law, Martha Coakley, has run unsuccessfully for U.S. Senate and may yet have her eye on a federal-level office.) In his article, Abrams draws a distinction between laws against physical obstruction and intimidation of people entering an abortion facility and laws that ban all peaceful pro-life advocacy outside those facilities. He says that the former are “narrowly drafted and do not raise any plausible First Amendment objections,” while the latter are an example of “overbreadth.”

His remarks on how the views of the ACLU have changed regarding free speech in this context are interesting, and enormously revealing of the policy priorities of the group. “The old ACLU got it right,” says Abrams.

New Hampshire legislators will consider a buffer zone bill during the session that begins this week. That’s premature at best, with the Massachusetts case still pending.