Thursday, June 26, 2014

Monday is D-Day at SCOTUS - What I'm Watching For

I'm not a lawyer. I'm not a legal expert.

I'm a blogger and a sometime court watcher. And I'm someone who has followed with interest and engaged in activism regarding the Department of Health & Human Services' so-called "contraceptive mandate," a regulation enacted as part of the implementation of "Obamacare."

Surely my reader will be aware by now of the case pressed by Hobby Lobby stores and the owning family, the Greens, against this law. The case was heard, along with another similar case of a for-profit private industry, in March of this year. Now, everyone expects that this coming Monday - June 30th - will be "d-day" - decision day.

Those who follow my Facebook page, Standing with Hobby Lobby, will notice that I have gone more or less silent about this matter since the hearings in March. It is time that I explain myself on that score, which will deal with some of my expectations and apprehensions as Monday approaches and as we anticipate the decision of the Court.

First, a few facts of distinction:
  • Hobby Lobby and Conestoga Woods are not what would conventionally be considered "religious organizations," but are for-profit privately held companies whose controlling interests are in the hands of confessional believers.
  • Cases are in the pipeline which concern religious organizations in the more conventional sense: religious orders like the Little Sisters of the Poor; and organizations like EWTN - a cable network founded by a group of nuns who sold fishing lures to fund their mission to evangelize through television. EWTN recently lost its case in a lower court and is undertaking an appeal.
Now, first of all let it be said that if EWTN is not a religious entity, then the United States Army is a social welfare non-profit.

But, here's where I begin to be worried about Monday's decision. I don't think that the real trial for EWTN in proceeding court battles will be the question of whether it is or is not a "religious employer" -- whereas, for Hobby Lobby and Conestoga Woods, this was much more a contestable and thematic concern. Precisely for that reason, in the latter cases - which, in a way unfortunately, got the Supreme Court first - a lot of the weight of argument was focused on that issue and not on other issues that will come into play much more in the other cases coming up through the pipeline. And there is a danger that these other matters, since they were not argued well in the first HHS SCOTUS cases, will have opinions in force for later parties' suits which might result in a harder time for the later plaintiffs.

For example: during the oral arguments in the cases to be decided Monday, all parties - judges, plaintiffs and defendants - seemed to countenance the idea that some kind of "accommodation" might do the trick and clean up this matter.

This is dangerous for EWTN and others, particularly Catholic organizations and groups pressing suit, because the Government has shown itself unable and inept to provide a meaningful accommodation that can satisfy the requirements of Catholic moral doctrine. And I would not put it past the Roberts court to direct the Government to provide these same accommodations in this case (since they're already written) so that, when EWTN and other do come before them, the Court's own prior ruling could be a strike against them.

However, recognizing that these fears might deflate some people's hopes and expectations, and recognizing that they might not reflect everyone's interest in the issue before the court, I decided after the oral arguments - when these fears began to take shape - that I would simply say less about the matter publicly, and wait and pray.

So, with Monday soon upon us, I am inviting my readers to do just that - watch and pray with me. I invite you to wake every hour, on the hour, from 1:00 AM EDT Monday thru the moment of decisions being handed down at 10:00 AM EDT, and to pray a novena and concluding prayer to the Holy Spirit for wisdom and inspiration. 

(To those who say prayer cannot "change" anything at this point, that the decision is already written, I would say, "That's not how it works," and that I frequently pray for good weather later in the same day even though presumably whatever is going to happen is already set in motion.)

I'm inviting you to pray with me because it is my expectation that whatever the outcome on Monday, this fight will continue, and that the more sinister issues surrounding  this unjust law are yet to be examined in court - the Government's essential claim against certain Catholic agencies that un-elected secular bureaucrats understand Catholic theology better than the Bishops of the Church, for example.

So please let us pray together... watch and wait together... and together hope that a Spirit of Justice and a Spirit of Wisdom may guide our nation to protect the sanctity of human life and the values of free exercise and freedom of conscience.

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