Some Religious Liberty Legal Developments

A few odds and ends on the Supreme Court front as we wait for them to return to normal activities this week. An order was dropped on Friday granting the solicitor general time during the oral argument in a case. Justice Jackson is writing a memoir. And, another case was scheduled for oral argument.

South Carolina Supreme Court Protects Abortion Rights

The big news though was a 3-2 ruling from the South Carolina Supreme Court striking down a "fetal heartbeat" six-week ban.  Its staying power is unclear since it was written by someone who will soon have to retire given the state's mandatory retirement age.  This would be the one woman on the court.  Each justice wrote a separate opinion, providing different views.

Three justices struck down the ban.  The dissenters split on the reach of privacy protections (reached by them in different ways) but agreed that the law was acceptable.  The opinion of the court rested on privacy.  The second justice argued that equal protection and due process also was violated.  

Each used strong language, including things like obviously the word 'abortion' is not in the constitution, but privacy rights still are protected.  A living constitutional approach was honored. Early one, it was noted that "fetus" is appropriately applied after eight weeks.  The second opinion noted the religious liberty aspects.  

Both opinions were quite impressive and had a liberal flavor that some might be surprised came from South Carolina.  The deciding vote was a limited one that in its narrowest way was simply that the state did not provide evidence that the six-week ban had much reason behind it at all.  The justice went out of his way to rule narrowly though granted that it is likely that even if the state tried, a ban that early would be irrational.  

OTOH, it is clear that the justice would allow a range of limits.  South Carolina, in the short term, will still be a pro-choice state (saw either twenty or twenty-two weeks as the line).  The decision provides a lesson on the importance of state constitutions and express privacy protections. It shows that simply suggesting we are currently nationwide on the road to Gildead is somewhat childish and surely simplistic.  

The situation is more complex, including recent news that the FDA not only will allow pharmacies to carry an abortion pill but that CVS and Walgreens plan to sell them.  We should have national rights and national health care benefits here.  The situation is dire.  But, it is also complex, with some moments of good news.

[ETA: The Idaho Supreme Court later decided 3-2 the other way, the dissenters splitting on how strongly the majority was wrong. Long term, we might see that sort of split in South Carolina, depending on future developments personnel-wise.]

Misguided Hochul Veto 

The battle over Gov. Hochul's lousy nomination for Chief Judge of the Court of Appeals continues as she recently was sworn in. The end of the year also brought various new laws and vetoes.  Hochul vetoed over 150 measures, often involving minor and local matters.  I am not really gung ho about her ability to override the power of the legislature to this degree.

One veto that FFRF specifically opposed blocked a bill that would have notified people that they had a right not to take part in religious inclined substance abuse programs.  Each veto, helpfully, had a veto statement. This one left something to be desired.  Basically, she thought it too obtrusive to insert this as a mandatory requirement.  

The worst part was her suggestion that this might imply there is some religious liberty right in other cases.  Yes.  People do have a religious liberty right not to be pressured to take part in state required programs that further religious beliefs. And, though not absolute, religious believers have free exercise rights too.  The veto message suggests it is problematic to notify people of their rights since it might cause problems.  Okay.

One-Day Wedding Officiants

I have over the years discussed the Universal Life Church, one of those "online" ministries where you can become a minister simply by checking a box basically.  This is seen as something of a joke, but it reflects a basic concept of personal conscience.  

And, many people used it to become ministers for the purpose of marrying people.  Many NYT wedding announcements note this fact.  It was important both to support same-sex couples and to allow friends and family to serve as wedding officiants.  Nonetheless, state courts nationwide split on if this was truly a "religion" to enough degree to count for marrying. The matter split lower courts in New York too.  

This law, long in coming and in part supported by my former state senator, does not directly address this matter.  It does allow -- like some states -- a person to become a wedding officiant for a single day.  This does not really "eliminate all barriers" as suggested in the article.  Other ministers do not only obtain only a one-day ticket.  Will a lawsuit take place?

I still wonder how the ULC ministers' situation will work out.  Some years ago went to City Hall and received a certificate as a wedding officiant for New York City.  It apparently has no expiration date.  Is it still valid?  I tried tweeting my senator, but she did not reply.  I emailed earlier and did not get a clear answer.  

Faith in Congress

I saw a report that one member planned to swear on the U.S. Constitution. The official swearing-in of House members took place en masse (minus the Speaker, sworn in separately) by the Speaker.  There are also specific symbolic ceremonies.  The Senate swears in new members (remember they come in three waves, so only a 1/3 new members come in each time) four at a time. Again, there is a separate more symbolic ceremony.

A recent study of the religious affiliation (20 did not say) of the new Congress finds it is not a true representation of the nation, which is less than 2/3 Christian.  88% of the members are Christian.  As I noted in a recent essay elsewhere, just what "Christian" means is clearly up for debate.  (The essay is about being both Christian and Buddhist).

There are two Buddhists cited in the recent count. Three Muslims, two Hindus, three Unitarian-Universalists (if I picked a religion, as that term is usually understood, I would likely choose that), one Humanist, and one unaffiliated.  There is a "freethinker" type caucus made up of more than a few people, so some of them might be Christian.  Again, there is one vacancy.  The count does not include non-voting delegates.  

There is a "something else" (none) but none of the members so label themselves.  The study noted that "Nearly three-in-ten U.S. adults now say they are religiously unaffiliated, describing themselves as atheist, agnostic or “nothing in particular." Annie Laurie Gaylor (FFRF) labels these "nones," sometimes leading to her or her co-host/president/spouse Dan Baker to remind that she is not saying "nuns."  

This underlines the importance of recognizing the rights and interests of secular people, making Gov. Hochul's veto that much more of a gratuitous insult.  Religious liberty includes religious liberty for all, both nuns and nones.