Ash Moore, Resident Blogger (’14, University of Oklahoma College of Law)

The recent tragedy in Newtown, Connecticut has created a lot of reactionary political push from the left for more gun control. I own multiple guns. I believe the second amendment is broad and sweeping. I believe it is one of the secured rights that makes this country unique and legally superior. However, I also think the implicit right to privacy in our Constitution that is necessary to fulfill the promises of the second amendment and others, is also an important secured right.

This right is what Roe v. Wade was based on. After the recent 40th anniversary and discussion about the ever-increasing restrictions and regulations, Newtown got me thinking. The right wing trusts every American who can walk and chew gum with guns. But they don’t trust an educated woman to make choices about her own body and family (including but not limited to abortion). On the other hand, the left wing wants the government to trust every American who can walk and chew gum with decisions about the most important building block of society, the family.

I remember coming to law school thinking of Justice Scalia as a cold-hearted, heinous Justice who sought to disenfranchise the American people (my parents are pretty liberal criminal defense attorneys). But the first case I read in law school had an opinion by Justice Scalia that I agreed with. I immediately called my mom in tears thinking something was wrong with me. She consoled me, but was obviously upset by the news. She asked me what the name of the case was and when I told her it was DC v. Heller, a gun rights case, she sighed some relief and said, “calm down, Idiot. That’s different.”

Before too long I realized she was right, but I still don’t understand why. Why is it encouraged for political parties and individuals to tailor their arguments to the outcome they want? Why is it encouraged for politicians to flip-flop their reasoning but not their outcomes? There is a lot I don’t understand in this world. I don’t know why they leave chip bags two-thirds empty or how they get those ships in those bottles. But I thought I understood the Constitution.

I know argument exists over the proper way to interpret the Constitution. But I didn’t know people reasoned backwards to get the result they wanted out of it. I believe the political parties should take a stance; you either trust the American people to make their own choices and properly exercise their rights, or you don’t. But you don’t get to pick and choose which rights they get control over. Whether the discussion is about gun or reproductive rights, the argument will always turn to the power over life and death. But I think all the mudslinging and buzzwords cloud the bare bones arguments. Probably intentionally.

The only thing better than being a Texan is being an American. There are a lot of things wrong with my state and my country. But as a patriot, it is my job to question when appropriate and defend when needed. I am a second class citizen in a lot of ways. But I believe in this country and in the people who make it up. That’s my stance. What’s yours? Do you trust me and others, or not?

This post originally appeared at RH Reality Check on Wed., September 26th and was updated on Mon., October 1. It was written by LSRJ alumna Bridgette Dunlap (’12, Fordham Law School). She and fellow chapter leader Emily Wolf created and implemented the first-ever Prescribe Fordham!, a sexual health fair clinic for Fordham students. Read more about their campus activism here.

UPDATE TO CONTRACEPTIVE COVERAGE LAWSUITS:

Shortly after the original article on this issue was published, a district court in Missouri made the first ruling on the merits in any of the contraceptive mandate challenges, dismissing all claims in O’Brien v. HHS. The court held, among other things, that providing contraceptive coverage is not a “substantial burden” on religious exercise barred by the Religious Freedom Information Act and that the religious employer exemption does not excessively entangle government with religion in violation of the First Amendment.

The case involves a secular for-profit employer, but the arguments rejected by the court are representative of those found in the complaints filed by religiously-affiliated plaintiffs. The decision is a fairly readable primer on the controlling law in these cases. It illustrates that beyond these cases being premature in the case of the religiously-affiliated plaintiffs, the substantive claims are extremely weak. For this reason, the religiously-affiliated plaintiffs might not see any benefit in waiting until they have standing in cases that are likely to fail. The weakness of these cases may also explain their quantity. In addition to making a big pre-election statement, filing numerous cases increases the likelihood of finding one judge willing to depart from settled law or expand the reach of a statute, in an act of so-called “judicial activism.”

Original article follows below.

Thirty lawsuits have been filed by corporations challenging the Health and Human Services regulationrequiring that most health plans cover contraceptives. The plaintiffs are primarily Christian-affiliated institutions, but include some secular for-profit companies as well. A survey of these cases yields some useful information as to what the “religious freedom” debate is all about.

The strangest thing about these cases is that the plaintiffs, with the exception of the secular for-profits, have not yet been required to provide contraceptive coverage and may never be. The Obama administration has exempted objecting religiously-affiliated organizations from the regulation for one year while the accommodation is negotiated and finalized. The administration has been extremely generous in allowing objecting institutions to take advantage of this “safe harbor,” even amending the eligibility requirements to include institutions that have provided contraceptive coverage in the past but recently discovered they were violating their religious beliefs by doing so.

Thus, the claim of Cardinal Timothy Dolan, quoted in a number of the complaints, that the safe harbor gives religiously-affiliated institutions “a year to figure out how to violate our consciences,” does not comport with the facts, to put it nicely. The safe harbor is not merely a delay. It is a period intended for continued dialogue. At this point, the religiously-affiliated plaintiffs do not know if they will ever have to provide insurance with contraceptive coverage, which is why the three cases decided so far have been dismissed.

Opponents of the regulation have claimed repeatedly that the problem isn’t that it will make contraception more accessible, but that its exception for religious organizations is too narrow. But, oddly, rather than arguing they meet the criteria for an exception or should, the plaintiffs in these cases argue that that they are not exempt. Why do this? Why not ask and argue for an exemption and sue only if the government does require that plaintiffs provide coverage for contraception? These cases are premature and courts are likely to continue to throw them out without reaching the merits.

It takes a lot of time and money to bring so many bad cases before the government has made you do anything you don’t want to. What’s the big rush?

I suspect there’s a looming deadline at play here that has nothing to do with litigation strategy: the election. Bringing these cases now, allows opponents of the Obama administration to say essentially, “Look, thirty lawsuits! What an unprecedented violation of religious freedom! Stop this man who has forced your humble bishop to sue.” These cases are politically useful because the fact that the administration let these institutions have their way for the time being and may forever isn’t what gets reported. And should the courts ever reach the merits of these highly dubious claims, it will be after November 6^th.

Beyond what the timing suggests about the political objectives, these cases reveal the nature of the objection to the policy. Plaintiffs are going to court claiming not to be exempt instead of arguing they should be because they don’t actually want an exemption. They want the whole law struck down. In many of the complaints, plaintiffs are not just asking the courts to bar enforcement of the regulation against their particular institutions for religious reasons, but explicitly seeking that the mandate be vacated in its entirety.

That the exception isn’t the problem is also evident in the support of religious contraception opponents for the challenges brought by secular, for-profit corporations. The United States Conference of Catholic Bishops cheered when a judge temporarily barred enforcement of the regulation in the case of a manufacturing company that was clearly not a religious organization eligible for an exemption. Cardinal Dolan has described the change to the regulation he would find acceptable: “All Washington has to do is say, ‘Any entity that finds these mandates morally objectionable is not coerced to do them,’ and leave it there.” The issue with this proposal, however, is that when you get to decide whether or not to do what the government says that is not what we call a law. In demanding that providing coverage be optional, Cardinal Dolan is claiming the government cannot regulate any health plan in a way that conflicts with his beliefs, no matter how secular the employer.

Many of the complaints in these cases contain a further bizarre argument that the inquiry into whether or not an institution qualifies for a religious exemption is so intrusive as to entangle the government in religion in violation of the establishment clause of the First Amendment. Now, as a matter of well-settled constitutional law, the government is not required to grant any accommodation whatsoever to those whose religious expression is burdened by a generally applicable law. However, the general consensus is that it should do so in some circumstances and the Religious Freedom Restoration Act requires this. But we can’t have any exemptions without a determination of who is exempt. This commonsense principle has been noted by courts upholding state contraceptive coverage mandates that contain religious accommodations identical to the one in issue. If the argument that granting an exception amounts to entanglement were adopted, it would harm the interests of a religious person who has a genuine need for an exemption from a law that burdens her religious expression, rather than a policy disagreement as seems to be the case here.

The potential unintended consequence of the intrusiveness argument is not the only reason it is striking. As currently written, the criteria for the exemption includes factors such as an institution’s corporate form, primary purpose, and who it hires and serves. This inquiry is relevant to whether insured persons have notice of and have consented to having their health plans governed by religious precepts.

The plaintiff institutions, on the other hand, are effectively demanding a less reasonable and more intrusive inquiry into the circumstances of individual plan participants. As Notre Dame notes in its complaint, Catholic doctrine does not prohibit the use of contraceptives to treat medical conditions. Therefore, the University is not purporting to have a sincere religious belief that bars providing coverage for contraceptives, but demanding the right to investigate why a woman has been prescribed contraception and the authority to adjudicate whether that prescription was justified by a medical condition of a type and severity deemed worthy of treatment by some unidentified arbiter.

Ultimately, the picture that emerges from these cases is not of religious adherents trying to alter the difficult balance between laws enacted for the general welfare and respect for individuals whose religious exercise stands to be limited. These cases reject the opportunity to compromise or even negotiate. They are an assertion of institutional religious power that appears to be aimed at influencing American politics and undoing policy put in place by officials obligated to represent Americans of all faiths.

Follow Bridgette Dunlap on Twitter, @bridgettedunlap

Ash Moore (’14 University of Oklahoma College of Law)

I promise I will try not to blog about the “gay agenda” too much. I don’t even know what the “gay agenda” is really. I think it has something to do with fabulous heels in a size 13 and Justin Bieber’s hair. However, I want to give a cent or three about a recent Oklahoma court ruling. The short and not-so-sweet of it is a Judge named Graves denied two transgender people name changes based on God, DNA, and science. He even cited Genesis 1:27-28 in the opinion.

Now, I cling to my guns and religion just as much as the next Texan but this is absurd. Aside from the Constitutional problems all of the young and idealistic law schoolers can rattle off, there’s even a huge problem with the religious argument. The old testament condones the beating of slaves to death as long as they survive for at least a couple of days (Exodus 21:20) and condemns eating shrimp, lobster, and clams (Leviticus 11:9). So, Judge Graves, unless you abstain from the aforementioned ocean delicacies and beat your slaves, join the modern age.

It’s absolutely horrifying to look in the mirror and not be able to see yourself. No matter what other people say or do, no matter how many hormones or surgeries we put to use, we spend our entire lives clawing at the inside of our own skin.

Some individuals and organizations define reproductive justice as “the right to have kids, the right not to have kids, and the right to parent the kids we have with dignity.” Ignoring an entire class of people deprives them of dignity in every aspect of their lives, especially with regard to reproductive justice.

I want to be listed as the father on my baby’s birth certificate. I want to hear my children call me Dad one day, not Mom. I don’t want trick some unsuspecting hetero into marriage, I just want to be able to hold my head up when I walk down the street and feel just a little bit better about who or what I am. I want dignity. Why do other people care? You shouldn’t care what I do as long as I don’t do it in the street and scare the horses.