The Increasing Vulnerability of Religious Liberty

July 24, 2014

By John Oliver Tyler 
 
Two recent legal developments significantly impact Constitutional liberties. The first is the Supreme Court's Hobby Lobby decision. The second is John Boehner's decision to sue Obama. Like Ulysses' Trojan horse, both developments appear to be victories for liberty. Beneath their surface, however, both developments carry significant threats to liberty, particularly religious liberty.

The Hobby Lobby decision was a 5-4 decision in a case that should have been 9-0. Obama is only one appointment away from a majority of justices who literally believe that national abortion insurance deserves greater Constitutional protection than freedom of religion. Boehner's lawsuit, if it succeeds, will overturn the political question doctrine. The result will be the enthronement of the United States Supreme Court as the final arbiter of every political issue in the United States.

A. The Hobby Lobby Decision  
 
The Supreme Court's June 30, 2014 decision in Burwell v. Hobby Lobby Stores, Inc. protects Hobby Lobby from a $475 million annual fine imposed by the Obama administration. Hobby Lobby refused, on religious grounds, to subsidize four methods of contraception that kill fertilized human eggs. Nevertheless, an examination of the decision beyond its outcome reveals how vulnerable religious liberty has become in America.
 
Two aspects of the opinion raise concern. First, Hobby Lobby won by only one vote. The decision should have been 9-0, not 5-4. The Religious Freedom Restoration Act of 1993 ("RFRA") provides that "Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability." 42 U.S.C. § 2000bb–1. The controlling issue in the case was whether Hobby Lobby, a closely held "for profit" corporation, was a "person" under RFRA.
           
The answer was clearly yes. The Dictionary Act, 1 U.S.C. § 1, provides: "In determining the meaning of any Act of Congress, unless the context indicates otherwise, the words 'person' and 'whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals." [Emphasis added]. Furthermore, the Obama administration conceded that other artificial legal entities, including non-profit corporations, general partnerships, and unincorporated associations, were "persons" under RFRA. Nevertheless, to reach the result they wanted, the four dissenting justices found that Hobby Lobby was not a "person" under RFRA.
           
The second troubling aspect of the Hobby Lobby decision is that five members of the Court expressly found that the federal government has a compelling governmental interest in providing health insurance coverage for female employees. The other four assumed that providing insurance is a compelling governmental interest. The significance of this finding is that governmental action mandating abortion insurance coverage now trumps all rights expressed in the Bill of Rights, including freedom of religion, if the Court decides the government has adequately "tailored" its actions to achieve its purpose.

B. Boehner's Lawsuit            
 
On June 25, 2014, Speaker of the House John Boehner announced his intention to sue Obama. Boehner's suit, if successful, will subject all Constitutional liberties to a case-by-case majority vote of the Supreme Court. A shift of just one justice on the fragile majority of the current court will result in the relentless erosion of our religious liberties by the IRS, the ACLU, and similar organizations. This will usher in a period of unprecedented government prosecution of Christians and their organizations, including The Kingdom Economy‚Äč. 
           
The Bill of Rights protects our liberties, but the Bill of Rights is not our only Constitutional protection. The Constitution's separation of powers is less well known but no less important. Obama brags openly that he will ignore the separation of powers. He will use his pen and his phone to bypass Congress. He will institute his personal rule over the United States.
           
John Boehner is acting to push back Obama's violation of the separation of powers. Unfortunately, he is ignoring the means provided by the Constitution for doing so. He is suing Obama instead.
           
Boehner claims Obama's 2013 delay of Obamacare's employer mandate violates the separation of powers. As law professor Jonathan Turley testified before the U.S. House, “The problem with what the president is doing is that he’s not simply posing a danger to the constitutional system. He is becoming the very danger the Constitution was designed to avoid. That is the concentration of power in a single branch.” Boehner adds that "The House has an obligation to stand up for the Legislative Branch, and the Constitution, and that is exactly what we will do."
           
It is the sworn duty of every Congressman to “stand up for the Constitution” and preserve its separation of powers. However, standing up for the Constitution entails following the Constitution’s provisions, and Boehner’s suit does not do that. Boehner should use the Constitutional remedies described below. When the end being sought is a Constitutional means of governing, every means to that end must be Constitutional as well.
           
If Boehner’s suit succeeds, it will destroy rather than preserve the separation of powers. Boehner’s suit cannot proceed unless the Supreme Court abandons the political question doctrine. This fundamental rule of jurisprudence holds that political disputes are beyond the power of the judicial branch if they involve the legislative or executive branches of the federal government.
           
The political question doctrine preserves the separation of powers. The judicial branch cannot resolve these disputes without elevating its powers over those of the executive and legislative branches. The Supreme Court has therefore applied the political question doctrine in refusing to hear cases involving foreign relations, Martin v. Mott (1827), Constitutional amendments, Coleman v. Miller (1939), disputes regarding Congressional elections, Roudebush v. Hartke (1972), disputes regarding political party conventions, O'Brien v. Brown (1972), management of the military, Gilligan v. Morgan (1973), and impeachment trials in the Senate, Nixon v. United States (1993). 
           
Boehner’s suit falls squarely within the four criteria for the political question doctrine established by the Supreme Court in Baker v. Carr (1962). The first is a textually demonstrable constitutional commitment of the issue to the political branches of the government. The second is a lack of manageable standards for judicial resolution. The third is a need for finality in the action of the political branches. The fourth is the difficulty or impossibility of devising effective judicial remedies.
           
Boehner’s suit satisfies all four Baker criteria. The Constitution, for example, “textually commits” control of imperious presidents to the House through its powers over the purse and impeachment. Since all four Baker criteria are met, Boehner must persuade the Supreme Court to abandon the political question doctrine. Otherwise, his suit will be dismissed.
           
Such a holding would be disastrous. Boehner's cure would be significantly worse than Obama's disease. It would destroy the separation of powers by enthroning the Supreme Court as the supreme authority in every political issue. All our liberties would be subject to a case-by-case majority vote of the Supreme Court. As Justice Scalia wrote in District of Columbia v. Heller (2008), "A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all." A shift of just one justice on the Hobby Lobby Court, for example, would have subjugated our religious liberty to the abortion industry.
           
Boehner's suit is both unwise and unnecessary. The Constitution provides two ways for the House to remedy an imperious president and preserve the separation of powers. The first remedy is the House's power over the purse. The Appropriations Clause of the Constitution (art. I, sec. 9) provides that no federal money can be spent without an appropriation from Congress. The Origination Clause (art. I, sec. 7) mandates that all revenue bills must originate in the House of Representatives. These two clauses give the House complete control over federal spending. Furthermore, the Speaker of the House controls which bills come to the floor. Boehner can prevent, by himself, any revenue measures from passing the House.
           
The House was given the power over the purse so that it could redress grievances against other branches of the federal government. As Madison writes in Federalist No. 58, "This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect, every just and salutary measure."
           
The House's second remedy for an imperious president is impeachment under Article I, section 2. Some will argue that impeachment is not politically viable because conviction requires a 2/3 vote of the Senate. This argument misconstrues the House's role under the Constitution.
           
Impeachments, as opposed to trials for impeachment, are separate proceedings in separate bodies for separate purposes. Impeachment in the House is designed to discipline a president that abuses his constitutional responsibilities. Trial in the Senate is designed to remove the president from office.
           
Every member of the House has a duty to impeach any president who threatens the Constitution. Each has a sworn duty "to fully and faithfully defend the Constitution against all enemies, foreign and domestic." The duty to impeach depends on what the president is doing, not on what the Senate might do. Article II, section 4 adopts the phrase "High Crimes and Misdemeanors" from the history of impeachments in England. "Misdemeanors" means simply "misdeeds" and requires no criminal conduct.
           
Unfortunately, no constitution can enforce itself. Obama has taken our country to its Constitutional tipping point, just as the Stuart kings did in seventeenth century England. The results in England included civil war and the beheading of Charles I. Our leaders must use the solutions provided in the Constitution to solve this crisis while maintaining the separation of powers. If they lack the will to do so, if they are intimidated by fear of media criticism or losing their office, then the American people must replace them.
           
As Christians we are obligated to obey man's laws, Romans 13:1, so long as they do not violate God's laws, Acts 5:27-29. The Constitution is the law of the land. We are obligated to follow it, and we must demand that our leaders do the same.
 
John Oliver Tyler teaches Law and Jurisprudence at Houston Baptist University and has practiced civil litigation since 1978. Certified by the Texas Board of Legal Specialization in both Civil Trial Law and Personal Injury Trial Law, John holds a JD from Southern Methodist University and a Ph.D. in Philosophy from Texas A&M. He can be reached at jtyler@hbu.edu.