When I think about what I learned in law school all those years ago, it really boils down to one truism: he who frames the issue wins the debate.
Okay, that might be a wee bit of overstatement, but a recent column by Linda Greenhouse— one of the most savvy reporters covering the Supreme Court–reminded me just how important framing is, not just in litigation but also in politics.
Greenhouse was writing about two “religious liberty” cases on the Court’s docket this term. As she noted, these cases involve a constitutional gray area; we know that the Free Exercise Clause requires government to give religious believers room to practice their faith without undue interference. Courts must decide how much room, under what circumstances, and what interference is “undue.”
The cases the Justices must decide this term–Little Sisters of the Poor v. Pennsylvania and Our Lady of Guadalupe School v. Morrissey-Berru— both lend themselves to what Greenhouse calls “alternative narrative” packaging. Religious organizations have been in court ever since the Affordable Care Act was passed, protesting the Act’s requirement that health insurers cover contraception for employees that want it.
Which gets us to posturing. Despite Little Sisters’ name on one of the lawsuits, it has virtually no interest in the decision.
That’s because the order’s lay employees, not all of whom are Catholic, are covered by a church-sponsored insurer, the Christian Brothers Trust, which the government conceded in earlier litigation can’t be penalized for its refusal to provide the disputed contraception coverage.
In other words, the Little Sisters have already won. The actual dispute before the court is between Pennsylvania and New Jersey, on one side, and the Trump administration on the other. The states sued to block the administration’s rule that lifts the contraception mandate entirely from any employer — profit, nonprofit, privately held or publicly traded — with a religious objection to covering birth control, as well as from any privately held employer that claims a “moral” objection.
The actual issue raised by the states is whether the Trump administration complied with the Administrative Procedure Act when it issued the rules.
But that hardly comes through from headlines like “The Endless War on the Little Sisters of the Poor” on a Wall Street Journal op-ed by Helen Alvaré….. And Ramesh Ponnuru’s Bloomberg opinion column declaring that “The Left Is at War With the Little Sisters of the Poor” concluded by demanding, “Leave the nuns alone.”
Talk about a compelling story line. Except that it isn’t accurate, not by a long shot. On the table when the Obama administration left office was a proposed accommodation under which religious nonprofits would not have to do anything — hands off, completely, nothing to sign, no forms to fill out — to have the insurer, with reimbursement by the government, provide “seamless” contraception coverage. That was the Obama administration’s one nonnegotiable requirement. (The administration didn’t want women to have to shop for a stand-alone birth-control insurance policy.)
In other words, the nuns and all other religious employers, were not being asked to “pay for birth control,” far from it, and would have been untouched by the bureaucratic hand. But that still wasn’t sufficient, the religious employers said, to avoid their complicity in the sin of contraception because their insurance policy would still provide the link, however attenuated, between their female employees and contraception.
The court’s second religion case involves the “ministerial exception,” a doctrine that exempts churches from having to follow federal nondiscrimination laws when it comes to employees whose jobs are essentially religious. (As I tell my students, that means that a synagogue can’t be required to hire a Baptist as Rabbi, or a Baptist Church compelled to employ an atheist Sunday school teacher.)
Two Catholic schools in California dismissed fifth-grade teachers, each of whom taught fifth-grade subjects– including, twice a week, a class taught from a religious workbook. One was fired after she developed breast cancer and needed time off for treatment, who sued under the Americans With Disabilities Act. The other woman alleged age discrimination.
Both schools claim that the ministerial exception applies, and federal anti-discrimination laws don’t.
During last week’s argument, the justices and lawyers jousted over hypothetical questions: Would the exception apply to a janitor? To a football coach? To a football coach who led the team in prayer? An employee at a soup kitchen who leads grace before meals?
The case is being framed as the right of religious schools to select religion teachers. The actual issue is whether a teacher who teaches religion for two hours a week, along with math, social studies, English and everything else, is a “religion teacher.”
Here’s the real question raised by both of these cases: do Americans employed by religious employers forfeit their Constitutional rights?
Would framing these cases accurately win the debate?
What is liberty if someone is forced to do what the government tells them to purchase something? It does depend on who frames the argument, but didn’t those who wrote the constitution frame the argument? Do we give up freedoms for the sake of ideology of those in government and where do we harm those who want or have needs and give up their freedom for the sake of traditions?
Thank you for the clear explanation of these cases. It was surprising to me to read your reference to articles (op-eds) in the Wall Street Journal & a Bloomberg opinion column. Another reason to make sure you recognize ‘news’ vs opinion pieces and evaluate all sources you encounter. As this assault continues, I can only hope more widespread attention is given & that affected people are able to access benefits codified by law. I am fortunate to never have been (nor would I be, for this specific reason) employed by a ‘religious’ organization. But how many people realized that Hobby Lobby qualified as one? After that case, I simply decided to not shop there… which has basically no effect to their profit margin. Wondering if this war on women will continue ad infinitum & hoping with my entire being (& votes) to remove those who wage it.
It won’t matter how these cases are framed, since SCOTUS will follow it’s conservative bias without regard to the Constitution, much less the framing. The only individuals with individual freedoms are white evangelical Christians.
There are either four or five Catholics on the Court at present (I don’t know about Gorsuch), so it is highly likely that they will vote to give what they call religious freedom more weight than anything else in the Constitution. The days when someone like John Kennedy had to convince Protestant ministers that he would not be taking orders from the Vatican are over. The religious groups have decided to ignore the Constitution, and make the country over in their image.
Our founders were quite right when they intended that the separation of church and state is necessary for a democratic republic. Every time, in history, religion enters the schemes of governance, they screw it up for the sake of that church’s or religion’s own power and influence. It has NOTHING to do with God, God’s laws or any of that other man-made nonsense. It is all about POWER.
Well, I choose to execute my power of the boycott and will never, ever shop at places of kitsch like Hobby Lobby or Chick-filet.
This “argument” once again supports the idea that single-payer, universal health care that includes provisions for EVERYONE is the most intelligent and logical solution. Let churches propagandize to their heart’s content. WE THE PEOPLE shouldn’t be subjected to their trumped up dogma (Sorry for the pun).
Ever the more reason we need to take health insurance away from the employers and insurance companies.
Last I checked, almost 70% of Americans want universal health coverage. We are the only remaining industrialized country without universal coverage. The mere fact we don’t have it is evidence enough we don’t have a republic or a democracy in this country. We have an Oligarchy turned a Fascist Kakistocracy under Trump.
This is about control and oppression.
In case you missed the conversation coming out of Trump’s White House this weekend:
“White House adviser Kevin Hassett: “Our human capital stock is ready to go back to work.”
Twitter exploded with guillotine posts.
As I posted early on, the working class will be taught an invaluable lesson during this pandemic if they just keep their eyes and ears open and pay close attention to the words and actions taken by the political class in D.C.
Todd,
Thanks for the corroboration.
You are too kind, Sheila. It is not genteel “framing”, it is hardcore partisan/ideological spinning….
Preemptive framing works in areas beyond Supreme Court matters. It is also in blatant misuse among those who name statutes (e.g., right to work, Patriot Act etc.) where the actual language of the bill which becomes law is actually contrary to the name assigned to the legislation.
Trump (dumb as he is) is also good at framing issues (both real and manufactured) out front, thus seizing the initiative and winning converts who don’t bother with later alternatives offered. It is difficult to out-front Trump because he manufactures “issues” in his narcissistic Otherworld, a venue to which the sane have no access, and comes out at 4:00 A.M. on twitter and makes his early pitch to sleepy victims. So what to do? Ignore framing. Look to the matter framed in order to (hopefully) ascertain a measure of truth, and in so doing, you will learn that right to work laws, for instance, could be more appropriately named right to scab, an unlikely monicker Republicans would never have considered in naming their ALEC – inspired bill(s).
Unlike the framing of authoritarians, freedom is not freedom from government but freedom from each other. In other words your freedom ends where mine begins. We both have equal freedom to live unrestricted lives but neither of us has more freedom than the other.
Of course in all crimes perpetrators deprive the victim of their freedom.
So the question becomes should those who don’t use contraception have to pay through their insurance premiums for the contraceptives used by other insured?
First it strikes me as a very petty issue that gets to the very foundation of insurance. Should all insurance be restricted to exclusively those at equal risk for having claims?
Obviously the problem is petty but the real solution would close down the insurance business.
A Catholic School firing a teacher due to needing cancer treatment seems Anti-Christian. Did she loose health insurance coverage too? If that’s the case,the school is mis-using the Religious Freedom act. I’m interested in the local Roncalli case. Do you leave some of your constitutional rights at the door, if you work for a parochial school that accepts millions in voucher monies? It seems that would place burden on School/Church to only hire compliant Catholics from the start. On framing the birth-control issue: The Church sets itself up as experts on human sexuality, but has a system that continuously produces pedophiles. Something’s amiss there. Instead of pro-life, how about “Respect Life”, including the life that’s already here. Courts should speak with “Nuns on the Bus” to get more realistic views of issues.
I have never understood why some people on the left, who preach tolerance a, want to force religious institutions to do things that are against their deeply held principles. We should be more tolerant as a society and that includes not discriminating against someone because of their religious views. Further, I think the Constitution demands accommodation be made for religious beliefs.
With all due respect, Sheila, I don’t share your view of Linda Greenhouse as a “savvy reporter” in terms of covering the SCT. Unfortunately, she is one of those reporters who too often lets her personal opinions interfere with objective reporting of what happens at the Court. In journalism, I think there needs to be clear lines between reporting on the news and commenting on the news. She seems to cross the line too often.
Paul, can you cite examples of “people on the left, who preach tolerance, want(ing) to force religious institutions to do things that are against their deeply held principles.”?
Every example I can think of would impose deeply held principles on the general public.
Romans 13:1
Let every person be in subjection to the superior authorities, for there is no authority except by God; the existing authorities stand placed in their relative positions by God.
So, if were talking about the law, then Christian belief should be the above listed Scripture! If they claim that the law of God supersedes the law of men, then they have to go by Romans 13:1!
Now I’m sure they would have some mealy mouth unconscionable explanation as to what this scripture means, but it means exactly what it says.
Romans 13: 5-7 reads;
“There is therefore compelling reason for you to be in subjection, not only on account of that wrath but also on account of your conscience. 6 That is why you are also paying taxes; for they are God’s public servants constantly serving this very purpose. 7 Render to all their dues: to the one who calls for the tax, the tax; to the one who calls for the tribute, the tribute; to the one who calls for fear, such fear; to the one who calls for honor, such honor.”
So, religions are free to practice and worship as they please, except something like human sacrifice and such, and, although Islam and Judaism both use it either Halal or Kosher practices in food preparation, that is not considered sacrifice.
Contraception or the anti-contraception stands by the Christian religion, is based on Genesis 38:6-10, it’s a short read, I would suggest you take a look!
This had nothing to do with contraception, it had everything to do with disobeying the law, Onan refused to give his dead brother’s wife and heir for family inheritance! During his intercourse with his dead brother’s wife Tamar, he committed coitus interruptus! Because he wanted to have the inheritance for himself. He was immediately struck dead.
So, the reasoning behind their anti-contraception stance is extremely flawed! Because they purposefully misapplied Scripture.
Genesis 1: 28 reads;
Further, God blessed them, and God said to them: “Be fruitful and become many, fill the earth and subdue it, and have in subjection the fish of the sea and the flying creatures of the heavens and every living creature that is moving on the earth.”
Nowhere in Scripture, not one single place, does it say, preventing fertilization of a human egg is wrong! It is up to the patriarchs and matriarchs of those families to decide the breadth of their family! Whether it’s one, or 20, or for that matter, just 2. I don’t see a problem, the argument is made in the beliefs of the Christian religion!
Scripture also says that mankind is a free moral agent, and as a free moral agent, everyone will be judged on their own decisions by God and not by man!
Obama found a way out for the religious employers to adhere to their religious beliefs without funding contraception, but then even that was not enough. I can’t shake my suspicion that the church’s lawsuit is more about politics than religious principle. Add to that the court’s current predisposition to support employers’ concerns over anyone else, and I’m guessing this decision will go against the women employees.
“Framing the issue” is absurdly easy when you control the microphone and are allowed to ignore or cut off any interrogators who pose a thoughtful question. For Trump, it’s all simply another version of bullying, the only identifiable skill he seems to possess.
I am guessing that nuns who need estrogen for health issues OTHER THAN birth control can’t have it. Too bad the nuns who were raped by priests did not have it. Some of them were forced to have abortions.
As a feminist Christian, I see this argument that contraception is a sin as just the continuation of patriarchal religion’s oppression of women.
And yes, universal health coverage that is independent of employers would rid us of this controversial quagmire.
Vote blue.