10th Circuit judges shocked by own court’s ruling

Five judges of the 10th U.S. Circuit Court of Appeals have issued an opinion that easily could serve as advice for District Judge David Bunning, who found Rowan County, Kentucky, clerk Kim Davis in contempt of court and jailed her Thursday for refusing to violate her faith.

Davis has refused to issue any marriage licenses from her office since the Supreme Court created the right to “same-sex marriage.”
Bunning admitted there was a conflict between Davis’ religious-exercise right and the newly created right. But he refused to consider any accommodation for her and ruled she would have to violate her faith to stay out of jail.
But the 10th Circuit judges’ dissenting opinion Thursday in another case centered on religious rights warns of the dangers of having judges “examine the reasoning behind a religious practice or belief and decide what is core and what is derivative.”
In that case, the Little Sisters of the Poor in Denver object to having a health insurance policy that provides abortion-causing drugs for their employees. The nuns argue that either providing the drugs or authorizing someone else to provide them would violate Catholic doctrine.
The government has been pursuing the Little Sisters because employers are required under Obamacare to provide plans that cover the drugs.
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In the Davis case, the clerk argues authorizing marriage licenses for same-sex couples would violate her exercise of Christian beliefs, which has held for millennia that marriage is the union of one man and one woman.
Regarding the Sisters, the judges concluded the judiciary should not be put in the position of evaluating the reasonableness of religious beliefs.
“Could we really tolerate letting courts examine the reasoning behind a religious practice or belief and decide what is core and what is derivative? A Christian could be required to work on December 25 because, according to a court, his core belief is that he should not work on the anniversary of the birth of Jesus but a history of the calendar and other sources show that Jesus was actually born in March; a December 25 work requirement therefore does not substantially burden his core belief.
“Or a Jewish prisoner could be provided only non-kosher food because the real purpose of biblical dietary laws is health, so long as the pork is well-cooked, etc., the prisoner’s religious beliefs are not substantially burdened,” they wrote.
“The Supreme Court has refused to examine the reasonableness of a sincere religious belief – in particular, the reasonableness of where the believer draws a line between sinful and acceptable – at least since Thomas v. Review Board of Indiana Employment Security Division,” they continued.
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The majority of the 10th Circuit refused to hear the case of the Little Sisters, who now have appealed to the U.S. Supreme Court.
“The doctrine of the panel majority will not long survive,” the 10th Circuit judges said. “It is contrary to all precedent concerning the free exercise of religion. I am aware of no precedent holding that a person’s free exercise was not substantially burdened when a significant penalty was imposed for refusing to do something prohibited by the person’s sincere religious beliefs (however strange, or even silly, the court may consider those beliefs).”
The opinion was written by Judge Harris Hartz, who was joined by Neil Gorsuch, Jerome Holmes, Timothy Tymkovich and Paul Kelly.
It explained that after the 10th Circuit’s original opinion against the nuns, the plaintiffs petitioned the U.S. Supreme Court. Nonetheless, there was a vote at the 10th Circuit on whether the full court should review the case, which went against the plaintiffs.
The dissenting judges wrote: “When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion. All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents requirement by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?”
The Becket Fund pointed out the dissenting judges called the ruling against the Little Sisters “clearly and gravely wrong – on an issue that has little to do with contraception and a great deal to do with religious liberty.”
Mark Rienzi, senior counsel at Becket said the opinion “offers important support to the Little Sisters’ request that the Supreme Court hear their case,”.”
“These judges understand that courts and bureaucrats should not be telling nuns what the Catholic faith requires,” he said.
The judges pointed out that the result in the Little Sisters case could be used to “second-guess the religious beliefs of any faith.”
WND reported that by a 2-1 vote the court said the Obama administration can force the nuns to provide their employees with the drugs, which violate Roman Catholic teaching.
Rienzi said it’s remarkable that the U.S. government contends it must have the help of the nuns to distribute contraceptives.
“The federal government doesn’t need the Little Sisters or any other ministry to help it distribute abortion-inducing drugs and other contraceptives. Yet it not only insists on forcing them to participate in the delivery, it argues that their beliefs against participating are wrong and that government officials and judges can tell the Little Sisters what Catholic theology really requires,” he said.
“That’s wrong, and it’s dangerous – especially when those same government officials have disrespectfully compared the Sisters’ beliefs to ‘fighting an invisible dragon’ that can be vanquished with the ‘stroke of the [Sisters'] own pen.’”
Becket earlier defeated the Obama administration in a similar case involving Hobby Lobby at the Supreme Court.
Rienzi said: “The government has lost every single time they have made these arguments before the Supreme Court – including last year’s landmark Hobby Lobby case. One would think they would get the message and stop pressuring the sisters.”
He said the government is “willing to exempt big companies like Exxon, Chevron and Pepsi Bottling, but it won’t leave the Little Sisters alone.”
Churches are exempted from providing contraceptives, but religion-based organizations such as the senior centers run by the sisters are not.
Obamacare requires that they provide the drugs or sign over the responsibility to another group. The nuns argue that signing over the responsibility to someone else is essentially the same as doing it themselves.
Also involved in the case are Christian Brothers Employee Benefit Trust, Christian Brothers Services, Reaching Souls International, Truett-McConnell College and GuideStone Financial Resources.
“The sisters consider it immoral to help the government distribute these drugs. But instead of simply exempting them, the government insists that it can take over their ministry’s employee healthcare to distribute these drugs to their employees, while dismissing the sisters’ moral objections as irrelevant,” said Rienzi. “In America, judges and government bureaucrats have no authority to tell the Little Sisters what is moral or immoral. And the government can distribute its drugs without nuns – it has its own healthcare exchanges that can provide whatever it wants.”
Sister Loraine Marie Maguire, mother provincial of the Little Sisters of the Poor, said she hopes the Supreme Court “will hear our case and ensure that people from diverse faiths can freely follow God’s calling in their lives.”
Related stories:
10th Circuit judges shocked by their own court’s ruling
Judge jails Christian clerk
Michael Reagan: Jailed Christian clerk should quit her job”
Cruz accuses federal judge of ‘tyranny’ in clerk’s case

http://www.wnd.com/2015/09/10th-circuit-judges-shocked-by-own-courts-ruling/

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