Month Archives: July 2014

Is Living Together the Same as Marriage? The Latest Research

by Peter Sprigg

July 3, 2014

A growing number of couples are living together in sexual relationships without bothering to marry. Are these relationships essentially the same as marriages? Research over the decades has shown significant differences in these two household forms, and the latest report from the National Center for Health Statistics continues that trend.

Here, verbatim, are the “Key findings” in a new report, “Marriage, Cohabitation, and Men’s Use of Preventive Health Care Services.”

QUOTE

Key findings

Data from the National Health Interview Survey, 2011-2012

  • Among men aged 18–64, those who were married were more likely than cohabiting men and other not-married men to have had a health care visit in the past 12 months.
  • Marriage was associated with greater likelihood of a health care visit for both younger and older men, and for men with health insurance.
  • Among those for whom blood pressure, cholesterol, and diabetes screenings are recommended by the U.S. Preventive Services Task Force, married men were more likely than cohabiting men to have received these clinical preventive services in the past 12 months.
  • Cohabiting men were less likely than other not-married men to have had a health care visit, cholesterol check, or diabetes screening.

END QUOTE

The take-away? Men, the next time your wives nag you to go to the doctor — be thankful!

Strong Opposition to DC Ex-Gay Therapy Ban Voiced at Hearing

by Peter Sprigg

July 1, 2014

On Friday, June 27, it was my privilege to join a number of former homosexuals and other “everstraight” allies like me in testifying against a bill to ban sexual orientation change efforts (SOCE) for minors in the District of Columbia.

The politically correct mental health establishment turned out in force, with representatives of a variety of professional organizations voicing support for the bill, which would actually function by denying licensing as a mental health provider to anyone who helps minors overcome unwanted same-sex attractions. And all but one of the thirteen members of DC’s City Council has co-sponsored Bill 20-501, so it might seem as though the bill would be sure to pass.

Advocates of the measure who assumed it was on a fast track may have to think again after Friday’s hearing, though. Although defenders of therapeutic freedom were in the minority, we did bring forward eleven strong witnesses — eight of whom are themselves ex-gays, therapists, or clients who are currently in the change process. It takes great courage for such people to “out” themselves as ex-gay, given that typical reactions rage from skepticism to incredulity to outright vilification. Few things can challenge the unfounded conviction that “people are born gay and can never change” better than a face-to-face encounter with someone who has changed.

In contrast to the eight first-person testimonies against the bill, bill supporters had only one witness who claimed to have personally experienced (unsuccessful) reorientation therapy — Sam Wolfe of the Southern Poverty Law Center (SPLC), a wealthy leftist political organization best known for slandering conservative organizations as “hate groups.” (Floyd Corkins, who came to Family Research Council headquarters on August 15, 2012 intent on mass murder and shot and seriously wounded my colleague Leo Johnson, told the FBI that he chose FRC and other targets by looking at the “hate map” on the SPLC website.)

Wolfe reported going “undercover” at a seminar sponsored by the International Healing Foundation — whose director, ex-gay Christopher Doyle, was in the audience as a witness against the bill. (Later in the hearing, Wolfe was scolded to his face by an ex-gay witness, Chuck, for having violated confidences by writing publicly about private and personal conversations he had with him at the conference.)

Encouraging, in a back-handed sort of way, was the apparent disinterest of the DC Council members in this topic. The Committee on Health has five members, but only the chairman, Yvette Alexander, was present for the whole hearing. Even the sponsor of the bill, Mary Cheh, failed to make an appearance — not even to give a three-minute testimony like the rest of us (Cheh is not a member of the Health Committee, and she did have a staffer present to monitor the entire hearing.) It appeared one other member sent a staffer for only part of the hearing. Local media also ignored the hearing with only the “gay” media and a crew from CBN News showing up.

The only other actual Councilmember to show up at all was the openly “gay” David Catania, who is currently an Independent candidate waging a long-shot campaign for mayor. Catania only stayed for about ten minutes, but that was plenty of time for him to make a negative impression.

One point that many advocates made is that SOCE is based on the premise that homosexuality is a mental illness — a position that was abandoned by the American Psychiatric Association in 1973, in response to a campaign of intellectual terrorism undertaken by a small but zealous band of homosexual activists within the organization. Strictly speaking, however, this claim by SOCE critics is untrue. The more fundamental premise of SOCE is the undeniable and observable fact that some people who experience same-sex attractions experience them as something unwanted.

Therefore, no premise is needed to justify SOCE beyond the long-established ethical principle in counseling that the client — not the therapist — has the right to establish the goals for therapy.

While none of the witnesses against the proposed ban claimed that all homosexuals are mentally ill, Councilman Catania did not hesitate to declare that all of us — therapy clients and straight allies alike — are mentally ill.

Those with same-sex attractions who seek sexual reorientation therapy to overcome those attractions are, according to Catania (who is not a mental health professional), suffering from the “illness” of “internalized hatred,” a condition which causes them to “deny who they are” and “seek to be something they are not.”

Heterosexuals who support the freedom of homosexuals to choose to seek change, on the other hand, suffer from the “illness” of “internalized superiority.” This condition causes them to believe “they are superior to us who are LGBTQ.” In a remarkable display of unqualified psychotherapy of people he has never met, Catania declared, “If you take that superiority away from them, what is left? An emptiness, a void, a profound sadness.”

The low point of Catania’s shameful performance, however, came when he decided to browbeat one of the youngest witnesses at the hearing, a man in his mid-20’s named Nathan who is a current client of IHF. Nathan did not claim to be “cured” of homosexuality, admitting honestly that he is a “work in progress.” Catania wanted to know if Nathan felt “shame, guilty, inadequacy, and inferiority as a teenager, and asked, “What other than self-hate makes you want to change?”

Catania appeared to be fishing for an answer related to religion, family shaming, or a belief that homosexuality is a mental illness, in order to mount an attack. Nathan, however, did not take the bait, insisting calmly that “personal dissatisfaction with two years in the gay lifestyle” was the only reason he made the free choice to seek therapy. At one point Christopher Doyle of IHF became so disgusted that he interrupted Catania’s interrogation saying, “I find this whole line of questioning offensive;” whereupon Catania snapped, “We ask the questions!” Catania left shortly thereafter, without asking any questions of any of the professional therapists opposing the bill.

Chairman Alexander is a co-sponsor of the therapy ban, but in her questioning of the witnesses she betrayed such a naïve ignorance of the entire subject that she ended up playing devil’s advocate toward both sides. For example, the bill bars SOCE for anyone under age 18, but Alexander asked more than once how that could be squared with the fact that the legal “age of consent” for sexual relations is only 16. Advocates of the bill stammered to find an answer. She also reacted to the testimony by several of the ex-gay witnesses that they had been sexually abused as children, voicing the politically incorrect speculation that for those people, at least, homosexuality might not be biologically determined.

David Pickup, an ex-gay who is a licensed therapist, spoke of having been sexually abused at the age of five, and warned that the bill would make it illegal to help a heterosexual boy reduce homosexual feelings perpetrated by sexual abuse. This left the mental health representatives who support the bill scrambling to explain that it would not prevent therapy for sexual abuse, while failing to explain how the therapist would dance around the question of whether such abuse contributed to same-sex attractions.

In my own testimony, I focused on research by the nation’s leading expert on homosexual teenagers showing how fluid teen sexuality can be. In one major survey, of the adolescent boys who identified themselves as exclusively homosexual one year, only 11% continued to identify as exclusively homosexual just one year later, and nearly half had become exclusively heterosexual.

During questioning, I also had the opportunity to clarify some misunderstood points about SOCE. One involved the terminology itself — “sexual orientation change efforts” is the broadest term, including religious interventions as well as professional therapy; “sexual reorientation therapy” is a general term for a variety of therapies; and “reparative therapy” is actually a particular therapeutic approach (most closely associated with Dr. Joseph Nicolosi). “Reparative therapy,” in turn, is not based on the theory that homosexuals are “broken” and must be “repaired,” as most assume. It is based instead on a belief that homosexuality itself is a “reparative” drive which springs from other underlying hurts. If those underlying issues (not directly related to “sexual orientation”) can be relieved by other means in therapy, then the “need” for homosexuality goes away, and with it the same-sex attractions.

I also emphasized how unprecedented it is until now for any form of mental health treatment to be forbidden by law merely because of the goal toward which the treatment is directed (as opposed to the particular technique). This is a direct violation of the ethical principle of the client’s autonomy to determine the goal of therapy.

Notwithstanding the large number of co-sponsors for the DC bill, it is to be hoped that the strong showing by opponents of the measure will lead it to die a quiet death — like in most of the other states where such bills have been introduced in the last year.

Hobby Lobby: A clear win for RFRA, and a cautious rebuke of the HHS mandate

by Travis Weber

July 1, 2014

In Burwell v. Hobby Lobby Stores, the Supreme Court held in a 5-4 decision that closely held for-profit corporations can bring claims under the Religious Freedom Restoration Act (“RFRA”), and that the HHS mandate violated these corporations’ rights under RFRA by requiring them to provide contraceptives which they believe end human life. The Court faced two issues: (1) whether for-profit corporations are “persons” for purposes of RFRA protection, and if so, (2) whether the HHS mandate violated RFRA in this case. It decided the first clearly, and the second more cautiously.

RFRA protects corporations

Holding

RFRA protects a “person’s” religious exercise. The question is whether Hobby Lobby and Conestoga are “persons.” The Court held that they are—specifically that closely held for-profit corporations like those in this case clearly fall within the meaning of “person” in RFRA.

Analysis

The Court began by noting the broad protections Congress set in place by passing RFRA, which would indicate that closely held businesses are covered. In addition, the Dictionary Act indicates that for profit corporations are covered by RFRA, and there is no context surrounding RFRA to indicate otherwise (the Court rejected the government’s argument that RFRA merely codified pre-Smith case-law). The government had conceded that a nonprofit corporation can be a person for purposes of RFRA. Thus, there is no logical reason to conclude that for profit corporations are not protected by RFRA simply because they make a profit. As the majority opinion notes: “HHS would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.” Majority op., at 17. Of course, the government has to recognize that individuals (sole proprietors) can exercise religion even though they make a profit. The government thus argued that these two elements—profit making and corporate form—added together are reason to deny Hobby Lobby and Conestoga RFRA protection. Yet the government ultimately had no sufficient basis for its argument, and the Court squarely rejected the government’s position and held that Hobby Lobby and Conestoga can bring claims under RFRA.

*NOTEResult is limited to closely held corporations: The Court expressly noted its ruling applied to closely-held for profit corporations like those in these cases. The Court did not decide clearly one way or the other whether publicly traded companies and other corporate forms are protected. Those determinations would have to be made in other cases. While this may be viewed as a “narrow” win, the Court regularly does not decide issues which are not before it, and the issue of a publicly traded company’s coverage under RFRA was not before it. Therefore, the Court was simply conducting its analysis as is typical in these cases, and the fact that it so clearly held that the businesses in this case are covered is a strong holding notwithstanding the Court’s statements limiting the holding to closely held companies. The issue of whether companies like Hobby Lobby are covered by RFRA was previously subject to dispute, but now it is settled. This significantly broadens RFRA’s reach.

RFRA claims in this case succeed

Holding

RFRA provides that the government may only substantially burden a person’s exercise of religion when the government’s action or regulation (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. The challengers had claimed that the HHS mandate violates RFRA by burdening their beliefs by requiring them to provide drugs they believe end life, all while not serving a compelling government interest and not being the least restrictive means. The government must make a showing on these elements, or the RFRA claim succeeds. The Court skipped the first question, and easily decided the second against the government because of the existence of less restrictive means. This grants the plaintiffs a win on their RFRA claims, but the Court arrived at its conclusion easily. If the legal trail had been more difficult to blaze, Hobby Lobby would not have been as assured of a win.

Analysis – religious beliefs, their sincerity, and whether they were burdened

Normally a court would determine if the religious beliefs at issue are sincere beliefs (courts never get into whether the exercise is actually in accord with the religion – that would meddle in the internal workings of religion), but the government did not dispute the plaintiffs’ sincerity in this case. Thus the first question for the court is whether there is a substantial burden to the plaintiffs’ exercise of religion. The Court looked at the fines which would be imposed and concluded the HHS mandate imposed a substantial burden, while dismissing the idea that there is no burden because the penalty is conceivably less than providing coverage for employees. The Court also rejected the government’s argument that the religious burden and HHS mandate were too attenuated, noting that the government is not to be in the business of assessing the religious belief, but only determining if it is sincerely held.

Analysis – compelling interest

The Court then assumed that the government may have a compelling interest in providing all the methods of birth control at issue—the Court simply didn’t decide whether there was a compelling government interest in this case. But the Court didn’t ultimately have to decide this issue, because it held that the government did not advance its regulation through the least restrictive means.

Analysis – least restrictive means

The Court continued by stating that even assuming the government has a compelling interest in advancing its HHS mandate, the government has not accomplished this goal through the least restrictive means. The Court rejected the argument that the ACA was akin to a scheme like social security in which it was very important for everyone to participate—the government did not have to compel employers to provide the drugs in order to advance its interests. Here, for instance, the government could directly provide the drugs in order to accomplish its goal through a less restrictive means. The Court also looked at the “accommodation” which has already been provided to other non-profits, and offered that as an example of something the government could have done to provide birth control coverage, while burdening the companies to a lesser degree. Because the government could have done this but did not, the challengers win and the HHS mandate as currently stands violates RFRA.

*NOTEApplication to other scenarios: The Court also said its ruling pertained to contraception and the ACA, and did not necessarily apply to corporate religious objections to other issues like vaccines or taxes. Other considerations on the part of the government, such as controlling the spread of infectious diseases, would affect these determinations in ways different from the considerations pertaining to the HHS mandate. The Court does not give much of an indication on how it would rule on a RFRA claim objecting to a law requiring nondiscrimination on the basis of sexual orientation. It did say religious objections regarding hiring decisions based on race would not succeed, but the race issue is pretty well settled, and such an example does not really help predict how the court would rule on the sexual orientation issue. Many, including the dissent, will decry the majority opinion as sweeping (Justice Kennedy wrote a separate concurrence just to respond to this claim). And yet contrary to this doom and gloom about all manner of religious objections to come, the court recognized RFRA claims would continue to be assessed on a case by case basis as they arise. Majority op., at 46. The “sky is falling” response is not credible in light of the Court’s opinion.

**NOTEEffect on non-profit cases: The Court specifically discussed the “accommodation” as a possible less restrictive means for the government to use, and suggested it would not violate RFRA if used in the instant case—it notes that if the government provided for an “accommodation” similar to that which it provided non-profit entities, the impact on female employees of Hobby Lobby would be zero (thus this satisfies the less restrictive means requirement) Majority op., at 3-4.Justice Alito points out “[t]he principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.” Majority op., at 44. Yet the Court expressly said it was not deciding the “non-profit cases” and would have to decide those separately. In addition, those entities will be treated differently under the law, and involve different legal considerations and claims. It remains an open question whether the “accommodation” violates RFRA in the non-profit challenges, even though it appears such an accommodation would satisfy the Court in Hobby Lobby.

Concurrence

Justice Kennedy concurred in the judgment, and authored a concurrence to respond to the dissent’s characterization of the majority’s holding as very broad and sweeping. (Justice Kennedy appears sensitive enough on that point to want to defend himself).

While the Court skipped over the question of whether a compelling government interest in the HHS mandate exists, Justice Kennedy does seem sensitive about noting he is not deciding that question here: “[i]t is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.” What explains this statement? It is possible that Justice Alito (and maybe one or more of the other justices in the majority) would have been willing to find there is no compelling government interest in the HHS mandate, but Justice Kennedy was unwilling to do so. Yet Justice Kennedy was willing to find the least restrictive means requirement unsatisfied in this case, which is enough to find for the plaintiffs. So the majority avoided the compelling interest question, and Justice Kennedy confirms this point. Reading into the opinion slightly more, the “cautious win” for Hobby Lobby on this point could be due to Justice Kennedy.

On a more positive note, Justice Kennedy appears to support a slightly broader view of freedom of religion, noting that religious exercise includes “the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.” He obviously agrees that the Greens and Hahns can exercise religion in the face of contrary arguments from the government that non-profits exercise religion while for-profits do not: “RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation.” Justice Kennedy also cited Justice Kagan’s dissent from the Town of Greece in a statement supporting the diversity of religious exercise in the United States today—while this is good to see, it must be remembered that Justice Kennedy is considering this case easily decided because the existing “accommodation” is a clearly identifiable less restrictive means to advance the HHS mandate. Cases with other issues may not have easily identifiable less restrictive means. In addition, Justice Kennedy will also likely approach cases involving other rights differently.

Dissents

Justice Ginsburg authored the primary dissent, and was joined by Justice Sotomayor in deciding that the companies were not covered by RFRA, and by Justices Sotomayor, Breyer, and Kagan in deciding that the companies’ claims would fail anyway because they are not substantially burdened, the government has a compelling interest, and has satisfied the least restrictive means requirement. Justices Breyer and Kagan wrote a separate but short dissent in which they specifically stated they would not decide whether “for-profit corporations or their owners” may bring RFRA claims, perhaps recognizing the difficulty of the government’s argument on this point. Akin to the way the majority skipped the question of compelling interest and still ruled for the challengers, Justices Breyer and Kagan skipped the question of corporate coverage and held that even if the companies were covered by RFRA, their claims against the HHS mandate would fail. Therefore, notably, there are still seven members of the Court who recognize (through either affirmatively deciding or explicitly refusing to decide the question) the idea that you do not give up religious liberty when you engage in profit making activity.

Take away and future implications

This is a win. However, it is a narrow win. The ruling clearly applies to other closely held for profit entities objecting on RFRA grounds to any drugs required by the HHS mandate. It’s likely to apply to most of the potential fines for noncompliance, though Hobby Lobby’s may be larger than others’ fines. As long as the sincerity of the religious objection is not disputed, and the fines are relatively large, other cases featuring for profit businesses bringing RFRA claims will likely be decided along the same grounds as this opinion.

It is less clear as each of these aspects changes. If the company is another type, the result becomes less clear. If the objection is to a practice in which the government has an easier time showing a compelling interest, like tax collection, the challenge becomes more difficult. The Court offered the example of eradicating racial discrimination as a compelling government interest. We do not know what it will do with sexual orientation discrimination. The dissent did, however, offer Elane Photography as hypothetical future claim which the Court will have to decide. We can assume the four dissenting justices would have a problem with Elane Photography’s claim. Nothing else in the opinion provided a clue about how it would be decided, however.

What is going on with this ruling?

Why do the justices break down in the opinions as they do? This decision is ultimately about suppressing the exercise of religion in favor of a government scheme. This is why the government tried to force for profits to pay in this case. And this is why the accommodation is unsatisfactory for the Administration. Four justices ultimately see the ACA and HHS mandate as so important and such an advance of “rights” that they will subject these businesses to it. Justice Ginsburg uses dismissive language and asks whether RFRA would allow claims “of this ilk” just after mentioning Elane Photography and other cases regarding Christian views on sexuality—which shows an animus on her part toward Christian views associated with traditional values. She also says “[o]ne can only wonder why” the Court ignores (in her view) the reasoning underlying Title VII exemptions (limiting religious activity to nonprofit “religious corporations”) in its understanding of this case. This sharply worded question implies that the majority is deciding these cases according to the justices’ religious beliefs. She and the other liberal justices are likely to be increasingly aware and responsive to this perception. For many years the liberal justices were the ones siding with the free exercise claimant challenging government action. Now the conservative justices are. Admittedly, I think this case would be a closer call for some of the justices if they were deciding individuals’ RFRA claims (as opposed to those of corporations). But we do not have the benefit of that analysis.

Proper framing of this opinion:

Let us not forget that today’s ruling featured a showdown between individual religious liberty rights (constitutional rights, as embodied in RFRA) and an overly intrusive government scheme. Americans’ objections to such schemes, and the ability to seek judicial redress for their objections, lie at the core of American constitutional and civil rights jurisprudence. Americans’ consciences must not be sacrificed on the altar of legislative (or agency) action merely because they also happen to want to make a profit.

Whether corporations engaged in social responsibility initiatives, voluntary community initiatives, or religious practices, corporations have always done much more than just “make a profit.” Whether the case features a Jewish butcher, a Muslim financier, or the Green family’s decision to see their religious beliefs reflected in their business practices, corporations have always served to reflect the beliefs of the human beings behind them. The Court’s ruling today simply recognizes this principle.

In the middle of its opinion, the Court rhetorically asks: “Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS sug­gests? Majority op., at 17. No, there is not. America has been built on the backs of small-business owning families like the Greens and the Hahns. Many of them are merely seeking to live free from government intrusion in accord with their beliefs without being forced to violate their consciences. That is not too much to ask. Thankfully the Court agreed.

The World Cup, Human Dignity, and the Unborn

by Rob Schwarzwalder

July 1, 2014

Last week’s World Cup soccer match between Germany and the U.S. was a loss for Old Glory, which nonetheless advances in World Cup competition.

Of note to pro-lifers are the names and backgrounds of some of the German players, names that would have made the late and unlamented Fuhrer rather unhappy:

Shkodran Mustafi, a Muslim man of Albanian descent who was born and raised in Germany.

Jérôme Agyenim Boateng, born in then-West Berlin to a Ghanian father and German mother.

Mesut Özil, a third-generation German Turk and practicing Muslim known to recite the Quran before games.

Sami Khedira, son of a Tunisian man and German woman. Also a Muslim.

Why should people who care about the sanctity of life be interested in these men? Because within living memory, Germany’s Nazi government operated on the basis of severe racial and ethnic bigotry. “(Hitler) loathed Arabs (and) once described them as ‘lacquered half-apes who ought to be whipped.’”

It is therefore quite gratifying to see that the German national soccer team hosts four men Hitler would have considered sub-human. Why? Because as taught in Scripture and affirmed in America’s charter text, the Declaration of Independence, all men are created equal: Arab or Jew, German or Ghanian, every person has been endowed by his Creator with the rights of life, liberty, and the pursuit of happiness. The image and likeness of God exist in all people, whatever their complexion, hair texture, stature, or any external characteristic, racial heritage, or national background. That Germany now seems to have adopted this principle should be welcome news to all of us who care about that most sacred of human rights, the right to life.

Yet like America, abortion is all too available in Deutschland. As one commentator notes, “German abortion laws are not especially restrictive. Abortion is legal during the first trimester of pregnancy and available if medically or psychologically necessary in the later trimesters.”

Two nations with a rich, profound Judeo-Christian heritage affirm the dignity of everyone – except, ironically and tragically, when it comes to the unborn. As Senator Marco Rubio noted in May, “Science is settled, it’s not even a consensus, it is a unanimity, that human life begins at conception.” Don’t the smallest and most vulnerable among us, the unborn, deserve the same protection in law the rest of us enjoy?

Let’s keep working and praying for the day when not only Germany and America but all nations will acknowledge the simple but profound truth articulated by Senator Rubio. When they do, and when they enact laws that ban legalized bigotry not only on the basis of race or ethnicity but on the basis of size or place of residence (in the womb or outside of it), World Cup celebrations will suddenly seem very small.

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