CNN puts religious liberty in scare quotes, but corrects it

CNN puts religious liberty in scare quotes, but corrects it December 2, 2013

It was one of the most famous First Amendment cases in American history. As the American Civil Liberties Union website notes:

One of the most noted moments in the ACLU’s history occurred in 1978 when the ACLU defended a Nazi group that wanted to march through the Chicago suburb of Skokie, Illinois where many Holocaust survivors lived. The ACLU persuaded a federal court to strike down three ordinances that placed significant restrictions on the Nazis’ First Amendment right to march and express their views. The decision to take the case was a demonstration of the ACLU’s commitment to the principle that constitutional rights must apply to even the most unpopular groups if they’re going to be preserved for everyone.

Everyone knew that this was a First Amendment case testing the limits of free speech, both literal speech and free speech in the form of symbolic actions.

Some people thought that letting the Nazis march through Skokie was a valid application of the First Amendment. Others disagreed and thought that this case crossed a line and that the First Amendment didn’t apply.

But no one doubted that this was a free speech case that raised First Amendment issues.

No one tried to argue that this was actually a “free speech” case or a “First Amendment” case. There was no need for news-media “scare quotes” implying that the conflict didn’t really center on free speech and the First Amendment.

This brings me to an interesting lede in a piece the other day. Here is the top of the story, as it first appeared on the Internat. See anything interesting?

Washington (CNN) — The high-stakes fight over implementing parts of the troubled health care reform law will move to the U.S. Supreme Court in coming months, in a dispute involving coverage for contraceptives and “religious liberty.”

The justices agreed … to review provisions in the Affordable Care Act requiring employers of a certain size to offer insurance coverage for birth control and other reproductive health services without a co-pay. At issue is whether private companies can refuse to do so on the claim it violates their religious beliefs.

Now, hours later the wording changed.

You got it. That scare-quote formula — “religious liberty” — changed to a plain, simple factual reference to religious liberty, minus the quotation marks.

Why mention this in conjunction with the famous Skokie case?

Simply stated, everyone knows that the Health & Human Services mandate fights are about the First Amendment and the free expression of religion. Everyone knows that this is a religious liberty case — except legions of journalists.

The White House knows that this is a religious liberty case, but believes that its final version of the mandate does not cross the constitutional line and violate traditional understandings of the First Amendment and religious liberty. Thousands of leaders at religious ministries led by Orthodox Jews, Muslims, evangelical Protestants, Catholics, etc., disagree and believe the mandate goes too far.

But everyone knows this is a religious liberty case, just as everyone — even if they disagreed about the outcome — knew that the Skokie case was about free speech and the First Amendment.

So why wrap words “religious” and “liberty” inside those scare quotes?

Now, I am happy to report that after a few hours the square quotes vanished. Hurrah for someone in the editing process at CNN & Co. This was a victory for simple accuracy.

This was basically a good report, but I would like to note one other thing — repeating a point I have been making as of late.

Once again, this report assumes that there are two kinds of conflicts linked to the HHS rules, clashes involving for-profit corporations and cases involving nonprofit religious groups (most of which have been granted exemptions based on doctrine). But the minute you say “most” or even “many” have exemptions, this — logically — would mean that this battle over the First Amendment has THREE levels.

Once again, read the actual mandate language:

The amended interim final regulations specified that, for purposes of this exemption, a religious employer is one that: (1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code. Section 6033(a)(3)(A)(i) and (iii) of the Code refers to churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order. In the HRSA Guidelines, HRSA exercised its discretion under the amended interim final regulations such that group health plans established and maintained by these religious employers (and any group health insurance coverage provided in connection with such plans) are not required to cover contraceptive services.

See the problem that is showing up in another wave of cases? What non-profit religious groups are exempt? Those that, basically, stay inside of their own sanctuary doors and hire their own and minister to their own. Offer your help to all poor people, all teen-agers, all college students who choose to enroll in your college, etc., and you lose your religious liberty in this case.

As I wrote the other day:

What is the definition of “primarily”? What is the percentage required of those served?

In other words, if the Little Sisters of the Poor continue to serve needy non-Catholics as freely as they serve needy Catholics, then they may not be “religious enough” to be protected from the HHS requirements. The sisters need to start counting Catholic heads and non-Catholic heads, in case government officials decide to argue that their religious ministry is not religious enough to be considered protected worship.

Now, has anyone else seen scare quotes in coverage of religious liberty, religious freedom and the free exercise of religion? If so, please leave us some URLs in the comments pages.

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  • wmrharris

    Understandably the plaintiffs want this framed as religious liberty, and the analogy of person and corporation, incomplete as that may be. David Skeel’s review in Mondays WSJ (behind the paywall, alas) gives a good neutral overview of the questions raised. An 11/27 post at Balkinization by Micah Schwartzman, Richard Schragger, and Nelson Tebbe provides additional insight into the questions turning on application of the Religious Freedom Restoration Act.

    While the narrative of religious freedom gives an immediate hook, other substantive questions remain and are worthy of consideration.

    • tmatt

      Of course. But, as with the Skokie case, there is no question that this is a dispute over religious liberty and the First Amendment. Journalists must be careful to cover both sides of that dispute, as with Skokie, but there is no need to imply that First Amendment issues are not at stake.

  • cvg

    The Volokh conspiracy has some good notes this week on the legal side of things.