"Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however..."

"... is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage."

Says federal judge Clark Waddoups in Brown v. Buhman, a case about the Utah anti-bigamy statute, which makes it a felony "when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person." From the first time I noticed this issue, I've thought the answer was obvious. You can't punish people for the ideas they happen to have about why they are living in a household with multiple sexual partners. Call it a marriage or call it a sandwich. Imagine that God blesses your relationship or imagine that your kitty cats brought you together. It's no proper concern of the government's.

Now, if you want to legally register your marriage and qualify for various marriage-connected benefits and privileges, it's a different matter, and Judge Waddoups makes that clear. This case was not about that. It was about people who live together and perform private marriage rituals and call themselves married. Prosecuting these people, while other married people are left alone when they commit adultery, is criminalizing their speech and beliefs. If you understand the issue, I think you'll see this must be the answer.

This does not lay the groundwork for finding a right to marry multiple spouses any more than it compels the government to prosecute adulterers.

Why is Linda Greenhouse singling out Justice Scalia in this op-ed about the question of religious exemptions to the Affordable Care Act?

The Supreme Court granted cert. in the Hobby Lobby case, in which a business seeks to avoid the requirement to provide coverage for abortifacient-type birth control on the ground that it burdens its free exercise of religion and is not justified by a compelling government interest. This claim is based on the Religious Freedom Restoration Act, a statute that was designed to give religious believers rights that the Supreme Court had recently determined were not guaranteed by the Free Exercise Clause of the Constitution. The case that restricted the scope of the Free Exercise Clause was Employment Division v. Smith, and the majority opinion was written by Antonin Scalia.

That is, of all the Supreme Court Justices who have resisted constitutional arguments for giving special exemptions for religion, the first name on your list should be Antonin Scalia!

But Linda Greenhouse's piece ends:

If the court grants the exemption the companies seek, its decision will most likely come packaged as an exercise in statutory interpretation. Only the old culture warrior, Antonin Scalia, can be counted on to acknowledge the deeper issues in play. But those issues will be there nonetheless, and that’s what makes these cases so compelling.

Packaged as an exercise in statutory interpretation? It is an exercise in statutory interpretation.

Without the Religious Freedom Restoration Act, there would be vanishingly little hope for an exemption. Employment Division v. Smith would almost surely determine that the federal government's law binds everyone in the same way. And you'd be able to thank Justice Scalia for his crisp, hard-core rule that lets legislators do things like that and keeps the judiciary in restraint.

Greenhouse knows all that. She refers and links to Smith, though she doesn't mention that Scalia wrote it. She knows the legal claim is based on the Religious Freedom Restoration Act. It's as if there's some secret NYT rulebook that says: When writing about the Supreme Court, always attack Scalia.

The Greenhouse idea is to say this case is really about sex, because opposition to birth control and abortion is really about sex, and then Scalia is supposedly a "culture warrior" on sex issues. But even if you could accept that opposition to abortion and birth control is really about sex, what does Scalia care about sex? He's not a culture warrior! To say so is to distort the opinions of his that accuse other members of the Court of taking sides in the culture war. When he makes that accusation, he's promoting judicial restraint and deference to democratic decisionmaking. Sometimes that restraint manifests itself in cases where legislatures have done things like criminalize sodomy or restrict abortion, so he'd stand back and let social conservatives win. But that would not be because he's a "culture warrior." He's a committed pacifist, looking on, letting the victors in the legislative battle keep their spoils.

But the Hobby Lobby case isn't about narrowly interpreting the Constitution to let legislative majorities have their way. It's a conflict between 2 statutes, and it was absolutely not Antonin Scalia who encouraged giving religious exemptions. It was Congress, which was reacting to Scalia's rejection of constitutional exemptions. The RFRA bill was sponsored in the House by Congressman Chuck Schumer and in the Senate by Teddy Kennedy. (Each had a GOP co-sponsor). The Democrats controlled Congress, but the Republicans all voted for it too (with the sole exception of Jesse Helms).

From the NYT article in 1993 when President Bill Clinton signed RFRA into law:

President Clinton hailed the new law at the signing ceremony, saying that it held government "to a very high level of proof before it interferes with someone's free exercise of religion."...

President Clinton voiced wonder today at this alliance of forces that are often at odds across religious or ideological lines. "The power of God is such that even in the legislative process miracles can happen," he said. 

This is about statutes and the politicos who produce them, not the judges who stand back and let them trip all over themselves pandering to everyone. If the Congress that passed the Affordable Care Act had wanted to exempt it from the Religious Freedom Restoration Act, it could have done so explicitly. It did not. Why should the Court cut back Congress's absurdly broad RFRA to help it out with what it failed to bother to do with the ACA?

Congress deserves another kick in the ass like the one the unanimous Supreme Court gave it in O Centro Espirita Beneficiente Unio do Vegetal (letting a religious group use the psychedelic drug hoasca despite the ever-so-important federal statute, the Controlled Substances Act).

"Supreme Court to Decide Whether Corporations Can Pray."

Snarky headline at the Bill Moyers website on an article about the pending Supreme Court case dealing with whether religious persons who have set up their business using the corporate form can be compelled by the government to provide their employees with health insurance that covers drugs that they believe murder human beings.

The case isn't about praying. It's about money and what it means to be compelled to contribute your money to something that you sincerely believe God requires you to fight to the end. I think it's close to the same problem that individuals face when they pay their taxes and believe that something the government is using the money for is deeply wrong. For example: war.

But the Bill Moyers operation thinks mocking religious people is a good move. I say it's prime jackassery... except to the extent that it's old-school, left-wing hatred of corporations. Let's see how they feel if Hobby Lobby loses its case — as I think it will — and its owners dissolve the entire operation to maintain religious purity — would they? — and throw 13,000 employees out of work. I suspect the the Bill Moyers folk would double down on their contempt for religion.

The article is written by Joshua Holland, not Moyers himself, but it is tweeted under Moyers' name. Moyers, the man, is 79, so I wonder if it's really him tweeting or whether it's some soulless incorporated entity doing business under the name Moyers & Company. Isn't it nice to say "company" instead of "corporation"? It's like back in the 1950s when your mother said "company's coming over" when family or friends were joining you for dinner.

So here's Joshua Holland, who's identified not as a legal expert, but as "a senior digital producer for BillMoyers.com," and he's mostly just doing extracts from the amicus brief of the Constitutional Accountability Center.

The brief notes that the religious owners of the corporations have no obligation to do anything that contradicts their personal beliefs. The law applies to the corporations, which the law views as separate “persons” — corporations are themselves entities, and they can’t actually kneel down and pray.

But religious persons do business using the corporate form. Do you want to say that they must thereafter choose between doing business in that form or following their religion? If you were doing something you sincerely believed God would send you to hell for doing, do you think that by setting up a corporation to conduct that activity, God would not count it against you? The fact that "corporations are themselves entities" doesn't solve the problem! Let's say that you wanted to kill someone, and instead of doing it yourself, you paid another person to do the killing. The fact that the other person is himself an entity for legal purposes does nothing to cut off the guilt. That is easy to see.

Holland writes, quoting the amicus brief:

Here’s a key point: nobody has to form a corporation in order to do business. They do so because it brings real benefits under the law.

True, but so what? What is the general principle here? To take advantage of a legal form is to abandon your rights? On that theory, the government can censor the New York Times (and BillMoyers.com).

I don't mean to say that I think Hobby Lobby should win this case. I just feel compelled to point out what the Moyers company is smugly ignoring: Corporations are important and necessary tools for human activities conducted on a large scale; people care about their morality and their religion even as they conduct the activities by which they earn their living; and there are deep religious convictions at stake as the government binds us together in the immense undertaking of providing for everyone's medical treatments.

I can see I'm just saying, come on, Bill, at least show some respect for the values you mean to crush. I do see the absurdity.

"Court keeps alive inmate's quest for pork feast."

Headline at the National Law Journal makes the "quest" sound more absurd than it is. The prisoner, Derek Kramer, is an Odinist and he's suing in pursuit of his rights under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act.

From the 7th Circuit court's opinion (PDF):

Odinism is a polytheistic religion, which was practiced for millennia in northern Europe before the rise of Christianity and has been revived in recent decades. The practice of Odinism includes group worship ceremonies. Pork is a sacred food to Odinists....

Specifically, Kramer asked for a feast on December 21st for the “High Feast of Yule” and “further requested that HAM/PORK be included in with the FEAST MEAL.”...

Kramer had a larger problem with the group worship at the Green Bay Correctional Institution: The Department of Corrections lumps the "Pagan" religions together for group worship purposes, and he objected to a specifically Wiccan ritual at the service. The demand for an annual pork feast was part of a larger effort to separate the Odinists from the Wiccans.

Kramer's loss on everything but the pork feast (which he hasn't yet won) is based on procedural matters that are probably only interesting to lawyers — unless you know how to be interested in the way procedure can operate to undermine rights.