© 2004 Lawrence R. Rosano
Wednesday, September 20, 2017
WHY THE HHS MANDATE IS UNCONSTITUTIONAL
© 2004 Lawrence R. Rosano
In order to prove that the above is true I begin by uncovering the only 3 types of burdens needed to define in order to describe the free exercise of religion clause which are these:
(A) a coercion to violate religion in practice.
(B) a coercion to consent to a temptation to violate religion in practice.
(C) a coercion to consent to a proposed temptation to violate religion in principle, only.
Giving concrete examples of a religious adherent under burdens A and B above are easy enough. But have you ever heard of a burden C? Would you even know how to describe a concrete example to anyone no less yourself how a religious adherent would experience going through a burden C? My bet is that you can’t and neither can any lawyer do so as well! Therefore ALL LAWYERS ARE BLIND to burden C. As a preview of what’s to follow I’ll not only provide you with a concrete example of a religious adherent burdened by C but moreover prove to you that for 50 years now and running all lawyers in the area of religious freedom (and leaking into other areas of the law as well but for now I don’t want to confuse you) depend on and apply precedential case law exclusively pertaining to burden C only, yet erroneously lawyers apply that holding instead to substantially different burdens e.g. A and B above even though all who do so have no definition or even knowledge of C to follow as I have uniquely and powerfully provided here above. In turn otherwise all lawyers and all those who depend on lawyers have no handle on how to compare no less apply burden C to other facts and circumstances (similar to those of Mrs. Sherbert in Sherbert v. Verner which will be explained below) and consequently apply the some compelling state interest test. Yet to the contrary when burdens A and/or B are part of the relevant facts and circumstance consequently the government is prohibited to condone doing so as in reality is the case with the Jan. 20th 2012 HHS mandate and its Feb. 10th 2012 concession and what the California Supreme Court in 2004 did as will be explained below. But on first glance let’s make some quick distinctions between these 3 burdens:
First of all A and B involve burdens in practice whereas C is in principle only. The distinction is that in principle only [cf. C] means never in practice [cf. A and B]. Secondly A and B involve burdens that exist in the present tense whereas C is in the future tense i.e. not existing yet and even though in the future there is no actual possibility of ever existing in practice at all!
So no wonder in Sherbert v. Verner where the petitioner, Mrs. Sherbert, claimed that the State had placed a burden C on the free exercise of her religion the United States Supreme Court would have permitted the government to do so, yet only on condition that the governmental limitation or restriction in question - here burden C - was shown to be the least restrictive means of achieving some compelling state interest. But in Sherbert the government failed to meet its burden of proof and consequently she did not have to lawfully submit herself to burden C.
Nevertheless in 1963 Sherbert provided the precedential case law for other courts to yet erroneously allow governments to do so. A case in point occurred on March 1, 2004 in Catholic Charities by the California Supreme Court which only followed Sherbert v. Verner and held that coercing the Holy Roman Catholic Church to pay for intrinsically evil contraception coverage in all group health insurance [“GHI”] plans offered to its Prolife employees who work in Catholic Hospitals and at Catholic Charities was the least restrictive means of achieving some compelling state interest notwithstanding that the Holy Roman Catholic Church strongly objected to support financially intrinsically evil contraception that Human vitae in 1968 taught was non-negotiable. The legal reasoning why the California Supreme Court’s doing so was clearly erroneous follows:
“We therefore review Catholic Charities’ challenge to the WCEA [i.e. an abbreviation of The Women’s Contraceptive Equity Act, added] under the free exercise clause of the California Constitution in the same way we might have reviewed a similar challenge under the federal Constitution after Sherbert, supra, 374 U.S. 398, and before Smith, supra, 494 U.S. 872. In other words, we apply strict scrutiny. Under that standard, a law could not be applied in a manner that substantially burdened a religious belief or practice unless the state showed that the law represented the least restrictive means of achieving a compelling interest or, in other words, was narrowly tailored.”
Catholic Charities of Sacramento, Inc. v. The Superior Court of Sacramento County, Dept. of Managed Health Care et al, Real Parties in interest, 10 Cal.Rptr.3d, at 311-2; 32 Cal. 4th, at 562.
As I pointed out above burden C is in principle only whereas GHI involves burdens A and B but never C. By reason one can easily imagine religious adherents refusing to accept A and B but for practical reasons accepting burden C. Therefore by comparing religious adherents who are burdened in reality by burdens A and/or B whereas the Court analyzes and applies case law meant only as if they were virtually burdened by burden C instead consequently by applying the some compelling state interest test would end up to the contrary denying religious adherents the very religious freedom Courts are bound but here instead pretend to protect in the first place.
But in fact in Sherbert affirmed in Thomas the U.S. Supreme Court’s majority openly did - but to the contrary California’s Supreme Court didn’t - prohibit the government to impose B as follows:
“For ‘[i]f the purpose or effect of a law is to impede the observance (emphasis, added, defined as making the practice harder to follow, added) of one or all religions or is to discriminate invidiously between religions [emphasis, added] that law is constitutionally invalid even though the burden may be characterized as being only indirect [emphasis, added].’ Braunfeld v. Brown, supra, at 607.” Sherbert v. Verner, 374 U.S. 398, at 404, 83 S.Ct., at 1794 (1963).
Note “[i]mpede the observance”, Id., here refers to identical verses at Matthew 26:41 and Mark 14:38 as this: “Watch and pray that you enter not into temptation. The spirit is willing but the flesh is weak.” Moreover Braunfeld v. Brown at 366 U.S. 599, 606, 81 S.Ct. 1144, 1147 (1961) defined “indirect” above as follows: “an indirect burden on the free exercise of religion, i.e., legislation which does not make unlawful the religious practice itself,” cf. the HHS mandate, perhaps for employees and cf. its Feb. 10th 2012 concession applied to employers as well both of whom are not coerced to pay for this religiously offensive coverage; “to discriminate invidiously between religions”, Id., however, applies here as is proven discriminatory judicially below. As a matter of fact the rabbinic Talmud (text) on abortion is found in Mishnah Oholot 7:6 as follows:
“If a woman was in hard travail [such that her life is in danger], the child must be cut up while it is in the womb and brought out member by member, since the life of the mother has priority over the life of the child; but if the greater part of it was already born, it may not be touched, since the claim of one life cannot override the claim of another life.”
In 1979, according to a U. S. District Court Judge Harold H. Greene, a Jew who’s family fled Germany in 1939, the reason why abortion clinics are entitled to tax-exempt status is not because it involves a woman’s health but rather because the I.R.S. and/or the Court would “inhibit the free exercise of religion [n. #1] by those with views opposed to plaintiff’s [Roman Catholic Religion, added],” Haring v. Blumenthal [471 F.Supp. 1172, 1177 (D.D.C. 1979)] in case that tax-exempt status was taken away from abortion clinics.
In Haring v. Blumenthal, the Plaintiff, a Roman Catholic I.R.S. attorney, refused on religious grounds to review and/or approve applications for tax-exempt status submitted by abortion clinics on his claim that abortion is not related to a woman’s health. Consequently Plaintiff demanded and the Court granted an accommodation to plaintiff’s religious practices not to review such IRS tax-exempt applications. Yet in addition Plaintiff raised another claim that abortion clinics should not be granted a tax-exempt status per se precisely for the same reason. But in denying his claim U.S. District Court Judge Harold H. Greene revealed legal reasoning to support his denial by holding ab silencio that abortion is not related to a woman’s health but is obviously the exercise of a religion opposed to the Roman Catholic Religion as is shown below:
“To the contrary, it is the plaintiff’s claim which, if granted, would [emphasis, added] be violative of the First Amendment. Should the Internal Revenue Service or the Court grant him the relief he seeks, they would do precisely that which the Supreme Court in Tilton, supra, stated the government may not do – they would entangle government with the tenets of plaintiff’s particular religious faith and inhibit the free exercise of religion by those with views opposed to plaintiff’s [emphasis, added]. [Needless to say, Plaintiff’s rights and his views are entitled to no more weight under the Constitution and laws of the United States than competing speech or belief, added from footnote #11 thereto, Id., at 1177].”
Haring v. Blumenthal, supra, at 1177.
On the one hand at 1st glance Judge Greene respected an establishment of Judaism by judicial consent that obligated all taxpayers to fund the practice of abortion since “a tax-exempt or tax-deductible status is equivalent to a governmental subsidy” Regan v. Taxation Without Representation, 103 S.Ct. 1997, 2000 (1983) which under 28 USC 242 is a criminal Establishment of Religion Clause violation of the Federal 1st Amendment. The clearly erroneous and/or religious error here is that Judge Greene compared “no more weight .. than competing speech or belief”, Id., with abortion which is a sure practice of Judaism as indicated above. Thus judicially disguising “a practice” by placing the words “competing speech or belief” in its place is “clearly erroneous” and a religious error. And it was Pope Leo XIII in his encyclical Inscrutabili Dei Consilio (1878) who declared that “A religious error is the main root of all social and political evils”!
On the other hand the Plaintiff-Paul Haring’s additional claim as mentioned above was never refuted by the law or by the facts. Since “Normally what is not disputed is deemed to be conceded,” People v. Gruden [42 N.Y.2d 214, 216 (1977)] consequently as Paul Haring had asserted to Judge Greene, abortion has nothing to do with a women’s health which again was held ab silencio as a matter of law since 1979. Why Pro-life lawyers haven’t seized this case law opportunity to collapse the HHS mandate covering contraception, abortifacients and abortion is beyond me. This indeed makes lawyers even that much blinder than has been proven above! Nevertheless, both passages above make the January 20, 2012 HHS mandate and Obama’s February 10, 2012 concession (if it were ever issued as the former was) unconstitutional per se under both the free exercise and establishment of religion clauses to the federal first amendment.
On September 13, 2012 in order to know what the latest in the law was on the HHS mandate, I had attended a symposium for the Religious Freedom Project held at Georgetown University in Washington, D.C. which is when and where I met a few Professors re: HHS mandate.
On December 13, 2012 in response to my above legal analysis, Law Professor Mark L. Rienzi, Catholic University School of Law (Cordozzo School of Law), Wash., D.C., commented in a personal email to me that:
“(t)here isn't a court in the country that will apply Sherbert to these claims as a matter of Free Exercise law. The understanding of the constitutional history, repeatedly recognized by the Supreme Court, is that Smith eliminated Sherbert as the relevant standard. To the extent the California court invokes Sherbert, I assume they are doing that as a matter of state constitutional law (as in, they may claim to still interpret their state constitutional protection for religious liberty according to Sherbert, even if the Supreme Court has ditched Sherbert as the federal constitutional test). None of that means that Smith was right (I don't think it was) and that Sherbert shouldn't still be the test for the Free Exercise claim. But we are too far down the path for any court to revive Sherbert for constitutional purposes in a case like this one. That is why if we want to apply Sherbert, we invoke RFRA (i.e. the abbreviation for and defined as The Restoration of Freedom of Religion Act, added) rather than the constitution.”
Yet Professor Rienzi never realized that Mrs. Sherbert only risked a burden C but never burdens A and B (as he presupposed she did) as is realized by taking a closer look at Sherbert: As an employee Mrs. Sherbert was fired from her job “because of her refusal to work on Saturday in violation of her faith” Thomas v. Review Board [450 U.S. 707, 716 (1981)]. Now as applicant for employment the unemployment compensation benefits’ board consequently ruled her fired without just cause which in turn qualified her to become eligible for unemployment compensation benefits yet pending her answer, “Yes”, to this following question: “Mrs. Sherbert, are you ready, willing and able to accept work even by accepting a job that would require you to work on Saturdays in violation of your faith?” In response thereto Mrs. Sherbert answered “No”. At that point only Mrs. Sherbert was denied unemployment compensation benefits. In a nutshell Mrs. Sherbert was denied benefits precisely and accurately because of her refusal to accept the State’s coercion placed upon her to consent to a proposed temptation to violate her religion in principle only thus placing a burden on the free exercise of her religion defined here as burden C, but not burden A or burden B.
Now you may ask: Why in principle only? Because arguendo if and when Mrs. Sherbert answered the question just mentioned above “Yes” then indeed she would have become eligible for and in turn would have received all the otherwise available unemployment compensation benefits unless and until, as an applicant for employment, Mrs. Sherbert was offered a “job” which in turn she could accept or not. Still arguendo say that above “job” which she was offered required her to accept a Saturday workday. At this point the question now becomes this: Would Mrs. Sherbert be obligated to accept the “job” and thereby work on Saturdays in violation of her faith and in turn be disqualified to receive unemployment compensation benefits?
The answer is “No”: As reflected above unemployment compensation benefits are available only to those who are applicants for employment, not employees! Thus if Mrs. Sherbert accepted to work on Saturdays, not only would she be choosing to violate her religion in practice no less but consequently she would be additionally disqualified to receive benefits as well. On the other hand as a second necessary and sufficient reason why she was coerced to consent to a proposed temptation to violate her religion in principle only is because the unemployment compensation benefits’ board in the first place had already ruled on the first question that Mrs. Sherbert had to answer concluding that she was fired without just cause because coerced to show up also on Saturdays in turn her employer had placed a burden “A” upon her in order to remain employed which burden “A” the unemployment compensation benefits’ board ruled that she was always never obligated to accept which was directly implied by ruling that she was fired without just cause. Thus the compelling state interest test as established in Sherbert in context applied only to burden C as proven below, but not to burden A as just proven above, nor to burden B as proven above that, no less by the High Court itself yet who for both A and B to the contrary also threw a wrench in the gears of religious freedom in both of its majority decisions in Sherbert (1963) affirmed in Thomas (1981) by deceiving the truth for Petitioners, their attorneys and the judges asked to decide each controversy with 2 clearly contradictory holdings below: 1st the truth that’s consistent with all my legal analysis followed secondly by this 50 yrs.’ old judicial fallacy as follows:
“A similar argument was made and rejected in Sherbert, however. It is true that, as in Sherbert, the Indiana law does not compel a violation of conscience [defined here above as burden C, added]. But ‘this is only the beginning, not the end, of our inquiry.’ 374 U.S., at 403-404. In a variety of ways we have said that ‘[a] regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it burdens the free exercise of religion [as is measured by the above some compelling state interest test as established in Sherbert, added].’” Thomas v. Review Board, supra, at 717.
Secondly the United States Supreme Court, all lower Courts, Congress and State legislatures, and Federal and State Executives in a catch 22 fashion have been following a legal or judicial fallacy ever since 1963 based on the majority decisions in Sherbert and Thomas recited below:
“The ruling [disqualifying Mrs. Sherbert from benefits because of her refusal to work on Saturday in violation of her faith]..374 U.S., at 404.” Id. at 716.
On second glance this fallacy becomes even more obvious by implying conversely that as an applicant for unemployment compensation benefits, arguendo had she accepted burden “A” thereby working and violating her religion, then only would she be otherwise qualified for unemployment compensation benefits!!+?!
Finally addressing Professor Rienzi’s misplaced reliance on Smith, as did Professor Charles E. Rice in 2002 as well, I now point out that whatever it was in Sherbert that the Smith case allegedly overturned was clearly erroneous in the first place beforehand! Therefore after my legal reasoning above is known and accepted as a matter of law - as far as reflected in Sherbert, that is - consequently I will have overturned the Smith case ab initio thereby also collapsing RFRA because based solely on the fallacy included in Sherbert that had been follow ever since regarding burdens A and B yet notwithstanding Sherbert in context was properly decided resolving a burden C, only, but not A and B upon which erroneously grounds all HHS mandate lawsuits are based.
All lawyers are blind who (cf. Rienzi) cooperate with the judiciary to coerce a religious adherent to accept burdens A and/or B because doing so is the least restrictive means of achieving some compelling state interest notwithstanding based exclusively on a legal fallacy and religious error no less. In other words since 1963 all lawyers treat religious freedom as if it was a privilege instead of a right like I do! Consequently the HHS mandate and its concession are erroneous and unconstitutional because they clearly deny religious freedom which is actionable against the Obama Administration and all Congressional members for adopting similarly situated legislation under 42 U.S.C. 1983 for Civil Rights violations thereby committing federal crimes under 18 U.S.C. 242 as well. Therefore I now ask for a scheduled date to appear before the HHS to orally make my legal opposition. By observation time is of the essence! And I dare say that the criminal and civil liability here mentioned above is enormous!
Lawrence R. Rosano
See above on my blog at: http://hhs-mandate-is-unconstitutional.blogspot.com
[n. #1] “Religious” nature of a practice or belief at 29 C.F.R. 1605.1 is as follows:
“In most cases whether or not a practice or belief is religious is not at issue. However, in those cases in which the issue does exist, the Commission (EEOC) will define religious practices to include moral or ethical [emphasis, added] beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. The standard was developed in United States v. Seeger, 380 U.S. 163 (1965) and Welsh v. United States, 398 U.S. 333 (1970)…. The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.”
Specifically, abortion, contraception and sterilization, are the exercises of “the ethical [emphasis, added] doctrine that virtue is based on utility, and that conduct should be directed toward promoting the greatest happiness of the greatest number of persons”, which is the definition of utilitarianism in Random House-Webster’s Unabridged Dictionary [2nd edition, 1999] inter alia Judaism. On the other hand, all Prolifers are entitled to follow the Code of Ethics For Government Service as a religious practice as well which is just one of the claims I raised in Rosano v. United States [9 Cl.Ct. 137 (1985)] and explained further in my book ©2004 Lawrence Rocco Rosano.
© 2004 Lawrence R. Rosano
A burden on the free exercise of religion under the federal first amendment to the United States Constitution is created when a religious adherent is coerced to consent to a proposed temptation to violate religion in principle, only, in order to receive benefits and/or be eligible for employment, both of which are not offensive to religion, or else, be punished for not doing so by being denied the otherwise available benefits and/or employment in question. The intensity of this temptation is that much stronger when it is always available, instead of proposed, as above, indicated, and, if always available, consequently, the religious adherent is entitled the more to the religious freedom in question, accordingly. However, in both cases, the religious freedom is limited, only, by the government’s showing that the limitation or restriction on religious freedom is the least restrictive means of achieving some compelling state interest.
Nevertheless, to the contrary, the government is prohibited from doing so, whenever the proposed temptation to violate religion is in practice, instead of in principle, only, regardless, whatever the intensity is, as above indicated.