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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  February 13, 2012
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Topic category:  Constitution/Constitutional Crises

Even Justice Brennan Would Uphold Free Exercise Rights Against the Obamacare Contraception/Sterilization/Abortion Coverage Mandate

"The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such.... Government may neither compel affirmation of a repugnant belief,...nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities...."

Ironically President Obama appointed former law clerks of the late Justice William Brennan, the "liberal" legal icon and then ignored Justice Brennan's jurisprudence respecting religious liberty under the United States Constitution.

As a former president of the Harvard Law Review, a practicing attorney and a lecturer in constitutional law, President Obama surely should know about the religious clauses of the First Amendment. They are fundamental. They are not esoteric. And they don't need to be "fundamentally transformed" to please secular extremists.

Message for President Obama:

(1) The Free Exercise Clause protects the religious liberty of people, whether they do business as individuals, or partners, or in corporate form, or don't do business.

(2) Cutting a deal with Catholic organizations won't cut out the constitutional protection due to others with religious objections to providing so-called contraception coverage.

Justice Brennan explained it nicely in his majority opinion in Sherbert v. Verner, 374 U.S. 398 (1963), in upholding the religious liberty rights of a Seventh Day Adventist who had been fired by her employer because she refused to work on Saturday, her faith's Sabbath. After failing to get another job, she filed for unemployment compensation benefits and was denied because the South Carolina Employment Security Commission decided that she did not have a compelling reason for refusing to accept "suitable" work was not compelling.

After the lower courts ruled that the constitutional right to freely exercise religion had been denied and the South Carolina Supreme Court specifically held that the ineligibility determination did not infringe any constitutional liberties because it does not restrict "the appellant's freedom of religion any way prevent [the claimant] in the exercise of her right and freedom to observe her religious beliefs in accordance with the dictates of her conscience," the United States Supreme Court reversed, 7 to 2, ruling that the Seventh Day Adventist was entitled to refuse to work on her Sabbath without relinquishing her right to unemployment benefits.

Justice Brennan wrote for the majority: "The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such.... Government may neither compel affirmation of a repugnant belief,...nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities...."

Justice Brennan acknowledged that the Supreme Court had "rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for 'even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions," and distinguished them on the ground that "[t]he conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order."

Justice Brennan explained that "appellant's conscientious objection to Saturday work constitutes no conduct prompted by religious principles of a kind within the reach of state legislation" and "therefore, [if] the decision of the South Carolina Supreme Court is to withstand appellant's constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant's religion may be justified by a 'compelling state interest in the regulation of a subject within the State's constitutional power to regulate....'"

The burden on the free exercise of the appellant's religion was found to be "clear."

That the burden "may be only an indirect result of welfare legislation within the State's general competence to enact" and "no criminal sanctions directly compel appellant to work a six-day week" was "only the beginning, not the end," of the Court's inquiry, because "[i]f the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect."

Justice Brennnan explained that South Carolina was "forc[ing appellant] to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand," and "[g]overnmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship."

South Carolina's "privilege" argument was tersely rejected: "Nor may the South Carolina court's construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant's 'right' but merely a 'privilege.' It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege."

It was pointedly stated that "to condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties."

Plainly, requiring an employer to provide insurance coverage to employees that violates "a cardinal principle" of the employer's religious beliefs is likewise constitutionally impermissible.

Justice Brennan explained that only a "compelling state interest" would suffice to justify the denial of benefits to the appellant, none had been shown and even if there had been one shown, "it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights."

Justice Brennan further stated that "in this highly sensitive constitutional area, '[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation,'...."

Finally, Justice Brennan distinguished the upholding of the Sunday closing law, even though it made it "more expensive" for Orthodox Jewish merchants to practice their religion, explaining that "the statute was... saved by a countervailing factor... - a strong state interest in providing one uniform day of rest for all workers" and that "secular objective could be achieved...only by declaring Sunday to be that day of rest" and "[r]equiring exemptions for Sabbatarians, while theoretically possible, appeared to present an administrative problem of such magnitude, or to afford the exempted class so great a competitive advantage, that such a requirement would have rendered the entire statutory scheme unworkable."

Of course, the Sunday closing law did not require Orthodox Jewish merchants (or anyone else) to violate a fundamental religious belief, making it readily distinguishable from the Obamacare contraception/sterilization/abortion insurance mandate.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to,,, and and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is

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