DEFEATING THE FEBRUARY 10 HHS MANDATE CONCESSION AS A MATTER OF EXISTING CASE LAW

              Ever wonder why the government treats religious adherents (A) exercising their religion, and/or else (B) refusing to consent to violate religion and/or accept even the temptation to violate religion, both in practice as if they had only a “conditional” right, subject to governmental approval, even though to the contrary “protected” under their Federal First and Fourteenth Amendment rights, to do so?

The following legal analysis reveals for the very first time ever, conclusively, as a matter of law not only just [1] how the government has gotten away with enforcing this judicial strategy which allegedly on its face upholds yet to the contrary denies religious freedom for over 50 years now which nevertheless will continue unless and until this legal reasoning herein is revealed, but in addition [2] how to restore this religious freedom that, even though already validly established in 1963, nevertheless had been hidden since 1963 by means of a sophism also placed inside the majority decision yet followed ever since pursuant to Sherbert v. Verner as explained herein.

A case in point is the January 20, 2012 HHS mandate and its February 10^th concession.  

In this following memorandum of law I argue in detail that both are unconstitutional under federal law yet for different reasons: First of all the Roman Catholic Church [“RCC”] objected to the former’s obligation to violate religion in practice by paying for that portion of its group health insurance (“GHI”) plan premiums to pay for intrinsically evil practices by funding all coverage for abortion, contraception, abortifacients and sterilization. On February 10, 2012 in response thereto consequently Obama conceded to this demand by the RCC for a religious accommodation by obligating now the GHI Company to pay exclusively instead all GHI plan premiums for this above religiously offensive coverage which is now known as the “February 10, 2012 concession”. Yet now even though not coerced to violate religion in practice as above indicated nevertheless all Anti-Life GHI plans which thereby include this religiously offensive but mandatory coverage for abortion, contraception, abortifacients and sterilization still violate the Free Exercise of Religion Clause under the Federal First Amendment pursuant to Sherbert v. Verner by the U. S. Supreme Court which to the contrary on March 1, 2004 until shortly after Jan. 20, 2012 was the exclusive reason why the California Supreme Court upheld[1] as Constitutional under federal law no less all GHI plans which included coverage for contraception sponsored by the RCC or else the RCC would be prohibited to offer any GHI plan whatsoever to all its employees who work at Catholic Hospitals and at Catholic Charities altogether. Yet even though it did recognize that contraception was an intrinsically evil action that the RCC opposed vehemently, nevertheless the California Supreme Court brazenly coerced as a matter of federal law no less the RCC to do so as the least restrictive means of achieving some compelling state      interest. On the other hand shortly post Jan. 20th, yet after a Jan. 19, 2012 powwow with the Holy Father, even though His Eminence Timothy Cardinal Dolan had successfully argued against Obama’s doing so, nevertheless he lost all his momentum on and after Feb. 10, 2012. However if I had been the Cardinal’s legal advisor, I would have argued to Obama the following:

LEGAL ADVICE FOR CARDINAL DOLAN TO OPPOSE OBAMA:

The U. S. Supreme Court in Sherbert v. Verner [1963] and 18 years later in Thomas v. Review Board which had affirmed Sherbert v. Verner[2] - i.e., only after the sophism is exposed - proves that the February 10, 2012 HHS mandate’s concession is a violation of the Free Exercise of Religion Clause to the Federal First Amendment notwithstanding that Anti-Life GHI does not obligate a violation of religion - according to the above demands made by the RCC - under the following passages from both the majority decisions in Sherbert and Thomas, as follows:

            On the one hand, cited from my book titled, “HOW ABORTION WILL BECOME UNCONSTIUTIONAL - The Complete Gide For Prolife Activists” on page 81, note that the United States Supreme Court declared this:

“A similar argument was made and rejected in Sherbert, however. It is true that, as in Sherbert, the Indiana law [like the February 10^th 2012 HHS mandate concession in question, added] does not compel a violation of conscience. 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.’”[3]

Also cited from my book, above, on page 77, note the U. S. Supreme Court declared:

 “For ‘[i]f the purpose or effect of a law is to impede the observance  (emphasis, added) 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 [emphasis, added].’ Braunfeld v. Brown, supra, at 607.[4]

            Furthermore Braunfeld v. Brown[5] 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.’”

Adding text to apply the February 10^th 2012 concession to the above is as follows:

“For ‘[i]f the purpose or effect of a law is to impede [or worse prohibit instead by including all this religiously offensive coverage in question, added] the observance [by practicing Mark 14:38 [Matthew 26:41], which states ‘Watch ye, and pray that ye enter not into temptation. The spirit indeed is willing, but the flesh weak’, added] (emphasis, added) 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 [emphasis, added].’ Braunfeld v. Brown, supra, at 607.”[6]

“an indirect burden on the free exercise of religion, i.e., legislation which does not make unlawful the religious practice itself [such as the February 10^th 2012 concession, although still a violation of Mark 14:38 [Matthew 26:41], added].”

On the other hand this memorandum of law continues on how the February 10^th 2012 concession is unconditionally unconstitutional under my new and material legal reasoning which exposes this 50 years’ old sophism in Sherbert v. Verner by the U. S. Supreme Court that denies religious freedom. But the hardest part of this following memorandum of law to learn is this:   

What is (3) a coercion to consent to a proposed temptation to violate religion "in principle only" which means in reality "never in practice"?

Yet one can realize that by reading and comprehending the facts in Sherbert v. Verner, the petitioner, Mrs. Sherbert, was exclusively under burden (3) above, but not (1) and not (2) below. As you will find out reading the balance of this memorandum of law, Obama’s alleged Constitutionality of the February 10^th 2012 concession hangs exclusively on this 50 years’ old sophism inside the majority decision in Sherbert v. Verner that surprisingly makes both (1) a coercion to violate religion in practice and/or (2) a coercion to consent to an always available temptation to violate religion in practice thereby violating Mark 14:38 both allegedly effectively judicially by analogy applicable to (3) a coercion to consent to a proposed temptation to violate religion “in principle only” which here again means in reality "never in practice". In turn

because this latter burden (3) thereby imposes the least amount burden possible upon a religious adherent than to violate Mark 14:38 (Matthew 26:41) as demonstrated in (2) above, consequently the U. S. Supreme Court had held in Sherbert that the government is then permitted to create an inroad on Mrs. Sherbert’s religious liberty - which is defined as (3) above - yet only as long as the restriction or limitation against the Petitioner’s religious liberty according to (3) was the least restrictive means of achieving some compelling state interest. Yet because this above “clearly erroneous” relationship has been kept hidden since 1963, consequently this corrupt sophism will - by making all three (3) burdens comparable - continue to deteriorate religious freedom! Moreover the intensity of this corrupt sophism pursuant to Sherbert v. Verner which until now has always been hailed to the contrary as “protecting” religious freedom - becomes even that much more foul by analogy considering that the real sin is in fact committing and/or cooperating with this type of intrinsically evil action, such as abortion, contraception and/or sterilization which not only takes the life of an innocent unborn human being actually or constructively and consequently denying his or her posterity or progeny, but also denies de facto conscientious objector status rights to all Prolife employees as well. But at least constructively if not also actually the Feb. 10^th 2012 concession weakens the will and darkens the intellect that’s never permissible at ¶22,^[7] The Document on Procured Abortion issued by His Holiness Pope Paul VI (1974).

Nevertheless this now obvious sophism in Sherbert v. Verner as defined above is by identity a religious error that’s well within the competence of the RCC to issue a letter exposing. Yet subjectively speaking it is even more religiously offensive to condition the RCC and/or a Prolife GHI plan member to enable himself or herself or even others to act like God – “Thou shall not kill” and “What God has joined together (sperm/egg) let no man put asunder” – by practicing abortion, etc., thereby destroying innocent unborn human beings actually and/or constructively which is the direct violation by respecting an establishment of religion that does not include God; e.g., like the policy the Democratic Convention adopted on September 4, 2012. “Among religions in this country which do not teach what would generally be considered a belief in the existence of God [is] … Secular Humanism”, Torcaso v. Watkins,^[8] as is practiced by those “… completely time-bound, ... with no vision of eternity. Unable to see anything in the perspective of eternity, he cannot believe that God exists or acts in human affairs. Moral standards, for example, tend to be merely those commonly accepted by the society in which he lives, and he believes that everything changes, so that there are no enduring or permanent values.”[9] Consequently not only does Obama’s Jan. 20, 2012 HHS mandate and its Feb. 10, 2012 concession to the RCC violate directly my definition of the Free Exercise Clause (at exhibit A1, below) but does so also against the Establishment of Religion Clause as well both under Our Federal First Amendment yet the latter of which is explained under a more elaborate legal argument using legal reasoning which is explained in my book. But in addition all governmental funding for all religiously offensive coverage in question is unconstitutional. In turn therefore not only unconstitutional per se, but Obamacare is clear evidence to convict all legislators who voted to enact it into law – which, as proven above, prohibits the right under the Free Exercise and Establishment of Religion Clauses to the First Amendment thereby deceiving taxpayers in a conspiracy (18 U.S.C. 242) - must be removed[10] from their official governmental position, elected or not, under the words included in the First Amendment which are these: “Congress shall pass no law respecting an establishment of religion or prohibiting the free exercise thereof.” Yet the alleged constitutionality of both the HHS mandate and now even more so its Feb. 10^th 2012 concession relies exclusively on this sophism above which again is tantamount to a religious error which will collapse only upon, e.g., His Eminence Timothy Cardinal Dolan, revealing this unique legal reasoning to Obama. The above logic of events that Dr. Jones asked the listeners of his talk titled “A New Approach to Abortion” [CD May 5, 2012 Media, PA] (which I play several times a day in my car CD player for extra motivation) to learn from explains how Bishop Daniel R. Jenky's prediction made on April 14, 2012 namely that the RCC will be victorious in this crisis over the Jan. 20 HHS mandate and it’s Feb. 10, 2012 concession (see full text of Bishop Jenky's homily at men's march and Mass at http://www.thecatholicpost.com/post/PostArticle.aspx?ID=2440) will completely materialize exclusively, not by the U. S. Conference of Catholic Bishops, etc., but under the legal reasoning as revealed in this CW LTE. Cf., http://ProlifeTaxStrike.blogspot.com

Exhibit A1                © Lawrence R. Rosano (2004)    

                                                                                              

MY DEFINITION:

 A BURDEN ON THE FREE EXERCISE OF RELIGION

     “Pursuant to Sherbert v. Verner^[11] by the High Court, 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.”

Lawrence R. Rosano

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[1] Catholic Charities of Sacramento, Inc. v. The Superior Court of Sacramento County, Dept. of Managed Health Care et al, , 85 P.3d 67, 91, 10 Cal.Rptr.3d 283, at 311-2, 32 Cal.4^th 527, at 562 (S.Ct.Ca. 2004),  which held the following:

“We therefore review Catholic Charities’ challenge to the WCEA [i.e., abbreviation for 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, ….”, Id.

[2] 374 U.S. 398, 83 S.Ct. 1790 (1963); affirmed in Thomas v. Review Board of the Indiana Employment Security Division et al., 450 U.S. 707, 101 S.Ct. 1425 (1981).             

[3] Thomas v. Review Board of the Indiana Employment Security Division et al, 450 U.S. 707, 717 (1981) [reaffirmed Sherbert, which was decided 18 years earlier in the area of unemployment compensation benefits, as well].

[4] Sherbert v. Verner, 374 U.S., at  404, 83 S.Ct., at 1794 (1963)

[5] at 366 U.S. 599, 606, 81 S.Ct. 1144, 1147 (1961)

[6] Sherbert v. Verner, 374 U.S., at  404, 83 S.Ct., at 1794 (1963)

[7] Reflecting also on Evangelium vitae at ¶#74: “it is never licit to cooperate formally in [especially intrinsic, added] evil”,  His Holiness Pope Paul VI declared at ¶22 as follows:

“It must be clearly understood that a Christian can never conform to a law, which would admit in principle the liceity [i.e., lawfulness] of abortion. Nor can a Christian take part in a propaganda campaign in favour of such a law, or vote for it. Moreover, he may not collaborate [emphasis, added] in its application…”

[8] 367 U.S. 488, 495 at footnote #11(1961)

[9] “What Is Secular Humanism? – Why Humanism Became Secular and How It Changed Our World” by James Hitchcock (Servant Books, Box 8617, Ann Arbor, Michigan 48107 - 1982), p. 10, -11.

[10] See endnote #5.

[11]See endnote #2