Braidwood Management, Inc. v. Becerra was a case I was worried about.
Once again, a plaintiff asserts free exercise of religion as a reason
not to do what the law requires. The Roberts court has heard plenty of
such cases and has expanded free exercise rights.

It's just that a religious belief is something that's asserted and the
other side doesn't get to question whether it's sincerely held or even applicable to the matter at hand.

Obamacare itself doesn't exactly fund health care. It imposes costs on
third parties, typically employers and group medical insurance policies.

My opinion on whether there should be an unfunded federal mandate is irrelevant. I was concern that the plaintiff asserted that the
requirement to cover PrEP (the AIDS prophylactic medicine that's taken throughout life by high-risk individuals) is unconstitutional per free
exercise of religion as it encourages same-sex relationships and
intravenous drug use.

Sharing of dirty needles puts certain individuals at risk for HIV
transmission without sex. Yes, I think it's absurd to consider them at
risk for AIDS and therefore qualified to receive PrEP through health
plans regulated by Obamacare.

PrEP is heavily advertised on tv and can cost $10s of thousands per
patient per year.

This assertion of free exercise of religion once again allows one party
to assert that another party is violating his religious values, thereby imposing religion on other people who have somehow lost their own right
of free exercise of religion. It's outrageous.

Well, the drug wasn't even mentioned by the justices (except for a
single reference by Barrett). They concentrated a different
unconstitutional assertions concerning the Appointments clause, and
whether the Obamacare drug panels that make these decisions are convened unconstitutionally as the president doesn't appoint them and they aren't subject to Senate confirmation.

It doesn't appear that the justices cared about the free exercise clause
issue, although I'll bet Thomas might address it in dissent.

https://www.scotusblog.com/2025/04/court-appears-to-back-legality-of-hhs-preventative-care-task-force/

I'm a lot less concerned about the other case, Mahmoud v. Taylor, which
is about parents objections to school curriculum and that it's become
mandatory for public school children to be instructed in LGBTQ+ themes.

I've argued before that it's a freedom of the press issue if parents
seek to remove books on subjects they don't approve of from school and
public libraries to "protect children". I don't see parental objections
to curriculum as censorship. Libraries offer reading material as a
choice but curriculum is imposed.

My guess is that the Supreme Court will side with the parents.

https://www.scotusblog.com/2025/04/supreme-court-considers-parents-efforts-to-exempt-children-from-books-with-lgbtq-themes/

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In <vu906d$1dt5c$1@dont-email.me> "Adam H. Kerman" <ahk@chinet.com> writes:

[snip]

https://www.scotusblog.com/2025/04/court-appears-to-back-legality-of-hhs-preventative-care-task-force/

Hey, Tom Goldstein (key person at Scotusblog). We caught your
emergency signal, namely using the word "preventative" as opposed
to "preventive". But sorry, due to budget cuts there aren't
any rescue teams in your area. You're on your own.



--
_____________________________________________________
Knowledge may be power, but communications is the key
dannyb@panix.com
[to foil spammers, my address has been double rot-13 encoded]

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On Apr 22, 2025 at 2:03:09 PM PDT, ""Adam H. Kerman"" <ahk@chinet.com> wrote:

I'm a lot less concerned about the other case, Mahmoud v. Taylor, which
is about parents objections to school curriculum and that it's become mandatory for public school children to be instructed in LGBTQ+ themes.

I've argued before that it's a freedom of the press issue if parents
seek to remove books on subjects they don't approve of from school and
public libraries to "protect children".

Since no library can possibly stock every book currently in print or printed
in the past, then *every* library engages in censorship by deciding which
books it will stock and which books it chooses not to stock. If choosing not
to stock a book is the equivalent of "book banning" as both the Left and the Right have claimed in the past, then every library bans the vast majority of books in existence as a matter of normal business.

However in this case, that's not even the issue. The plaintiffs weren't
seeking to pull books off shelves or eliminate curriculum. All they wanted was an opt-out option for their kids with regard to the tranny curriculum the school is pushing on very young children-- an option they actually *had* to begin with until most of the kids in the school were opted-out by their parents, at which point the school revoked the opt-out option.

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BTR1701 <atropos@mac.com> wrote:

Apr 22, 2025 at 2:03:09 PM PDT, Adam H. Kerman <ahk@chinet.com>:

I'm a lot less concerned about the other case, Mahmoud v. Taylor, which
is about parents objections to school curriculum and that it's become >>mandatory for public school children to be instructed in LGBTQ+ themes.

I've argued before that it's a freedom of the press issue if parents
seek to remove books on subjects they don't approve of from school and >>public libraries to "protect children".

Since no library can possibly stock every book currently in print
or printed in the past, then *every* library engages in censorship
by deciding which books it will stock and which books it chooses not
to stock. If choosing not to stock a book is the equivalent of "book
banning" as both the Left and the Right have claimed in the past, then
every library bans the vast majority of books in existence as a matter
of normal business.

That's an argument the library might use to defend itself against an
accusation of censorship.

In my hypothetical, it's the parents engaging in book banning whom
I've accused of censorship. You didn't offer a defense on their behalf.

However in this case, that's not even the issue. The plaintiffs weren't >seeking to pull books off shelves or eliminate curriculum. All they wanted >was an opt-out option for their kids with regard to the tranny curriculum
the school is pushing on very young children-- an option they actually
*had* to begin with until most of the kids in the school were opted-out
by their parents, at which point the school revoked the opt-out option.

I know it's not the issue in Mahmoud v. Taylor. I said so in the very
mext sentence, which you cut from the quote.

I don't see parental objections to curriculum as censorship. Libraries >>offer reading material as a choice but curriculum is imposed.

Is this a free exercise of religion issue, or is the issue that parents
should be free to raise their children as they see fit as long as they
aren't violating child welfare laws?

Parents could have a reasonable objection to curriculum with no religious
basis at all. When I was in junior high, the text books were so old that
there were illustrations of electrons orbiting the nucleus of an atom
in a fixed eliptical orbit like planets in a solar system. I knew this
wasn't the latest thinking, but there's no religious objection to raise.

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Adam H. Kerman <ahk@chinet.com> wrote:

. . .

I'm a lot less concerned about the other case, Mahmoud v. Taylor, which
is about parents objections to school curriculum and that it's become >mandatory for public school children to be instructed in LGBTQ+ themes.

I've argued before that it's a freedom of the press issue if parents
seek to remove books on subjects they don't approve of from school and
public libraries to "protect children". I don't see parental objections
to curriculum as censorship. Libraries offer reading material as a
choice but curriculum is imposed.

My guess is that the Supreme Court will side with the parents.

https://www.scotusblog.com/2025/04/supreme-court-considers-parents-efforts-to-exempt-children-from-books-with-lgbtq-themes/

If you don't want to listen to the oral transcript (easily findable in
the C-SPAN archives), here are two clips.

Gorsuch, in his pleasant voice and low-key manner making the attorney
for the board of education squirm, and Ketanji Brown Jackson, not
letting the parents' attorney go off topic, complain that the plaintiffs seeking injunctive relief didn't prepare an adequate record and that
this is, therefore, the wrong case for the Supreme Court to make a
landmark ruling on. Despite her complaint that counsel went off topic to
raise inflammatory facts from a similar case but inapplicable here, she
then offered a series of hypotheticals of her own.

In the first video, in my opinion, Gorsuch builds toward the "crisis" by eliciting a number of reasonable points from the Q&A, but his "crisis" question, er, assumes facts not in evidence in trying to get at strict construction (which he doesn't literally say). If the state is
discriminating against religion, what is the secular purpose?

Whoa. This isn't segregation in which equal protection must be
considered. This is about academic freedom and parents rights to raise
their kids, competing First Amendment interests.

Even if the board of education could expect a parent to object to
curriculum, I don't feel they have any obligation to review it for
conflict with religion (Gorsuch even lists large religious groups).

Gorsuch sure as hell is not thinking about consequences for academic
freedom here. He's getting it wrong. Make the decision about the
parent's right to raise his own kid superior to academic freedom, that
the kid can skip the lesson WITHOUT the board considering conflict with religious teaching before offering it in the first place.

This is why I also find it so troubling if the right of free exercise is
made superior to the right of free speech.

The attorney answered, not falling into Gorsuch's logic trap, that discrimination on its face, favoring one religion over another, is
coercion and therefore a burden. I think "coercion" is being used as a
legal term as part of strict scrutiny analysis, which I haven't studied adequately.

Gorsucg got this wrong and the opinion should not touch upon this, which
is far removed from the facts of the case.

In the second video, it's from a YouTube channel that typically does
video clips of congressional hearings making conservative (often Sen
John Kennedy (R-LA)) look brilliant. For what it's worth, the attorney
for the parents avoided Brown's logic traps in her hypotheticals.

Brown completely gets off track by referring to a case (that I've never
heard of and she only mentioned the name of one party making it
difficult to look up; maybe BTR1701 knows) by question whether there's a religious burden at all given that parents didn't choose to send their
children elsewhere.

Yes, I always argue that the consumer has the power to make a different
choice, but having made a choice, the consumer then isn't precluded from
asking for a better product or service.

But public education is government, not a consumer product. Public
schools cannot prevent enrollment like private or religious schools and certainly cannot refuse enrollment by inability to pay tuition.

She's wrong here in concept. What about her comment, In so many other constitutional doctrines, we don't focus on whether people can actually
afford to protect their rights.

There's one I can think of off the top of my head, the Sixth Amendment
right to counsel in a criminal case. The defendant may ask the judge for counsel and the judge will see that counsel is appointed without charge
to the defendant.

But yes, there are numerous other rights that people cannot afford to
protect without paying for counsel and going through expensive trials,
pretty much every case taken on by ACLU and Institute for Justice, or post-trial exonneration cases, etc.

How much justice can one afford? She pointed out that there is a right
to counsel in civil litigation regardless of whether fees are
affordable. She asked, given that parents may send their children to
school elsewhere, are the schools being coerced to change curriculum?

In response, the parents' attorney cited cases in which schools weren't
coerced but pressured but he didn't have time to give an elaborate
explanation as to where the bright line is.

We'll find out if she was persuaded.

Gorsuch
https://www.youtube.com/watch?v=-dEDuM-_f1I

Brown
https://www.youtube.com/watch?v=HLbd0OdH0EU

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Adam H. Kerman <ahk@chinet.com> wrote:

BTR1701 <atropos@mac.com> wrote:

Apr 22, 2025 at 2:03:09 PM PDT, Adam H. Kerman <ahk@chinet.com>:

I'm a lot less concerned about the other case, Mahmoud v. Taylor, which >>>is about parents objections to school curriculum and that it's become >>>mandatory for public school children to be instructed in LGBTQ+ themes.

I've argued before that it's a freedom of the press issue if parents
seek to remove books on subjects they don't approve of from school and >>>public libraries to "protect children".

Since no library can possibly stock every book currently in print
or printed in the past, then *every* library engages in censorship
by deciding which books it will stock and which books it chooses not
to stock. If choosing not to stock a book is the equivalent of "book >>banning" as both the Left and the Right have claimed in the past, then >>every library bans the vast majority of books in existence as a matter
of normal business.

That's an argument the library might use to defend itself against an >accusation of censorship.

In my hypothetical, it's the parents engaging in book banning whom
I've accused of censorship. You didn't offer a defense on their behalf.

However in this case, that's not even the issue. The plaintiffs weren't >>seeking to pull books off shelves or eliminate curriculum. All they wanted >>was an opt-out option for their kids with regard to the tranny curriculum >>the school is pushing on very young children-- an option they actually >>*had* to begin with until most of the kids in the school were opted-out
by their parents, at which point the school revoked the opt-out option.

I know it's not the issue in Mahmoud v. Taylor. I said so in the very
mext sentence, which you cut from the quote.

I don't see parental objections to curriculum as censorship. Libraries >>>offer reading material as a choice but curriculum is imposed.

Is this a free exercise of religion issue, or is the issue that parents >should be free to raise their children as they see fit as long as they
aren't violating child welfare laws?

Parents could have a reasonable objection to curriculum with no religious >basis at all. When I was in junior high, the text books were so old that >there were illustrations of electrons orbiting the nucleus of an atom
in a fixed eliptical orbit like planets in a solar system. I knew this
wasn't the latest thinking, but there's no religious objection to raise.

I found a clip of Barrett's Q&A with the attorney for the parents.

At 4:30, she asks about objecting to books in a school library versus
reading assigned by the teacher. The lawyer for the parents agrees with
my analysis. He emphasized that the parents wouldn't seek to remove it
from a library shelf. She pressed him on whether another parent could
make such a demand; he said it wouldn't survive strict scrutiny.

In his opinion, parents asserting their free exercise rights through
censorship would lose.

I'm quite relieved that there are some asserting religious freedom who
don't argue that the free exercise clause trumps the rest of the First Amendment, that it's not to be used to impose religion upon others.

Barrett appears to agree but I'm far more concerned about what Gorsuch
will write in his partial concurrence. I don't have a good sense about
Alito and Thomas on this case.

https://www.youtube.com/watch?v=p63EiHoGrKw

Yes, yes, I simply should have listened to the entire audio transcript.

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Adam H. Kerman <ahk@chinet.com> wrote:

Braidwood Management, Inc. v. Becerra was a case I was worried about.
Once again, a plaintiff asserts free exercise of religion as a reason
not to do what the law requires. The Roberts court has heard plenty of
such cases and has expanded free exercise rights.

. . .

Well, the drug wasn't even mentioned by the justices (except for a
single reference by Barrett). They concentrated a different
unconstitutional assertions concerning the Appointments clause, and
whether the Obamacare drug panels that make these decisions are convened >unconstitutionally as the president doesn't appoint them and they aren't >subject to Senate confirmation.

I didn't realize that these arguments were raised in a related caae.

Kennedy v. Braidwood Management, Inc.

Issue: Whether the U.S. Court of Appeals for the 5th Circuit erred in
holding that the structure of the U.S. Preventive Services Task Force
violates the Constitution's appointments clause and in declining to
sever the statutory provision that it found to unduly insulate the task
force from the Health & Human Services secretary's supervision.

Gorsuch talked the rest of the justices into asking for additional
briefing on this issue. Gorsuch's view doesn't beieve the Health
secretary may appoint this task force, that it should be a presidential appointment with advise and consent of the Senate. Other justices felt
that the Supreme Court can't reach an intelligent conclusion as the
issue was inadequately considered at district court.

Isn't it unusual that the record would be created through briefing
rather than the Supreme Court sending the case back down to trial court
to have the record expanded?

Two 19th century cases on appointments could be altered or overturned.
United States v. Hartwell (1868) and United States v. Smith (1888)

I've never paid any attention to the line of cases concerning the
appointments clause. I guess I need to now.

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