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Jarrett Anderson
English 1010
Instructor: Paul Anderson
Spring Semester 2016
A Fight for My Right

1. Introduction
Noam Chomsky, a professor of linguistics at MIT, once said in reference to the first
amendment to the United States Constitution, If we don't believe in freedom of expression for
people we despise, we don't believe in it at all (qtd. in Berk, Sally Ann and Carluccio, Maria
228). In the United States we are raised believing we are guaranteed specific rights; among those
the freedom of speech, and of religion. But what happens when a conflict arises between the
newly recognized rights of a group of people with firmly rooted beliefs and those of a group with
equally firm beliefs? Civil rights are a topic our elected officials have been addressing in
legislation as of late, and the goal is to find a balance in guaranteeing the rights of all.

Consequently, due to the nature of the debates, it seems the only conceivable options will
require one group to compromise their beliefs or rights. At times it becomes a heated controversy
and many are seeking to add to our written law to solely benefit their side. This is the current
conflict involving the litigation of various religious groups by the LGBT community, pro-choice
advocates, and other groups. The main litigation has been between those in the gay community
and the religious. Gays and lesbians need services to put on their weddings now that same-sex
marriage has been legalized in all 50 states. Religious advocates are using the first amendment in

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an attempt to protect their deeply held religious beliefs that gay marriage is wrong. Other issues
have arisen in instances where the government is attempting to require, due to government
mandated health care, that religious institutions comply with making birth control available to
employees. Other issues arise within the debates regarding affirmative action, and labor union
laws. These issues are frequently brought before the Supreme Court as First Amendment cases.

Supreme Court Justices from October 2010-February 2016

As politics become a factor in this battle, the agendas of both liberal and conservative
ideologies become evident, showing us that it has become a battle not only for the rights of a
handful of church goers or the gay community, but to define the way the United States of
America defends the rights of its citizens.

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I became interested in the issue of Religious Liberty for two reasons. First and foremost, I
am a Christian and I have deeply rooted beliefs in what I believe to be morally right and wrong.
Second, I am an American and I have rights. I believe that a responsibility to fight for your rights
is inherent. With any issue that involves my rights and those of everyone I know, I personally
have a responsibility to be informed and voice my opinion. To begin my research, I started by
simply googling religious freedom in google news to find current events. One of the more
recent articles caught my attention by its title Religious Freedom Arguments used to
weaponized the First Amendment (Carmon). I became interested in knowing what the people
who oppose my personal beliefs think. During this news article the Author Irin Carmon, an
Israeli born national reporter for MSNBC, scrutinizes those who use religious beliefs as an
excuse to find supposed exemptions from the law. Using emotive language, and relying on expert
opinion to support her personal opinions she provokes the conflict in a way that pushes her
ideological agenda.

On January 19, 2016, Carmon published this article online for the media outlet MSNBC.
Since June of 2013 she has written for this company and has a major focus in issues such as
women, politics, and culture. She graduated form Harvard with an AB in literature, and is
currently attending a program of study at Yale School of Law.

Irin Carmon in 2013

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MSNBC is known for its major appeal to a liberal audience. This became even more
apparent throughout the analysis of Carmons rhetoric. Writing to this audience is, as is with
most political reporting, something more than just merely writing about informing them of the
issues. Its about pushing an agenda. Its about convincing potential voters that your position is
right in order to preserve the vote and keep the power in government with your party. Her
purpose was to show her audience the invalidity of the conservative argument. Carmon claims
that all those who use the first amendment as a reason to refuse service to others on the premise
of free exercise of religion, are improperly using the first amendment. She uses this issue to push
the liberal agenda. It is not necessarily an argument of morality, rather a political argument.

Strategy 1- Pathos
In order to galvanize the audience throughout the article, Carmon makes a strong appeal
to pathos. According to literarydevices.net pathos is a method of convincing people with an
argument drawn out through an emotional response (LiteraryDevices Editors. Pathos 2). This
is a way to persuade the readers to believe your side based on their personal values, beliefs, and
conviction. This is done by her use of strong emotive language. In her own words she
weaponizes the words. This can be noted from the very beginning, evident in the articles title:
Religious Freedom Arguments used to weaponized the First Amendment. She quoted what
were supposedly many religious groups, saying that they have deemed birth control abortion
pills (4). She uses subtle words as well that hint to her tone. For example, she uses the term
religious refusal (4), at one point. She also puts to use the terms conservatives and liberals and
used a tone that included herself on the liberal side, and constantly used third person pronouns to
refer to conservatives, but we will discuss her use of comparison later. These examples make

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evident the opinion of the author and appeal well to her audience. Although the appeal to the
emotions of the audience was a big part of her article it is not the only rhetorical device used.

Strategy 2- Ethos
Besides appealing to the emotional senses of the audience, she supports her presented
opinion with an appeal to ethos. The definition given on literarydevices.net states that ethos
represents credibility or an ethical appeal which involves persuasion by the character involved
(LiteraryDevices Editors. Ethos 1). To put this in other words, it is a use of credible,
knowledgeable sources to provide facts and insight about your topic. As an author, it is used to
give your own writing credibility, and can serve as proof of the validity of your argument. In the
text, Carmon uses 12 quotes from prominent legal figures, cites the briefs of two supreme court
cases, directly quotes another, refers to two other court cases, and finally refers to three laws and
federal acts passed by congress. For example, she quoted a law professor from the University of
Michigan Law School named Samuel Bagenstos saying Youre seeing an increasing tendency to
use the First Amendment or First Amendment-like arguments by conservatives as a way of
resisting various forms of regulation or progressive regulation (3). As she quotes these legal
experts and laws, she repeats herself various times expressing the fear of the liberals if the
religious groups win the cases. She says at one point: The exception swallowing the rule is
precisely the fear that liberals have about these exemption claims. This helps us see her purpose
in using expert opinion. She went to very specific law professors, who among them had a general
consensus, like Bagenstos a law professor quoted by Carmon before, who would later state in the
article, It puts liberals who have traditionally been defenders of free speech on the defensive
(18). She crafted it perfectly and has built solidified credibility with the audience.

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Strategy 3- Pathos
Her final strategy was an appeal to pathos through conflict. Which was expressed in a
subtle juxtaposition. Pathos as defined before is a method of convincing people with an
argument drawn out through an emotional response (LiteraryDevices Editors. Pathos 2).
Conflict is described by literarydevices.net as a literary element that involves a struggle
between two opposing forces usually a protagonist and an antagonist (LiteraryDevices Editors.
Conflict 1). Juxtaposition according to literarydevices.net is a literary technique in which two
or more ideas, places, characters and their actions are placed side by side
(LiteraryDevices Editors. Juxtaposition 1). Now, having defined these, we can take a deeper
look at what Carmon has done. She took her audience, an audience filled with liberal Americans,
and she laid down a basic comparison of two views and incited a greater emotional conflict
between the way the religious groups acted and vice versa. She used the previous two devices to
accomplish this foil. It is evident in the following quote she used from some of the legal experts,
When opponents of such laws have been unable to block them entirely, they have invoked
claims of religious liberty and shifted from speaking as a majority seeking to enforce traditional
morality to speaking as a minority seeking exemptions from laws that depart from traditional
morality, and In this way, they can appeal to pluralism and non-discrimination to justify
limiting the recently recognized rights of other citizens (17). These were both was quoted by
Carmon in the article. Or in other words, those who are seeking exemption assume whatever role
necessary in order to limit the rights of others, doing it in the name of traditional morality. The
author also refers to the democratic appointees on the court [supreme court] (13), republican
presidential candidates (7), and distinguished the congressional republicans (15), as those
who oppose planned parenthood. This is the most effective, yet subtle device used in her article.

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Conclusion
It was not an argument of the morality of equal rights as it appears on the surface to be. It
is liberal rhetoric. The issue at hand is the freedom and rights of Americans. One side is pushing
for bigger government and more regulation, the other side seems to be fighting for its rights to
worship and keep its standards high. If we want to resolve these issues it will require more than
subtle ideological rhetoric pushing a political agenda. It is possible to find a way to once again
make this a debate in which morality, and the intent to protect rights, are its central theme. Like
Noam Chumsky, who was quoted at the beginning said, we must protect the rights of all, even if
it doesnt help our own position. The outcome of the courts decisions regarding these issues will
directly effect to what degree Americans rights are protected in future generations. We must seek
liberty and justice for all, even if at times we disagree. Until then, we wont see any progress,
and the fight will go on.

Works Cited
Berk, Sally Ann and Carluccio, Maria. The Big Little Book of Jewish Wit & Wisdom. Black Dog
and Leventhal Publishers. New York, New York, 2000. Print. 10 March 2016.
Carmon, Irin Religious freedom argument used to weaponize the First Amendment. MSNBC.
NBC Universal, 19 Jan 2016. Web. 24 Feb 2016.
LiteraryDevices Editors. Conflict LiteraryDevices.net. 2013. Web. 10 March 2016
LiteraryDevices Editors. Ethos LiteraryDevices.net. 2013. Web. 10 March 2016
LiteraryDevices Editors. Juxtaposition LiteraryDevices.net. 2013. Web. 10 March 2016
LiteraryDevices Editors. Pathos LiteraryDevices.net. 2013. Web. 10 March 2016

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Appendix A:
Religious freedom arguments used to weaponize the First
Amendment
By Irin Carmon

WASHINGTON Supreme Court Justice Stephen Breyer peered over

the bench at the lawyer and all but said he just didnt buy it. You will
go out this door, and you will buy hundreds of things, if not thousands,
where money will go from your pocket into the hands of people,
including many government people, who will spend it on things you
disagree with, Breyer told attorney Michael Carvin at oral argument
last week.
Breyer was questioning the logic behind the case the court was hearing
that morning, Friedrichs v. California Teachers Association, a challenge
to union fees brought by teachers and a conservative Christian
educators association. They say their First Amendment rights are being
violated by being required to pay a union for collective bargaining. But
Breyer could have been talking about any number of conservative legal
claims, even if they cite different laws. Phrased as a desire to opt out,
these arguments are pushing the boundaries of what counts as expression
of speech or religion, and what violates it.
Youre seeing an increasing tendency to use the First Amendment or
First Amendment-like arguments by conservatives as a way of resisting
various forms of regulation or progressive regulation, said Samuel
Bagenstos, a law professor at the University of Michigan Law School
who oversaw civil rights at the Justice Department in the Obama
administration. The arguments that might have in the past come under
the heading of property rights or freedom of contract now are coming
under the heading of free speech or free association or religious
freedom.
That phenomenon includes Hobby Lobby v. Burwell, the 2014 case in

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which a corporation successfully claimed its religious rights were being

violated by having to cover contraception on its employee insurance
plan. And this term, it includes the follow-up to Hobby Lobby, Zubik v.
Burwell, which could take religious refusal to a whole new place. The
plaintiffs, who are nonprofit schools and charities with religious
affiliations, already dont have to pay for contraceptive coverage. But
they argue that what the Obama administration calls an opt-out form is
actually conscripting them in helping employees get abortion pills,
known to most people and the medical community as birth control.
Citing the Religious Freedom Restoration Act (RFRA), a law that sought
to strengthen First Amendment protections, the groups also object to
even contracting with an insurance company that is giving other people
contraception.
The legal issues in the two are distinct, but both seek to roll back
important protections in the name of expressive or religious rights, said
Daniel Mach, director of the ACLU Program on Freedom of Religion
and Belief.
And thats just what has reached the Supreme Court. In lower and state
courts, religious objectors, largely Catholic and Protestant Christians, are
asking to be exempted from anti-discrimination law so they can refuse
service at same-sex couples weddings. Some Catholic universities have
asked for religious exemptions to block adjunct professors from
unionizing at their institutions, notwithstanding the Vaticans longtime
and explicit support of unions. Hobby Lobby isnt their only win: In
2012, the Supreme Court allowed a Lutheran school to be exempt from
the Americans with Disabilities Act, because the school said a teacher
counted as a minister.
Of course, to the proponents of broader religious exemptions, including
Republican presidential candidates, this is nothing new just American
tradition. Answering Breyer at the Supreme Court that morning, Carvin,
the attorney for the teachers who said union fees violate their First
Amendment rights, said, As to requiring people to give money to [that]
which they dont wish to give, Thomas Jefferson said that was sinful and
tyrannical. James Madison famously said, requiring three pence is the
thing. So its not at all something that weve invented.

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But Carvin was asking the court to accept a First Amendment argument
it rejected nearly 40 years ago. Just about every legal observer thinks
Carvins side will win and the precedent that the union fees dont violate
the First Amendment will fall. Something has changed and liberal
legal scholars fear where that change is heading.
The plaintiffs in these cases arent asking the courts to dissolve unions,
repeal the Affordable Care Act or its contraceptive coverage
requirement, or reverse the Supreme Courts same-sex marriage
decision. Although Petitioners, as Roman Catholic entities, disagree
with the Governments goal of providing the mandated coverage, they
do not challenge the legality of this goal, some of the plaintiffs in Zubik
wrote in their brief, adding, Rather, Petitioners ask only that they not be
forced to participate in this regulatory scheme in a way that violates their
religious beliefs.
The law says that government cannot substantially burden a persons
exercise of religion. One of the disputes at the heart of Zubik is who
decides what burden is substantial and what isnt. The objectors say that
as long as they can show their objection is genuine, they get the final
word on the question. If a religious adherent sincerely believes that
taking a particular action would make him complicit in the sin of
another, then courts must defer to that belief, they wrote in their brief.
The action in question: Filling out a short form that certifies their
objection to the insurer or the government.
But in the contraceptive cases, the Obama administration, and almost
every federal appeals court to rule on the cases so far, argue thats not
what the religious freedom law says or how the form in question
works. They contend that insurance plans cover contraceptives by
default, so the opt-out form isnt triggering anything. And they say
that its not so simple as declaring your objection.
If the Court is going to relieve religious employers of their
obligations, wrote Brigham Young University law professor Frederick
Gedicks, then obviously the Court itself needs to police the boundaries
of that exception, lest employers push those boundaries so far that the
exception swallows the rule.

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The four Democratic appointees on the court made it clear how they felt
on the question in a preview of the case, when the court temporarily
blocked Wheaton College from complying with the contraceptive optout in 2014. Not every sincerely felt burden is a substantial one,
wrote Justice Sonia Sotomayor, and it is for courts, not litigants, to
identify which are.
The exception swallowing the rule is precisely the fear that liberals have
about these exemption claims. The plaintiffs in Zubik have suggested
alternate ways for the government to help women to get contraception
under the Affordable Care Act without involving Petitioners, such as a
public option to provide contraception insurance or expanding the
federal Title X program for low-income women.
But while the court doesnt have to consider whether something is
politically feasible, the facts on the ground suggest women who work for
objecting institutions arent about to get their federal contraception cards
anytime soon. Many congressional Republicans fiercely oppose the very
existence of the Title X program, as well as its major beneficiary,
Planned Parenthood. The public option for any health insurance at all,
let alone one specifically related to womens contraception, didnt get
very far the last time Congress considered it, with far more favorable
numbers for liberals.
But give public employees the right to opt out of paying fees for
collective bargaining, and union resources and power shrink. Poke holes
in what was touted as seamless health care coverage, ensuring access to
people who were previously uncovered, and it doesnt look so seamless.
Allow religious reasons to opt out of anti-discrimination law and leave
the most vulnerable unprotected.
If the plaintiffs succeed, it will be partly because social conservatives
will have successfully cast themselves as oppressed by the whim of the
majority. When opponents of such laws have been unable to block them
entirely, they have invoked claims of religious liberty and shifted from
speaking as a majority seeking to enforce traditional morality to
speaking as a minority seeking exemptions from laws that depart from
traditional morality, Yale Law professor Reva Siegel and University of

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California law professor Douglas NeJaime recently wrote. In this way,

they can appeal to pluralism and non-discrimination to justify limiting
the recently recognized rights of other citizens.
Bagenstos agrees. It puts liberals who have traditionally been defenders
of free speech on the defensive, he says. It doesnt hurt that Justice
Anthony Kennedy, the deciding vote in many cases, is very sympathetic
to First Amendment claims.
Georgetown Law professor Robin West has written that the newly broad
exemption claims create separate sovereignties, which try to create an
entirely separate regime where religious law prevails. That, she wrote,
sometimes come with profound costs to the weaker members within
them, who no longer enjoy the protection of the law against the possibly
abusive practices of the stronger members of their separate sovereign
community.
A legal precedent that says a substantial burden on religion is
whatever the religious objector says it is could open the floodgates to
allow religious objectors to deny important rights and benefits to a great
number of people in a variety of contexts, says Mach. He added, There
is a history in this country of people seeking a religious exemption from
a non-discrimination rule. It would be new if they prevailed.
To access article online:
http://www.msnbc.com/msnbc/religious-freedom-arguments-used-weaponize-the-firstamendment