An Important Clarification

In a recent column in the Pittsburgh Post-Dispatch, Duquesne Law professor Bruce Ledewitz makes an important point about the Affordable Care Act and contraceptive coverage –a point that has gotten lost in all the language of victimization and self-righteousness: religious institutions are not required to provide contraception and other objected-to medical coverage under the Affordable Care Act. Instead, the religious institution is required only to forward a list of its employees to its insurance carrier, which must then provide the coverage itself if the employees want it, without cost to the employer.

That, boys and girls, is what has given rise to the assertion that the employers’ religious liberty is being violated–or “burdened” excessively, to use the terminology of the Religious Freedom Restoration Act (RFRA). RFRA was passed in response to a series of Supreme Court decisions rejecting claims that obedience to laws of general application–laws against drug use, zoning and historic preservation laws and the like– shouldn’t apply in situations where they prevented people from acting on their religious beliefs. (For example, the Court held that Native Americans could believe in smoking peyote as part of a religious ritual, but they couldn’t act on that belief.)

As Ledewitz notes, the claim that having to send a list to your insurance carrier “burdens” your religious exercise strains credulity.

To see how extreme this position is, imagine that the Obama administration had offered yet another compromise: that the religious institution need only offer a list of its employees to the government and the government would provide health insurance ecoverage. If religious employers had really wanted to compromise, they could have lobbied for this option. But, undoubtedly, they would have objected even to this requirement…..

Even closely held for-profit corporations have claimed exemption under RFRA, as if these corporations had religious consciences. The owners of these corporations assert that their corporations are alter egos of their human shareholders, when, in fact, the whole point of the corporate form is to shield the shareholders from the debts of the businesses. When it comes to money, the corporations and the owners are quite separate.

RFRA was never intended to operate in this maximalist fashion. Under the free-exercise-religion claims that RFRA replaced, religious plaintiffs usually lost their cases against the obligations of generally applicable laws. And even today most religious believers find ways to compromise with government programs and requirements with which they disagree. Catholic judges, for example, for years have granted divorces, even to Catholic couples. These judges have not asked for exemptions in these cases.

But instead of compromise and goodwill, the Affordable Care Act has provoked overheated rhetoric and over-the-top objections on the part of religious institutions and individuals, many of whom opposed the act from the beginning and are now continuing their political campaign in the courts.

Commentators have noted the hypocrisy of Hobby Lobby’s assertion of religious objections–it happily does business in China despite that country’s one child policy and forced abortions. Given the tenuous connection of employers to contraceptive coverage availability under the Obama administration compromise, it’s abundantly clear that the objections are motivated by politics, not religion.
But even if the objections were sincere, where would it stop? If your religion teaches that women are to be submissive, can you be exempted from compliance with EEO regulations? If your theology holds that blacks are inferior (as Mormon teachings did until the late 1970s), can you ignore civil rights laws? As Ledewitz warns,
 If RFRA really means what the plaintiffs in the Affordable Care Act litigation claim that it means — that religious believers are free to invoke the protections of the act no matter how minuscule their legal obligations appear to be and despite a commercial and even profit-making context — then RFRA is unworkable and will inevitably be repealed. If that occurs, religious believers will have inadvertently undermined the very religious liberty that they now invoke and that America rightly prizes.

American law has made numerous concessions to religious belief, but this is a bridge too far. As the old saying goes, pigs get fed–but hogs get slaughtered.


  1. It appears to me that American law has gone way beyond making religious concessions. It has turned control of this country over to one group of religious spouting, Bible thumping politicians who turn their personal religious misconceptions into law. As a Christian who fully accepts that others have their own beliefs and respects their freedom to do so, it is beginning to be embarrassing to admit being a Christian due for fear of being believed to be part of the GOP run by Boehner and the Tea Party. They do not want the public, especially women, to understand the ACA at any level. The current administration has lost sight of the meaning of the 1st Amendment and has failed miserably in it’s intent to prevent government from establishing religion and prohibiiting the free exercise thereof. They seem to be using the freedom of speech section to bolster their right to force their religion on this country in the form of bigoted laws encompassing even our health care options. Maybe the basis for lack of interest in educating our students is to keep future generations from knowing and understanding their basic rights as American citizens. Our eyes have always been on the future; our personal future and the future of our family, neighborhood, city, state and nation as always moving forward and toward bettering conditions for all. We no longer march forward; nor do we even march in place – we are moving backward into the last century at an ever increasing rate of speed.

  2. I just received this petition from – Breaking news: House Republicans to torpedo President Obama’s Iran agreement.

    The GOP not only wants us in turmoil on the national level, they obviously want to throw us into another war with no thought or attempt to negotiate or find common ground for agreement. They want to control and destroy. How many more dead Americans do they need and want to prove they have more money to buy more politicians and rule this country as their personal domain? Can we get a clarification on this issue?

  3. If your religious beliefs include that disobedient children should be stoned, are you unduly burdened by child protection laws? If your religion teaches that infidels must be converted or slaughtered, are you unduly burdened by laws against murder?

  4. So my point on your Hobby Lobby post wasn’t so far fetched eh? You know, the one I mentioned about how hypocritical Hobby Lobby was for buying their products made in atheist and communist China where legal abortions are encouraged after that first child…yeah, I remember that. I believe one of your commentators (Paul) said that that was a stretch. Some people just need to change the channel and get out of their right wing bubble to understand and see our point of view. Now if only we could get the states and Congress to see it. 🙂

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