Religious Liberty – Page 36

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.

Comments

Religious War and Peace

Ah, the holiday season. This month, we commence our annual orgy of consumerism to the lilting tunes of pundits debating the War on Christmas, the War on Christians and (depending upon the belligerency, politics and general cluelessness of the combatant) Obama’s War on Religion.

Because requiring businesses that offer health insurance to cover contraceptives along with Viagra is clearly an assault on Christianity.

This year, the Supreme Court will once again engage partisans over the proper place of religion in American society. The Court has accepted cases challenging the contraceptive mandate on the theory that requiring that contraceptive coverage be made available as part of comprehensive health insurance constitutes a “substantial burden” on the religious liberty of corporations like Hobby Lobby and Conestoga Wood Specialties.

Veteran Court watcher Linda Greenhouse speculates that the anger about this regulation stems from the perception that “the government is putting its thumb on the scale in favor of birth control, or sex without consequences.” Disconnecting sex from those consequences–pregnancy, STDs, whatever– is evidently more important than the significant health benefits of making contraception more widely available. It’s even more important than the documented and significant decline in abortions among poor women when access to birth control is provided.

Whatever the psychological impetus for the assault on this provision of the Affordable Care Act, the legal question–and the most important policy question for a free and diverse society–is whether and when employers must respect the fundamental rights and moral autonomy of their employees. As Greenhouse puts it:

There’s a powerful argument to be made, both in policy and law, that an employer of any faith or no faith who chooses to enter the secular marketplace can’t pick and choose which rules to follow. As some of the federal judges who have rejected the religious claims in these cases have pointed out, no employer would have the right to tell employees that they can’t use their wages to obtain contraceptives, abortions or any other legal product or service. By paying employees as the law requires, neither a corporation nor its owner is endorsing the employees’ choice of what to spend their money on.

What makes providing contraceptive coverage a “substantial burden” on an employer’s religion? It’s not financial–insurance companies have agreed not to charge anything extra for its inclusion. Is it simply the knowledge that some employees will use it?

Would the “substantial burden” logic apply to all sincerely-held religious beliefs? If an employer is a Jehovah’s Witness, for example, should he be able to exclude coverage for blood transfusions? What if she is a Christian Scientist–can she limit insurance coverage to prayer? Can a company owned by Scientologists exclude coverage for mental health services?

In a free society, religious privilege can only go so far. Religious organizations are permitted wide latitude to operate in accordance with their doctrine. Public and commercial enterprises, however, are subject to neutral laws of general application. Police officers who disapprove of abortion must nonetheless protect clinics from would-be bombers. Racist shop owners cannot refuse to serve black customers. Whatever their owners’ beliefs, commercial enterprises can’t hire and fire on the basis of race, gender and religion.

In America, people who choose to engage in commerce do not thereby control fiefdoms populated by peasants whose material and spiritual lives are theirs to direct.

Hobby Lobby is not being victimized by laws that prevent its owners from privileging their own religious beliefs at the expense of their employees. The only religious war is the one these “Christians” are waging.

Happy Holidays.

Comments

Let’s Give Thanks…For Being “Unbiblical”

As Thanksgiving approaches, it is incumbent upon us to count our blessings, to remind ourselves of the multiple good things in our lives. (Complaining is far too easy these days, especially if you care at all about public policy and the state of the nation. )

A recent post to the Civic Literacy blog by Don Knebel makes a pretty compelling case for the proposition that a lack of “bible-based” lawmaking should top our list of gratitude-inducing items.

Most of us simply shrug off the constant drumbeat from the theocratic Right about our “secular” laws and the need to “return to biblical principles.” Don’s post demonstrates something I’ve long suspected: these pious frauds have no idea what most of those principles actually were or are. (My personal favorite from Don’s extensive list: Public execution by stoning would be required for “stubborn and rebellious” children. Deuteronomy 21:18-21. If I’d only known….)

Click through for a truly edifying lesson in “bible law.”

Comments

Public Duties, Private Rights

It’s a bitch having to share the country with other people. Especially when so many of them are so wrong about everything.

A friend of mine just sent me the most recent tantrum (excuse me, newsletter) from the Indiana Family Institute’s Micah Clark, and that’s pretty much the message. According to Micah, those of us who don’t share his belief that “kids do best with a mom and dad”–that is, those of us who oppose a constitutional ban on same-sex marriage and civil unions –are thereby labeling people like him “bigots.”

I realize that needs a bit of deconstructing. Or, perhaps, psychiatry.

Here’s what Micah and his fellow “victims” don’t get: we live in a society with a lot of other people, many of whom have political opinions, backgrounds, holy books, and perspectives that differ significantly from our own. The only way to govern such a society–the only “social contract” that allows us to coexist in reasonable harmony–is by respecting those differences to the greatest extent possible. That requires treating everyone equally within the public/civic sphere, while respecting the right of individuals to embrace different values and pursue different ends in their private lives.

I know this is hard for you to understand, Micah, but a refusal to make everyone live by your particular interpretation of your particular holy book is not an attack on you; it is recognition that we live in a diverse society where other people have the same rights to respect and moral autonomy that you claim for yourself. Ironically, a legal system that refuses to take sides in your religious war is also the only system that can safeguard your own religious liberty. I know you don’t want to believe it, but most Americans really don’t share your religious certainty and belief in your own moral superiority. If your right to live in accordance with that certainty had to be put to majority vote, you might find your own “lifestyle” legally marginalized.

As I’ve noted previously, poison gas is a great weapon until the wind shifts.

As to your accusation that those of us who support marriage equality are calling you a bigot–well, here’s the dictionary definition of the term: “a person who hates or refuses to accept the members of a particular group.”

If the shoe fits…..

Comments

Good Stuff!

I frequently think of that old Tom Lehrer lyric: “Remember why the good Lord made your eyes. So don’t shade your eyes–plagiarize! But always call it research.”

In that spirit…Don Knebel is a local attorney who blogs for the Center for Civic Literacy, and his most recent submission is so good, I have to call it “research,” and share it. (By the way, those of you who read this blog should check out CCL’s….we have a number of thought-provoking bloggers contributing to the conversation there.)

Don takes a look at the most recent in a long line of public prayer cases, and hazards a prediction or two:

On November 6, 2013, the United States Supreme Court heard arguments on one of the most vexing issues under the First Amendment to the United States Constitution — When does the Constitutionally required governmental allowance of religious practices cross the line into Constitutionally prohibited governmental endorsement of religion? The specific issue in the case is whether the town council of Greece, New York, should be allowed to continue opening its sessions with prayers having a distinctly Christian point of view. The decision in the case won’t come for months, but I am going to predict the outcome of that case, something I have never done before. When the decision is released, I will review how close I came to predicting the actual result.

During the arguments, the attorney for the two citizens of Greece who complained about the Christian prayers asked the Court to declare that Greece can only offer prayers that are acceptable to everyone but atheists and polytheists. I predict the Court will not determine what should be in a public prayer. First, parsing prayers to see whether they pass muster with persons of disparate faiths would put the government directly into the business of regulating both speech and a person’s practice of his or her religion, both of which the First Amendment says its cannot do. More important, no conceivable prayer is acceptable to all the world’s believers, even if for some reason we were to leave out atheists and polytheists. Even a prayer to a generic “creator” is contrary to the beliefs of many Buddhists that the universe was never created and that there is no God. A prayer to a “Heavenly Father” won’t cut it for someone who believes in the Mother Goddess or denies the existence of heaven. So we aren’t going to have prayer guidelines as a result of this case.

I also predict that the Supreme Court will not bar town councils from opening their sessions with prayer. Such a result would be contrary to a long tradition in this country, predating the Constitution, of seeking divine guidance when doing the people’s business. In prior cases, the Court has recognized that history. The current Court, which opens its own sessions with a prayer that “God save the United States and this honorable court,” is not about to reverse itself on that issue.

So if the Supreme Court will not outlaw prayers and will not mandate acceptable prayers, how will it resolve the claim that sectarian governmental prayers are effectively endorsing a particular religion, in violation of the First Amendment? I predict that Court will say that governmental bodies can open (or close) their sessions with prayer so long as they provide realistic opportunities to pray for citizens holding a variety of religious beliefs, including none at all. So, if a citizen believing in the redemptive power of mushrooms wants to invoke the spirit of the Great Mushroom at a meeting of the town council, that person will have to be given a reasonable opportunity to do just that. That is what it means to live in a pluralistic country, founded on religious tolerance and personal freedom.

Perhaps when members of the Church of Satan, professed atheists and others with non-traditional beliefs begin opening governmental meetings we will all start to recognize how truly diverse we have become and begin to curb our urge to pray aloud in public, something Jesus recommended a long time ago. Matthew 6:5-6. Eventually we may come to see that for governmental meetings and other public occasions, a respectful moment of silence, during which we can call upon whatever power is most meaningful to each of us, will do just fine. Stay tuned.

Comments