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.