Legal Analysis and Commentary from Justia

The Right Way to Accommodate Religious Objections to the Contraception Coverage Mandate

In this column, we provide an analytic framework for analyzing the recent firestorm involving regulations from the Department of Health and Human Services (HHS) concerning the extent to which employees of religious organizations must be provided with insurance coverage for contraceptive services as part of the insurance they obtain through their employment.

The Relevant Background

As anyone who has kept up on current events the last few weeks knows, proposed HHS regulations that were announced in January, and that are designed to implement parts of the Affordable Care Act (ACA) required employers to include contraception services in the health insurance plans they offered their employees.  The primary objection to the regulations involved their application to religious organizations that are opposed to the use and provision of contraceptive services as a matter of faith and doctrine. The regulations did contain an exemption for some religious employers, but it was extremely narrow in its scope and would not apply to religious hospitals, universities, and charities.

Last Friday, in response to the regulations’ critics, President Obama offered a compromise solution. Under his new proposal, religiously affiliated employers will not be obligated to provide contraceptive coverage to their employees; instead, their health insurance companies will be required to provide the coverage directly to women at no charge.  The cost of providing insurance coverage for contraceptive services would thus be shifted from faith-based institutions that object to the mandate on religious grounds, to health insurance companies serving the populations at issue.  Proponents of the compromise argue that because the provision of contraceptive services often reduces other policy costs incurred by health care insurers, the cost of the shift to insurance companies would be minimal.

President Obama’s proposed compromise was satisfactory to some interest groups, but other ideological voices, including both liberal and conservative politicians, criticized the plan, albeit from opposite perspectives.  The New York Times editorialized that “it was dismaying to see the president lend any credence to the misbegotten notion that providing access to contraceptives violated the freedom of any religious institution.” The U.S. Conference of Catholic Bishops, on the other hand, claimed that the proposal “continues to involve needless government intrusion in the internal governance of religious institutions, and to threaten government coercion of religious people and groups to violate their most deeply held convictions.”

The Right Framework:  Focusing on Religious Liberty, Accomplishing Legitimate Government Objectives and Reducing Secular Windfalls

Any thorough analysis of this dispute is complicated by the intricacies of the ACA, the operation of health care insurers, and the rapidly evolving political reactions.  In this column, however, we want to step back and examine the core questions that are presented when government compels religious institutions to provide health care insurance coverage for contraceptive services that the institutions view as antithetical to their beliefs, and locate this conflict within a broader context.

To begin with, we believe there is a serious religious liberty interest at stake in disputes like these. Religious institutions have an understandable desire, one worthy of respect, to use their own resources (public funds and facilities present a separate question) to advance and promulgate their faith—and not to support activities that violate their religious beliefs.  Indeed, there is arguably something particularly intrusive and unsettling about the government’s forcing religious institutions to take action to use their own resources in a way that undermines their beliefs.

This affirmative commandeering of religious organizations to further the state’s purposes is, for some people, even more intrusive and burdensome than a law that ties religious institutions’ hands by forbidding them from engaging in conduct that their faith obliges them to perform.

The burden on religious liberty is thus a critical element in evaluating the unfolding HHS regulations, but it is not the only concern that needs to be taken into account. The public interest underlying the contraceptive access aspects of the ACA must be considered as well. We do not doubt the importance of contraceptive access to the public health of our society, nor do we doubt the value of the mandated insurance coverage to individual women. If religiously affiliated organizations such as hospitals, universities, and charities are exempt from the regulations’ requirements, a large class of women might be denied health benefits that other women receive, and that the state and the medical community strongly believe should be available to them. That is no small cost.

Finally, there is one other factor to consider. Some, though not all, religious exemptions provide benefits of secular material value to exempted institutions, in addition to protecting the institutions’ religious liberty. Typically, these secular benefits are a consequence of relieving religious individuals and institutions of duties and obligations that other similarly situated persons or organizations must obey.

Some easy examples may help to clarify this point. Religious pacifists who are exempt from military conscription as conscientious objectors are relieved of having to violate their religious commitments, but they are also relieved of a physically dangerous duty that other individuals must fulfill. When an employee’s observance of the Sabbath is accommodated by his employer, the employee also gets to spend prized weekend time off with his family, while his co-workers may have to work more weekends to substitute for his absence.  When religious institutions are exempt from regulations that require the expenditure of funds—for example, regulations requiring that facilities must be accessible to the disabled—the exempted institutions save money that can be used for other purposes. Thus, persons can certainly support exemptions for religious individuals and institutions in the name of religious liberty while questioning the fairness of allowing the beneficiaries of these accommodations to retain the accompanying secular benefits as well.

In sum, we suggest that religious accommodations in disputes like this one should try to accomplish three goals. First, they should protect religious liberty to the extent that it is feasible to do so. Second, they should mitigate or spread the costs of protecting religious liberty so that they do not fall disproportionately and heavily on any individual or group. Third, they should promote basic fairness and avoid the privileging of religion by limiting the secular benefits religious individuals and institutions obtain as a result of any exemption they receive.

Resolving the Exemption Issue with Win/Win Approaches

Let us now consider how this analysis might apply to the HHS regulations mandating contraceptive services, with which our column opened. To begin with, we would exempt religious organizations from any duty to comply with the mandate when the organizations are operating programs with their own funds. If a religious organization operates a government-funded program, however, the mandate should remain in force.

The distinction we make here, between privately and publicly funded programs, is grounded in our basic unease about government’s commandeering the resources of religious institutions to serve its own goals. Religious organizations have a religious liberty right to challenge government regulations that require them to use their own resources in violation of their religious commitments in order to further the state’s secular objectives. Religious organizations do not, however, have a religious liberty right to use the government’s resources in order to further the organizations’ religious commitments when  doing so would undermines the state’s public policy goals.

Religious Liberty as a Public Political Good; The Duty of the Government to Spread the Cost of Religious Exemptions

Next, we think the government should take appropriate steps to spread the cost of the religious accommodation to the general public, rather than having it fall much more heavily on the members of a smaller class.  The most obvious and natural way to accomplish this goal would be for the federal government to use its own resources to provide health insurance coverage for contraceptive services for those women who are unable to receive the benefits of the HHS mandate because they happen to be employed by institutions who invoke the religious exemption discussed above.

It may be that President Obama’s proposal to shift the cost of contraceptive services to health care insurers also achieves this cost-spreading goal to some extent, although we do note that it does so by imposing on the healthcare providers directly, and in a way that seems historically unusual.  (We are not aware of many examples in which the government directs a commercial enterprise to offer a service for free.)

So while we must think more about the compromise that President Obama offered before deciding whether it is acceptable, our key point here is that the government’s obligations do not end when it exempts religious institutions from regulations that unacceptably interfere with or burden their religious liberty. The government also owes a duty to those people who suffer burdens or lose benefits as a consequence of the state’s protecting religious liberty—and that duty requires the government to mitigate and spread these costs as much as possible.

The justification for spreading the cost of religious accommodations is straightforward. Fundamental rights such as religious liberty are public political goods that define the very nature of our community. We recognize, of course, that, in any given case, freedom of religion may be of much more value to certain individuals or groups than others. But the utility of these rights to particular individuals in specific situations should not lead us to ignore the intrinsic public value of living in a free society.

When the government incurs costs to acquire or protect public goods, it is appropriate for the community as a whole to share in the costs of its doing so—rather than leaving the cost to fall on a narrow class whose interests are sacrificed to the greater good.  (That is the reason why the Constitution prohibits “takings” for public use without “just compensation.”)

The government expenditures and cost-spreading we propose to make rights meaningful are not unique to the public good of religious liberty—they often are present in the free speech context as well.  Governments spend substantial sums, for example, to provide adequate police forces to maintain order during large political demonstrations, or to protect small groups of unpopular speakers. In accepting these expenses as the price to be paid for living in a society committed to freedom of speech, we recognize implicitly that these costs may be allocated appropriately to the general, taxpaying public. We suggest that a similar analysis applies to religious liberty.

Adjusting the Equities By Requiring Alternative Service

Finally, we reach the third factor that is often overlooked in religious accommodation disputes. As a condition for receiving an exemption from the HHS contraceptive services mandate, religious organizations should agree to dedicate whatever funds they save from not having to provide the otherwise-required contraception coverage to some other public service, identified by the government, that is consistent with their beliefs. Remember, the justification behind the exemption for faith-based organizations is religious liberty. It does not extend to the cost savings that result from being freed from the burden of complying with legitimate regulations relating to public health goals, or any other permissible governmental objective.

Here again, our proposal is grounded on uncontroversial precedent.  Our society has long accepted the legitimacy of requiring conscientious objectors, exempt from military conscription, to perform some kind of alternative service that is consistent with the dictates of their faith. This obligation is not a penalty imposed on religious pacifists. It is an equitable rule that recognizes that, in the name of religious liberty, the conscientious objector has been relieved of a serious material burden that has been imposed on a broad class of individuals. Accordingly, it is fair and just to require him accept some other, comparable, civic obligation that does not require the violation of his religious beliefs.

We see no material difference between alternative service for those who are exempt from military service for religious reasons and alternative expenditures for public services by religious institutions that are exempt from costly regulatory mandates on religious liberty grounds.

We recognize that calculating and reallocating secular cost savings can be challenging and imprecise.  But such imprecision should not prevent us from doing the best we can under the circumstances. Alternative service for conscientious objectors does not, and cannot, replicate the risks and burdens of military service.  In these cases, perfect calibration in redirecting secular windfalls may be less important than achieving sufficient equities to demonstrate our recognition of the problem and our commitment to mitigating it.

The Benefits of a Principled Framework

The framework we describe in this article certainly won’t resolve all disputes about religious accommodations that will arise now and in the future. Those debates are as old as our country. This framework does, however, lead us to think about these issues in a principled manner, rather than relying on compromises that depend primarily on the political power of competing adversaries.

Certainly, our proposed framework protects religious liberty far more than the original HHS regulations did, and it also provides health insurance coverage for far more women than would receive benefits if all religious organizations burdened by these regulations were simply exempted from the mandate. President Obama’s compromise proposal seems, in some ways, to be a step in the right direction, although important questions as to how it will be implemented remain to be resolved.  The compromise resonates with two of the principles we advocate: (1) it reduces state interference with the ability of religious institutions to follow the dictates of their faith, and (2) it mitigates and spreads the costs of the accommodation so that they do not fall exclusively on women who are employed by exempt religious institutions.  Granted, its placement of the burden on insurance companies does raise issues of its own.  But it may not be a bad beginning, even if it isn’t quite yet a complete solution to the problem.

Vikram David AmarVikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
Alan E. BrownsteinAlan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of Law.
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  • http://twitter.com/stanchaz stan chaz

    One of the legitimate functions of government is to promote equality and fairness for ALL, to have everyone play by the same rules. No one is coming into our Churches and trying to tell parishioners what to believe…or forcing them to use contraception. BUT If the Bishops want to start businesses that employ millions of people of varying faiths -or no “faith” at all- THEN they must play by the rules…ESPECIALLY if they use our tax dollars in the process.  Just because a religious group in America claims to believe something, we cannot excuse them from obeying the law in the PUBLIC arena, based on that belief. They can legally attempt to change the law, not to deny it outright. And if they want to plunge overtly into politics from the pulpit, then they should give up their tax-exempt status. Did I miss something, or when it comes to the “sanctity of life”, is every single righteous Catholic still a card carrying conscientious objector, still refusing to take up arms,  still totally against the death penalty, and still against contraception and birth-control in all its forms? Oh well, hypocrisy is at the heart of politics, and politics masquerading as religion even more so. This country is an invigorating mixture of all the diversity that life has to offer, drawing its strength FROM that diversity. We need to work together to preserve, enrich, and strengthen this unique experiment – NOT to tear it down with poisonous, paralyzing, and un-Christian demonization of each other.

    • Max Herr

      “One of the legitimate functions of government is to promote equality and
      fairness for ALL, to have everyone play by the same rules.”

      Same rules, yes, equality and fairness for all . . . only in a socialist state. If that’s what you envision America to be, fine. Most of us capitalists do not so envision America in this manner. 

      Take from the working and give to the lazy. Greece now understands that premise was a mistake — by giving all the lazy people government jobs.

      In America, to promote your socialist state of equality, you want the wealthy to subsidize the unwealthy. What will that do? Nothing. The wealthy can take their wealth to some other place in the world and maintain their status. As that occurs, America becomes a third-world nation. We don’t rise from the ashes, we become the ashes.

      Although this latest round in the implementation of the PPACA is being characterized as a religious issue, it is not. It is purely one of the socialists doing everything they can to destroy capitalism.

      We spent the better part of 40 years fighting to end Communist rule in the Soviet Union, and succeeded. And now we are working hard to adopt the same system that was proved to be utterly corrupt and fatally flawed.

      Wake up! America. History is about to repeat itself.

      (If you don’t believe that, think about this: The Russians occupied Afghanistan for 10 years, lost thousands of troops, and left the country in no better condition than when they first arrived, at a cost of billions of rubles — enabling the Taliban to come to power.  We have been there (and in Iraq) more than ten years, lost thousands of troops, have spent trillions of dollars, and will eventually leave the country in no better condition than when we arrived. Imagine what those trillions of dollars could have done to provide health care to Americans in the same time period.

      Those of you who mindlessly vote for incumbent politicians have only yourselves to blame.)

  • Max Herr

    ” The cost of providing insurance coverage for contraceptive services
    would thus be shifted from faith-based institutions that object to the
    mandate on religious grounds, to health insurance companies serving the
    populations at issue. ”

    Feel free to debate the religious aspects of this nonsense. But step back and look at this from an entirely different perspective — simply the cost of health insurance.

    The American public was sold a bill of goods in the Town Hall runup to the PPACA.  The mantra was “The cost of health insurance will go down because everyone will be required to have health insurance.”  If you are not involved in the insurance community, you might be persuaded to believe that crap. 

    Others of us, more familiar with the industry, realized that such rhetoric was impossible to implement.  The federal government cannot mandate private enterprise to provide anything for “free”.  Well, if we allow socialism to overwhelm democracy and capitalism, I stand corrected.  But, let’s assume that free enterprise has not yet been run down the garbage disposal for a moment. 

    When costs are shifted from individuals (or their employers) to insurance companies — preventive care at no cost, contraceptives at no cost, mammograms at no cost, well-child exams at no cost . . . the list is rapidly expanding — the cost is going to be shifted back onto those same individuals (or their employers) in the form of higher premiums.  There is no other possibility, because insurance companies are in business to make money.  If you understand the economics of insurance as I do, you don’t want to do business with an insurance company that is not profitable — because eventually that insurer will not have the ability to pay the claims.  [I'm coming back to this point in my summation.]

    Dictate, if you will, that insurance companies must spend 80% of all premium dollars on direct health care expenses, diverting money away from agent commissions, employee salaries, administrative expenses, and overhead (85% for group policies).  It will not be difficult to reach that “medical loss ratio” when the insurance company and no one else is paying 100% of the cost of health care and contraceptives, coupled with unlimited exposure to annual and lifetime medical expenses.  But at what price? 

    With fewer claims persons at the Home Office, doctors and hospitals will wait longer to receive the meager payments they are now used to receiving.  They will not be paid more money to provide health care.  (And with “everyone in America” suddenly insured, the wait time for an appointment with one’s physician will increase from a couple of weeks to a month or longer.

    Dictate, if you will, that insurance companies must take all applicants without regard for their preexisting conditions.  Don’t misunderstand . . . at least the PPACA does not yet mandate that these individuals must also be insured at standard rates — they will pay higher premiums, they just won’t be declined for coverage. 

    Dictate, if you will, that men and women will pay the same premiums regardless of the fact that men are significantly less likely to consume health care than women during their working years (if it ain’t broke, it don’t need to be looked at, looked into, or looked UP).  I know this first hand, because I’m one of them.  Unfortunately, this also leads to generally higher costs of care for men in their later years.  So, insurance rates for women will not decline much, and rates for men will increase significantly.  The price of a “DNR” tattoo on my chest will save my family tens of thousands of dollars of wasted medical care (I just don’t want it to hurt!). 

    Step back a little further and now you can begin to see how the socialist plot is unfolding.  The Democrats, despite Obama’s initial insistence, were unwilling to create a single-payer system. And rightly so.  It would have amounted to political suicide.  But they can still achieve the very same objective by foisting more and more costs of health care and ancillary services, such as pharmaceuticals and diagnostics, directly on the bottom line of the insurance companies. 

    Come 2014, if nothing substantive occurs between now and then to change the eventual outcome, we will begin to see a shakeout in the health insurance marketplace.  First, the smaller, less profitable companies will merge with their slightly larger regional competitors.  Then we will begin to see regional competitors merging to become national players. As consolidation occurs, there will be a momentary lapse in judgment on the part of company executives to beat up their competitors to gain market share with lower premiums.  AHA! We told you the cost would drop! 

    But history is on the side of the doomsayers like myself.  The race to the bottom will wreck the industry.  Insurance companies will not have the necessary fresh capital to pay the increasing number of claims that attend increasing market share.  They will be forced to dig into reserves and alter the actuarial predictions of the longevity of the reserve accounts.  Insurance companies will fail . . . leaving claims unpaid.  Those claims will be taken on by the state insurance guaranty associations. 

    Yet those associations are not publicly funded (not yet, at least).  When the associations do not have the ability to pay all the claims, they turn to the insurance companies that fund them and assess them more money to cover claims.  That further exacerbates the capital drain on the insurers still in business.  Profits dwindle, shareholders bail out, and more companies are lost. 

    My own state of California has some experience with this in Workers’ Compensation.  As the result of “deregulation” in the mid-1990s, the Workers’ Comp marketplace became a shambles, with California’s State Fund eventually holding more than 40% of the premiums (as the intended insurer of last resort) — making it the #1 WC insurer in the US in terms of
    premium dollars and #1 in terms of employees insured in less than 10 years (and they weren’t doing business anywhere other than in California).  In the same time period, HMOs did essentially the same thing, driving many players out of the market. 

    When it comes down to just Blue Cross, Blue Shield, Kaiser-Permanente, and United Healthcare as the only players left standing, they too will exit the market place.  Who wants to have 25% or more of the market?  And when the last one is gone, who will provide health care to America?  The single payer . . . Uncle Sam.

    But this is what I know about Uncle Sam’s Insurance Company:  it does not know how to operate profitably, and there is no chance that it will ever choose to even attempt that feat.  Medicare is currently running a structural deficit (UNFUNDED LIABILITIES) of $102 Trillion dollars ($102,ooo,ooo,ooo,ooo) and growing — seven times larger than the Social Security unfunded liability (visit http://www.usdebtclock.org).  When Uncle Sam becomes the single payer, you can forget your 401(k) plan, your Roth IRA, your stocks, bonds, and mutual funds.  We will finally get to enjoy income tax reform:  100% of your income will be confiscated to pay the federal liabilities we so eagerly accepted in the passage of the PPACA.  No more tax returns to fill out, just send us everything you have.  Warren Buffett’s secretary will finally be on par with her boss when it comes to income tax rates.

    This, friends, is the price of “free” health care for all persons in America — even those who have no legal right to be here.  It’s not the dumbing down of America, it’s the demise of America.  And some of you voted for it in 2008, and you’ll still vote for it in 2012.  Let’s hope more rational thought prevails.

    In an economy of “free enterprise” nothing is free.  To stifle that freedom, and the freedom of choice that accompanies it, by forcing free enterprise to give up all hope of profitability, is to kill America.  The socialists will rejoice . . . for about a day.  Then it will all be gone.

    Wake up! and smell the hemlock.

    • KH123

       I’m sorry.  You lost me at the point where you asserted that contraceptives were more expensive than pregnancy to insurers (not to mention all of the other medical conditions they can prevent).

      Insurers agreed to this cost-shifting arrangement precisely because it is in their financial interest to do so.   There is no socialism involved in a private company making the decision that it is cheaper to provide a daily pill than 9 months of checkups, including ultrasounds, potentially more invasive tests, and even more expenses if the child is born prematurely or with birth defects.

      Each of these theoretical children is born with both a mother and a father — and yet you have the gaul to pretend that the costs of pregnancy should be born solely by the mother?  What does that have to do with freedom of religion, which has, at least in the Western Judeo-Christian model, placed the entire burden of caring for future life on the father.

      Quite the socialist plot, following Christ’s advice to “Do unto others as you would have others do unto you”!

  • Bob

    The article’s authors show a remarkable disdain for the express and clear language of the free excercise clause of the First Amendment.  It would be hard to construct a more obvious violation than requiring, as the “accommodation” does, that a religious institution or a private company owned by a religious, whose faith holds such actions as contrary to its teaching, may be required to financially support such action.  The suggested modification is illusory.  It sustains the notion that religious are free to worship as they choose on Sunday within the confines of their building but will be prohibited from the free excercise of their faith away from the “zoo”.  The answer is so simple.  Anyone is free to purchase contraceptives or other services not covered with their own money.  Secularists who believe this is an undue burden are free to establish whatever charity they like to provide these services.  The notion that our government may require religions and religious members to violate the free excercise clause is wrong and will not stand.               

  • June

    This an interesting approach but it fails to recognize the inevitable entanglement between church and state that this approach would require.  First, there is a significant questions in my mind whether religiously-affiliated institutions of the type considered here should be granted the same deference historically granted churchs and their wholly sectarian organizations, such as religious schools.   The tests applied by courts usually includes consideration of whether the insitution primarily serves members of a particular belief system, exisits primarily to propagate that faith, hires only people of that faith and is primarily funded by adherants of that faith.   Many of the Catholic hospitals and universities I am aware of fail this test.  Their services are primarily funded by the Federal government –which now pays more than 50% of all health care costs –and private insurance funded by employers and employees of all faiths  Many have adopted corporate structures to provide protection for Church resources should these institutions experience financial problems.   All hospitals and somes universities allow members of other faiths, including non-Christians, to provide spiritual support and even conduct religious services for patients/students within their facilities.   A number even have non-Catholics serving on governing boards.  Employment, except for those performing some ministerial duties,  is not limited to Catholics.  Some Catholic hospitals structures are the result of mergers with other, non-Catholic sectarian hospitals and the mission statementsof these blended institutions extol Christian, not Catholic principles.  These factors apply to many other hospitals and universities affiliated with other faith traditions.   Each have these and other characteristics that move along a continuum from truly sectarian to loosely or historically sectarian only.   Who is to decide which are “religious” enough to merit the special exception now sought by Catholic Bishops.    And if Catholic affiliated hospitals can exempt themselves from the requirement to provide birth control, could a Christian Science hospital refuse to cover other types of preventative care on the basis that they believe that recourse should be had to spiritual healing, or a fundamentalist Muslim church refuse to provide any health care coverage for women emplyees because theirbranch of Islam forbids women working outside the home.  Beyond the long standing and relatively object standards ennumerated above.  I am opposed to asking the federal government  to pick and choose which religious institutions are “churchy” enough.  Moreover, Supreme Court decisions in this area are numerous and confusing  and narrowly fact based.  Court resolution would take years and maybe decades.  

    This is not the classic law school hypothetical.   The Catholic bishops, in concert with some Republicans on the Hill,  are seeking a legislative fix that would allow any person to refuse compliance with any aspect of the health care mandate on the basis of any assertion of moral objection.  (I have only heard summaries of the bill, I have not read it; the exemption may apply to other federal mandates as well.)  Religious liberty also implies the liberty not to believe in a particular set values or precepts.  How would society fairly spred the costs of  numerous employers who reject part or all of the mandate on religious grounds, without forcing other tax payers of other religions and non-believers to bare a disportionate price for the societal benefit of broadly available, full spectrum health care.    The health care statute already provides one fair remedy.  Forego providing health care to your employees and pay the fine, which should not come from federal funds and should not be tax deductible.   Or as my father used to say “Put your money where your faith is….” 

    • Max Herr

      “How would society fairly spred the costs of  numerous employers who reject part or all of the mandate”

      If you take the religion out of the rest of the sentence, as I have done here, then you really see what the issue is. It is not one of religion, it is one of economics.

      Just as you cannot force insurance companies to pay for everything, you cannot force businesses to pay for everything. When push comes to shove, no one pays for anything.

      And in a socialist state, where there is “equality” for everyone, the government must pay for everything and everyone must serve the government to provide the capital that “equality” mandate requires. That’s how the cost is “spread” — and if you think that’s fair, enjoy your socialist future.

      I fail to understand why this is not crystal clear to everyone else.

      Our Constitution is a document that posits that the American form of democratic government is “of the people, by the people, and FOR the people.”  That premise is entirely inconsistent with a socialist state in which Government is all and does all, and necessarily must consume all the labor/capital its citizens produce.

      No wonder Obama feels so free to trample the Constitution. Again, this has nothing to do with religion. It is entirely about ending the capitalist state that has made America what it once was — the greatest, mightiest nation the world has ever seen.

      Rome did not fall in a day, and neither will America. But like Rome, America, too, will fall . . . if we succeed in departing from the “plan” that brought us to prominence.

      Americans give scant approval to the politicians that comprise the House and Senate. Yet those same Americans fail to vote them out of office. When you send the same people back time after time, you only get more of the same.

      Go ahead! continue to reelect incumbents. But don’t complain about them to me after you do. I don’t vote for them.

  • LibertyOne

    You present a thoughtful response to the current situation, but I respectfully suggest it does not quite go far enough to protect the religious liberties you properly recognize as a fundamental right. 

    Why should the protections only apply to “religious institutions?”  The freedom of religion extends to, and indeed is primarily held by, individuals.   If an individual business owner strongly and honestly objects to using his/her money to fund something morally offensive, how does forcing the business owner to provide such coverage respect his/her religious liberty?  Should only those institutions whose primary purpose is to advance religion be entitled to religious liberty?   Does it matter that the business may sell tires or provide companion care or fix bikes or sell religious literature?   It shouldn’t.  

    Caring for the health needs of all Americans is laudable.  But mandating the purchase of any product forms a very dangerous precedent unknown in American jurisprudence, religious liberties aside.   Why not require every American to buy a phone?  After all phones are essential to call 9-1-1 and protecting life/property by 9-1-1 calls surely is a proper governmental motive.  And what about eating healthy meals?  Poor diets cause all kinds of health issues, contribute to obesity and lower a person’s life expectancy… Perhaps we should mandate that every American buy at least 1 serving of whole grains and vegetables each day.    The examples may seem silly, but the logic is nearly identical.   However the legality of mandated health care (as good as the motives for same might be) likely remains an issue for another day. 

    (side note @Stan – I am not Catholic, own a small business and am very deeply and genuinely appalled at what I am being asked to pay for.  This is not about an excuse to disobey historical law (and I certainly must drive the speed limit, get permits for construction, pay taxes for employees, may not purchase illicit drugs, must obtain proper licensure, etc., etc., etc.) but rather a fundamental objection to a law which tramples on religious rights held by me and many,  many other law-abiding citizens.)

    Again, thanks for your thoughtful article.  I only wish that the genuine interests of all individuals / business owners or organizations with deeply held religious beliefs were being considered, rather than the interests of the more blatant “religious” institutions

  • Addosl

    I don’t understand why some people always try to play God, when did God made them His spokespersons, this so called catholic fathers were the very people who abused their church members, nature uses so many ways to check population growth do we bleme God?  God has given every idividual his/her right to choose,one day everyone will have to answer for his/her choice the church should stop detating to us how we should live, all the ought to do is to teach the word! and live the rest to the individual

  • Joe Simmons

    This is a framework for policy-making, rather than for use by the judiciary?

    I am not sure I see the point. The RFRA codifies the standard for reviewing constitutionality of laws burdening religion. It sounds as if your framework does not adequately account for many situations where a law can be held unconstitutional.

    I appreciate the balance you seek to strike, but there is a basic issue of freedom at stake. When ANYONE (a church or an individual) is forced to purchase something, expressive and religious rights can be negated. If an employer, who happens to be a devout Catholic, believes that use of contraceptives is immoral, the idea that the government can force him to provide them through a third party is absurd. It will be no consolation that a nuanced legal framework shows how it should be considered okay. The man is still forced to facilitate behavior that goes against his religious convictions.

    One must consider the nature of purchasing. Its not a purely economic decision. We may choose not to eat chicken from non-free range producers. We may do this not only for our health, but to make a point and to try to effectuate change. An ethical vegan may consider the slaughter of animals to be murder.

    What if employers were to provide food vouchers (purchased from the grocery store of their choice).  An employer with ethical concerns about certain foods may choose to provide vouchers to an organic or vegan grocer. If the government one day decided this is a good scheme for paying for food, perhaps they would require all employers to provide these vouchers. Further, the government might require all vouchers to cover meat, including that of caged chickens (ostensibly for economic and health reasons) and compel all grocers to provide the same.

    Any ethical, moral, religious or expressive freedom of the employer (or an individual compelled to buy her own voucher) is thoroughly negated. And the hypothetical law would give broad discretion to the Secretary of Agriculture to promulgate all kinds of other rules which would affect expression in yet unforeseen ways. We can still shop at any grocery store, of course – but it’s about the same as Henry Ford’s quip, “Any customer can have a car painted any color that he wants so long as it is black.” We can buy any insurance plan…as long as it covers birth control.

    When an employer pays cash salary, that employer implicitly accepts the
    employee may spend that money on all sorts of activities that employer
    may find immoral or unethical. That’s the nature of freedom. But the
    employer is not compelled to provide a voucher explicitly covering such
    activity. To say that the objectionable item or service will be provided “free” by the third party (whether that be chickens, birth control, or a visit to a gentleman’s club) does not make it less of an imposition on the expressive freedom of the employer (or individual).

    All of this gets us back to the legal novelty of this mandate. Proponents are right that novelty in-and-of-itself does not make the mandate unconstitutional. The issue is that our freedoms have never been so saddled, and for good reason. To compel us all to directly buy something with our otherwise private funds (with very limited and special exceptions) and let the government make up the terms of that private contract whenever it wishes is dangerous.

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  • KH123

    I just read this article at liberty.com and was greatly impressed.  I do, however, have one correction I would like to encourage you to make.

    I do not know what policies affect conscientious objectors in our modern, all-volunteer army, but I believe that you are incorrect in asserting that they have been exempt from service during periods when the draft was in effect.

    My father, a conscientious objector, was drafted during the Vietnam “conflict.”  Because he refused to fight, he was denied the officer status his education would have made available and was drafted as a private and trained as a medic.  The only thing that saved him from being sent to the front lines was the fact that he is so color blind that he cannot tell the difference between blood, puss, and a wet army-green uniform.

    Former Senator Inoye, a highly decorated war veteran, in the Ken Burns documentary about WWII, brushed aside much of the praise of his own efforts in favor of the medics in that war, all of them conscientious objectors, for running into enemy fire when he and his fellow troops were retreating in an attempt to save his friends and comrades in arms.

    In other words, you could not be more correct in asserting that those who choose to carry their religious beliefs as a burden they prefer to any alternative are to be praised. 

    The truth, in the current Religious Liberty conflict, is that a very powerful religious group is, unlike any other Religious Liberty case the nation has ever seen, asserting a right to not only have their rights protected, but they want to foist their religious views on non-believers (including, but not limited to employees of charities that are heavily subsidized by the government).

    In other words, unlike the conscientious objectors of my father’s generation, they don’t just want freedom from laws they don’t like — they want government subsidies to support that freedom.

    That’s not in keeping with the Constitution my father fought (and probably would have died for, but for his strange — and never otherwise welcome — genetics).

 

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