The Lessons We Should Take From the Recent Hearings on President Obama’s Contraception-Coverage Compromise, and Other Battles Involving Religious Lobbyists

Posted in: Constitutional Law

To understand what’s happening in Congress today—including the recent to-do about religious institutions and contraception coverage—it’s useful to go back all the way to the Founding Generation, for, as I’ll explain, their most fundamental concerns still ring very true today.

The Framers of our Constitution had good reason to be concerned about the accountability of our elected representatives.  Having lived under the Articles of Confederation, they described legislatures as “vortices of corruption,” and believed that all those who have power are likely to abuse it.  So they constructed a Constitution that was intended to cabin power as much as possible, while still making it possible for those in government to further the public good.  The problem, as the Framers saw it, is not power itself, but rather the likelihood that tyranny will result when any one individual, branch, or sovereign has too much of it.  So they divided power between the branches, between the federal government and the states, and between church and state.

Accountability to the people is one of the measures we use to keep our leaders in check.  For example, we have several interrelated means of making the members of Congress account for what they do.  First, there is the power of the vote.  We choose them, and then they must run for re-election. Their desire to hold office and stay in office gives us the greatest leverage we have.

Second, we can communicate our views to them during their term of representation.  The press is a critical means to that end, and, in this era, the Internet also plays a key role in enhancing the delivery of information and increasing our ability to learn about what our representatives are doing—so that we may judge them.

Third, the press can report to us what our representatives are doing—which supposedly, according to Article I of the Constitution, is passing laws to aid and lead the country.  And the courts also inform us as to what our legislators have done, whenever they interpret the statutes Congress has passed.  In sum, we have the power to choose our elected representatives and then there is an active communication matrix between us and them during their term of service.

That point brings me to more recent events, such as the hearings on President Obama’s recent compromise proposal to have insurance companies pay for contraception for employees of religiously-affiliated institutions.  There is an important lesson to be taken from these hearings.

The Issue At the Heart of the Recent Hearings: Contraception Coverage For Employees of Religiously-Affiliated Institutions

The issue upon which the recent hearings have focused, as many readers will already know, is whether—under the new federal health care plan—employees of religiously-affiliated institutions would receive contraception.

In the first iteration of the regulations, the Obama Administration exempted religious organizations, such as churches and synagogues, from having to provide health insurance that includes coverage for contraception.  But the bill also provided that religiously-affiliated institutions—such as religious universities and other large employers—who hire outside the faith, would be required to provide contraception to their employees through their health care plans.  It was not that the religious organizations were being asked to distribute the contraception, or to encourage women to take it.  Rather, women would be able to obtain the contraception as part of the health care coverage, and the decision whether to obtain it would be left to each woman and her doctor.  The organizations remained free to speak out early and often against contraception.  Nothing could stop them from having a tickertape lining their campuses and hospitals informing their employees that the use of contraception was against the religious beliefs of their employers.

However, some of the institutions in that second category—religiously-affiliated institutions that were not religious organizations—made clear that they did not want to pay even indirectly for a product of which they disapproved.  Thus, they began to claim—doubtless taking a page from their lobbyists’ playbooks— that their “religious liberty” was being infringed.  (In fact, their constitutional and statutory arguments to that effect are exceedingly weak.)

So the Administration proposed a new accommodation for the religiously-affiliated institutions. The insurance companies would now provide the contraception free of charge to the institutions’ employees—thereby protecting the institutions from having to pay for the contraception themselves.  Still, the religious organizations that oppose contraception again declared that their religious freedom was at risk.

At this point, the organizations’ constitutional and statutory arguments were nil, but that did not stop them from nevertheless declaring that their “liberty” was at risk.

The Contraception-Coverage Hearings Showed Congress Serving Not Its Own Constituents, but Religious Lobbyists Instead

Of course, at a political level, this seems foolish, as the polls routinely show that a large majority of Americans of all faiths use and approve of the use of contraception.  Some large religious organizations, though certainly not all, may disapprove, but Americans treat these issues as personal, and the professional they are most likely to consult is a doctor, not a member of the clergy.  Thus, politicians might think twice before jumping too high for the clergy who are demanding that their own religious views must be imprinted even on the delivery of health care to those of their institutions’ employees who are not members of their religion.

That aside, the hearings were remarkable.  Not a single woman was invited.  Instead, five men sat there, intoning platitudes about “religious liberty.”  To them, the hearings were not about women’s rights or bodies, or about medical science, and they certainly were not about the religious beliefs of the employees who did not happen to share their employers’ faith.

While religious lobbyists can call their burdens whatever they like in the public square, and can demand from legislators whatever will benefit them, legislators owe it to the American public to present a more evenhanded presentation of the issues than these lopsided hearings offered.  True accountability demands that our legislators operate in the interest of the larger public good, not just that of the religious lobbyists who believe that no woman ought to receive contraception, even if her own beliefs permit it.

These Hearings Conjured Up Earlier Hearings Where Religious Lobbyists Also Improperly Dominated Lawmaking

Sadly, this is not the first time that Congress has doctored its hearings to favor religious lobbyists, and to leave to the side millions of Americans who have competing views.  When Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA), it created a law that would affect homeowners’ traditional land-use rights to the core.  No homeowners were consulted, to put it mildly.

More specifically, RLUIPA made it easier for large religious land developments to impinge on residential neighborhoods, by overriding prior zoning.  Since RLUIPA’s enactment, one neighborhood after another has learned that its members of Congress never considered the homeowners’ interests when RLUIPA dramatically expanded the power of religious land developers.

To their credit, then-Mayor Rudolph Giuliani of New York and former Senator Patrick Moynihan wrote letters to Congress, at the time, imploring them not to pass the land- use provisions of RLUIPA.  But their concerns were never made a part of the record.  Nor were land use planners, other mayors, any member of a city council, or a single solitary expert on land-use planning ever invited to testify during the RLUIPA hearings regarding their respective areas of expertise.  Certainly, no neighbors of the latest megachurch or large temple were asked their views.

Instead, Congress permitted religious entities to drum up “studies” purporting to show that they suffered discrimination in the land-use context.  In fact, those studies showed little more than that the land-use process can be tedious and expensive—for everyone, secular or religious.  Welcome to the world of development.

The result of these skewed hearings was RLUIPA: a federal law that severely interferes with local control over land use, burdens residential neighborhoods unnecessarily, forces taxpayers to cover litigation costs for federal litigation to defend the land-use code they relied upon to buy their homes, and has created a line of judicial decisions under which religious land developers have avoided the land-use laws everyone else must abide by, sometimes with an argument no better than that they were  inconvenienced.

In other words, when Congress fails to do its research because it is so busy kowtowing to religious lobbyists, average Americans suffer.  RLUIPA’s enactment illustrated the point years ago, and now the contraceptive-coverage hearings are illustrating it once again.

Before Congress takes another step in this arena, it would be refreshing to see its Members hold hearings that include Planned Parenthood; women who work for large religious institutions but do not share their faith; and doctors who can document the costs to society of unwanted pregnancies.  In other words, the other side should be publicly aired before the Members proceed.  The government’s role is to serve the larger public good.  That is not the same thing as participating in the public mythology of “religious liberty” that is not based in the Constitution and that has been spun by powerful and vociferous religious lobbyists.