Many First Thoughts readers have heard that a business in Colorado obtained a preliminary injunction against Obamacare’s “Free Birth Control Rule,” based on the provisions of a federal law known as the Religious Freedom Restoration Act. But what most probably do not know–because it has not been reported–is that the Obama Administration argued that because the owners run their business through a corporate platform, they lose their rights to religious liberty under the RFRA.
This is another blatant attempt by the Obama Administration to reduce freedom of religion to a stunted “freedom of worship,”an effort against which I warned in a recent On the Square. I write about the case in the current Weekly Standard, and point out that the arguments made by the Obama Justice Department make this “A Religions Freedom Election.”
August 4th, 2012 | 6:41 am
I briefly skimmed the commentary on Mr. Smith’s On the Square post where the combox goes deep into the weeds about how to define religious liberty and raising extreme examples (or not so extreme) such as Scientology.
The temptation for me is to really delve into the argument and craft something that my opponents would have a tough time answering, and which truly gets to the heart of the matter. But it would be a waste of time. To explain what I mean by that, let me quote Tocqueville’s contemporary, Francis Grund, and fellow Frenchman marveling at the freedoms of the American system:
Now that is sobering and somewhat depressing stuff. Conservatives like me can offer slam-dunk apologetics until we are blue in the face, but if the nation is without Christian devotion, then freedom of religion for Christians as Christians have always understood it, is over. I have slim hope for the country on this score. Perhaps the most I can ask for was put best by Ross Douthat:
To my opponents I say okay, okay, I get it–nuts to religious freedom for orthodox Christians. But just do me one favor, please? Throw me in jail, kill me, or ship me off to some gulag, but spare me any smiley-face claptrap that this is all religious freedom ever was.
August 4th, 2012 | 8:38 am
To sum up my previous comment, maybe Christians should start asking our adversaries something along the lines of this: “Why pretend you want Christian orthodoxy under your big tent? C’mon, stop being such a wuss. What are you so afraid of?”
August 4th, 2012 | 1:12 pm
Wow Douglas. After that, there’s simply nothing left to say.
August 4th, 2012 | 2:34 pm
Marc DeGirolami at Mirror of Justice has a post titled Corporate Exercise of Religion and Other Thoughts on the RFRA Claim in the Mandate Litigation that will likely be of interest to those following the legal battle against the contraceptive mandate.
August 4th, 2012 | 3:08 pm
But just do me one favor, please? Throw me in jail, kill me, or ship me off to some gulag, but spare me any smiley-face claptrap that this is all religious freedom ever was.
Douglas Johnson,
You’ve got yourself a deal! :P
I would not deny that there are some people who are opposed to freedom of religion (as opposed to freedom of worship) for “conservative Christians.” (I’m not even going to attempt to fathom what “Christian orthodoxy” means.) There are also those do not even want freedom of worship for Muslims. There are many, many people who don’t either seem to approve of, or understand, the First Amendment, and would be willing to deprive people with whom they disagree or of whom they disapprove of basic First Amendment rights.
However, I do not see a crisis over freedom of religion in the United States. I have faith in the court system, the government, and even the people. I will be surprised if the contraceptive mandate survives to be fully implemented in its present form, but even if it does, that is not the end of freedom of religion in the United States. The “freedom” not to provide insurance to employees that may include—if the employee so chooses upon being contacted by the insurance company—contraceptive coverage is not the last thread of freedom that, once broken, will end freedom of religion in the United States. It is a fairly significant case, losing it will not amount to the pillar of religious freedom being torn down with the all other aspects of religious freedom toppling along with it.
As I have said a number of times, take a look periodically at Religion Clause Blog and observe that church-state cases continue to be decided every day, with “the little guy” (for example, Jews and Muslims in prison) winning against the government and getting accommodations allowing them to practice their religion.
There are all kinds of conflicts in the United States that are religious and religiously motivated, and there are indeed some people who are hostile to Christians. There are some Christians who are hostile to atheists. There are many who are hostile to Muslims. If this were not the case, we would not need the First Amendment and the courts. It is too much to hope for that all “conservative” Christians will want to grant full rights and freedoms to gay people, or that all gay people will want to grant full rights and freedoms to “conservative” Christians, or that HHS will always see insurance regulations from the Catholic viewpoint. This is why we have courts (among other institutions that try to mediate these disputes), and I have yet to see anything to shake my faith in the courts or in American democracy. Yes, there are cases where I think the wrong side wins and the right side loses. But I don’t see that as a general trend. Also, as with so many other concepts inherent in the constitution, the idea of religious liberty has yet to be fully defined, and it may never be. There is no golden age we can return to when there were clear guidelines for what religious liberty was and what it wasn’t, and no doubt there never will be.
August 4th, 2012 | 3:52 pm
At the very least, someone should acknowledge that people who established businesses have some kind of expectation interest in being allowed to run their businesses in conformity with their beliefs.
An expectation interest means that the people behaved as they did (by incorporating their business) with the understanding that doing so would not involve a requirement that one violate one’s religious beliefs.
Now the government wants to change the rules and say that creating a business means you voluntarily surrendered your rights to be guided by your religious beliefs in your own business.
People will argue that “everyone knew” that the government would place requirements on businesses, so it’s too late to complain that you didn’t know what you were getting in to when you decided to own a business.
But who could have predicted even 5 years ago that the government would mandate paying for contraceptives, sterilization, and abortifacients?
We went from having these things be crimes, to becoming negative rights that government can’t interfere with, to being paid for by government funds in several social programs, to now having the government mandate that individuals purchase for others.
Had people known ahead of time, they could have chosen differently about how to earn a living in a way that does not impose requirements that violate their faith. But it’s a bit late now to say – well if you don’t like it, get out of the business.
That is a completely unfair demand to make at the best of times. But in the midst of a terrible financial crisis and high unemployment, this is the last thing the government should be making people worry about.
August 4th, 2012 | 5:19 pm
David, next time you are googling around for your insights into constitutional law, try typing in the word “precedent”. Then perhaps you could learn why it makes a difference how important questions of interpretation are decided. It’s not just a crap shoot or that courts get to split the difference with regard to handing out “wins” and “losses” to competing sides to keep everyone satisfied.
If a court decides that the government can mandate that believers must engage in behavior they view as sinful, then that is the “meaning” of the first amendment. It applies to any other cases in the future where the government decides it wants to force people to sin.
The idea that you can determine whether religious liberty is being properly protected by simply looking at the number of wins and losses is absurd.
August 4th, 2012 | 7:00 pm
The idea that you can determine whether religious liberty is being properly protected by simply looking at the number of wins and losses is absurd.
The Left believes it can define religious liberty according to their own idea of what seems good to them.
They are Enlightened; anyone who disagrees with them is “superstitious” and all the other ad hominem.
(Toleration and coexistence becomes much easier when you’re the one who gets to decide when exceptions are warranted.)
August 4th, 2012 | 8:00 pm
I blogged my feelings (and, as I found out, those of my friends) that the response of Catholic Charities and business owners to Obamacare and the HHS Mandated fines for non-compliance: We Will Not Pay. I also suggest that our bishops should lead us in that response, versus shutting down Catholic businesses (as I know some are planning to do).
August 4th, 2012 | 10:48 pm
David, next time you are googling around for your insights into constitutional law, try typing in the word “precedent”.
slats grobnik,
Thank you for your helpful suggestion, so cordially offered.
But of course the issue of precedents is one of my major points. There is already a whole body of law protecting various religious liberties. That is not going to go away even if the contraceptive mandate is upheld. Jehovah’s Witnesses are not going to suddenly be forced to recite the Pledge of Allegiance. The Amish are not going to be forced to participate in Social Security. Unanimous Supreme Court decisions—e.g., Hosanna Tabor—are not going to be undone.
The idea that you can determine whether religious liberty is being properly protected by simply looking at the number of wins and losses is absurd.
What is absurd, of course, are statements like, “Today [August 1, 2012], freedom of religion dies in the USA.”
August 4th, 2012 | 11:24 pm
But who could have predicted even 5 years ago that the government would mandate paying for contraceptives, sterilization, and abortifacients?
Sally Rogers,
But state governments (New York and California), more than five years ago, mandated paying for contraceptives and “abortifacients.” Catholic Charities in both states filed suits, lost, and the Supreme Court refused to hear appeals.
I am a little mystified at your message here, because (and correct me if I am wrong—which I am sure you will!) this is a “Taco Bell” case. Back in February, Anthony Picarello, general counsel for the U.S. Conference of Catholic Bishops, said, the contraceptive mandate would be a problem for “good Catholic business people” and added, “If I quit this job and opened a Taco Bell, I’d be covered by the mandate.”
Up until that point, the USCCB had been complaining about too narrow a definition of what a religious organization was. Now Picarello was saying it’s not a matter of religious institutions (reasonably defined) being exempt from the mandate. Anyone who objected to it should be exempt. My impression was that pretty much everyone on both sides thought this was overreaching. Some thought it was a gift to the Obama administration to push the idea of exemptions so far. But now you seem to be appalled that a non-religious corporations, “Hercules Industries, a heating, ventilation, and air conditioning manufacturing company,” might not have the right to claim a religious exemption from a HHS regulation. You seem to be resurrecting the Taco Bell argument again.
August 5th, 2012 | 2:34 am
From the story: “But what most probably do not know–because it has not been reported–is that the Obama Administration argued that because the owners run their business through a corporate platform, they lose their rights to religious liberty under the RFRA.”
Interesting theory. I haven’t researched this point, but I’d love to see the legal support that they came up with to suggest that incorporation amounts to a waiver of statutory protections. I’ve read the statute and there is no provision in it that creates such a limitation.
So does that mean that if I, a woman, incorporate my sub-contracting business, I no longer can claim affirmative action protections or invoke gender discrimination with regard to contracting or other bias? Golly. Same, I suppose for racial discrimination against black-owned corporations. After all, corporations don’t have a race or a gender, just as they don’t have a religion.
August 5th, 2012 | 8:19 am
David, by “resurrecting the Taco Bell argument” are you referring to the fact that Congress does not have the power to use the most restrictive means possible, dictating that every Insurance Company must be a contraception provider without a compelling reason, so that those who do not wish to provide or purchase contraception, including abortifacients, that promote promiscuity and the sexual objectification of the human person, must choose between violating their Religious Faith, or not purchasing Health Insurance?
August 5th, 2012 | 2:29 pm
Here’s a quote from the website of the Baptist Joint Committee for Religious Liberty:
Here is a quote from the Department of Justice brief (Defendants’ Memorandum in Support of Their Motion to Dismiss the First Amended Complaint and Amended Memorandum in Opposition to Plaintiffs’ Motion for Preliminary Injunction) in the Hercules Industry case:
August 5th, 2012 | 7:45 pm
What I find most frightening about this is underscored by David Nickols’s last comment. There was no reason for the government to make this rule, considering that the services and drugs involved were already affordable and universally available. (Well, that’s not true, I can think of plenty of reasons, especially payback and attempts to purchase women’s votes, and plans to extend “morning after” abortifacients to all abortifacients). They could easily have granted broad exemptions once the outcry began, but they doubled down instead. And this rule is one of the very first in the law’s implementation — they chose to do this before requiring vital coverage such as mental health care and drugs people need to function on a daily basis. They don’t care about women’s health, they care about power.
This is not an example of the common good or a vital interest overriding personal convictions. For completely voluntary drugs and operations that have nothing to do with maintaining health or curing ailments, the United States government is choosing to destroy religious freedom. Why people aren’t terrified of the Obama administration after this is beyond me.
August 5th, 2012 | 9:37 pm
David Nickol — as has been pointed out nearly ad infinitum by now, this has nothing to do with superimposing an employer’s beliefs on an employee’s actions. The employee is still free to engage in any of the actions disliked by the employer, without any effect on his relationship to the employer.
If the definition of “you’re forcing me to live by your rules” is now “you won’t hand me the means to do things you disapprove of,” there really is no end to what could violations of conscience could be required of an employer merely in order to operate a business.
August 5th, 2012 | 10:51 pm
They could easily have granted broad exemptions once the outcry began, but they doubled down instead.
Gail Finke,
While I certainly understand why many Catholics and others are not happy with the Obama administration, I don’t think it is accurate to say they “doubled down.” When the protests began, the administration rather quickly backtracked, announced that religious organizations would be exempted from complying with the original set of regulations until August 2013, and HHS began taking suggestions for a new set of regulations. On the other hand, the USCCB went from complaining that the exemption for religious organizations was too narrow to saying that even private businesses should be exempt. So while I can understand why the “accommodation” offered by the Obama administration fell short of what many wanted, it was really the USCCB that “doubled down.”
At least two of the lawsuits by religious groups have been dismissed on the grounds of “ripeness”—that is, because it is too early to let suits go forward, since the regulations Catholics are objecting to haven’t been written yet.
They don’t care about women’s health, they care about power.
Once again, I will mention that the original source of the recommendations is not the Obama administration, but rather the non-partisan Institute of Medicine’s consensus report Clinical Preventive Services for Women: Closing the Gaps. The opposition to contraception is coming from a small group of “ultra-orthodox” Catholics (and some sympathizers). Only about 3% of Catholics for whom the Church’s teachings on contraception are relevant actually follow those teachings. I think if you surveyed the medical community, there would be overwhelming support for the idea that contraception and the other preventive services for women mandated by the HHS are very important, although that would not guarantee that this particular way of making them available would necessarily be widely endorsed. What HHS is mandating really amounts to standard insurance coverage for most people who obtain their health insurance through their employers. The only thing that will change for most insured people is the elimination of the copay.
August 5th, 2012 | 11:19 pm
David Nickol — as has been pointed out nearly ad infinitum by now, this has nothing to do with superimposing an employer’s beliefs on an employee’s actions.
pentamom,
If you are reacting to the quote I reproduced from the Supreme Court, please note that that’s not what the court said. United States v. Lee was a case involving an Amish employer who declined to pay into Social Security for employees. The Amish, who don’t believe in insurance, are permitted to opt out of Social Security themselves. However, they must abide by the law when they hire and pay workers who are participating in Social Security.
The court said that those who, because of religious beliefs, accept limits on their own conduct, are not allowed to “superimpose” those limits on “statutory schemes which are binding on others in that activity.” So if there is a “statutory scheme” that other employers must follow, and it includes contraception, employers who accept a ban on contraception for themselves cannot superimpose the ban on the “statutory scheme.” That is quite different from saying the employer is imposing his beliefs on his employees or their actions.
August 5th, 2012 | 11:37 pm
If the definition of “you’re forcing me to live by your rules” is now “you won’t hand me the means to do things you disapprove of,” . . .
pentamom,
To continue briefly, that is not what is being said. It is not being said that employers who oppose contraception and won’t provide insurance coverage for it would be forcing their employees to “live by their rules.” Rather, they would be depriving their employees of a benefit the government says all employees should have. Just as employees have a right to expect Amish employers (and all employers) to abide by government rules about paying into the Social Security system, employees have a right to expect Catholic employers (and all employers) to abide by HHS regulations.
When you are making the rounds looking for a job at, say, heating, ventilation, and air conditioning manufacturers, you should not have to check on the religion of the owners of each heating, ventilation, and air conditioning manufacturer you visit and ask what government regulations that particular manufacturer chooses not to follow on religious grounds.
August 6th, 2012 | 7:03 am
Blake wrote
“Toleration and coexistence becomes much easier when you’re the one who gets to decide when exceptions are warranted.”
It goes even deeper than that. Someone must decide; the question is who?
Rousseau saw this very well. ““Each man alienates, I admit, by the social compact, only such part of his powers, goods and liberty as it is important for the community to control; but it must also be granted that the Sovereign [The People] is sole judge of what is important,”
For “ if the individuals retained certain rights, as there would be no common superior to decide between them and the public, each, being on one point his own judge, would ask to be so on all; the state of nature would thus continue, and the association would necessarily become inoperative or tyrannical.”
His conclusion is well known: “whoever refuses to obey the general will shall be compelled to do so by the whole body. This means nothing less than that he will be forced to be free; [« ce qui ne signifie autre chose sinon qu'on le forcera d'être libre »] for this is the condition which, by giving each citizen to his country, secures him against all personal dependence.”
August 6th, 2012 | 9:00 am
Pentamom–you are right, but only technically. The claim (which I think needs to be taken seriously, even though I disagree with it) is not about superimposing an employers beliefs on an employees actions. Its about superimposing an employer’s beliefs on an employees rights. The whole point of the healthcare law is to establish obligations on insurance providers. We have to acknowledge what we want under the terms of this law implies that certain employees will have fewer rights against their insurance plan than other employees dependent on who they are employed by.
Everyone seems to think that this is an obvious application of religious liberty. However, I’m not sure that we can all agree on what religious liberty means.
August 6th, 2012 | 10:29 am
Mike, I agree with you that if we permit people to decide to use their religious principles in regard to how they run their business, this may result in differences for their employees. We have traditionally used the common law concepts of contract and labor relations to govern these relationships.
But in the US the idea of “religious liberty” is not generally a concept that governs relations between private individuals. Constitutional rights are limits on the powers of government, and when we speak of “religious liberty” that is usually short hand for 1st amendment protections on free exercise and the establishment clause. An employer can’t violate one’s constitutional rights because the constitution does not limit employers (except for the prohibition of slavery).
The relationship between employer and employee are governed by lots of common law limits, and there are more recent statutory restrictions, including a statute that requires “reasonable accommodation” of religious behavior of employees.
There are thousands of cases working out the meaning of reasonable accommodation, but I am not aware of any that hold that the employer must PAY for the employee’s exercise of their religion. So even if an employee’s religion requires them to use contraception, I cannot imagine a court holding that an employer must pay for them, or that if their insurance plan didn’t cover them the employer must go out and pay for a rider for that employee in the name of accommodating the “religious rights” of employees.
If you are implying that the health care law is being used in the name of a government role in resolving supposed religious disagreements between employers and employees, then all I can say is look out. This is an enormously expansive potential role for government, and one they are uniquely unqualified to fill.
August 6th, 2012 | 10:38 am
“Rather, they would be depriving their employees of a benefit the government says all employees should have. ”
Yes, but the government is saying that all employees should have this benefit regardless of whether it tramples on the religious rights of their employers, and that is precisely where the problem lies.
The issue isn’t whether businesses should get “exceptions” to avoid their rights being trampled on; it’s whether the government should make rules that bump up against rights of conscience in the first place.
The solution is simple: don’t require anyone to provide contraception for anybody else. That doesn’t require “making exceptions” making people schlepp around figuring out who gets the “exception.”
August 6th, 2012 | 11:01 am
The issue isn’t whether businesses should get “exceptions” to avoid their rights being trampled on; it’s whether the government should make rules that bump up against rights of conscience in the first place.
pentamom,
The problem is, you don’t want government making rules that “bump up against” your rights of conscience. If government is limited to making only regulations that don’t conflict with anyone’s conscience, it would be impossible for the government to make regulations. There are Americans (Amish, Muslims) who are religiously opposed to insurance. Should we not have Social Security? There are Americans who are opposed to gambling. Should we not have state lotteries? There are people who believe only in faith healing? Should the law protect their “rights” to let their children die for lack of antibiotics or blood transfusions? There were Americans who were religiously opposed to integration. There are Americans who are religiously opposed to divorce. Should we not have divorce laws? There were Americans who practiced polygamy as part of their religious tradition. Should it have been outlawed?
August 6th, 2012 | 2:32 pm
The problem is, you don’t want government making rules that “bump up against” your rights of conscience
Yes.
That’s how it works.
I bet you wouldn’t want the government forcing you to do something against your conscience, either.
For instance: a new far right President and a right-conservative Congress decide that you should have a direct paycheck deduction to cover parents who wish to “fix” their child’s homosexuality. I bet you would suddenly find that government’s power isn’t unquestionable if that happened.
August 6th, 2012 | 3:00 pm
it’s whether the government should make rules that bump up against rights of conscience in the first place.
I think that if the birth control were, first of all, real health care (as opposed to a lifestyle choice, more akin to sunscreen or a motorcycle helmet than to something that actually prevents illness or injury), and if it were necessary on top of that, then it might be different.
The fact that we’re expected to pay for someone’s recreational activities with the funds (and political capital) that was supposed to be for real medical necessity is galling.
August 6th, 2012 | 3:22 pm
Blake,
Government power is never unquestionable. But government can’t make regulations that will please everyone. That is why we have opposing political parties, elections, and courts—to make sure everyone’s interests are represented. I am not denying anyone’s right to detest the HHS regulations or fight them tooth and nail. I am saying it is naive to say that the government should never make rules to which exceptions need to be made or against which lawsuits shouldn’t need to be filed.
August 6th, 2012 | 3:53 pm
The fact that we’re expected to pay for someone’s recreational activities with the funds (and political capital) that was supposed to be for real medical necessity is galling.
Blake,
You are not being forced to pay for anything. The insurance company absorbs the cost, if there is a cost to absorb. But contraception almost certainly saves both the employer and society money. Also remember that the abortion rate is directly tied to the rate of unplanned pregnancy. If unplanned pregnancies can be reduced, the abortion rate will decline as well.
August 6th, 2012 | 4:53 pm
David,
There is no evidence (and I mean NO evidence) that increasing the availability of contraception decreases the abortion rate. In fact, what evidence that there is seems to suggest the opposite. (Increased availability of contraception increases sexual activity among the unmarried – which tends to, in spite of all of that contraception, increase unplanned pregnancies).
August 6th, 2012 | 5:40 pm
There is no evidence (and I mean NO evidence) that increasing the availability of contraception decreases the abortion rate.
Steve,
I agree that all the contraceptives in the world will not decrease the abortion rate . . . if people don’t use them.
In fact, what evidence that there is seems to suggest the opposite.
Not from what I have read. The difference between the high unintended pregnancy rate and the high abortion rate in the United States, and significantly lower rates in, say, European countries is not the amount of sexual behavior, which is comparable, but the fact that young Americans don’t use contraception at anywhere near the rate young Europeans do. Will the contraceptive mandate (if it survives) get people to be more conscientious about using contraceptives? I don’t know, but one can hope. But it will take more than making contraceptives available. People have to be educated to use them. And by educated I don’t mean just taught how. I mean taught to.
August 6th, 2012 | 8:11 pm
“Will the contraceptive mandate (if it survives) get people to be more conscientious about using contraceptives? I don’t know, but one can hope. But it will take more than making contraceptives available. People have to be educated to use them. And by educated I don’t mean just taught how. I mean taught to.”
Maybe they could be taught to ask even more interesting questions. I would hope people would be more conscientious about having sex and taking responsibility for themselves. I hope they will be educated to delay sex until marriage, and delay marriage until they are capable of raising a family. Do you think values like these will be taught to our youth? Will US schools try to inculcate a conservative moral code?
I don’t either. The high numbers of unplanned pregnancies and abortions are not the legacy of conservative moral values, let alone those of conscientious Catholics who disapprove of sex outside of marriage, contraception, abortion and sterilization. It is pretty rich that the very people who brought those pathologies are foisting the “fix” on everyone else, including those who have objected to sexual promiscuity and irresponsibility all along and who have predicted the miserable consequences.
August 6th, 2012 | 9:23 pm
Wesley says in his article: “the arguments made by the Obama Justice Department make this “A Religions Freedom Election.”
I’m afraid I have to agree. I for one have very little confidence that courts will offer meaningful protection with respect to the emerging religous liberty conflicts inherent in the culture war issues like the HHS mandate and same sex marriage issues.
Everyone can see how these legal disputes will play out — Under a RFRA analysis, Courts just have to say: “you’re not suffering a substantial burden on your religion, or if you are, the government has a compelling reason to do so.” Under a constitutional challenge, all the court needs to say is “these are neutral laws of general applicablility”. End of story. No exemption for you!! A child of 12 could write the opinion with very little help.
Just like this argument about “using a corporate form waives one’s religious liberty rights,” I’m sure we’ll hear many more creative reasons why religous people and groups don’t deserve to have their hateful and bigoted views on same sex marriage protected outside of the “privacy of one’s home.” And if politics is our only refuge, you can bet the partisan divide is going to become even more sharp and acrimonious.
So, although I hate to think that religious liberty will just become another political football to be tossed around in the partisan battles, I honestly see it coming to this.
These religious liberty disputes are going to be a further divide between democrats and republicans, and I think we can all guess which party is going to adopt which position, at least as long as they can see some partisan benefits in taking a position. Aren’t the democrats adopting a gay-marriage plank as we speak?
Fasten your seat belt folks, it’s going to be a bumpy ride.
August 7th, 2012 | 4:29 am
In our concern for religious freedom, we should not overlook the very real danger that creating exemptions to general laws can foster a form of communitarianism, with ethnic and religious solidarities and allegiances threatening to override republican unity and with particular interests undermining the general will.
Americans would do well to heed the reactions, both on the Left and on the Right to l’affaire du foulard [the headscarf ban] and the burka ban in France and to ponder the question asked by Rachida Dati (herself a Muslim], when she was Minister of Justice, “If the rights of citizens are to vary in accordance with their religious affiliations, how is the republic one and indivisible?”
August 7th, 2012 | 7:20 am
Peg,
“It is pretty rich that the very people who brought those pathologies are foisting the “fix” on everyone else, including those who have objected to sexual promiscuity and irresponsibility all along and who have predicted the miserable consequences”
The Netherlands is, in the conservative imagination, one of the most depraved and hedonist environments on the globe. Like Americans, Dutch teens have sex for the first time around 17, but they report greater satisfaction and less regret about the experience. It is also more likely to be a long-term relationship. They use contraception more effectively than Americans, and they have one of the lowest abortion rates in the world.
How have they managed to have both high contraception rates and low abortion rates without the benefit of “conservative moral values”?
Contraception is not a quick fix. It needs a culture that supports it, which the Dutch have and we do not.
August 7th, 2012 | 10:25 am
Everyone can see how these legal disputes will play out — Under a RFRA analysis, Courts just have to say: “you’re not suffering a substantial burden on your religion, or if you are, the government has a compelling reason to do so.” Under a constitutional challenge, all the court needs to say is “these are neutral laws of general applicablility”. End of story. No exemption for you!! A child of 12 could write the opinion with very little help.
sally rogers,
It sounds very much like you believe the courts (including the Supreme Court, I assume) have their minds made up about the outcomes they want to see, that they’ll first decide how they want religious liberty cases to turn out, and then they’ll use the language of the various legal tests to justify whatever outcome they decide on. You seem to be saying that judges will say to themselves, “If I decide this amounts to a substantial burden, I’ll have to rule in favor of religious organizations, consequently, I’ll say it’s not a substantial burden.”
Certainly judges have ideologies and judicial philosophies that strongly color their interpretation of the law. But you seem to be saying something different. You seem to be saying that instead of applying the various tests conscientiously, and perhaps being strongly inclined to certain views by judicial philosophy and political ideology, they will see the tests as supporting the outcome they want, they will simply decide what outcome they want and claim to have applied the test, but in reality will cynically use the language of the tests to claim their decisions are valid.
August 7th, 2012 | 11:03 am
Michael PS mentions the threat of “ethnic and religious solidarities and allegiances threatening to override republican unity and with particular interests undermining the general will.”
I agree it is likely that our culture will continue to fracture along various lines, but it’s always done that. The idea that people should give up their religious convictions and be subsumed into a “republican unity” for the sake of the “general will” sounds kind of scary to me. Who gets to determine the requirements of the unity and the general will?
We have a very long and rich history of granting generous statutory exemptions to religious minorities, and in my opinion this has strengthened our unity. Coercing people to give up important parts of their identity does not generally advance a sense of national unity.
August 7th, 2012 | 1:55 pm
Sally Rogers
I was not talking of restricting the religious beliefs of individuals, but of excluding their intervention in, or impact on, the relations between private individuals and public authorities.
However, there is a serious difficulty to be resolved, which is new and disconcerting: this is the fact that Islam is not only a religion, but contains a social and political dimension, and hence an ideology capable of inspiring a practice. Consequently, it is necessary to separate what is religious in it from what is not. This is a delicate operation, for which the state is not competent and which Muslims are loath to carry out.
The object is to encourage Islam to be only a religion, which does not have its place in the public sphere (and hence in state schools), but which can be freely practiced in society. As for the political aspirations of Muslims, they can be expressed and organized in the framework of the secular state – which should urge them to acquire and exercise their citizenship. Thus, secularism aims to limit Islam to its religious aspect, while encouraging Muslims to be full citizens.
In this respect, the recent French law on religious symbols in schools is an initial measure which, despite its limitations, must not be underestimated and whose significance should be stressed. In effect, it constitutes a clear message to all the Muslims living in France, by establishing a reasonable restriction on Islam and clearly marking out the domain of the state. Beyond its immediate objective, it has a symbolic function and an educational value, for it indicates the path to follow to be integrated into French society and participate in it. Indeed, this law already forms part of the process of integration and helps to encourage it.
August 7th, 2012 | 4:15 pm
Michael PS, thank you for explaining the French view on the question of how to go about encouraging secularization. It is very interesting, but it is also very different from the American understanding of both the role of the state and the role of religion in society.
Americans do not generally view the accommodation of religious practices to be as threatening as French people seem to do. I cannot imagine the US seeking to do as the French have done in seeking to limit religious expressions, or keeping it away from having influence on political questions.
The idea that is possible and desirable to define what is “religious” and what is not “religious” in relation to a particular faith community’s practices is not the way the US has generally gone about resolving conflicts between faiths.
Rather, the general approach to religious variation in the US has been to define minimum requirements for social order that everyone must abide by (e.g. often the criminal law but also some administrative regulations) and then to determine how far we can accommodate variations from the norm through various legislative exemptions. This has been the accepted practice by most people of all political persuasions – left and right have tended to agree on it for most of US history.
There are arguments about how far to go with regard to minimal requirements, and how many and what kinds of accommodations are reasonable, but not with the general framework.
In general, I think this approach is more in keeping with the idea that the government should keep out of most matters and leave individuals and communities alone unless absolutely necessary for some important social end.
That is why it is very unlikely that a law banning distinctive religious dress would be popular here (and would likely violate our Constitution). It’s viewed as none of the government’s business how people want to express their religious faith unless there is some clear and pressing need to do so. And forging national unity is not seen as a clear and pressing need in the US.
With regard to the HHS mandate for religious people to pay for contraceptive coverage, people are arguing about whether or not it is reasonable to give them an exemption from the mandate, but I don’t believe the argument is that the state simply must have broad authority to define what is necessary in order to create some kind of national unified identity.
The dispute is more about what are sufficient grounds for burdening religious beliefs and practices. Some say free contraceptives are so important and the burden is so slight that it’s reasonable to put the requirement on religious believers, and some argue the opposite (that the need for free contraceptives is not so important and the burden on religious believers is excessive) At least, that is how I have understood the dispute.
It is probably true that the religious believers will feel more alienated from the society by more unreasonable impositions on their religious faith, so I suppose it should be taken into account – but that concern argues in favor of exemptions, not against.
August 8th, 2012 | 5:00 am
Sally,
“I’m afraid I have to agree. I for one have very little confidence that courts will offer meaningful protection with respect to the emerging religous liberty conflicts inherent in the culture war issues like the HHS mandate and same sex marriage issues”
I think you’re overlooking the central role women play in all of this. Women’s activists are behind the HHS mandate. They are the ones agitating for contraceptive coverage. On the other hand, they have no interest in otherwise restricting the Roman Church’s practice of discriminating against women. There’s been no movement outside the Roman Church to force it to admit women to the priesthood or ordain female bishops. A corporation could never get away with the kind of discrimination the Roman Church practices. I think this fact should give you more confidence into how the courts and ordinary people will draw lines.
Similar lines will be drawn around gay marriage. If Catholic Charities is willing to let a single woman adopt a child, why not two women? The Roman Church’s inability to answer that question reveals an unacceptable and unequal standard. Otherwise, the Roman Church will be free to continue to discriminate against gays in lots of other ways, just as it has been left free to discriminate against women.
By the way, I always learn a lot from Michael PS’ posts. He’s conservative and Roman, but his posts make clear that no American liberal would ever separate church and state as France has. We just don’t think that way. But that fact hasn’t prevented First Things from beating the drum and claiming that American liberals are out to destroy religious liberty. The sky isn’t falling. Really.
August 8th, 2012 | 8:47 am
Sally Rogers
Thank you very much for your thoughtful exposition of the American perspective.
In Europe and in France in particular, there is a strong tendency for the state sphere, while remaining important, to be reduced in favour of civil society, which is set to expand. Consequently, religion, which has its natural place in civil society, is seeing its domain expand and its rôle increase, despite growing secularization. Laïcité is necessarily affected and restricted as a result..
By transferring various traditional state functions to civil society – e.g. cultural, educational or humanitarian matters – the state offers religions new arenas of possible action. If religions exercise responsibilities in society, the field of application of Laïcité is reduced.
Unfortunately, this means that the boundary separating state and civil society tends to be erased or becomes porous and easy to cross in both directions. The state constantly intervenes in the life of civil society and both supports and restricts it in many ways. Conversely, civil society (individuals, groups, associations, enterprises, &c) does not hesitate to penetrate the state, to obtain state support (including financial support), and to promote its own particular interests.
Thus, in the US, one sees the state expanding its rôle in health care and the religions receiving state support for their humanitarian missions. In such a situation, preserving the principle that the state does not recognise, salary or subsidise any religion becomes difficult.
August 8th, 2012 | 10:31 am
Michael (not PS),
I cannot agree with you that there will be a very simple limit to the effects of these culture war issues on believers. If you’d like to read a book in which legal authorities from several perspectives assess the question, I would recommend “Same Sex Marriage and Religious Liberty: Emerging Conflicts”, edited by Douglas Laycock. There’s a range of views about how to resolve the conflicts — some favor religious exemptions and some do not, but none of them says “oh, there won’t be any important conflicts”.
Michael PS – you mention that “the principle that the state does not recognise, salary or subsidise any religion becomes difficult” as the role of the government moves into more sectors of civic life.
This may be true, but we don’t hold to this principle in quite the same way. The state cannot directly support religions under our Establishment clause, but neither can they disfavor religions by excluding them from consideration for the provision of services. There is no principle that requires the state to refuse to recognize, or subsidize (indirectly) religious organizations.
So if a Catholic university, for instance, is accredited, then students attending that school can receive federal grants to cover tuition. If a medicare patient goes to a Catholic hospital, the government reimburses the hospital for the care received. If a Catholic agency provides care for the poor, they can apply to the state for grants from the state to subsidize that work, just as any other non-religious agency can.
This is considered neutrality. Not favored or dis-favored but judged under a set of neutral criteria that applies to everyone.
However, as the values informing the broader society are diverging from the religious values of some believers and organizations, there is a new attention to the question of “what does neutrality mean?” or “how should be define the neutral criteria that will apply to everyone?” These are the things that are shifting, and not just for religious organizations but for all private individuals as well.
August 8th, 2012 | 3:36 pm
David,
The “non-partisan” Institute of Medicine may call itself just that, but it is hardly a non-partisan agency. Many, if not most, of its members have ties to Planned Parenthood or other groups that defend abortion. Many, if not most, of its members had given quite a bit of money to pro-choice candidates. See more here:
http://www.thepublicdiscourse.com/2011/09/4031
August 9th, 2012 | 9:19 am
Sally Rogers
Thank you again for your comments.
No one, I imagine, objects to the sort of “indirect subsidies you list.
In France, for example, if private schools (including faith schools) enter their students for the public examinations, the state will pay the salaries of the teachers and librarians (but not of other staff). this is providing public instruction, not subsidising religion.
Similarly, the legal requirement that all public schools must close for a half-day every week, so that the pupils may receive religious instruction, should their parents wish is seen as a recognition of the right of parents to educate their children according to their own beliefs.
In the same way, holidays of obligation are also national holidays: Christmas, Ascension, Assumption and All Saints (The bishops wanted Corpus Christi [Le Fête-Dieu] as well, but the government told them they could only have one holiday that always fell on a Thursday, as people would treat it as a long weekend, So, the bishops chose Ascension Day instead.)
Again, many ancient churches are maintained by the state as historical monuments, the congregation being allowed to use them for worship without charge.
Laïcité does not mean hostility to religion; it means excluding it from the domain of the state and its administration.
“These are the things that are shifting, and not just for religious organizations but for all private individuals as well.” That is very true; I see little chance of us going back to a time when the state provided a legally codified order within which social customs, economic competition, religious beliefs, and so on, could be pursued without interference.
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