Except under a narrowly defined religious exception, the requirement under the Affordable Health Care Act that employers provide insurance that pays for contraception and other reproductive services, even when employers are religious institutions with long-standing convictions opposed to the use of contraception, has justifiably been sharply criticized. Basically, unless an employer employs mainly church members who teach the faith to other members of that faith, then the religious exemption does not apply.
And the imposition on religious practice necessarily imposes on religious beliefs. An open letter drafted by the President of the Lutheran Church-Missouri Synod, and signed by numerous other religious leaders, says that No government should tell religious organizations either what to believe or how to put their beliefs into practice. We indeed hold this to be an unalienable, constitutional right.
Christians do not enjoy the luxury of separating belief from practice. In the Sermon on the Mount, Jesus tells those listening to him that everyone who hears these words of mine and acts on them, may be compared to a wise man who built his house on the rock. While everyone who hears these words of mine and does not act on them, will be like a foolish man who built his house on the sand. Jesus later tells his disciples that they serve him when they clothe the naked, feed the hungry, and visit the sick and imprisoned. The theme resonates throughout the Scriptures, New and Old Testament alike: Christians do not have the option of believing that Jesus brought the Age to Come to earth for them without also ( mutatis mutandis ) inhabiting the Age to Come.
But religious leaders have not merely argued that Christians must enact their beliefs, and that, therefore, these practices should be tolerated in a liberal democracy. They have argued that they have a right to implement these practices.
The problem with rights talk, however, stems from the same source as its attractiveness ”it makes a universalistic appeal based on the generic category of religious practice. It is not a plea that a largely Catholic commitment be uniquely tolerated. Rather, the leaders endorse a principle that every religious organization has a right to put their beliefs into practice. This principle would protect a set of practices much wider than merely the set of Christian practices by Christian organizations, and even wider set than the set of unobjectionable religious practices.
Over a century ago the U.S. Supreme Court introduced the legal distinction between religious belief and religious practice. In the 1879 case of Reynolds v. United States , the Court first construed the Constitutions free exercise clause in considering whether a Mormon had the right to practice polygamy. The justices unanimously endorsed the distinction that Chief Justice Waite drew between protected belief and protected practice :
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?
Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.
I would guess that those opining against the contraceptive requirement would agree that numerous religious practices should not be protected as a matter of unalienable, constitutional right. Beyond the couple that the Court listed in Reynolds , I would guess that most commentators would support a requirement that blood transfusions be given to the children of Jehovah Witnesses, despite their religious objections, if they are necessary to prevent death or serious injury to their children.
More fancifully, if a racist religious organization established a hospital, I assume most would endorse the application of laws prohibiting racial discrimination to the religiously run hospital. Less fancifully, older congregants in some denominations today may still recall when the very practice of insurance itself was under suspicion, as contrary to trust in Gods providence.
To be sure, these statements and commentaries aim to engage mass public opinion, where fine distinctions cant always be made. So it could be that the commentators are really advocating for broadening how the protection afforded by the Free Exercise Clause is currently construed by the Supreme Court. The Court announced in its controversial 1990 decision of Employment Division v. Smith that the Free Exercise Clause does not apply to activity regulated by valid and neutral law of general applicability. (Scalias opinion for the Court basically aligned the Courts free exercise jurisprudence with its criteria for evaluating whether government laws are racially discriminatory under the 14th amendment.)
Absent evidence that the contraception requirement was motivated by anti-Catholic animus, the decision in Smith suggests that the Court would hold that the Free Exercise Clause does not apply to the insurance requirement.
The most plausible alternative to the rule announced by Justice Scalia for the majority in Smith is the rule contended for by Justice OConnor in her concurring opinion. She argued for what she styled as the settled rule before Smith : Even if a valid and neutral law of general applicability trenched on a religious practice, the application of the law to the practice would be sustained only if the courts found that the law served a compelling governmental purpose and was the least restrictive means of achieving that purpose.
This rule would have the convenience of addressing many of the problem areas identified above”for example, parents who believe that recourse to traditional medical care is a sin would have the right to dictate their childrens medical care, except when that religious belief places their childs life in danger. In that case a compelling interest would exist and the government could compel medical care for the child. OConnors rule would allow government policies to better accommodate religious practices.
Yet while a doctrinal shift to OConnors rule for adjudicating free exercise cases would greatly expand the set of religious practices protected by the clause, it is unclear that it would actually help with the contraception requirement that prompted the present outcry. Given the Courts jurisprudence on contraception since the 1960s, it is easily conceivable that the Court would simply maintain that facilitating contraceptive choice is a compelling state interest that justifies the government in imposing the requirement on religious institutions that employ and serve non-members.
The alternative that seems to me to have the highest probability for success is the pursuit of a political rather than legal remedy: Appeal to elected representatives and bureaucrats for a legislatively or bureaucratically enlarged religious exemption.
With the shift, however, the argument moves from the realm of right into the realm of toleration. Hence, the argument would be that Catholic practice on this issue should be tolerated in the U.S. given the size of the Church, the contributions it makes to civil society, and a relative weighting of equities between affected parties. This argument gives up the high ground of abstract and universal principle. But a request for toleration seems better poised for success without arguing for sweeping protection of dangerous practices that even few making the rights argument think should be protected.
James R. Rogers is department head and associate professor of political science at Texas A&M University. He leads the New Man prison ministry at the Hamilton Unit in Bryan, Texas, and serves on the Board of Directors for the Texas District of the Lutheran Church-Missouri Synod.
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