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The Contraceptive Clash: Not About Religious Rights

In the continuing flap over the Obama administration’s decision to require Catholic institutions to provide birth control under the new health care law, both sides have failed to come to grips with the complexities of religious liberty.    

In the continuing flap over the Obama administration’s decision to require Catholic institutions to provide birth control under the new health care law, both sides have failed to come to grips with the complexities of religious liberty.  

In the weeks since the mandate was announced in January, opponents have charged that President Obama is launching an “assault on religion” that will foist a secular ideology on America’s faithful.  They assert that requiring Catholic hospitals and universities to provide contraception in employee health plans is a gross infringement on the freedom of conscience.  Surprisingly, supporters of Obama, and even the president himself, implicitly grant the crux of this argument.  They put the question in terms of finding a “balance” between religious free exercise rights and public health needs.

Even after the administration’s latest accommodation of the Church announced on Friday — requiring that insurers, rather than the Catholic institutions themselves, cover the cost of birth control — few opponents have been assuaged.  Rep. Jim Jordan of Ohio called the move a “fig leaf, not a compromise.”  Under the new plan, he complained, Catholic institutions “will still be forced to pay an insurance company for coverage that includes abortion-inducing drugs.”  For Miami archibishop Thomas Wenski, Obama’s attempt to strike a balance is “too little, too late.” 

A foray into First Amendment law and the political philosophy of religious toleration reveals that in reality there are no tradeoffs here — there is no balance to be struck.  Political considerations fueled the administration’s policy pivot on Friday, but religious liberty, properly conceived, was never at stake.  

Universities and charitable organizations may be said to have an ethos, or a mission, but it contorts the concept to say that institutions as opposed to individuals have a “conscience.”  Even if we assume for the sake of argument that a university has a conscience that can be compromised, there is scant support in law or theory for the idea that paying for someone else’s purported sin, under the requirements of a law that applies equally to all, constitutes an abrogation of any right.

Although Rush Limbaugh joins the entire Republican presidential field and many American bishops in alleging a constitutional violation in the Obama administration’s decision, Limbaugh’s reverence for Justice Anontin Scalia (“one of my all-time favorite Supreme Court justices”) should give him a bad case of cognitive dissonance.  Scalia was the author of the 1990 decision in Employment Division v. Smith which denied that two Native Americans who had been fired for using peyote in their religious worship were entitled to unemployment benefits under the Free Exercise Clause of the First Amendment.  Since the men had violated a “neutral law of general applicability” criminalizing hallucinatory drugs — and were not singled out on the basis of their religion for discriminatory treatment — they had not suffered an unconstitutional deprivation of religious liberty.  

While many commentators believe that Scalia’s ruling in Smith went too far in limiting religious freedoms, it remains the Supreme Court’s guiding precedent on Free Exercise claims.  It would be very difficult to portray the Health and Human Services guidelines as anything but neutral and generally applicable.  The mandate provides that every new health insurance plan must include preventive care for women, including disease screenings and contraception, free of charge.  Whatever else you might say about these rules, there is no lurking agenda here to insult the Catholic Church.  The impact on Catholic institutions is incidental, as it was on the Native Americans whose sacramental drug use happened to fall in the category of illegal activities.  And in this case, the impact is less than negligible: no individual Catholic is required to prescribe, or provide, birth control to anyone and (according to Obama’s announcement on Friday) no Catholic institution will be asked to spend a penny on these services.  The mandate requires only that women who work at Catholic institutions be provided with benefits that include preventive health services.

Clearly, Obama did not set out to stick it to Catholics, just as Oregon did not seek to persecute the Native Americans.  By offering an exemption from the mandate to churches that employ and serve exclusively Catholics — as opposed to hospitals, charities and universities that employ individuals from the wider public — the administration went above and beyond what the Constitution requires. 

But so much for the law.  Is there theoretical support for exempting all religious institutions from controversial requirements of the health care law?  Is it a requirement of liberal justice to allow Catholic hospitals and universities to refuse to provide health plans covering services that are anathema to Catholic teachings, even if Supreme Court jurisprudence says otherwise?    

A powerful argument drawn from the history of religious toleration would suggest the answer is no.  John Locke’s Letter Concerning Toleration may be a touchy place to turn in this context, in light of his comment that toleration should not apply to Catholics and Muslims because they are loyal not to their governments but to a “foreign prince” (the Pope and the Mufti, respectively).  But we can look beyond this empirically false assessment to Locke’s more revealing analysis.

For Locke, the state has authority only over what he calls the individuals’ “civil” interests of “life, liberty, health, indolency of body, and the possession of outward things.”  Religious interests, by contrast, are the province of churches, which look after your soul with an eye to your eventual salvation.  This institutional differentiation implies the state should lay off when it comes to religious matters. 

But not every religious practice can, or should, be tolerated.  That which is unlawful in the commonwealth is also unlawful in the church.  Religious rites such as sacrificing infants, Locke writes, “are not lawful in the ordinary course of life, nor in any private house…therefore neither are they so in the worship of God.”  Acts normally forbidden by the state are forbidden in all contexts, religious or not.

Does it follow that acts normally required by the state should be required generally, even for religious institutions whose teachings point the other way?  Locke’s logic does seem to work in the inverse.  The reason we condemn child sacrifice within the walls of religious institutions just as strongly as we deplore it in private homes is because protecting the lives of children is a vital civil interest.  The Obama administration’s demand that religious institutions provide preventive health services for women falls in exactly the same category.  As the President put it on Friday, “No woman’s health should depend on who she is or where she works or how much money she makes.”

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The “civil interest” at stake here may not approach the magnitude of the public interest in preventing the horrific crime in Locke’s example.  But as three members of the Senate pointed out in the Wall Street Journal on Tuesday, birth control is a crucial public health matter: “Access to birth control is directly linked to declines in maternal and infant mortality, can reduce the risk of ovarian cancer, and is linked to overall good health outcomes.”  By providing no-cost contraception to the hundreds of thousands of women who work in Catholic institutions, the mandate promises to improve health and save lives.

It is time to put an end to the hyperbolic charges that Obama is waging a war on religion.  John Boehner’s claim on the floor of the House of Representatives on Tuesday that the mandate represents “an unambiguous attack on religious freedom in our country” is unambiguously baseless. The Health and Human Services guidelines serve important public health goals and threaten no defensible concept of religious liberty.

Steven V. Mazie is Associate Professor of Political Studies at Bard High School Early College-Manhattan.  He holds an A.B. in Government from Harvard College (magna cum laude) and a Ph.D. in Political Science from the University of Michigan. Mazie’s recent publications include “Up from Colorblindness: Equality, Race and the Lessons of Ricci v. DeStefano” (2011), “Rawls on Wall Street” (2011), “Equality, Race and Gifted Education: An Egalitarian Critique of Admission to New York City’s Specialized High Schools” (2009) and Israel’s Higher Law: Religion and Liberal Democracy in the Jewish State (2006).  He has taught previously at the University of Michigan (1998), New York University (2001) and Bard College (2005, 2011).

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