A Back-and-Forth on the Contraceptive Mandate

From a conversation (names and identifying information removed):

If the Catholic Church wants to contemplate something that is far more relevant, perhaps they should consider the irony of their outrage against the Obama administration for originally requiring them to provide contraceptive coverage in their employee health insurance plans. While the Church is claiming that Obama is forcing his beliefs on THEM, isn’t that exactly what they are doing to every female employee — even the non-Catholic ones — who work for them? Now that is outrageous.

To which I replied:

If Catholic employers were somehow preventing female employees from spending their salaries on birth control, there would be some irony to their call for religious freedom. It would also be a violation of the free exercise clause — just like the President’s mandate.

And back:

There are religions who don’t believe in voting. If that church employed people who weren’t members of their religion and refused to give employees time off from work to vote (which is required by law), do you think that would stand up to Constitutional muster? What about churches that own housing? What if they want to ignore fair housing laws and refuse to rent to single mothers or gay couples? I think there is a fine line between having the freedom to practice your own religion and denying non-member employees access to contraceptives covered by their healthcare insurance when public policy requires all other employers to provide that benefit.

Here is my final response:

You carelessly use the word “denying,” as you carelessly used the word “forced” in your OP. I have seen this carelessness consistently in all anti-exception arguments, and I come to wonder: is there now a widespread belief in this country that refusal by Entity X to specifically *pay* for Good Y on behalf of Entity Z is “denial” of Product Y to Entity Z by Entity X?

By this standard, it seems to me that handgun purchases must be fully subsidized by the government, because gun ownership is a constitutional right — but this is absurd. A refusal to pay is not “denial.” It is a *refusal to participate*, and implies no curtailment whatsoever on Entity Z’s constitutional liberty to purchase Product Y with his or her own resources. This feels to me like I’m splitting hairs, but I’ve seen the mistake made so often now that I feel like it must be important for reasons that escape me.

Anyway, of your two examples, both would (generally) pass Constitutional muster. Separation of church and state is a two-way street. Indeed, your housing example is specifically contemplated by and exempted in the Fair Housing Act of 1968 (even though the exemption manages to circuitously limit discrimination on the basis of race anyway, assuming religions requiring it are not bona fide religions). The Religious Freedom Restoration Act goes even further in protecting the special sphere of religious practice in this country. However distasteful — and even evil — I find the practice of some heartless and happily hypothetical religious charity denying housing to an otherwise blameless single mom, the First Amendment demands that I defend to the death that charity’s right to do so. Employees have even less ground to stand on, since they were under no compulsion to sign a contract with a religious employer anyway, knowing that that employer could not in good conscience act the way other employers typically act.

It is a little surprising to see so many people who understood this principle (and even took it rather further than the Constitution demands) in the case of Fred Phelps so ready to ignore it in the case of the Roman Catholic Church.

Until now, there has never been a serious possibility of a major, bona fide religion coming into intractable, dogmatic conflict with federal antidiscrimination/entitlement laws, so case law on this point is fairly thin. Nevertheless, the courts have a strong record of upholding the rights of religious organizations to carry out their bona fide missions without undue burden by the state. They have no choice, given the text and history of the Constitution and federal statutes affirming religious liberty in these and similar matters. In light of Hosanna-Tabor’s unanimous opinion, I am frankly astonished the President believes this mandate could possibly survive judicial scrutiny.

That last point is why I am not worried, though I am very much annoyed by the President’s illegal infringement on my former employer’s rights of conscience. The only practical effect of this kerfuffle will be to make President Santorum ten times more likely.

***

The response I received?  “Zzzzzz.”  My interlocutor was and is a friend, but I find it nevertheless amusing to observe that the progressive response to a patent attack on the Constitution and the Church — and this is a progressive who defended Fred Phelps, so it’s not like he can’t see the problem here — is boredom.  Progressivism is not happy with religion, and is happy to turn a blind eye to an attack on its fundamental freedoms as a result.  What happened to the ACLU that once defended the free expression rights of Nazis?

Also, to be fair, my reading of the Fair Housing Act of 1968 is, in retrospect, strained, since the exemption in question seems only to protect religious discrimination on the basis of religion.  The Religious Freedom Restoration Act, however, serves as robust statutory protection for such cases, so long as they pertain to bona fide religious guidelines.

Update 20 Feb 2012: I must have struck a nerve; my friend has unfriended me.  He had always promised to do so to anyone who spoke uncivilly of our President.  I don’t believe I crossed that line.  It’s a shame, but, in this day and age, when politics are raised to the level of religion (and frequently beyond), and the country’s diverse political communities crash daily on the internet, it takes a Herculean capacity to indulge contrary political beliefs enough to allow even a small friendship space to grow.  I’ve never been on the breakup side of a relationship over politics, but I’ve been on the broken-up side often enough that I’ve nearly learned not to take it personally.

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