Sunday, February 26, 2012

Catholics, Contraceptives, and the Constitution

Requiring Jews to remove their yarmulkes--it's not just about head-wear uniformity.
Requiring Jehovah Witnesses to salute the flag--it's not just about national unity.
Requiring Seventh Day Adventists to work on Saturday--it's not just about working weekends.
Requiring Amish to keep their children in high school--it's not just about education.
Requiring Quakers to agree to bear arms--it's not just about possible military needs.
Requiring Mennonites to be photographed--it's not just about driver identification.
Requiring a Sikh or Hasidic man to shave--it's not just about good grooming.
Requiring students to remove their crosses, chai pendants, Allah charms, or other religious symbols--it's not just about school harmony.

And requiring Catholics to provide contraceptive and morning-after coverage--it's not just about health care.

All of these, of course, are also about religious liberty.
Only someone deliberately indifferent to religion, or to someone else's religion, or blindly partisan on one side of these issues, could fail to appreciate how these implicate religious liberty.

All of these interfere with religion.
All require violation of of religious beliefs.
All prohibit adherence to religiously dictated practices.
All violate the literal command of the 1st Amendment: that there be "no law" prohibiting the freedom to exercise one's religion.
All even violate a less absolutist, more flexible and realistic view of the 1st Amendment: that religion must be accommodated when reasonably possible.

And every one of the foregoing requirements is in fact amenable to a reasonable accommodation for religious freedom.
Including the contraceptive and morning-after requirement.
As when the Obama administration adopted such an accommodation--albeit under political pressure, as opposed to constitutional command.

No, not every religious practice or belief can be, or need be accommodated.
Also obvious.

Contrast the previous list of requirements to the following:
Requiring religious believers in human sacrifice to forgo their practice.
The same for honor killings or the killing of heretics.
Requiring religious segregationists to serve customers at their restaurants and hotels, regardless of race.
Requiring religious fundamentalists to admit women to their affiliated law and medical schools.
Requiring faith-healers to allow life-saving medical treatment for their children.
Requiring religious objectors to have their children vaccinated against fatal disease.
Requiring the end of religious marriages and sex with children.
Requiring safety and health inspections of sacred religious buildings.

In many ways, these requirements are the same as the one's previously listed.
All of these, like the previous ones, implicate religious liberty.

All of these requirements, like the previous ones, interfere with religion.
All require violation of of religious beliefs.
All prohibit adherence to religiously dictated practices.
All violate the literal command of the 1st Amendment: that there be "no law" prohibiting the freedom to exercise one's religion.

The difference, of course, between these and the previous requirements, is that these are not readily susceptible to reasonable accommodations.
Any accommodations for religion would be very difficult or extremely unreasonable.

Each of these requirements serves an overriding societal purpose--preventing homicide, protecting children from disease or death or sexual abuse, eradicating racial segregation and discrimination, guaranteeing equal rights for women, reducing dangers to the safety and health of congregants, etc.

Additionally, and just as critically, religious accommodations would actually defeat or seriously undermine the very compelling reasons for these requirements.
Exempting religion from the criminal laws that prohibit homicide?
Exempting religious objectors from laws that prohibit racial or gender discrimination in public accommodations and in higher education?
Exempting religious objectors from laws that protect children from disease or death or sexual abuse?
Exempting religious buildings from laws that insure their safety to those inside?

No, 1st Amendment freedom of religion does not mandate any such accommodating exemptions. It has never been deemed to do so. Never been deemed to allow religions or individual believers to engage in practices dangerous to health or safety or the public welfare. Neither the historical genesis of constitutional freedom of religion (e.g., Jefferson's Statute for Religious Freedom in Virginia), nor its subsequent application by the courts, has viewed religious liberty as freedom from the requirements of laws that are essential to societal health, safety, and welfare.

But requiring the end of human sacrifice and requiring life-saving medical treatment for children and requiring the end of racial segregation are a far far cry from requiring Catholic institutions to provide contraceptive coverage. Such a requirement is hardly essential to serve its underlying purpose. The need it serves can certainly be accomplished in other ways.

There is absolutely no necessity to force Catholics--or any other religious objectors--to violate their religion for contraceptive coverage. A reasonable accommodation, an accommodation that is workable and serves the underlying health-care purpose of the requirement, is eminently possible. Indeed, it is eminently unreasonable to force religious objectors to violate their religious beliefs when that is entirely unnecessary to achieve the underlying purpose.

1st Amendment free exercise of religion may not mean what it literally says--i.e., that "no law" is allowed to prohibit a religious practice. But the 1st Amendment must at the very least mean that government cannot impose a law restricting religious liberty when the government doesn't even need to do so.

That's why the imposition of contraceptive and morning-after coverage on Catholics was wrong. Constitutionally wrong. That's also why the accommodation eventually adopted by the Obama administration should have been made from the start--without the need for a political furor.

And that's why states that have the same legal requirement of contraceptive and morning-after coverage and impose that on Catholics and other religious objectors are wrong. Constitutionally wrong. And it's why those states should adopt religious accommodations.

One final note.
Many states have requirements for contraceptive coverage, and they do not make accommodations for religious institutions. Nor do they have to under current Supreme Court case law.

Why? Because the religiously conservative Justices on the Court--i.e., Scalia, et al--didn't think any accommodation had to be made for a minority religion that they apparently didn't take very seriously. So they adopted a dreadful rule which renders freedom of religion less protected than any other fundamental right in the Constitution.

Hard to believe? Yes, it certainly is and should be. And it was extremely hard to believe for the Justices in dissent, as well as for religious liberty scholars.

We'll turn our attention to that in the next post. We'll see just how the 1990 Scalia-penned decision drastically diluted constitutional protection of free exercise of religion, and how that decision made it entirely permissible for governments to impose contraceptive and morning-after coverage on Catholics and other religious objectors under the Court's current jurisprudence. And how, under that decision, most impositions on religious liberty are entirely permissible today as well.