Thursday, January 16, 2014

The Unending Mandate Debate

"Can my employer make me pay the cost of practicing his religion? In the coming months, the U.S. Supreme Court will decide two cases involving just this issue." So writes Brigham Young University Law School Professor Frederick Mark Gedicks in an opinion piece in The Washington Post. Recognizing that how one frames the terms of the debate determines the outcome as often as not, both sides in the dispute over the HHS Contraception Mandate have sought to frame the issue in terms of religious freedom - something most people can understand and which most Americans (not to mention the Constitution) have a commitment to. 
Religious freedom, of course, can conflict with other societal values (e.g., the 19th-century battle about polygamy in Utah). Hence, the ubiquity and persistence of these disputes in our history and jurisprudence. As more and more areas of social life come within the purview of governmental regulations of one sort or other, these conflicts will if anything likely increase.
At present there are two concurrent controversies. The first has to do with non-profit religious organizations (e.g., the Little Sisters of the Poor), which are not churches per se and so do not meet the narrow definition of religious exemption adopted by the Administration. No one can predict, of course, how any case will be adjudicated, but a common sense understanding of the 1st Amendment and the unanimous Hosanna Tabor Supreme Court decision of two years ago both seem to counter the claim that government should be the entity to define who is a minister or what is a religion. The 1st Amendment protects religion from the State. So to allow the State to define who is entitled to the protections of the 1st Amendment would be a curious conflict of interest that would strike at the very purpose of the Amendment itself.
The second has to do with the right of private, for-profit companies to claim religious exemption from the mandate because of the religious beliefs of the company's owners. Admittedly, the legal question here seems much murkier. However, given the fact that the Supreme Court not that long ago allowed corporations to claim freedom of speech in the Citizens United case, it would seem at least as logical to allow corporations to claim freedom of religion! On the other hand, Supreme Court jurisprudence doesn't always follow along such logical lines. So what the outcome will be is anyone's guess
That said, there is still the matter of how the issue is framed - in this case, whose religious freedom is being infringed upon. Professor Gedicks would have us believe that “The threat to religious liberty, then, comes from the prospect that the court might permit a for-profit business to impose the costs of its owners’ anti-contraception beliefs on employees who do not share them by forcing employees to pay hundreds of dollars or more out-of-pocket each year for contraception and related services that should be covered under the law.”
Talk about turning the 1st Amendment upside down!
Since when is the desire for free contraception a religious liberty claim? It is established law, beginning with Griswold v. Connecticut (1965) and subsequent expansions, that the State may not prohibit access to contraception. That is not the same thing as a right to receive contraception for free. That would be like saying that freedom of the press requires the State (or someone else) to buy me a printing press so I can start a newspaper! The State can, of course, as a matter of public policy legislate its choice to subsidize such activities. In effect that is what the HHS Mandate does. It wants to privilege contraception by subsidizing people's access to it. However, instead of doing that by direct government subsidy, the law directs private entities to do so. In other words, the legal issue is not whether one may have access to contraception but whether a third party (in this case the employer) should be compelled to pay for it. If doing so violates the religious beliefs of the employer, then it is the employer's religious liberty that is being infringed upon. No religious or other constitutionally established liberty of the employee is being infringed. The employee remains free to use contraception, but is not entitled to force the employer to pay for it.
Of course, the key word in Professor Gedicks' argument is should - as in "contraception and related services that should be covered under the law.” There is nothing self-evident about the claim that society should provide free contraception. At least as good a policy case could be made for free dental care. It is a public policy decision to privilege contraception over dental care. That decision - and the fanatical contraceptive ideology that underlies it - should not be allowed to trump the religious freedom of any American by forcing him or her to pay for it.

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