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When Can Government Force You to Violate Religious Beliefs?

church-state-street-signs

Federal Judge Reggie Walton, who became famous during the Scooter Libby trial, is now  presiding over a case involving a religious publishing house seeking relief from the Obama  administration regulation requiring it to provide contraceptive coverage.

CNS’ Terence Jeffrey reports (“DOJ to Federal Judge: We Can Force Your Wife to Violate Her Religion“) on an interesting exchange during a hearing over a temporary injunction:

While presenting an oral argument in the U.S. District Court for the District of Columbia last fall, a lawyer for the U.S. Justice Department told a federal judge that the Obama administration believed it could force the judge’s own wife—a physician—to act against her religious faith in the conduct of her medical practice.

The assertion came in the case of Tyndale House Publishers v. Sebelius, a challenge to the Obama administration’s regulation requiring health-care plans to cover sterilizations, contraceptives and abortion-inducing drugs.

Tyndale is a for-profit corporation that publishes Bibles, biblical commentaries and other religious works. Tyndale House Foundation, a religious non-profit organization, owns 96.5 percent of the corporation’s stock and receives 96.5 percent of its profits. The foundation’s mission is “to minister to the spiritual needs of people, primarily through grants to other religious charities.”

[...]

When Tyndale sought a preliminary injunction to prevent the administration from enforcing the regulation on the company before the federal courts could determine the issue on its merits, Benjamin Berwick, a lawyer for the Civil Division of the Justice Department presented the administration’s argument for why Tyndale should be forced to act against the religious faith of its owners. The oral argument over the preliminary injunction occurred Nov. 9 in Judge Walton’s court.

Berwick argued here–as the administration has argued in other cases where private businesses are challenging the sterilization-contraception-abortifacient mandate–that once people form a corporation to conduct business they lose their First Amendment right to the free exercise of religion insofar as their business is concerned.

In the face of this argument, Judge Walton asked an interesting question. His wife, a graduate of Georgetown Medical School, is a physician. She has incorporated her medical practice. Does that mean, according to the Obama administration’s argument, that the federal government can force her to act against her religious faith in the conduct of her medical practice?

Berwick effectively answered: Yes.

Here, from the official court transcript, is the verbatim exchange between this Obama administration lawyer and Judge Walton:

Benjamin Berwick: “Well, your honor, I think, I think there are two distinct ideas here: One is: Is the corporation itself religious such that it can exercise religion? And my, our argument is that it is not. Although again, we admit that it is a closer case than for a lot of other companies. And then the second question is, can the owners–is it a substantial burden on the owners when the requirement falls on the company that is a separate legal entity? I think for that question precisely what their beliefs are doesn’t really matter. I mean, they allege that they’re religious beliefs are being violated. We don’t question that. And we don’t question that that is the belief.

Judge Reggie Walton: But considering the closeness of the relationship that the individual owners have to the corporation to require them to fund what they believe amounts to the taking of a life, I don’t know what could be more contrary to one’s religious belief than that.

Berwick: Well, I don’t think the fact this is a closely-held corporation is particularly relevant, your honor. I mean, Mars, for example–

Judge Walton: Well, I mean, my wife has a medical practice. She has a corporation, but she’s the sole owner and sole stock owner. If she had strongly-held religious belief and she made that known that she operated her medical practice from that perspective, could she be required to pay for these types of items if she felt that that was causing her to violate her religious beliefs?

Berwick: Well, Your Honor, I think what it comes down to is whether there is a legal separation between the company and—

Judge Walton: It’s a legal separation. I mean, she obviously has created the corporation to limit her potential individual liability, but she’s the sole owner and everybody associates that medical practice with her as an individual. And if, you know, she was very active in her church and her church had these same type of strong religious-held beliefs, and members of the church and the community became aware of the fact that she is funding something that is totally contrary to what she professes as her belief, why should she have to do that?

Berwick: Well, your honor, again, I think it comes down to the fact that the corporation and the owner truly are separate. They are separate legal entities.

Judge Walton: So, she’d have to give up the limitation that conceivably would befall on her regarding liability in order to exercise her religion? So, she’d have to go as an individual proprietor with no corporation protection in order to assert her religious right? Isn’t that as significant burden?

I should state up front that I tend to be dubious of reports from CNS, which has a history of distorting facts to gin up phony controversies. I was skeptical of the source when I saw the story linked from memeorandum. In this case, though, the presentation of facts doesn’t strike me as over-the-top. More importantly, the meat of the story is taken from an official court transcript, which I’ve taken the time to verify is substantially correct.

Turning to the merits of Walton’s query, there are actually a lot of issues wrapped up in it. (And, I should note, there’s a lot more to the questioning than this particular inquiry; it’s a complicated dispute.) We’ve got a series of Supreme Court rulings going back more than a century now limiting the Free Exercise Clause of the First Amendment. Essentially, while Americans have an absolute right to believe and espouse any religious belief they choose—even to make up a religion out of whole cloth and entice others to follow—the state has a right to enforce belief neutral limitations on individual conduct.

As always, I commend FindLaw’s Annotated Constitution to those wishing a more detailed discussion of the case law. Below are some excerpts relevant to the particular dispute at hand:

While the Court has consistently affirmed that the Free Exercise Clause protects religious beliefs, protection for religiously motivated conduct has waxed and waned over the years. The Free Exercise Clause ”embraces two concepts– freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.” 189 In its first free exercise case, involving the power of government to prohibit polygamy, the Court invoked a hard distinction between the two, saying that although laws ”cannot interfere with mere religious beliefs and opinions, they may with practices.” 190 The rule thus propounded protected only belief, inasmuch as religiously motivated action was to be subjected to the police power of the state to the same extent as would similar action springing from other motives. The Reynolds no-protection rule was applied in a number of cases, 191 but later cases established that religiously grounded conduct is not always outside the protection of the free exercise clause. 192 Instead, the Court began to balance the secular interest asserted by the government against the claim of religious liberty asserted by the person affected; only if the governmental interest was ”compelling” and if no alternative forms of regulation would serve that interest was the claimant required to yield. 193 Thus, while freedom to engage in religious practices was not absolute, it was entitled to considerable protection.

There’s a lengthy discussion of a series of cases involving the Mormons and Jehovah’s Witnesses; there’s also relevant case law dealing with the Amish and Christian Scientists. These, however, all involve groups that have or had practices that wildly diverged from the social norms of the broader society. Tyndale, though, involves more mainstream beliefs and practices.

[I]n recent years the Court’s decisions evidenced increasing discontent with the compelling interest test. In several cases the Court purported to apply strict scrutiny but nonetheless upheld the governmental action in question. In United States v. Lee, 232 for example, the Court denied the Amish exemption from compulsory participation in the Social Security system. The objection was that payment of taxes by Amish employers and employees and the receipt of public financial assistance were forbidden by their religious beliefs. Accepting that this was true, the Court nonetheless held that the governmental interest was compelling and therefore sufficient to justify the burdening of religious beliefs. 233 Compulsory payment of taxes was necessary for the vitality of the system; either voluntary participation or a pattern of exceptions would undermine its soundness and make the program difficult to administer.

”A compelling governmental interest” was also found to outweigh free exercise interests in Bob Jones University v. United States, 234 in which the Court upheld the I.R.S.’s denial of tax exemptions to church-run colleges whose racially discriminatory admissions policies derived from religious beliefs. The Federal Government’s ”fundamental, overriding interest in eradicating racial discrimination in education”–found to be encompassed in common law standards of ”charity” underlying conferral of the tax exemption on ”charitable” institutions–”substantially outweighs” the burden on free exercise. Nor could the schools’ free exercise interests be accommodated by less restrictive means. 235 

[...]

Laws may not single out religiously motivated conduct for adverse treatment, Supp.13.1 but formally neutral laws of general applicability may regulate religious conduct (along with other conduct) regardless of the adverse or prohibitory effects on religious exercise. That the Court views the principle as a general one, not limited to criminal laws, seems evident from its restatement in Church of the Lukumi Babalu Aye v. City of Hialeah: ”our cases establish the general proposition that a law that is neutral and of general application need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Supp.14 Similar rules govern taxation. Under the Court’s rulings in Smith and Swaggart, religious exemptions from most taxes are a matter of legislative grace rather than constitutional command, since most important taxes (e.g., income, property, sales and use) satisfy the criteria of formal neutrality and general applicability, and are not license fees that can be viewed as prior restraints on expression. 254 The result is equal protection, but not substantive protection, for religious exercise. 255 

In short, the Supreme Court has been wildly inconsistent over the years. They’ve attempted to balance the public policy aims of society with the religious freedom of individuals and have issued a series of “tests” to help lawmakers and other courts weigh the conflict. None of the tests have survived very long, however, either because the Justices didn’t like the results of applying said tests in future cases or simply because some government interests are more compelling than others.

My instinct here is that the courts will ultimately side with the administration even though, in the particular case at hand—as well as Judge Walton’s fictional case—it should go the other way.

Tyndale House has been in business fifty years, is a clearly religious company, and has only “approximately 250” employees. Presumably, Dr. Walton would have even fewer employees and should similarly have enormous discretion over the nature of the health insurance she provides them. In both cases, then, the harm done to the public interest would be minuscule and freely chosen by a very small number of people, each of whom could presumably be considered to share the religious values of their employer.

It actually gets much more complicated in the case of, say, the Catholic Church and its many entities, including most notably its hospitals. While my inclination remains that they, as religious institutions, ought to be able to make choices based on their long-touted (i.e., not invented for the sake of skirting the provisions of the law) religious beliefs. But there’s undeniably a much stronger government interest, given the sheer size of the employee base affected.

The nature of the government interest matters, too. There’s no Constitutional right to have one’s employer provide free contraception; there is a Constitutional right to freely exercise one’s religion. But if the religious institution, whether a large one like the Catholic Church or a small one like Tynsdale, argued that their religious faith precluded their hiring–or serving–blacks, gays, Jews, or whathaveyou, it would run up against the Fourteenth Amendment and clearly run afoul of a compelling government interest.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Al says:

    I wasn’t aware that taking or using contraception was mandatory under health insurance plans that provide it.

    Highly-rated. Helpful or Unhelpful: Thumb up 45 Thumb down 0

  2. legion says:

    I think Berwick doesn’t go far enough in arguing against Walton. Walton’s wife _chose_ to incorporate for economic reasons. She chose to enter that arena, and yes – that _does_ require her to give up some individual freedom in order to act as (and be treated as) a corporation.

    Judge Walton: So, she’d have to give up the limitation that conceivably would befall on her regarding liability in order to exercise her religion? So, she’d have to go as an individual proprietor with no corporation protection in order to assert her religious right? Isn’t that as significant burden?

    No, it’s not. Or, to come at it from a different angle, anyone she employs have to give up _their_ religious rights to work for her – why is _her_ burden more worthy of consideration?

    Highly-rated. Helpful or Unhelpful: Thumb up 29 Thumb down 1

  3. Pharoah Narim says:

    What does religious beliefs have to do with public policy? If Catholics are going to go balls to the wall about contreceptives–they should also be outraged that their Mormon brothers aren’t allow 15 wives. Yet I hear crickets…..

    Highly-rated. Helpful or Unhelpful: Thumb up 24 Thumb down 4

  4. PD Shaw says:

    James, the issue in that transcript isn’t the First Amendment, its the Religious Freedom Restoration Act. On page 3 of the transcript, the Judge says he’s heard enough about the Constitutional Claims and just wants to analyze the RFRA claims. Under FRFRA, the government doesn’t merely need to be “neutral” with respect to religion, but it requires the government to take efforts to accommodate religious beliefs.

    Like or Dislike: Thumb up 3 Thumb down 0

  5. CSK says:

    @Pharoah Narim:

    Not a good comparison. The Mormons officially repudiated polygamy in 1890 and again in 1904. Some splinter groups objected, but for the past 100+ years, the Mormons have sanctioned monogamy.

    Like or Dislike: Thumb up 1 Thumb down 2

  6. Tsar Nicholas says:

    Life. Liberty. Subsidized contraception.

    Man alive, we’re in severe decline.

    I won’t bother with the legal niceties of this issue, simply because they give me negative flashbacks to Con Law and to the bar exam, and I’d rather gouge out my eyes with rusty razors.

    There are colossal practical SNAFUs inherent to the administration’s hell bent for leather desire to force contraceptive coverages upon all employers. For example:

    In the very next breath, under Obamacare, the administration has eliminated the ability to use HSA funds for OTC items. Such as, you know, OTC contraceptives. Of course it goes without saying, albeit not necessarily in chattering class circles, that coverage mandates do not mean full coverage. There still are deductibles.

    So instead of using pre-tax dollars already saved to buy condoms or sponges the fact of the matter is that women with HSA plans now have to go outside of those accounts and use post-tax dollars. Or to get the benefit of their pre-tax dollars they need to go to a doctor to get a prescription. Well, in that event, all other things being equal, they might as well get the pill or the patch, right?

    IOW, this is yet another two layers of horrific irony embodied in Obamacare. While it seeks to force religious employers to violate their religious beliefs by underwriting contraceptives coverage, simultaneously it makes it more costly and more of an administrative hassle for people to get cheaper solutions.

    This law is a disaster.

    Poorly-rated. Helpful or Unhelpful: Thumb up 2 Thumb down 27

  7. Dave Schuler says:

    James, you need to introduce the concept of “protected classes” into the discussion. Your example:

    But if the religious institution, whether a large one like the Catholic Church or a small one like Tynsdale, argued that their religious faith precluded their hiring–or serving–blacks, gays, Jews, or whathaveyou, it would run up against the Fourteenth Amendment and clearly run afoul of a compelling government interest.

    only points to it indirectly. Race and gender are protected classes under the law. “People wanting subsidies for birth control” is not a protected class.

    Like or Dislike: Thumb up 2 Thumb down 0

  8. legion says:

    @Tsar Nicholas: Corporations do not have religious beliefs – individuals do. Individual employers do not underwrite employee benefits – companies do. However complex or poorly-implemented it may be in practice, the underlying issues are untouched – if you want the advantages of acting as a corporation, rather than an individual, you give up certain benefits an individual otherwise gets.

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  9. ptfe says:

    “…[E]ach of whom could presumably be considered to share the religious values of their employer.”

    This is the sort of statement that really rankles me. This is a corporate entity, subject to the same protected class restrictions as everybody else. There can be no religious test for employment. A secular Jew working in their midst could not be fired based on that fact, nor could a Hindu or a Buddhist. Saying that the entire company “presumably … share[s] the religious values of their employer” throws the Civil Rights Act right out the window: there’s no guarantee that this is the case, and the employer is using corporate law to protect him or herself in a variety of ways; the end result is that they also have to play by the rules everyone else plays by. No exceptions because you’ve interpreted a 2000-year old book to say “contraception = abortion = bad” and think that book was written by a judgmental demon who helped a few ancient kings slaughter tribes around the Middle East before sending his kid to be nailed to a cross after his regional warfare scheme didn’t suddenly make people act nice to each other.

    I’m wary of slippery slope arguments in general, but religious assertions are, in my opinion, a steaming pile of fresh, wet dung heaped on caselaw — they create a lot of potential slopes, and every one is both slippery and rank. Stop trying to make your superstitions a public affair.

    Highly-rated. Helpful or Unhelpful: Thumb up 33 Thumb down 1

  10. bookdragon says:

    And then there are faiths that object to blood transfusions. If you work for an employer who belongs to one of those are you SOL if you need one? Do the employer’s religious quibbles trump the employee’s right to life? (In the case of abortion, the right of the woman to life already seems to not count in some cases…)

    Highly-rated. Helpful or Unhelpful: Thumb up 20 Thumb down 0

  11. Modulo Myself says:

    Most of the people who grouse about contraception have religious beliefs that exist for the glory of their violation, so I’m not sure what the big deal is.

    The government should just make everybody happy and say that every woman over sixteen is given a birth control prescription for life. Right-wing christians would be ecstatic, especially the idiots who get paid weekly to write about moral decline.

    Like or Dislike: Thumb up 8 Thumb down 1

  12. rudderpedals says:

    I’m gonna go there. I assume the publisher is insincere and the offense feigned in pursuit of profit and competitive advantage. Even if this publisher is sincere we’d never know. It’s hard to see how allowing it here wouldn’t release a flood of fraud.

    Like or Dislike: Thumb up 7 Thumb down 0

  13. James Joyner says:

    @Dave Schuler: Yes, it’s a different question. There are so many of them wrapped into these cases.

    @ptfe: But a religious publishing house or a church is a different type of employer than, say, a clothing store or a burger joint. As a non-believer, I have no issue whatsoever with a business whose objective is based in religious faith to hire believers and require them to adhere to the tenants of a faith. On the other hand, just because the guy who owns Chic-Fil-A is an evangelical doesn’t give him the right to impose his beliefs on a huge staff.

    @bookdragon: If you work for a Christian Science bookstore, it’s not unreasonable for your employer to deny you coverage for blood transfusions.

    @PD Shaw: Ah, that’s an interesting distinction. The act was intended to circumvent a SCOTUS decison; I have no knowledge of whether it’s passed SCOTUS muster. But the argument he’s having works under pure Establishment Clause doctrine as well.

    Like or Dislike: Thumb up 2 Thumb down 8

  14. Modulo Myself says:

    The nature of the government interest matters, too. There’s no Constitutional right to have one’s employer provide free contraception; there is a Constitutional right to freely exercise one’s religion.

    It’s also worth pointing out that they aren’t providing free contraception any more than than they are providing free money as a form of payment to the employee. Not being a lawyer, I can’t possibly speculate about the legal nature of health care, but no religious employer has the right to regulate where the money they pay as a wage goes.

    Highly-rated. Helpful or Unhelpful: Thumb up 17 Thumb down 0

  15. swbarnes2 says:

    @James Joyner:

    If you work for a Christian Science bookstore, it’s not unreasonable for your employer to deny you coverage for blood transfusions.

    Wow. That’s amazing.

    So if a desperate person who really really needs a job right now to keep the lights on takes a job with a Christian Scientist book store, and then that person’s daughter requires a blood transfusion to save her life, you think that desperate person should have to pay for it out of pocket, or watch their daughter die?

    We don’t live in an economy where there is so much demand for employees that employees can freely pick and choose their employers. Lots of people are just working wherever they can, and you think it’s just grand for employers to take advantage of that in a race to the bottom to save money by inflicting their religious beliefs on the people who depend on them?

    Honestly, what would you say if your daughter got ovarian cysts the size of tennis balls because her employer refused to cover her medication, and she could not afford it on her own?

    Highly-rated. Helpful or Unhelpful: Thumb up 46 Thumb down 0

  16. gVOR08 says:

    @James Joyner: Let’s cut through the …obfuscation here. The only right in question is the right of the company to provide substandard health insurance to their employees.

    @swbarnes2: Sorry I could only up vote that once.

    Highly-rated. Helpful or Unhelpful: Thumb up 15 Thumb down 0

  17. bandit says:

    @Pharoah Narim:

    Catholics are going to go balls to the wall about contreceptives–they should also be outraged that their Mormon brothers aren’t allow 15 wives.

    That’s the most ignorant comment I’ve seen since the last time I saw comments here.

    Like or Dislike: Thumb up 4 Thumb down 10

  18. C. Clavin says:

    This is all an argument for single payer.
    Unfortunately because of idiots Republicans that is politically impossible.
    So at the very least we can separate insurance from employers…which the PPACA takes a step towards…by establishing the exchanges.
    But you can hear the next whine coming from the zealots already…why should our taxes go to pay for contraception? Which is totally in line with the Hyde-amendment…right? They’ll be screaming that Federal funds can’t be used. You can’t win with these nut-bags.

    Like or Dislike: Thumb up 15 Thumb down 1

  19. PD Shaw says:

    @James Joyner:

    Ah, that’s an interesting distinction. The act was intended to circumvent a SCOTUS decison; I have no knowledge of whether it’s passed SCOTUS muster. But the argument he’s having works under pure Establishment Clause doctrine as well.

    Yes, the law reinstated the “Sherbert Test” when the SCOTUS abandoned it to rule that there was no religious exception for American Indians to smoke peyote. It has been ruled Constitutional, but since its a statute, Congress can always exempt a given law from it. Usually, it gets applied against the President when he is exercising rulemaking discretion.

    Like or Dislike: Thumb up 0 Thumb down 0

  20. OzarkHillbilly says:

    What we have here is the firm belief that some peoples religious freedoms are more important than others. Being an atheist, I have no religious beliefs. I guess that means I have no religious freedom.

    Like or Dislike: Thumb up 10 Thumb down 0

  21. James Joyner says:

    @swbarnes2: I wouldn’t work for a Christian Science bookstore.

    @gVOR08: That’s simply not true. There’s a legitimate and longstanding religious objection here.

    @C. Clavin: I agree that single payer makes more sense for a variety of reasons, this being pretty far down the list.

    Like or Dislike: Thumb up 0 Thumb down 11

  22. OzarkHillbilly says:

    @OzarkHillbilly: and yes, my tongue was firmly in cheek when I wrote that. But the main point remains: Some people’s freedoms are more important than others.

    Like or Dislike: Thumb up 4 Thumb down 0

  23. swbarnes2 says:

    @James Joyner:

    @swbarnes2: I wouldn’t work for a Christian Science bookstore.

    You can’t possibly think that’s a real answer. You are really telling us that if your daughter faced the choice of working for a Christian Scientist book store, or being thrown out of her apartment, you would advice her to be homeless until she was lucky enough to find something else?

    I agree that single payer makes more sense for a variety of reasons, this being pretty far down the list.

    You vote for the party that thinks that health care (and education, and clean water, etc) is a privilege too good for most Americans, and drafts policies accordingly. That’s what you support, no matter what you say.

    Highly-rated. Helpful or Unhelpful: Thumb up 31 Thumb down 0

  24. legion says:

    @James Joyner:

    @swbarnes2: I wouldn’t work for a Christian Science bookstore.

    That is utterly immaterial. The entrepreneur has total choice on going into business; an employee has very little. In establishing his business, an employer has many options on exactly how to set his company’s values, goals, etc; an employee has no say at all. A businessman, as discussed in the article, chooses to give up or retain certain rights in managing their business; an employee should not have to do the same in order to get a job… the employee has essentially _no_ power in the world you describe.

    Again I ask: why should an employers’ rights have such absolute primacy over those of his employees?

    Like or Dislike: Thumb up 15 Thumb down 1

  25. Rob in CT says:

    As much as I too think single payer healthcare is the right way to go, I don’t see how it helps with this issue. The same people would be just as fired up, because instead of being “forced to subsidize contraception” they’d be taxed and their taxes would be used to “subsidize contraception,” which is basically the same thing. We’d be having the same damn argument. There’s no way around it.

    Like or Dislike: Thumb up 12 Thumb down 0

  26. Socraticsilence says:

    I have disagree on the Catholic hospital bit, it’s not comparable to a small bookstore both because at times it serves as the sole provider in an area but also because– and more to the point in this case– they often merg or otherwise takeover secular service providers in which case the quasi informed consent justification you apply to employees no longer exists.

    Like or Dislike: Thumb up 8 Thumb down 0

  27. Rob in CT says:

    If you work for a Christian Science bookstore, it’s not unreasonable for your employer to deny you coverage for blood transfusions

    I, for one, am glad James went here. The argument over no-copay contraception coverage lacks a certain zing. Blood transfusions ups the ante nicely.

    For that, and that alone, bravo. As to the sentiment… wowzers. Especially coming from someone who appears to think single-payer is the way to go. Think this through. You’re ok with providing coverage for blood transfusion via a national healthcare plan (or a variety of plans within guidelines put out by the government) funded by taxation but you’re NOT ok with mandating that a CS bookstore provide this sort of coverage in our current system?

    Highly-rated. Helpful or Unhelpful: Thumb up 20 Thumb down 0

  28. Scott says:

    @Modulo Myself: Yes, there are a couple of interests here. Society regulates pay and benefits and the relationship between employer and employee. Seems to me corporate entities regardless of ultimate ownership should be, with minimal exceptions, subject to those regulations. I tend to see these arguments as employers trying to impose their beliefs on the employees not the other way around.

    Like or Dislike: Thumb up 7 Thumb down 0

  29. wr says:

    How about this as an answer to JJ’s question: When the “religious beliefs” are stupid and completely disconnected from reality and cause great harm to other people.

    Honestly, if you’re so religiously pure that someone else using contraception is a violation of your deepest beliefs, you have no place in the modern world.

    Highly-rated. Helpful or Unhelpful: Thumb up 16 Thumb down 1

  30. Jeremy R says:

    @James Joyner:

    I should state up front that I tend to be dubious of reports from CNS, which has a history of distorting facts to gin up phony controversies. I was skeptical of the source when I saw the story linked from memeorandum. In this case, though, the presentation of facts doesn’t strike me as over-the-top.

    No, your initial impulse was correct. As CNS has done in the past, they’re again pushing their BS that the Affordable Care Act amounts to, tax payer funded & gov’t mandated, abortion:

    The assertion came in the case of Tyndale House Publishers v. Sebelius, a challenge to the Obama administration’s regulation requiring health-care plans to cover sterilizations, contraceptives and abortion-inducing drugs.

    Berwick argued here–as the administration has argued in other cases where private businesses are challenging the sterilization-contraception-abortifacient mandate–that once people form a corporation to conduct business they lose their First Amendment right to the free exercise of religion insofar as their business is concerned.

    Like or Dislike: Thumb up 7 Thumb down 0

  31. Jeremy R says:

    @Jeremy R:

    And this is more idiocy from CNS:

    Berwick argued here–as the administration has argued in other cases where private businesses are challenging the sterilization-contraception-abortifacient mandate–that once people form a corporation to conduct business they lose their First Amendment right to the free exercise of religion insofar as their business is concerned.

    The administration is not arguing the citizens “lose their First Amendment right” — just that their private corporation doesn’t get to enforce their personal religious strictures on their employees’ healthcare.

    Like or Dislike: Thumb up 8 Thumb down 0

  32. Rafer Janders says:

    @James Joyner:

    If you work for a Christian Science bookstore, it’s not unreasonable for your employer to deny you coverage for blood transfusions.

    Um, yes, it ‘s completely unreasonable. What you’re entirely missing is that health insurance IS COMPENSATION.

    It’s part of your pay, just as much as your paycheck, and therefore belongs to you and not to the employer. The employer can’t tell you what to do with your health insurance anymore than it can tell you what to do with the dollars in your bank account once you’ve deposited your paycheck.

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  33. Alex Knapp says:

    The employer isn’t paying for free contraception. She is partially paying for health insurance for her employees. Her employees are also partially paying for health insurance. The insurance company is required to offer contraception with no co-pay, not the employer. She can always simply not provide health insurance if she has an objection to jer money maybe going to or require her employees to foot the whole bill. But again, ALL health insurance companoes are required to offer contaception with no co-pay. Her religious beliefs don’t enter into it, because she isn’t the one providing health services.

    And of course, since most insurance companies cover contracption with a co-pay, she was probably already “paying” for it, if you accept her extremely attenuated definition of “paying for it.”.

    Also, and this is just a side note, contraception isn’t the taking of a life, even if you believe that life begins at conception. It precents conception…

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  34. matt bernius says:

    @Scott:

    [Dr Joyner is] ok with providing coverage for blood transfusion via a national healthcare plan (or a variety of plans within guidelines put out by the government) funded by taxation but you’re NOT ok with mandating that a CS bookstore provide this sort of coverage in our current system?

    While I disagree with James’ take regarding transfusions, I’m having a problem seeing how these two positions are inconsistent.

    Where I think the internal problem lies with James’ position is his suggestion that the scale and focus of the operation should be the deciding point as to whether or not a corporation deserves a religious exception.

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  35. John D'Geek says:

    @legion:

    if you want the advantages of acting as a corporation, rather than an individual, you give up certain benefits an individual otherwise gets.

    Talk about oversimplistic.

    Let’s try this one on for size: should a Political Action Group, legally organized as the relevant corporation, to oppose Contraceptives be forced to provide them for their employees? At what point does the “Freedom of Religion” become meaningless?

    If I am forced to follow your religion*, then I do not have freedom to follow mine. So far, the commentary reads to me as “My Religious beliefs trump your religious beliefs”. Because your religion doesn’t have a problem with it.

    * Relgion, as opposed to “Organized Religion”. Athiesm is a religion, for instance, albeit one without many buildings specially dedicated to it.

    Like or Dislike: Thumb up 1 Thumb down 14

  36. wr says:

    @John D’Geek: “At what point does the “Freedom of Religion” become meaningless?”

    When the way you choose to practice your “religion” causes direct harm to other people. When the practice of your “religion” is actually the imposition of your personal religious views on people who don’t share them. When your exercise of “religion” is actually just the coercive exertion of power on other people.

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  37. Sandman says:

    @bookdragon:

    (In the case of abortion, the right of the woman to life already seems to not count in some cases…)

    Exactly, but more importantly in the case of abortion, the right of the baby to life already seems to not count in ALL cases…

    Poorly-rated. Helpful or Unhelpful: Thumb up 0 Thumb down 16

  38. Rafer Janders says:

    @Alex Knapp:

    She can always simply not provide health insurance if she has an objection to jer money maybe going to or require her employees to foot the whole bill.

    And wouldn’t she then just have an objection to her employees using “her money” (actually the employees’ money, paid to them in exchange for labor) for their contraception?

    She seems to me to be someone relatively unclear on the concept of what employee compensation actually means, that once it’s paid to the employee, either in the form of wages or health insurance, that it belongs to the employee and not to the employer.

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  39. Franklin says:

    @Rafer Janders: On the one hand, I don’t really like James’ answer on the Christian Science bookstore example, but as you point out that’s what happens when we conflate employment with health insurance. I just hope PPACA is a step that somehow leads us to single payer. It fixed a couple things, but ingrained this employment = health insurance thing even deeper, when it never really made any sense to begin with (as evidenced by this entire thread).

    Like or Dislike: Thumb up 5 Thumb down 0

  40. Rafer Janders says:

    @John D’Geek:

    Let’s try this one on for size: should a Political Action Group, legally organized as the relevant corporation, to oppose Contraceptives be forced to provide them for their employees?

    It’s a stupid question which doesn’t understand how things work in the real world. PACS don’t provide CONTRACEPTION to their employees. They provide COMPENSATION to their employees, in the form of either direct cash wages or benefits, including health insurance. Once employees have been provided with this compensation, it belongs to them, and they are free to use it as they please, including by obtaining contraception.

    Again, if the employee obtains contraception, it doesn’t get it from the employer — it only gets compensation from the employer, which compensation the employee then exchanges for goods and services.

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  41. Rob in CT says:

    @matt bernius:

    Matt,

    I’ll explain further, then. I’m going for comparative coercion here.

    Option 1: mandate that insurance plans (already routinely provided by many insurers) provide for no-copay contraception coverage. Employers typically pay, what, 70% of the premium. Of that 70%, some small portion pays for the contraception coverage and some portion of THAT pays for the “no copay” bit. The employer can opt to not provide health insurance (with no penalty below 50 employees, and what $2k/employee? at 50+).

    Option 2: increase taxation and fund a national health insurance program that provides no-copay contraception. CS bookstore owner now pays more taxes which are used to provide insurance plans to people that include no-copay contraception coverage. There is no opting out of taxation.

    If option 1 restricts religious liberty, doesn’t option 2 do as well? If James has a problem with #1, why not #2? Or does James envision a single payer system that does not provide for contraception coverage. Or blood transfusions. Or whatever else offends somebody’s religious sensibilities.

    That’s what I’m getting at.

    Like or Dislike: Thumb up 2 Thumb down 0

  42. Rob in CT says:

    I assume John is just trolling. The atheism is a religion aside is the tell.

    Like or Dislike: Thumb up 2 Thumb down 0

  43. legion says:

    @John D’Geek:
    As @wr points out, your argument is crap. Your freedom to _practice_ your religion in no way contains the right to _impose_ that religion upon others.

    Like or Dislike: Thumb up 7 Thumb down 0

  44. Rafer Janders says:

    But if the religious institution, whether a large one like the Catholic Church or a small one like Tynsdale,

    Tynsdale is not a religious institution. It is a for-profit publishing house. Its primary business is to make money publishing and selling printed material.

    Like or Dislike: Thumb up 7 Thumb down 0

  45. Pharoah Narim says:

    @CSK: I believe it is a good comparison because my research shows that the power group within the church at that time stood more to gain by making concessions to gain Statehood than they did by sticking with their beliefs. The true believers outside that group got rolled which is why there was a schism. Its not much different than what you have inside political movements when the true believers get to Washington and all of a sudden the kool-aid doesn’t taste as sweet. Of course–the folks back home have a steady diet of (insert party)INO insults to heap upon that person. Officially, yes…they repudiate polygamy as a political calculation. But in “quiet rooms”…..

    @Bandit: Deal with it. If you’re going to call my opinions ignorant without pointing out where or how–i’ll just overlook your bomb throwing

    Like or Dislike: Thumb up 4 Thumb down 0

  46. Mikey says:

    @Rafer Janders: The difference is, she (the employer) is paying a portion of the health insurance. Yes, it’s compensation, but it’s paid by the employer directly to the insurance company.

    Is it a B. S. distinction? Of course it is. But we are talking about religion, which is largely predicated on such things.

    Like or Dislike: Thumb up 3 Thumb down 0

  47. Pharoah Narim says:

    @wr:

    When your exercise of “religion” is actually just the coercive exertion of power on other people

    That–my friend–is ultimately what the essence of religion is…

    Don’t get me wrong–there is a high road and a low road to every human endeavour. Whether pushing men to achieve their best or lowering them to behave the worst. This is the means though which that occurs and it can’t be seperated. Like we can’t sepeate money from politics; because politics is ALL about money ultimately.

    Like or Dislike: Thumb up 2 Thumb down 0

  48. mantis says:

    @John D’Geek:

    Athiesm is a religion, for instance, albeit one without many buildings specially dedicated to it.

    Nonsense.

    Like or Dislike: Thumb up 7 Thumb down 1

  49. OzarkHillbilly says:

    When Can Government Force You to Violate Religious Beliefs?

    OK. I guess I am the one who has to point out the obvious: Nobody, and I mean NOBODY is being forced to violate their religious beliefs. Don’t want to provide contraceptive coverage to your employees? DON’T. Go out of business. And then you don’t have to. And that applies to EVERYONE including the Catholic Church. If you are engaging in secular activities, you have to abide by secular rules. Providing health care is a secular activity.

    Running a business is not a religious activity and it is not a guaranteed right under the constitution.

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  50. mantis says:

    How about I start a company based on my own religion that I just made up, Antimoneytarianism. We believe that money is evil. Since my corporation is “a religious company,” can I get away with paying my employees in dirt instead of complying with minimum wage laws?

    Like or Dislike: Thumb up 9 Thumb down 0

  51. David M says:

    The exemption sounds nice and all for little companies, but what if every company claims the exemption? Seems a lot more burdensome on employees at that point.

    Like or Dislike: Thumb up 3 Thumb down 0

  52. Rafer Janders says:

    @Mikey:

    The difference is, she (the employer) is paying a portion of the health insurance. Yes, it’s compensation, but it’s paid by the employer directly to the insurance company.

    So what? Whether it’s paid by the employer to the insurance company, or by the employer to the employee to the insurance company, it’s still compensation in exchange for labor. The employee has provided the labor, and is now compensated by the employer. As a result, it’s not the employer’s money, but the employee’s.

    Like or Dislike: Thumb up 4 Thumb down 0

  53. Pharoah Narim says:

    Careful Mantis:– you might get visited from some Wall St types eager to find out more about this exciting new way to increase profits.

    Like or Dislike: Thumb up 4 Thumb down 0

  54. swbarnes2 says:

    @mantis:

    How about I start a company based on my own religion that I just made up, Antimoneytarianism. We believe that money is evil. Since my corporation is “a religious company,” can I get away with paying my employees in dirt instead of complying with minimum wage laws?

    Not dirt, chickens. No one can argue that Republicans don’t support that, because that’s a genuine Republican policy idea. If James and Doug had been in Lowden’s district, they would have supported that policy by voting for her.

    Like or Dislike: Thumb up 7 Thumb down 0

  55. PD Shaw says:

    @Rob in CT: Blood transfusions and contraception are easily distinguishable. Historically, health insurance did not cover contraception (not an “insurable risk”), but when interest groups lobbied for contraception mandates, many states provided religious exemptions that would apply here. Plus, since contraception is a good, it can be subsidized and distributed in a whole host of ways without forcing it through the employer insurance coverage system.

    Blood transfusions are pretty inextricably intertwined with other medical procedures; I am not aware of any special insurance policies that exempt transfusions, and it would be difficult to distribute blood transfusions through a separate agency.

    Like or Dislike: Thumb up 0 Thumb down 1

  56. mantis says:

    @PD Shaw:

    Plus, since contraception is a good, it can be subsidized and distributed in a whole host of ways without forcing it through the employer insurance coverage system.

    There are types of contraception other than the pill and condoms, PD. Not all of them are goods. Some are medical procedures.

    Like or Dislike: Thumb up 9 Thumb down 0

  57. Mikey says:

    @Rafer Janders:

    Whether it’s paid by the employer to the insurance company, or by the employer to the employee to the insurance company, it’s still compensation in exchange for labor. -

    I agree, but again, we’re talking about someone who’s viewing it from a religious standpoint, and even though it’s a ridiculous distinction it apparently matters to them. You can pay your employee $20 directly and it’s OK if they buy birth control with it, but Bog forbid you send the same $20 to Cigna and the employee uses that to pay for birth control. It’s just silly.

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  58. Septimius says:

    Is health insurance coverage legally defined as compensation? For example, if an employee wins a wrongful termination lawsuit, and is awarded back pay, how would he or she be compensated for the lost insurance coverage? Or, could a company get away with paying a salary below minimum wage if they also had a really generous employer provided health insurance plan that brought the employee’s total compensation above minimum wage? Or, a major league baseball team’s payroll is just under the salary cap. The team has a lot of injuries requiring surgery and the insurance company raises the premiums. Does that team then have to pay the luxury tax?

    Like or Dislike: Thumb up 2 Thumb down 0

  59. swbarnes2 says:

    @PD Shaw:

    Historically, health insurance did not cover contraception (not an “insurable risk”),

    Pregnancy sometimes kills women. I guess you think that’s not a risk worth doing anything about?

    Plus, since contraception is a good, it can be subsidized and distributed in a whole host of ways without forcing it through the employer insurance coverage system.

    How do you recommend distributing tubal ligations? Guys with knives in abandoned buildings?

    It’s health care. And since, empirically, health care is distributed through employer-subsidized insurance, that’s the correct method of distribution.

    Blood transfusions are pretty inextricably intertwined with other medical procedures;

    If it were inextricable, Christian scientists would have no medical care at all, empirically, that’s not the case.

    You’d think that safely having babies ought to be pretty inextricably entwined with having a functioning society, but there are religious groups who refuse to seek medical attention for childbirth; and your argument is just as applicable to them and their employees, right?

    Like or Dislike: Thumb up 6 Thumb down 0

  60. Rafer Janders says:

    @Septimius:

    Is health insurance coverage legally defined as compensation?

    Yes. Compensation is defined, roughly, as the combined total value of the employee’s wages and benefits. Health insurance coverage is one of those benefits, making the insurance coverage a part of the employee’s total compensation.

    Or, could a company get away with paying a salary below minimum wage if they also had a really generous employer provided health insurance plan that brought the employee’s total compensation above minimum wage?

    No. Wages are wages. Health insurance is a benefit, not a wage. Compensation consists of both benefits and wages.

    Like or Dislike: Thumb up 12 Thumb down 0

  61. grumpy realist says:

    @Sandman: It’s not a baby. it’s a zygote, or an embryo, or a fetus. It’s NOT a baby.

    Unless you are perfectly fine with going to a store and asking for a roasting chicken and being given an egg in return….

    Like or Dislike: Thumb up 9 Thumb down 0

  62. grumpy realist says:

    @PD Shaw: I think it was also because of the prevalence of programs that provided the little-blue-pill-that-must-not-be-named and did absolutely nothing about contraception.

    Frankly, I can see a much better argument for free contraception and charging for the former. Being “unable to get it up” is not a dangerous medical condition.

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  63. Andy says:

    Well, these issues are not going to go away as long as the basis of health care revolves around employers. This is just another, very strong reason to get employers out of the health care business. That isa much better course of action than engaging in a divisive constitutional confrontration over freedom of religion that could very well have far-reaching implications.

    Like or Dislike: Thumb up 6 Thumb down 0

  64. Septimius says:

    @Rafer Janders: But, can’t employers determine how employees utilize benefits? For example, if an employer provides a car, the employer gets to pick the make and model, not the employee. Or, every employee of a company may get two weeks paid vacation every year, but the employer still gets to approve when the employee can take the vacation.

    Like or Dislike: Thumb up 2 Thumb down 0

  65. wr says:

    @Andy: “Well, these issues are not going to go away as long as the basis of health care revolves around employers – See more at: http://www.outsidethebeltway.com/when-can-government-force-you-to-violate-religious-beliefs//#comments

    They’re not going to go away if we have single-payer, either. Then we’ll hear all these brave souls insisting they won’t have their tax dollars going for contraception, just as they do now with abortion.

    There will always be busybodies whose main interest in life is controlling other people. The best thing we can do is laugh in their faces.

    Like or Dislike: Thumb up 3 Thumb down 0

  66. anjin-san says:

    @ Septimius

    But, can’t employers determine how employees utilize benefits?

    Fine. If you or someone in your family needs a specific medical treatment, your employer can decide that he thinks otherwise, and cast a veto. Sorry Charlie, no treatment.

    Is that really what you want?

    Like or Dislike: Thumb up 5 Thumb down 2

  67. anjin-san says:

    This is just another, very strong reason to get employers out of the health care business.

    I’ve come around to this point of view over time. As it is, employers can take away your income and your health insurance in an instant. That’s too much power for them to have.

    Like or Dislike: Thumb up 6 Thumb down 0

  68. Rob in CT says:

    I too favor decoupling health insurance from employment. BUT THAT WILL NOT SOLVE THIS PROBLEM.

    The argument will go on.

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  69. James Joyner says:

    @Rob in CT:

    I too favor decoupling health insurance from employment. BUT THAT WILL NOT SOLVE THIS PROBLEM.

    Solve? No. But it’ll go away as a legal issue. There would be no standing to sue.

    The US government does all manner of things that any individual citizen might disagree with. I’m sure there are genuine religious differences with some of our public policy. The Catholic Church, in particular, is strenuously opposed to capital punishment. But there’s no legal case to be had there.

    Like or Dislike: Thumb up 5 Thumb down 0

  70. Scott says:

    @anjin-san: I think septimus is just trying to figure out the line. These are legal questions, not opinion questions.

    Like or Dislike: Thumb up 1 Thumb down 0

  71. wr says:

    @James Joyner: “The Catholic Church, in particular, is strenuously opposed to capital punishment.”

    The Catholic Church pretends to be strenusouly opposed to capital punishment. But they don’t do anything about it. They don’t punish politicians for supporting it or withhold communion for officeholders who vote to uphold that.

    They save that punishment strictly for politicians who don’t support their beliefs on the only thing that actually matters to the church these days, controlling women’s sexuality.

    Like or Dislike: Thumb up 13 Thumb down 0

  72. Rafer Janders says:

    @Septimius:

    Or, every employee of a company may get two weeks paid vacation every year, but the employer still gets to approve when the employee can take the vacation.

    The employer does not, however, get to approve of where you take your vacation, or of whom you take on vacation, or of which hotels you choose to stay at, or of which route you fly to get there, etc.

    Like or Dislike: Thumb up 3 Thumb down 1

  73. legion says:

    @Septimius: Yes, but within limits… to take your example, your employer gives you vacation time. To use it, you have to follow certain procedures for applying & scheduling your time off. But your boss could not, for example, say that because he hates mickey Mouse, he won’t approve any vacations for people to go to DisneyLand. Likewise, an employer can choose what health plans & options you can choose from, but they could not dictate you using (or not) some aspect of it…

    Like or Dislike: Thumb up 4 Thumb down 0

  74. matt bernius says:

    @anjin-san:

    Fine. If you or someone in your family needs a specific medical treatment, your employer can decide that he thinks otherwise, and cast a veto. Sorry Charlie, no treatment.

    -1 for guessing at intent versus addressing the questions.

    I’m all for scrapping, but Septimus’ post posed some questions worth answering (and which I don’t fully understand myself). And as @Scott these all are on point to the law at hand. To that point:

    @Septimius:

    But, can’t employers determine how employees utilize benefits?

    I suspect it also depends on the benefit type. And I’m not sure that comparing utilization of vacation is comparable in this case to health insurance (which has a huge range of other laws governing it).

    I suspect much of this also comes down to the stipulations of the contract that the employee signed and internal regulations. For example, when I worked at a major corporation, part of the contract was agreeing to follow what was laid out in the corporate procedures. Those procedures were a constantly updated secondary document.

    While that procedures/code of conduct document could have specific rules around certain medical procedures, I have a hard time seeing how a corporation could *legal* prove that
    I had one of those procedures done. Unlike vacation, drug testing, or Facebook, I have a legal right to privacy when it comes to medical records. So unless I disclose or release those records, I’m not sure if there’s any legal way the corporation could acquire the records to prove a violation.

    Like or Dislike: Thumb up 2 Thumb down 0

  75. Rob in CT says:

    @James Joyner:

    Ok, fair enough on the legal issue aspect. The argument would rage, but there wouldn’t be suits I guess.

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  76. Barry says:

    @James Joyner: “I wouldn’t work for a Christian Science bookstore.”

    Not good enough; a minority person supporting an employer’s ability to discriminate against minorities could say the same thing, and it’d be wrong, also.

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  77. Barry says:

    @Rob in CT: “As much as I too think single payer healthcare is the right way to go, I don’t see how it helps with this issue. The same people would be just as fired up, because instead of being “forced to subsidize contraception” they’d be taxed and their taxes would be used to “subsidize contraception,” which is basically the same thing. We’d be having the same damn argument. There’s no way around it.”

    Seconding this – and it’d be from the same motherf-ers who had no problem forcing us to pay for their wars, their tortures and their subsidies.

    Like or Dislike: Thumb up 0 Thumb down 0

  78. al-Ameda says:

    All of this idiocy is exactly the reason why we should move to a Single Payer Health Insurance system.

    Instead, we’re treated to the spectacle of the Catholic Church claiming to be morally and legally offended by a mandate to provide insurance coverage to women which includes coverage for artificial birth control. As if that coverage would force Catholic women to avail themselves of artificial birth control. Absolutely absurd.

    Never mind the fact that for years the vast majority of Catholic women of child-bearing use artificial birth control. This “violation of religious belief” issue is so phony.

    Like or Dislike: Thumb up 1 Thumb down 0

  79. Tony W says:

    Every major employer in the US will fight to the death a decoupling of health insurance from employment.

    Can you imagine what would happen if talented employees were freer to found startups that may compete with their old employers? We’d have market-based competition, dilution of corporate power, employees working where they will, people retiring earlier than normal to go live their dreams, wage inflation as we replace those people with scarce workers who demand proper salaries and a host of other problems that ultimately redistribute money from the wealthy to the working/middle class.

    No corporate lobbyist worth his/her salt would ever allow a vote on this.

    Like or Dislike: Thumb up 6 Thumb down 0

  80. bookdragon says:

    @James Joyner:

    Would it be okay for the Christian Science bookstore to fire an employee who paid for the transfusion out-of-pocket? After all, the money they used ultimately came from a paycheck provided by the employer….

    Like or Dislike: Thumb up 2 Thumb down 0