This is a follow-up to this post.
Wesley J. Smith notes that the Obama administration did not argue only that a corporation cannot have a religious liberty interest--a questionable proposition when put forward in that sweeping form. The administration went farther and argued that simply engaging in for-profit activity as a so-called "secular" business means that the businessmen in question lose any claim to a religious liberty violation by federal law. This is a remarkable position.
It is also, as far as I can see, in direct conflict with the Religious Freedom Restoration Act. Ed Whelan of National Review has a lengthy discussion of the HHS mandate and the RFRA here. I haven't read every word, but at that time this preposterous claim regarding profit-making had not yet come out into the open from the administration, and it looks to me as though he doesn't address it. In any event, the text of the RFRA itself (which Whelan quotes) hits it out of the ballpark. The RFRA says that the federal govt. may not burden a person's exercise of religion unless it has to do so for a compelling government interest and has chosen the least restrictive way of doing so. There is not the slightest implication that the RFRA applies only to "houses of worship" or "pervasively religious institutions" or religious non-profits or any such highly restricted set. Rather, it applies to persons. Presumptively, it seems to me that this would at least include businessmen who make a profit and that it would be possible for the government to violate their religious freedom concerning the way in which they run their profitable businesses.
This administration is, to put it mildly, not overly concerned with the legality of its actions, preferring power over legal principle whenever it can get away with it. This just looks like another such example. The blatant disregard of the clear meaning of the RFRA and the desire to substitute their own entirely made-up ideas of how much they ought to be able to restrict the applicability of religious liberty are thoroughly typical.
Comments (11)
How is "exercise of religion" defined or could be defined?.
Suppose a libertarian Christian argues that Bible says Render to Caesar etc etc and then again on the Biblical basis that everything is of God, and nothing is of Caesar, thus he needs not render Caesar anything. Thus he needs not pay taxes in particular.
Is this a valid "exercise of religion" and why not?
And why is Muslim polygamy not a valid exercise of religion in the West?.
I have argued that the separation between the State and the Religion depends on an awareness of the gap between natural and supernatural orders and ultimately from the Divine Reason that has created 'natures' such that the natural order, though rooted in supernatural, possesses a certain autonomy.
Thus the State is responsible for natural order and Religion for supernatural order.
It would be a bad religious argument that we should take care of the sick or poor because they are sick or poor. Mother Terasa, on the other hand, argued that she took care of the sick and poor because she saw Jesus in them, thus making a proper religious argument.
Now, if the awareness of the supernatural order is diminished, then encroachments of the State on the Religion could be expected, as in modern West.
On the other hand, when the autonomy of the natural order is not clear, we expect a confounding of State and Religion, as in ancient societies.
Posted by Gian | August 13, 2012 4:20 AM
Gian, these sorts of issues have been hashed out in American law for decades. In American law no one can stop a Muslim from _living_ with four women, but the state doesn't have to recognize his women as his wives. So that's a facile example. The courts would, rightly, reject the notion that his _liberty_ is being infringed because the state will not give special _recognition_ to four relationships with women. Then there's the compelling interest test. Taxation has usually been considered to pass that test.
The RFRA was a sensible law that was simply intended to reinstate the compelling interest test which had been undermined by an earlier court decision regarding laws of general applicability. You needn't bother bringing out the "what about infant sacrifice" example, because that one passes the compelling interest test with flying colors.
Forcing the owners of Hercules Industries to supply contraceptives to their employees--not so much.
As Ed Whelan says, one can't help wondering what legal advice Sebelius got before promulgating the HHS rule. Or were they, perhaps, just counting on the courts to flout the law in their favor? Liberal arrogance could possibly lead them to expect that.
Posted by Lydia | August 13, 2012 8:29 AM
Lydia,
What's amazing about the Obama administration's position, which you hint at in your response to Gian, is that they are essentially going to battle over the First Amendment so that more women can get really cheap contraception and/or abortion services. It is madness. The liberals in the Obama administration, up to and including the President himself, simply believe that one of the most important things the federal government can be doing is providing birth control or abortions to women who don't want to pay for either fully out of their own pocket. In a sane world, no one would have thought this is an appropriate subject for any level of government to be involved in, much less the U.S. federal government.
Posted by Jeffrey S. | August 13, 2012 11:55 AM
What is especially mad is that they should know that the RFRA was written precisely so that one wouldn't have to argue over First Amendment jurisprudence. It was meant to simplify things like this. This one should have been a no-brainer.
Posted by Lydia | August 13, 2012 12:19 PM
Good point about RFRA -- in theory these cases should never have to come before the Supreme Court as our federal appeals courts will strike down the mandate as a clear violation of this law.
Posted by Jeffrey S. | August 13, 2012 1:10 PM
Presumably the administration will continue to appeal, since SCOTUS also presides over interpretation and application of federal law as well as the Constitution. So I imagine (sigh) it will come before SCOTUS eventually, if SCOTUS agrees to hear the case(s).
I think your point was good, too: The sheer triviality and warped mindset of the administration has been evident throughout the HHS fight. What is it they are so determined to get covered without co-pay? Not hearing aids for the elderly (which are not presently covered in many plans), not various drugs for treating actual illness (e.g., I hear there are Parkinson's Disease drugs that are often not covered), not chemotherapy. No,it's...birth control??? This doesn't even pass the test of "bleeding-heart liberalism." I've said from the beginning that Congress should have hearings on overturning, specifically, the HHS mandate, and in so doing they should bus in from all over the country people who need more and more and more forms of healthcare, drugs, etc., and are struggling to cover their co-pays, or find that their insurance doesn't pay at all. Show the sheer, paralyzing, overwhelming fact that there are _vast_ amounts of _real_ healthcare that people could be genuinely said to have legitimate needs for, that we _cannot_ burden the system by demanding that all of it be "free" (because nothing is really free), and that in this context forcing all employers to cover contraception shouldn't pass the laugh test.
Posted by Lydia | August 13, 2012 1:37 PM
Isn't the violation of conscience being overstated?
After all, an objecting employer has the option of paying the $2000 assessment per employee-- deliberately low, I think, so to put more and more private insurance out of business- the intent of Govt may be malicious here but need not involve any violation of conscience.
It would seem that the employers WANT to provide insurance. Perhaps it is only by way of habit.
As for Catholic Church, one wonders how the matter has been handled in other Western countries.
Must the Catholic (or any other) Church be an employer?. Was Mother Terasa paid a salary?
Posted by Gian | August 14, 2012 1:06 AM
Lydia,
The liberty of the polygamist is being infringed, because having a matrimonial relationship is not just living with a woman, but being recognized as her husband by the wider society. That the society does not recognize his marriage is very real practical burden on his liberty. Far more, I may say, than providing coverage for medical care that includes objectionable contraception.
Perhaps the only reason it is not an issue is historical accident of not being a large number of polygamists in America.
Thus, the people opposing contraceptive mandate do so for a conservative reason that in American context, this burden is novel.
Posted by Gian | August 14, 2012 4:06 AM
Gian, your I am having trouble seeing how your comments pass the laugh test too.
It is true that the licentiousness of the polygamist is being restrained by laws against polygamy. Licentiousness is not liberty. Neither Lydia nor I think that the government is supposed to be some neutral, blind agent, unable to perceive good and evil. It ought to know about positive good and promote positive good where it can within the bounds of subsidiarity. Nor do polygamists generally believe that their religion requires that they marry a second, third and fourth times, rather than merely permit them to do so. So restricting their multiple marriages isn't forcing upon them something that is directly contrary to their religion.
You should have said "deliberately high enough", I think, to put labor-intensive businesses out of business by their inability to compete at a fair price with those companies who don't have to pay the fine. That is, between either offering no insurance and having a tough time attracting employees, or offering insurance that doesn't cover contraceptives and then paying the fine and being forced to charge higher prices and having a tough time attracting customers, there are businesses that will be no longer economically viable.
In most western countries the whole thing is done through government, which means that each person pays for it indirectly through taxes. This does not present the same morally offensive problem, since paying taxes is not formally for the purpose of providing immoral services. (It does constitute OTHER morally offensive problems, though.)
Hahahahahahaha! Laugh hahahaha test ahahahahaha failure!
Posted by Tony | August 14, 2012 6:27 AM
The polygamist example has two possible answers: First, that if the polygamist thinks that his religion requires him to "marry" multiple women, it is usually difficult for the law to restrain him from living with them and regarding himself as married to them, and most laws in most jurisdictions do not try. However, much might be done with child custody law, as, for example, not permitting custody to polygamous households on grounds of moral turpitude. This, I believe, would pass the compelling interest test. (Which you do not even seem to understand.)
The idea that it infringes religious liberty not to give *marriage licenses* to people for how many ever groupings they wish to create is ludicrous on its face and unworthy of any sort of conservative, or even any sort of sensible man. I had previously, Gian, thought that you might regard yourself as the former, though I was withholding judgement on the latter. The government does not _owe_ a person marital recognition for whatever groupings he happens to come up with and create out of his head. If it did, we could easily imagine "religions" that required groupings of, say, twenty men and women, "polyamorous" households all "married" to one another and claim that the government was infringing religious liberty by not granting the special state recognition of marriage to these pairings (which I believe, if I'm not making a mathematical error at this time of the morning, would be twenty factorial pairings in that "marriage" group alone). If this reductio won't do it for you, I don't know what will.
There is _no_ compelling state interest in requiring that employers provide insurance that pays for contraception. None.
Posted by Lydia | August 14, 2012 9:08 AM
Lydia,
I am conservative enough to respect the Mohammedan religion and to realize that the best arguments that Christians may make must be conservative and cross-cultural. Otherwise, it is easy to get lost in relativistic fog (as you do here with polyamorous groupings and imagined religions).
Otherwise, try to argue against looming bans on circumcision.
Posted by Gian | August 15, 2012 11:08 PM