The Dangers of Obama's Contraceptive Compromise

The same logic could be used to get businesses out of hiring gay employees or paying minimum wage.

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Does religious freedom entitle secular business owners to exemptions from generally applicable laws that offend their religious beliefs? In a theocracy, the obvious answer is "yes" (or the question is moot) for business owners whose beliefs conform to the beliefs of officialdom. In a secular democracy, the obvious answer is "no" or "not in general." We would have few generally applicable laws if individuals could declare themselves and their commercial enterprises exempt from any laws that offended their religious beliefs.

This is a fairly simple, basic civic principle. But it's now a source of considerable controversy, because of religious objections to contraception, exacerbated by partisan objections to the Affordable Care Act.

The Obama Administration persists in trying to resolve battles over the ACA's contraceptive care requirements, but all its efforts seem destined to fail. Religiously affiliated, not-for-profit institutions (like Catholic hospitals and universities) will be exempt from the contraceptive-care mandate pursuant to the administration's latest compromise. Free contraceptive coverage would, instead, be provided directly by insurers. (Churches have always enjoyed an exemption.)

But this proposal may not satisfy church-affiliated not-for-profits, and it does not address the concerns of secular business owners who consider contraception sinful: They will still be required to cover contraception. "Business owners don't have any religious rights in connection with their businesses," Kyle Duncan of the Becket Fund laments.

That is clumsily phrased but, in this context, it's essentially true and generally appropriate. If withholding religious exemptions from business owners seems unfair (or a violation of religious freedom), consider the alternatives. There's no principled justification for privileging a belief in the sinfulness of contraception over other religious beliefs that conflict with other civil laws. (Usually, not even religious groups seek faith-based exemptions from criminal laws. The Catholic Church does not claim that religious freedom includes the freedom to molest children.)

In any case, if business owners with religious objections to contraception were exempt from laws requiring contraceptive coverage, then business owners with religious objections to homosexuality would be exempt from state laws banning sexual orientation discrimination, just as owners who hold free markets sacred would be exempt from maximum and minimum wage laws.

I could go on. The hypothetical list of religious exemptions from law is about as long as the list of religious beliefs in a pluralistic country. Indeed, if religious exemptions were readily available to all, imagine how many people would discover fundamental theological objections to the tax code.

So what if the Church of No Taxation practiced a religion of expedience? If owners of secular businesses were granted "religious rights in connection with their business" as the Becket Fund advocates, then the sincerity of their faith-based objections would be difficult, if not unconstitutional, to question. Government interrogation of religious beliefs poses a much greater threat to religious freedom than a requirement that secular businesses conform to secular law.

Yet what I consider the usually frivolous claim that religious freedom exempts secular businesses from general legal obligations is being taken seriously by some federal courts (as the Becket Fund reports). Last July, for example, in Newland v Sebelius, a federal district court in Colorado enjoined enforcement of the reproductive health care mandate against Hercules Industry, a private company owned and operated by a Catholic family opposed to contraception. (I wrote about the Newland case here.)

Newland was decided under the Religious Freedom Restoration Act (RFRA), a 1993 statute expanding the right of private individuals to challenge legal "burdens" on their religious freedoms imposed by federal law. RFRA was enacted in response to a 1990 ruling, authored by Justice Scalia, rejecting a religious freedom claim by native Americans fired from their jobs for sacramental use of peyote and denied unemployment insurance. Back then, Scalia confirmed that "the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."

Since then, the Supreme Court, Justice Scalia included, has adopted an expansive, potentially anarchic view of religious freedom and religious immunity from secular law. The Court's conservative majority may eventually provide a sympathetic venue for secular business owners posing religious objections to the contraceptive care mandate. If only an unpopular, minority religion, lacking powerful institutional backing, would demand an exemption from a popular law, or one that most Justices approve (like a ban on peyote). Then the court might discover (and Justice Scalia rediscover) the virtues of secular governance.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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