MOJ-alum-and-friend Eduardo Penalver is, I think, right to observe that religious exemptions from otherwise-valid, generally applicable laws raise many tricky questions: For example, should "religious" objections to compliance with such laws be treated differently than "non-religious-but-deeply-felt" objections? (I think the answer here is often-but not always-"yes," but the question is certainly disputed.) If so, how do we define "religion" so as to distinguish religion-based objections from (merely) conscientious objections? (As Eduardo notes, he wrote an important article on this subject.) And, given (as I think it is given) that even a just and well-ordered political community cannot and should not accommodate all requests by religious believers and institutions for exemptions from general laws, how should we go about identifying those situations when it should?
I think, if I read his post correctly, that Eduardo and I agree that, whatever the result should be in some other cases, in this case, an accommodation would have been, and is, appropriate. As I see it, (a) the burden is significant and (b) accommodation would not excessively hamstring the government's ability to achieve what it regards as the important interest served by the preventative-services-coverage mandate. (I happen to think it is bad policy to mandate coverage of abortion-causing drugs and sterilization, period, but that is a separate issue.) And so, whatever the merits of a constitutional challenge under current doctrine, the merits of the RFRA argument are, I think, quite strong.
With respect to the "politics" of the decision, I am confident that the Administration determined that its political interests were better served by risking alienating some Catholics who had supported him than by alienating those in his base who lobbied strongly for the mandate. (The recent goings-on with Komen certainly illustrate this part of the base's influence.) And, I suspect he was advised that the alienation of many Catholics from their bishops, coupled with the fact that most Catholics do not accept the Church's teachings when it comes to contraception, could be safely relied on to reduce the extent of any Catholic defection from his body of supporters.
What's next? I wish I knew. Unlike some, who persist in the confidence that this Administration isn't really insensitive to religious-liberty concerns, I think it's hard to avoid the conclusion that is. Still, I hope the Administration re-considers, and does not find itself in the position of imposing crushing penalties on those institutions that refuse to comply with the (unjust) mandate.
UPDATE: According to this piece, in the Washington Post, some in the Administration think the mandate is a political opportunity, not a liability.
Finally, I have to say that I think Eduardo is wrong to dismiss "the mostly fatuous 'religious freedom' line of attack that religious conservatives have strategically adopted as their new all-purpose refrain in the culture wars." If religious freedom is increasingly at stake in "culture wars" battles, it seems to me that it is not because of a "strategic" decision by "religious conservatives," but instead because one side in those "wars" increasingly sees religious freedom and pluralism as obstacles -- though vulnerable ones -- to its efforts. Sure, some religious-liberty claims are losers but, at present, I think what Eduardo calls a "line of attack" is looking more and more like a very necessary defense.
Further to my post immediately below, a propos Tom's very welcome post a bit further down, I'll propose a slightly more generally worded variation on Tom's proposed wording:
Because we are a(n) [Name of Ecclesial Affiliation] institution, there are some devices and procedures offered by some medical providers for which we are not able, in clear conscience, to subsidize insurance coverage. For further information please consult your insurance provider.
The private insurance provider will then be required to reply to such queries along the lines laid out in the Hawaiian provision cited below by Tom.
Tom's notice of an apparent incipient 'walk back' on the part of HHS is provisionally very good news both for the cause of free exercise and association, and for the cause of socio-economic justice consistent therewith. (As Tom notes, when Chris Matthews - and, we might add, E.J. Dionne and countless other similarly situated folk - gasp aloud at the clumsiness of a putatively graceful Democratic President, that President has assuredly mis-stepped.) In reply to Tom's query, however, I would register my objection to at least one piece of the Hawaiian model of accommodation. To my thinking, a state-imposed requirement that religiously affiliated institutions provide detailed instructions on how to procure that which the religious communities themselves see as wrongful is both profoundly demeaning of those religious communities and their adherents, and ominously close to first-amendment-violative forced speech or commandeering. I accordingly find Tom's suggested reformulation much to be preferred. Bravissimo as well to Tom's more generally articulated desideratum that the onus of furthering the state purpose in a manner that does not problematically impinge upon free exercise and association be placed upon the insurance companies rather than the religiously affiliated institutions.
Let me also note here in passing, if I may, that were the U.S. to adopt a single-payer mode of insuring health as do all of our peer nations, we would not only enjoy a much more just and efficient spread of health risk over our population, but also would not be faced with the many Ptolemaic contortions we can expect in the years ahead, of which the present conundrum is doubtless but one early instance. (Even given that the 2010 reforms are preferable to what went before, as I maintain they are.) It is only fitting, I suppose, that a putatively 'progressive' President who alienated scores of millions of his supporters by taking 'single payer' 'off of the table' in the 2009-2010 health insurance reform efforts now finds himself alienating many of those same supporters a second time, along with other 'moderates' and 'conservatives,' as his HHS collides with first amendment values in trying to make a social insurance program of what remains for the most part a privately provided such 'program.'
The Center for Law and Religion is delighted to announce that Professor Cathleen Kaveny (Notre Dame) will visit us at St. John's Law School next Monday, February 13, at 4:15. Hers is the second session in our ongoing seminar, Colloquium in Law: Law and Religion. Cathy's very interesting paper is titled, Love, Justice, and Law: The Strange Case of Watts v. Watts. Academics in the New York area and beyond are welcome to attend. Please contact me if you wish to do so.
The White House seems to be taken aback by the negative reaction to its refusal to accommodate in the contraception mandate. As both Anthony Picarello (USCCB general counsel) and my wife said today, when Chris Matthews calls President Obama way off base, the President's in trouble. According to one report, administration officials interested in a compromise are thinking of a broader exemption but with a requirement, similar to the Hawaii statute that Melissa Rogers described last fall, that
religious employers that decline to cover contraceptives must provide written notification to enrollees disclosing that fact and describing alternate ways for enrollees to access coverage for contraceptive services. Hawaii law also requires health insurers to allow enrollees in a health plan of an objecting religious employer to purchase coverage of contraceptive services directly and to do so at a cost that does not exceed ‘the enrollee’s pro rata share of the price the group purchaser would have paid for such coverage had the group plan not invoked a religious exemption.
It would be nice if insurers were called on to take up the slack here, instead of objecting religious organizations. As to "describing alternate ways" of access ... As I blogged before, the idea of requiring religious objectors to inform their employees about alternative access generally does not assuage conscientious objections: moral theology treats referring someone to the nearest abortion clinic as impermissible cooperation with evil. However, if a mention of alternatives were required, I wonder if it would be palatable if the alternative in question were the insurance company. Suppose what Catholic Charities must say upfront to employees is, "We do not cover premiums for contraception; for questions, see the insurance company directly at [phone number]." Would that be an impermissible referral, or would the generality of the language, and the fact that the insurer might be an obvious contact anyway, mean it's not impermissible? I'd be interested in others' answers to that question, because models like this may receive serious discussion soon.
Rick and I keep posting letters that our group of law professors has been writing, arguing to various state legislatures considering the recognition of same-sex marriage that they should also enact meaningful religious-liberty protections. It's not that we think readers want to see the details of each and every state's laws; we' re just keeping an archive of these letters. Here's the page compiling them all (it's also in the list of links at the bottom left of the blog). For some poor poli sci grad student slaving away on a dissertation in 2052....
So here is the latest, a followup to Washington legislators, who have expanded their proposed religious-liberty protection but left the protections incomplete and, frankly, wildly inconsistent between different sections.
Tuesday, February 7, 2012
Today, the 9th Circuit affirmed the District Court's finding that California's Proposition 8, overturning gay marriage in that state, is unconstitutional. We will be seeing more on this case. http://online.wsj.com/article/SB10001424052970204136404577209183209519256.html
