The HHS mandate and religious freedom: A short response to Eduardo

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.