Thursday, April 11, 2013
Steve Smith on "the Hard and Easy Case of the Contraception Mandate"
Profl Steve Smith (San Diego) has a clear and compelling essay up, at PENNumbra, on the HHS mandate and religious freedom, called "The Contraception Mandate and Religious Freedom." As he says (correctly, I think): "There are hard cases, and then there are easy cases. The Department of Health and Human Services’ (HHS) contraception mandate (the Mandate) gives rise to both." As he points out:
Many people who argue that the mandate does not violate RFRA can be better understood as contending, wittingly or unwittingly, that religion should not receive special, legal protection. And one reason why the contraception mandate controversy seems so important, even to religious believers (like myself) whose faith does not proscribe the use of contraceptives, is that the controversy is a contest in miniature over the fate and future of religious freedom in America.
https://mirrorofjustice.blogs.com/mirrorofjustice/2013/04/steve-smith-on-the-hard-and-easy-case-of-the-contraception-mandate.html
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I support the mandate and do not believe "religion should not receive special legal protection." The question is what sort of protection should it entail. Thus, when we are talking about religious institutions controlling their own ministers and promoting their own faith or various internal things, yes, they should be treated differently that the employers at Target.
But, at some point, religious institutions cross the line into the public and are outward, including employees who are not members of the faith. A religious institution, e.g., is behind the health plan of a relative of mine at a local college. She is a library clerk and has health coverage from the job as a benefit of her labor. I think she should be able to use that health coverage per her religious faith according to her health needs.
"Wittingly or unwittingly" some opponents, who at times see the mandate as some grave sin, do not respect the religious beliefs of the employees and students like Sandra Fluke who they want to deny coverage from even though in no way is the religious institution directly funding anything, they are in a public sphere involving outsiders and a general government program is involved and the logic of the thing would mean the salary they pay the employees also wouldn't be able to be used for contraceptives etc.
So, I reject this business about people supporting the mandate not respecting the special role of religion. With respect, that's bogus. It is something of a tough question but things like that are a bit insulting, with respect.
And,yes, if the religious beliefs of employees and students, not ministers or institutions that only have followers of one belief, cannot use their own benefits to care for their health needs pursuant to their conscience [that is the WHOLE point of insurance -- reality dictates that w/o money, you cannot truly decide -- you might, e.g., not be able to have and keep your child w/o insurance to pay for the expensive medical costs] is denied, the fate and future of religious freedom is at risk.