John Holbo:
Religious Freedom and Contraception: I’m amazed by the turns this issue has taken…. I took the legal issues to be relatively clear-cut. Obviously, for Scalia-endorsed reasons, you can’t just give everyone the private right to nullify any public law, piecemeal. Religious liberty doesn’t mean that. But, apparently, it does?
“The fact that the White House thinks this is about contraception is the whole problem. This is about freedom of religion, it’s right there in the First Amendment. You can’t miss it — right there in the very first amendment to our Constitution,” McConnell said. “What the overall view on the issue of contraception is has nothing to do with an issue about religious freedom.” McConnell went on to embellish the argument, claiming Obama is being “rigid in his view that he gets to decide what somebody else’s religion is.” He said that “this issue will not go away until the administration simply backs down.”
McConnell is sensitive to the fact that most Americans aren’t opposed to birth control…. A surprising number of commentators, including some on the left, have been saying they think the Obama administration is in the wrong here, on religious liberty grounds. But it seems obvious (to me) that this is absurd, because the McConnell line is absurd…. What will McConnell have to say about the Muslim employer who… wants to impose de facto sharia law on Muslim and non-Muslim employees alike by unilaterally nullifying the application/enforcement/funding of various laws in creative – and religiously sincere! – fashion. Obama is going to oppose this sort of thing, because he hates religious freedom. Republicans, on the other hand…
Or take the classic case: should sincere pacifists be allowed to withhold a portion of their tax bill, proportionate to the amount of the budget that goes to funding the military? The GOP, I take it, will be supportive of all who choose to check that box.
I suppose someone is going to try to argue that this case is different…. The government doesn’t provide this thing. The government requires employers to do it. So the case is analogous to conscientious objection to military service. You can force people to pay taxes that pay for guns, but you can’t actually force them to shoot the guns, personally. You have to let them be stretcher-bearers instead…. Only in this case the objection is to one particular form of stretcher-bearing, as it were. But it’s really hard to take this too seriously. It’s not as though anyone is suggesting we force Catholic employers to hand out birth control pills… force employees to take the pill or anything like that. Forcing employers to pay… an insurance company… to pay… a doctor… to tell… a pharmacist… to give something to someone that the employer wouldn’t ever ask for, for themselves, hardly seems analogous to asking a pious Quaker to shoot a man.
(The principle that layers of bureaucracy are semi-prophylactic against moral pollution is subject to doubt. But we seem to have no other principle, so this will have to do in the case of prophylactics.)…
[S]uppose the Muslim owner of a large company that employs Muslims and non-Muslims (or even just Muslims) wants to be exempt from insuring medical stuff except in cases where male employees see male doctors and female employees see female doctors. The owner find it objectionable that ‘his money’ should pay for anything he finds religiously repugnant, and this is his take on sharia law. Would Republicans have any objection?
What goes for employers will go for family law as well…. [I]f you really think that religious conviction automatically overrides public law then you clearly just legalized not just same-sex marriage but polygamy and a bunch of other stuff that’s not even occurring to me at the moment. How not?…
Conservatives are hammering home the talking point that Obama is telling you what religion to practice. No…. Religious liberty is individual liberty…. When you give groups the right to restrict the religious liberties of individuals, you sacrifice this principle…. Surely the right to take the pill is not a religious right…. But it does not follow that restricting the right to take the pill is not a restriction on individual freedom of religion….
Yes, employees can go out and buy the stuff even if it isn’t covered by employers. But, since it would be free otherwise, by law, the church groups are, in effect, imposing a ‘sin’ tax, to express religious disapproval of what these individual are up to. Surely that’s a violation of religious liberty: to wit, the right not to regard being on the pill as sinful. If the Catholic church wanted to impose a voluntary sin tax on practicing Catholics – if the Bishops said all Catholics who use birth control should pay a bit extra, to atone for this sin – that would be acceptable (at least legally non-objectionable, in the eyes of the government). But the church can’t… compel the state to help them extract payment even just from Catholics, let along non-Catholics. It’s not the government’s business. Quite the contrary…
