The Obama administration made an embarrassing political blunder recently when it mandated, with swaggering disregard of First Amendment niceties and pugnacious indifference to the moral teachings of the Roman Church, that Catholic organizations would be required to provide contraceptives to their employees. When Catholic institutions objected, they were told they had a year to get used to it.
This not only aroused predictably heated emotions on the Right, but was too much even for many members of the liberal media kingsguard (even the true-blue E.J. Dionne, for example, joined the chorus of indignation).
Now the administration has done some hasty backpedaling, in appearance at least, by granting an “accommodation” that says that Catholic organizations won’t have to pay for these services after all. Instead, the Imperium has graciously ordained that such services will simply be provided “for free” by insurers (“insurance”, readers may have noticed, being a word that is quickly being drained of all its original meaning).
The fundamental laws of nature, however, remain in effect even despite edicts from The One, including the one that says there’s no free lunch. Contraceptive services do not fall like manna from the sky, and if they are going to be provided, then they must be paid for.
The WSJ expands on this, here.
21 Comments
Part of the difficulty of holding office is that you are forced to make decisions which will inevitably piss a lot of people off. So while Obama’s political opponents – who routinely ignore the Church when it comes to things like capital punishment and immigration – gleefully used this decision to pummel the President on the phony issue of “religious liberty.” That’s a crock. There is no First Amendment issue here.
The Catholic Church can preach against birth control all it wants, and nobody is being prevented from following their precepts. However, the Church is also an employer, and as such cannot claim exemptions from laws simply because it objects to those laws, provided that they are reasonable and are not enacted to target a specific religion. In other words, the First Amendment enables the Church and its followers to follow Catholic dogma, but it does not permit the Church to enforce its precepts on employees who may not share them.
If one accepts the premises that there ought to be national standards for health insurance, and that contraception ought to be included among those standards – which are separate issues – then there is no First Amendment right which can legitimately shield a religious institution from compliance.
For example, we would all consider vaccines to be an integral part of a minimally acceptable insurance plan. However, vaccines are a no-no if you’re a Christian Scientist. Ought those of their employees who want to be vaccinated be precluded from having vaccines included in their health insurance?
If a religion thinks that at the age of sixty, everyone should cease working to live on an ashram and pursue a life of contemplation, they would not be exempt from age discrimination laws. If the Amish want to let ten year olds work in the fields, they cannot use their religious beliefs to evade child labor laws. A religion which glorifies poverty as the path the enlightenment cannot use that belief as a means to avoid paying the minimum wage.
The reason why there is no First Amendment issue is expressed best by noted activist judge Antonin Scalia in Employment Division v. Smith:
“It is a permissible reading of the [free exercise clause]…to say that if prohibiting the exercise of religion is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended….To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ – permitting him, by virtue of his beliefs, ‘to become a law unto himself,’ contradicts both constitutional tradition and common sense.’ To adopt a true ‘compelling interest’ requirement for laws that affect religious practice would lead towards anarchy.”
You must be referring to all those evil conservatives who keep insisting that the Catholic Church should execute heretics. (Love those scare-quotes around “religious liberty”, by the way.)
In my opinion, yes. I think Christian scientists are nuts — but if their employees don’t like it, they can go work somewhere else.
This case is different from a law prohibiting, say, human sacrifice by the Church of Quetzalcoatl. It’s something new: a compulsion for the Church to provide a service that is in direct violation of its teaching. It would be like — well, the best example I can think of is that it would be like insisting that the Catholic Church issue contraceptives.
I hope the Court gets a look at this one.
Also, let just me say how surprised — absolutely gobsmacked — I was to see, in response to this post, a lengthy comment from you brushing aside any niggling Constitutional concerns to argue for further expansion and intrusion of Federal power!
You could have knocked me down with a feather.
I can certainly understand how deeply embarrassing it must be to invariably end up at the short end of these discussions, so in the interest of sparing you any further humiliation in front of friends, family, and the blogosphere at large, I will politely respond to the snark in your first response thusly: Nobody is declaring conservatives to be evil or the Church to be intent on executing heretics. Religious liberty is in quotes because in this case, the religious liberty of the employees trumps the religious liberty of the Church. As stated, a principle of constitutional law is that the First Amendment prohibits either compelling or forbidding people to practice a given religion’s beliefs and practices, and this applies to religious institutions equally to secular ones.
The argument that an employer has the right to offer inferior health insurance because employees can choose to work elsewhere is similarly a non-starter. As a society which believes in equality of opportunity, and one which views the workplace as an integral part of that, we establish certain minimum standards and empower the state to enforce them. Since we believe in safe factories, we empower OSHA and other agencies to enforce safety standards. The argument that people who want only to work in safe factories can work elsewhere does not exempt companies from compliance with regulations. Similarly, if you accept as a premise that insurance coverage for contraception ought to be universally required, then you can’t excuse employers from providing it because their personal beliefs are against it.
It’s like pharmacists who oppose contraception and refuse to fill birth control prescriptions. If you choose to be a pharmacist, you waive your right to let your personal beliefs prevent you from doing what the profession demands. If an enterprise like the Catholic Church decides to be an employer, it waives its rights to let their beliefs prevail over those of its employees. We make exceptions for entities which follow the Church’s doctrinal mission, but we do not exempt secular (and taxpayer supported) enterprises like universities and hospitals. We also make a distinction between a Catholic hospital’s role as a provider — i.e., they don’t have to perform abortions — and its role as an employer. So the idea that somehow the Church’s “religious liberty” is infringed upon when a professor at Notre Dame gets her birth control pills paid for by insurance is a fatuity.
As for your last remark: there are no constitutional concerns. We prevent animists from sacrificing dogs because we believe in animal cruelty laws, not because we are targeting animism. We don’t allow polygamy regardless of LDS beliefs. This is no different: if there is a law which is reasonable and not intended to target a specific religion, then there is no infringement of First Amendment rights. Just ask Antonin Scalia.
The issue of whether or not this represents an unwarranted “further expansion and intrusion of Federal power” is irrelevant. I am not making the argument that insurance companies should universally offer birth control or that the state should mandate that they do so. That’s a separate discussion. I am refuting the argument that the Church has the constitutional right to make that decision for their employees.
Yes, I’m sure you can!
Your comment about “Obama’s political opponents -— who routinely ignore the Church when it comes to things like capital punishment and immigration” was completely irrelevant in the present context; it would only have any bearing on this topic if conservatives had advocated that Catholic institutions should actually be compelled to execute people.
Your remarks throughout are mere question-begging. You write:
… and …
… as if these points aren’t exactly what’s at issue here.
You also miss the point entirely regarding the distinction between forbidding crimes (human and animal sacrifice) and compelling an institution to provide a service, at its own expense, in violation of its religious principles. If HHS decides a year from now that abortion and euthanasia services were now to become “rights” as well, will the Catholic Church be obligated to provide those also?
Finally, you falsely distinguish between the Church’s doctrinal institutions and its charitable organizations, as Charles Krauthammer will remind you here.
When even President Obama and E.J. Dionne agree that this was an overreaching edict and a political mistake, I’d think that would tell you something — but not you, I guess.
See you in Court, I hope.
The gratuitous insult lobbed at the Republicans is relevant insofar as it illustrates how they are happy to carry the Church’s water for them if it is an issue which is red meat for their base, but not when it offends their base. So yes, it is irrelevant, but too good to pass up.
There is no question begging going on here. Whether the Church can be exempt is not “at issue” – this is a matter of settled law. You may not like the law, but that’s what it is. And whether mandating coverage for contraception is a good thing or a bad thing is not relevant to the narrow issue of whether the Church has a First Amendment right of exemption.
The Church and its hospitals are not “providing a service.” They are not giving out contraceptives or performing abortions. When health insurance is subsidized by an employer, it is not a service rendered, but rather a part of an employee’s compensation. Your argument elides the distinction between the two. It is similar to claiming that the LDS church can forbid its employees to spend their paycheck on whiskey.
If there were a federal mandate for health insurance to cover abortion and euthanasia, then the Church would be required to provide it. The principle remains the same: if there is a reasonable law which is generally applied and not targeted at a specific religion, then there is no First Amendment claim for exemption.
I disagree with Krauthammer. There is quite a difference between offering offering social services and preaching to the faithful.
All of this ignores the fact that contraception is routinely prescribed for lots of things besides the appalling act of non-procreative sex, that it leads to fewer abortions, and prevents disease when prophylactics are used propylactically. Or that – as Gail Collins notes – the Church has already failed to get its own faithful in line, so it is trying to lever the government into doing its work for them. Nobody is forcing a devout Catholic to use birth control or get an abortion. Our system of government is based on the notion that, likewise, devout Catholics cannot force others to abide by their religious dogma.
More muddled thinking.
No, just to provide it for others.
When the Church pays for an employee’s health insurance, it is providing a service. That it is a mandatory part of that employee’s compensation is completely beside the point. It is not the same as “claiming that the LDS church can forbid its employees to spend their paycheck on whiskey”; the issue here is not the Church telling its employees they can’t spend their paychecks on condoms. If you wanted to exempt the Church from providing health “insurance” as part of the compensation they pay, and to let them just give the money to their employees instead to buy insurance on their own, I’m sure they’d be fine with that. According to your argument, you should have no objection to that.
And this is hardly a matter of “settled law”. This whole brouhaha has been about executive whims: first to bring the Church to heel, and then, when the political storm-clouds began to gather, to pronounce an “accommodation” that let the Church off the hook, and informed the “insurance” companies that oh, just by the way, they would now be providing these contraceptive services “for free”.
“Settled law”? It smells more like imperial caprice.
If the Church fails to “get its own faithful in line”, that is a private matter between Catholics and the Church, not Barack Obama and Gail Collins. To say that the Church is trying to “lever the government” into anything at all, when it is the government that is applying a legal compulsion to the Church to provide services that are directly in conflict with its principles, is an inversion — a perversion — of truly Orwellian proportion. All the Church wants — all that the entire conservative movement wants — is to be left alone.
Look, I’m not religious, and I am no fan of the Catholic Church. But what astonishes me, Peter, is the extent to which all of this — and every new incursion of federal power into every aspect of private life — just seems fine and dandy to you, fully justified in the pursuit of some earthly Uptopia. (As William Voegeli has said, liberalism has “no limiting principle” regarding what government can and should do; nothing is ever enough.) There was a time in America when something like this — the Federal Government forcing the Catholic Church to provide contraceptives to its own employees! — would have been utterly unimaginable, a story to frighten children with, to teach them about the fragility of liberty. But you just seem to supinely accommodate every new outrage. The Constitution? Limited government? Enumerated powers? States’ rights? Religious liberty? (Ooops, sorry — I mean “Religious liberty”?)
No, nothing to see here, folks. No Constitutional issues at all. Move along, please. It’s getting close to curfew.
Religious liberty allows the Catholic Church to preach as much as it wants about the supposed evils of contraception, but it does not allow them the right to impose those beliefs on employees who do not share them.
That is not only settled law, but it’s hardly a radical expansion of government power. Most states require the Church to provide their employees with insurance plans which cover birth control, and some go further than the federal mandate by requiring church employees to be provided this coverage as well.
While you included the editorial from today’s Wall Street Journal, what I think is more striking is the letter to the editor which is adjacent to it:
“President Obama has consistently pushed the political field as far left as possible, and this latest policy move is consistent with his record. Although I cannot think of many Obama policies that I like, I greatly admire the energy with which he drives his agenda. The consistency and authenticity that he demonstrates are qualities that many voters find appealing.
There is no doubt that President Obama is a hard-knuckled Chicago politician, but he also possesses strong personal convictions. As long as political calculations win out over the passionate promotion of one’s principles, we will continue to nominate candidates who flirt around the edges and fail to inspire. Acting in accordance with one’s beliefs bestows great confidence, as is evident in President Obama. I’m a Republican, and I wish we had ten like him.”
Quite a statement. This guy is no pantywaist liberal – he goes on to talk about “government meddling in the economy” – but he clearly recognizes that what sets Obama (and Paul and Santorum) apart is that they have core beliefs, unlike the elasticated Romney or the erratic Gingrich. Not such a bad thing in a time when “the best lack all conviction and the worst are filled with passionate intensity.”
Oh, I quite agree; Obama is nothing if not a diligent Leftist ideologue. That’s why it’s so vital to get rid of him, and why our current crop of “conservative” candidates is so disappointing. And if this is how he behaves in a first term, the prospect of his getting a second, in which he has no practical concerns about reelection to act as a brake upon his overweening arrogance, should make our blood run cold.
More Orwellian inversion: for you the Catholic Church pushing back against being compelled by the Federal government to provide services that are in direct contravention to its core teachings on the sanctity of life becomes the Church “imposing its beliefs” on its employees. Absolutely breathtaking. Just who is doing the “imposing” here?
There is nothing the Catholic Church can possibly do to prevent its employees from buying and using contraceptives; it has absolutely no way at all to “impose its beliefs” in the way you seem, in a grotesque distortion of reality, to imagine. This latest dictum is nothing less than a public humiliation; it is as if Washington were forcing synagogues to serve bacon cheeseburgers in the cafeteria.
When resisting a Federal compulsion to provide free services of an abhorrent nature becomes “imposing one’s beliefs on others”, we have left solid ground behind, and words have lost all their meaning.
Describing Obama as a “diligent leftist ideologue” is wrong on all three counts. “Ideologue” is the pejorative term we apply to those whose principles we disagree with. However, he is hardly a leftist or a leader who is diligent in pursuing its agenda. A leftist would not have offered to slash entitlement spending in the grand bargain which he offered to Boehner, nor would a leftist have declined to prosecute those whose actions led to the financial meltdown. A leftist would not have retained much of Bush’s policies regarding the detainment of terrorists, killed an American terrorist with a drone attack, or violated Pakistani sovereignty to get bin Laden. A leftist would not have increased troop levels in Afghanistan, blocked a vote on Palestinian statehood in the UN, or sent troops to Libya. A leftist would have pursued the public option, and not a health care program whose provenance is the Heritage Society and the Republican governor of Massachusetts. A leftist would support marriage equality. Nor is he being a leftist in this instance: since most states already have laws which compel the Church to provide its employees with coverage for contraception, it can fairly be described as a mainstream position.
Of course the Church is imposing its views on its employees. By forcing them to pay for their own contraception, it places a significant burden on their ability to use birth control, regardless of whether or not they agree with Church dogma. It imposes its will even if the employee is not Catholic, disagrees with Catholic precepts, or needs birth control for “medical” reasons like regulating menstruation. Since 98% of Catholics reportedly have used birth control, let’s assume that 98% of Church employees would like to have it covered in their insurance. How is the Church’s refusal to acknowledge the wishes of its employees anything but imposing its will?
Leaving aside the question of whether the Church is providing a service, the reason that it is being “compelled by the Federal government to provide services that are in direct contravention to its core teachings on the sanctity of life” is that these services were determined by the Institute of Medicine to be integral elements of a health insurance plan. The church is not challenging what doctors recommend, and is happy to ignore medical advice when it conflicts with their interpretation of the Biblical injunction not to “spread your seed.” Hence the analogy of a synagogue being forced to serve bacon cheeseburgers is inapt. If there were a law requiring every employer to serve bacon cheeseburgers, then synagogues would not be exempt. However, there is a bona fide social benefit in providing access to health care, where there is none with serving bacon cheeseburgers. You want fries with that?
Since you are clinging to the position that employees have no rights, and their access to health care should be determined by the whims of old men who seem to be striving mightily to make the Taliban look enlightened by comparison, I don’t think we will reach agreement here. That being the case, I will close my participation in this riveting dialogue with something I am sure will appeal to your Scottish heritage.
This week’s Economist has an article questioning why England — which historically had “lived under sex laws that would have won the approval of the most austere mullah” suddenly became a licentious culture in the eighteenth century. As evidence, it reports that “the upper middle-class members of the Beggar’s Benison club in Scotland, founded in 1732, apparently thought nothing of arranging meetings where they could drink, sing, and fondle naked women. Such evenings were brought to a fitting climax, as it were, when they would commonly ejaculate into a ceremonial pewter platter.”
Those wacky Scots. Who knew?
Well, you’re right about one thing here: I doubt we’ll reach agreement. Indeed, when you cite with approval a letter praising Mr. Obama for sedulously pushing the political field “as far left as possible” (with “drive” and “energy”), and then harangue me for agreeing that he is indeed a diligent leftist, you have once again sunk so far into spluttering incoherence that no productive dialogue is possible. Your Rottweiler-like guardianship of Mr. Obama is commendable for its unswerving and uncomplicated fidelity, I suppose, but hardly makes for worthwhile or productive discourse.
Not a leftist? Not an ideologue? This is a man who said he would raise capital gains taxes, just for the sake of “fairness”, even if he knew it would decrease revenue. Anyone with strong and consistent political convictions operates, by definition, according to an ideology. (Outside the echo-chamber of liberal Newspeak, words actually have meanings.)
Incoherence? Just for example, you argue above that a leftist would not have “declined to prosecute those whose actions led to the financial meltdown.” Meanwhile, here’s what you said on that topic when called out on it just a few weeks ago:
Perhaps it was “diligent” you objected to.
I’m not going to get into a barren ten-thousand-word squabble about whether or not the incumbent is a man of the Left. I’ll just say that if the Obama horizon seems level to you, it only show how far you yourself are listing to port — which is further demonstrated by your casually equating my not giving you something you’d “like to have” as my “imposing a burden”. (In the rational world outside the liberal asylum, where words mean what they say, when I am required to give you something out of my own pocket, that’s a burden imposed on me.)
I would also have thought that, as a Jew, you’d have been a bit less blase about the idea that all that prevents synagogues from being compelled to serve treyf in their cafeterias is a contingent opinion about the health benefits of cheeseburgers. But as observed above, liberals admit to no limiting principle when it comes to the power of government.
Finally, you conclude, for no reason that I can fathom other than a wish to give personal offense, with a gratuitously insulting non sequitur about my ancestral countrymen.
Good day to you, sir.
The emphasis is the rub(ber), so to speak: “…, as a lefty self-loathing Jew, …”
I think the letter writer is dead wrong about Obama’s leanings, but I included his mischaracterization as evidence of his right wing bona fides. I thought it was striking that someone who is so dismissive of Obama’s policies would applaud his qualities of leadership. I agree with him to the extent that I also would generally prefer to have a leader with strong convictions – even if I disagree with them – than someone like Romney who lacks them.
I am familiar with the definition of “ideologue,” but nonetheless it is generally used pejoratively. Few people describe themselves as ideologues, but many people describe those they disagree with as ideologues.
I absolutely think Obama did the right thing in not prosecuting bankers. There is no contradiction here. My point is that leftists feel differently, and Obama’s refusal to satisfy their desires is further evidence that he is not a leftist. If Obama was the dedicated leftist ideologue which you believe him to be, then why did the OWS crowd protest against him?
If you think the Church is not placing a burden on its employees, you should read Nicholas Kristoff’s op-ed in today’s Times, which vaporizes that argument.
If cancer were cured by the daily intake of bacon cheeseburgers, then requiring employers to serve them might make sense. However, since the salutary effects of bacon cheeseburgers have yet to be discovered – although I’m still hoping – even big government, freedom destroying liberals would be against a mandate. The difference with the birth control issue, of course, is that there are strong reasons to make birth control universally available at a reasonable cost, while there are none to mandate bacon cheeseburgers. Hence the long-standing constitutional principle that when a law is reasonable and universally applied, there is no First Amendment exemption for religious institutions. The bacon cheeseburger hypothetical fails the reasonableness test.
Nor is it true that “liberals admit to no limiting principle when it comes to the power of government.” Government actions should be reasonable, proportionate, and enforceable. Government actions should not interfere in decisions which are best left to the individual. The government should not dictate whether a woman can have an abortion, gays can marry, or a dying man can decide to have euthanasia.
Finally, I apologize if you thought the description of the goings on at the Beggar’s Benison Club was offensive. I thought it was amusing. Then again, I’m a liberal, and we liberals view the circle jerk as an art form.
There is a legal principle – the doctrine of necessity – which states that laws may be violated if circumstances require it. The classic example is someone stranded in the woods who breaks into a cabin for shelter. There is an equivalent concept in Talmudic law. The example here is Jewish soldiers in wartime fighting on the Sabbath.
If the miraculous were to occur – and bacon cheeseburgers were proven to add longevity, end Alzheimer’s, and cure baldness – then I am quite certain that my synagogue would be serving them by the truckload. I’ll have a Double Double from In-N-Out Burger, please.
If one accepts the premises that there ought to be national standards for health insurance, and that contraception ought to be included among those standards — which are separate issues — then there is no First Amendment right which can legitimately shield a religious institution from compliance.
So this whole “separation of church and state” thing which you liberals go on about in other circumstances, it only works to protect the state from the church and not the church from the state?
You might as well say that “If you accept that the state has supreme and unlimited power, then by definition its power is supreme and unlimited – as long as it is not trying to advance some agenda repugnant to liberalism”.
That would be a lot more precise and concise than your customary flatulent emissions,.
I also would generally prefer to have a leader with strong convictions — even if I disagree with them
You’d have voted for Hitler then, yes?
You’re the stereotypical stupid-Jew-who-thinks-he’s-a-towering-intellect.
Being monocular he can hardly be stereotypical, but you would be more nearly correct to replace “stupid” with “self-loathing”.
Although he is too modest to admit it, scholars will tell you that Western intellectual history is pretty much a straight line from Aristotle to Severn. We are extraordinarily fortunate to be blessed with his incisive and astute remarks, and our gratitude for his profound insights is exceeded only by the copious blessings we receive from them.
While today he graces us with his customary cheerfulness and thoughtfulness, regrettably his ideas are so absurd that no thinking person would dare conceive them. Separation of church and state does indeed exist both ways, and there are many instances when the state has compelling interests which trump religious exercise. A landmark case is Employment Division v. Smith, in which some guy in Oregon got fired for using peyote in a religious ritual. The Court found that the state’s compelling interest in preventing the use of a hallucinatory drug takes precedence over religious beliefs, because the law was reasonable, universally applied, and not targeted at a specific religion. While the Smith case concerned drug law and the current issue concerns labor law, the same principle applies to both.
As for the ineluctable appearance of Godwin’s law: our respected colleague Severn apparently missed the qualifier “generally.” I would not vote for Hitler, Santorum, or Ron Paul, despite the sincerity of there beliefs. I did vote, however, for Giuliani and Schwarzenegger because I thought they were principled, even though my ideological leanings were closer to Dinkins and Grey Davis. Character and the vision thing count.
Oops: their beliefs, not there beliefs.
I learn more from y’all’s spirited “debates” than from most classes I’ve taken – and I’ve taken a lot.
Thanks. Happy to oblige, LH.