Why the Bishops are Wrong

Mark Mellman, in the Hill, explains the thin legal footing behind demands for religious exceptions to the requirement to provide full health care coverage for employees.

Does the contraception compromise violate the free exercise of religion guaranteed by the First Amendment? The right says yes, but every iota of this nation’s constitutional jurisprudence says nonsense.

As the Supreme Court majority wrote in 1990, “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law … On the contrary, the record of more than a century of free exercise jurisprudence contradicts that proposition.”

Generally, the government goes about its business making laws without worrying about whether certain laws violate certain religious practices. Thus, we outlaw polygamy, despite the fact that some religions call for concurrent marriages. We outlaw peyote without concern that certain practices require it. If it weren’t for a religious objection to contraception coverage, it would be easy.

But there are laws that have religious exceptions, such as the conscientious objector clause for military service. And even before the fuss raised by the Catholic bishops, the health care mandate had such accommodations by allowing exceptions for churches.

Despite the health care law already having exemptions, the right wing and the Catholic leadership were not satisfied. They wanted more institutions to be exempted. So the Obama administration called for another accommodation: Insurance companies shall provide contraception coverage, but religious institutions in a more broadly defined group could be exempted from paying for it. Still not good enough. The bishops argue that since money is fungible, they are still, indirectly, funding contraception coverage.

Allowing exemptions to free people from indirectly supporting practices which violate their beliefs would be a dangerous decision. Imagine people arguing that they should be except from paying taxes because the government uses tax dollars for farm subsidies which aid in raising of hogs, in violation of Jewish, Muslim, and other beliefs. Or imagine conscientious objectors arguing that they shouldn’t have to pay for a war. Indirectly, we all pay for things that we find objectionable.

28 states already have requirements for contraception coverage, including Massachusetts, and this battle for exemptions has already been fought. Michelle Goldberg writes about New York:

Nevertheless, the law passed—it was signed by Republican Gov. George Pataki—with exactly the same sort of exemptions we’re now seeing at the federal level. There’s a conscience clause that applies to Catholic churches, grade schools, and parishes, but not institutions that serve the broader community, such as universities and hospitals. The church sued, but New York’s State Court of Appeals ruled against it; in 2007, the Supreme Court let the ruling stand. Likewise, California’s Supreme Court upheld that state’s version of the mandate.

Precedent has already been set, in some cases by Republicans like Mitt Romney who now try to distance themselves from their own philosophy. If that wasn’t the case, the battles over health care might seem more like legitimate constitutional debates, and less like partisan attempts to create a loss for the Obama administration at any cost.

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