"The Decline and Fall of Hope and Change"
The Myth of the Anti-Government Constitution

More on the contraception mandate and religious liberty

This essay in the Atlantic voices important points in the debate over the contraception mandate.  The article discusses the two cases of Hobby Lobby and the Little Sisters of the Poor.  It points out, "The nature of that claim offers a glimpse of some toxic ideas floating around in American law."

Here is the powerful core of the essay, and I wholeheartedly agree:

Taken together, these two cases aren’t claims for religious exemption. They are more like an ordinance of secession—a statement that religious bodies, and people, and even commercial businesses, no longer belong to society if they decide they’d rather not. The idea depends on an assumption that government itself is sinful, and presumptively illegitimate. If courts follow this notion, they risk making it impossible to have an effective government at all. 

Religion should not exempt one from generally applicable laws, as even Justice Scalia noted in the peyote case in the early 1990's.  The essays makes a similar point:

The assumption seems to be that religion releases you from any obligation of any kind to the state. And that’s apparently even true if you are a giant for-profit corporation. 

I do not question that the nuns, and the Green family, are sincere. But why are they the only ones whose interest matter? These cases involve the government and the employees covered by the Act. Their interests should count, too.

In the nuns case, the government has an interest in knowing to whom an exemption should apply -- the nuns are suing to avoid filing a form that they are exempt.  In the Hobby Lobby case the court should consider the health concerns of the employees, which the dissent in the 10th circuit (written by the only woman on the Court) upbraided the majority for not considering at all.

And the comparison to Civil Rights law is important, as this same religious exemption idea is being argued for by religious conservatives when it comes to laws that protect the LGBT from discrimination.

In 1964, many people had sincere religious beliefs that African Americans and whites should not mix in restaurants, stores, and hotels—that this violated the words of Acts 17:26 that God had fixed boundaries for the nations of man and expected them to remain within them.  (There are sincere believers of this idea even today within the so-called “British Israel” and “Christian Identity” sects.)

The Civil Rights Act did not demand that these people change their beliefs. It did not demand that they desegregate their churches, or open their homes. But it did embody a judgment by society that, in order to engage in business, they had open their businesses to all. 

The same kind of governmental interest is present in the contraceptive-mandate cases: If you want to engage in interstate commerce, cover your employees. The peoples’ representatives have determined that both public health and the economy will function better if you do.

The essay concludes with a clarion call:

And beyond the health question, for heaven’s sake, think for a moment about “liberty”: A country where employees have both jobs and religious freedom will be freer than one where they must choose between the two. 


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