Recently, I have been struck by how misinformed many Americans are about their Constitutional rights. The debate over the new federal rule requiring most employers, including religious-affiliated ones, to provide free contraceptive care to employees has brought this into sharp focus.

We’ve heard howls that the rule violates the First Amendment guarantee of freedom of religion. Although the claim has come predominantly from Roman Catholic Bishops and political conservatives, it has also come from some Democratic politicians and left-leaning commentators.

Whether the new rule is good policy is certainly up for debate. Whether it violates the Constitution, however, is another matter. It clearly does not.

The misunderstanding stems partly from the fact that many Americans believe freedom of religion is an unlimited right. It is not. All of our Constitutional rights are limited. For one thing, my rights are limited when they conflict with yours. For another thing, one Constitutional right is limited when it conflicts with another. Some obvious examples:

Those who think freedom of speech is unlimited should consider what could happen to them if they were to shout “fire” in a crowded theater. Or harass another person with menacing messages. Or threaten the life of the President of the United States. Jail could happen. Or imagine the consequences of spreading false, malicious rumors about someone else. That someone could sue you for libel, and might end up with all of your money.

In the case of freedom of religion, every American is free to believe anything he or she wants, but no one is free to do anything he or she wants. Limits on what we can do in the name of religion are many, and some of them should be familiar to everyone. Christian Science parents are not permitted to deny their children treatment for life-threatening diseases, and if they do so they can be criminally charged. Breakaway Mormon sects are not permitted to engage in bigamy or marry off underage girls, and some of their leaders are in prison for doing so. Conscientious objectors, such as Quakers, may believe that their federal taxes should not help fund wars, but if they don’t pay those taxes they face criminal charges.

And so it goes.

Yet, many Americans believe it is unconstitutional to require that Roman Catholic schools and hospital make contraceptive care available to their employees. If that were so, how can these things be?

1. Twenty-eight states require religious institutions to not only make contraceptive care available to employees but to pay for it. (Under the compromise federal rule recently announced by President Obama, employees would receive the care but religious employers would not have to pay for it.)

2. Most religious institutions in those states, including Roman Catholic ones, comply with those laws.

3. Catholic Bishops in some of those states have sued to block these laws and have always lost in court.

Here’s how these things can be:

The farther a religious organization wanders from worship into other activities, the less it can make a valid claim that those activities are protected as religious freedoms. That’s why the administration’s new contraception rule does not apply to churches but does apply to hospitals and schools, where what goes on is at least partially, if not predominantly, secular.

Anyone who operates a hospital or school is subject to a large number of federal, state, and local laws including building codes, medical standards, and business laws–and they must obey them regardless of whether they conflict with their religious beliefs.

Of course, Roman Catholics have every right to complain that providing contraception to employees would violate their moral beliefs. But this does not mean they have a legal right not to provide the benefit. The constitutional claim here is weak, and so far it has been a consistent loser in the courts.

While most Americans who have professed the faulty freedom-of-religion argument are sincere, there has been a good deal of cynical manipulation and hypocrisy at work as well.

For example:

Did you know that religious institutions have been required to cover contraception in their health care plans since December of 2000? That’s when the U.S. Equal Employment Opportunity Commission ruled that an employer’s failure to cover contraception, when it does cover other prescription drugs and preventive care, is a violation under Title VII of the Civil Rights Act.

The ruling made no exemption for religious employers–and it’s been the law ever since. By and large, religious institutions–including Roman Catholic ones–complied, although a few evaded the ruling by simply dropping health coverage.

During his eight years in office, President George W. Bush never opposed the ruling; and all through his presidency, Republicans never complained about it. There were no screams about Bush making war on religion. What’s different now?

1.The new federal health care law requires most employers who haven’t been offering health insurance to do so, and some of them are among the minority of Catholic colleges and hospitals who did not previously do so.

2. The president is no longer a Republican.

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BRUCE DESILVA worked as a journalist for 40 years before retiring to write crime novels full time. At the Associated Press, he was the writing coach, responsible for training the wire service's reporters and editors worldwide. Previously he directed an elite AP department devoted to investigative reporting and other special projects. Earlier in his career, he worked as an investigative reporter and an editor at The Hartford Courant and The Providence Journal. Stories edited by DeSilva have won virtually every major journalism prize including the Polk Award (twice), the Livingston (twice), the ASNE, and the Batten Medal. He also edited two Pulitzer finalists and helped edit a Pulitzer winner. His first novel, "Rogue Island," was a Publishers Weekly selection as one of the best debut novels of 2010 and won both the Edgar and the MaCavity Awards. The sequel, "Cliff Walk" will be published in May of 2012.

4 responses to “First Amendment Confusion Over the Obama Contraception Rule”

  1. irene says:

    Excuse me if someone can stay out of war because they are a conscientious objector because of their religion (mohammed ali), certainly churches should be able to be excused from a law that it morally wrong for them and part of their religious teachings. Give me a break. It was against the constitution in 2000 and it is now. It has become all too convenient for politicians to try to re-write the constitution. It is an absolute affront to our liberties and people are waking up to it. The anger is palpable. NDAA is unconstitutional. So is giving international law having jurisdiction over our country. our corrupt media doesn’t even inform us of what is being done behind closed doors. The U.S. government is abusing their power every politician who has not lived up to their sworn oath to uphold the constitution should be impeached. The more brazen they get the more opposition surfaces and once that happens it is not going away without resolution to the correct law of the land. If they bothered to teach the constitution in school, maybe the young people who want free contraception would know that it is not their constitutional right.
    If they decide to make Jews eat pork or force muslims to pray in a sitting position that’s ok with you too I suppose.
    Women have the rights to use contraceptives, no one has a right to health insurance. Insurance companies want to push that so they can continue to rake in billions. If the insurance companies didn’t have control over our politicians maybe our “representatives” would have a spine and insist that there be competitiveness in the health insurance business, say be able to buy health insurance out of the state you live in and have more insurance companies to choose from as opposed to the monopoly system we have now. Regulations are in place to limit competitiveness only serve to rip the people off and weaken our medical system. Health insurance should be sold as life insurance is sold. People could gear their policies to their lives instead of one size fits all approach which again benefits who? Insurance companies.
    Nice to know you got a lot of journalistic awards. You are not a constitutional expert so you are expressing your opinion, which in America you have a right to do no matter what they tell you or what law they make against it.

    • Chris says:

      Oh, Irene. Your fallacies are many. It’s like Bruce had you in mind when he wrote this.

      1. Mohammed Ali (sic) was arrested for refusing to serve. So now what should churches be able to do? I guess you’ll have to rethink your argument.

      2. “It was against the constitution in 2000.” In 2000 did you write angry, incoherent rants on the internet?

      3. “If they decide to make Jews eat pork or force muslims to pray in a sitting position that’s ok with you”
      Irene, this is called false equivalency. The equivalency you are searching for would be if the law forced people to use contraception–it does not.

      4. “no one has a right to health insurance” But you can’t get healthcare without it? Are you arguing then that no one has the right to healthcare? I think in some convoluted way you are.

      5. “You are not a constitutional expert so you are expressing your opinion.” Y tu tambien, Irene. You are TOO! The difference being that Bruce actually makes sense and uses facts to back up his arguments, not feelings. Look at all your ramblings about who isn’t representing the constitution and who is abusing their power. Can you substantiate any of this?

      One more thing…I write all of this as a practicing Catholic. I feel this has been completely been blown out of control by a small minority of political ideologues in the church. This is the wrong battle for MY church to pick. If you want to be the religious wing of the GOP, leave the Catholic church and go start your own religion. I want mine back!

      • irene levy says:

        People have a right to eat does that mean that grocery stores should give everyone free food. I don’t know what you do for a living but if you did something that ‘people have a right to” are you going to be happy to give that service for free or have the government tell you what you have to charge?
        You said nothing about my mention about insurance companies providing insurance at reasonable rates and over state lines to be competitive, that could make it affordable without being run by the government.
        The whole thing for me it taking away the rights of something that was very specific in the constitution because that opens the door for them continue to do so in other areas as in the NDAA. Now we can be arrested for being terrorists and detained indefinitely without representation. You can say that that would never happen unless you do something to warrant it but that is not necessarily so.
        I was brought up Catholic and consider myself Christian. I practice what I believe without being connected to any organized religious groups as I see there is hypocrisy but my whole point was as I stated above that if you let them start breaking the rules they will continue to do so. The fact that it is the church is not the issue for me.
        Obamacare is unconstitutional and the government should not get involved in healthcare.
        Insurance reform is what is needed. I work in the healthcare industry and I can tell do that we do wind up doing things for free because of instances when a patient has an urgent need and insurance companies refuse authorize a procedure.

  2. Shelley says:

    Thank you.

    And why has the Jon Stewart show been the only venue for asking the obvious question: does all the right-wing outrage over how the government should not be able to overrule religious law also extend to Sharia?

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