February 13, 2012
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.
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.