The Contraception First Amendment Fight Is Not About Freedom of Religion
The Catholic Bishops, Republican Party and GOP presidential candidates have managed to convince much of the national media that the First Amendment’s freedom of religion is at stake in the Administration’s proposal requiring insurance companies to provide coverage for contraception services. They’ve got it backwards.
Spokesmen for the Bishops claim that the rule deprives all Catholic employers, not just Catholic churches and institutions, of their religious freedom. Some go further by arguing the insurance rule shouldn’t be imposed on any employers, because that would force people who disapprove of contraception to pay into insurance pools that then provide coverage for contraception.
This is a very cynical con, a bait and switch that needs to be called out. So let’s start with the foundation. The First Amendment to the Constitution says this:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The Catholic Bishops and GOP politicians now exploiting the issue repeatedly claim that the provision implicated is the prohibition against the “free exercise” of religion. But as you can see, there are two prohibitions here: the second is the “free exercise” clause; the first is against the “establishment of religion.” It is this “establishment clause,” not the “free exercise” clause, that is really at stake, but it’s not the Administration that’s causing this.
The Bishops spokesmen’s constant invocation of “freedom of religion” and GOP faux hysteria about a “war against religious freedom” are ways to convince us this is the correct framing. Obscuring that this is really about the “establishment clause” is the political bait and switch the Bishops and GOP are now using to con the media and the American people.
We should first recall that the Supreme Court has never held the prohibitions in the First Amendment to be absolute. We have freedom of the press, but a newspaper can’t lawfully libel someone. Similarly we have freedom of speech, but you can’t defame someone, and governments can adopt laws limiting speech like “yelling ‘fire’ in a crowed theater” or inciting a riot and even prescribe rules on the time and place where “free speech” can occur. We also respect “freedom” of religion, particularly as to beliefs, but government can still pass laws preventing religious organizations from exploiting child labor, or sacrificing virgins or your first born child, or conning the congregation into drinking poisoned Kool-aid, even if that’s claimed to be a religious ceremony.
Notwithstanding the language, “Congress shall make no law . . .” it has always been permissible under the Constitution for government to enact reasonable labor protections and health and safety rules that affect everyone, including employees of religious institutions. That’s why no one is surprised that half the US states already have rules requiring insurers to cover contraceptive services for almost everyone, and the Supreme Court is fine with that. Some states may exempt church employers, and others not; but that is a matter of accommodation, it’s not because it is constitutionally required.
In short, there is nothing about the proposed Administration insurance rule that violates the “free exercise” clause. And no one, least of all this Administration, is in a war against religion or religious freedom; those, especially GOP candidates, who say otherwise are simply nuts or shameful demagogues.
What’s happening here is that the government has chosen to adopt a rule relating to health care. Proponents often say this, and some media may dismiss this as ducking the religious issue, but it’s not. It’s consistent with what we’ve done for decades. Contraception is about health care, mostly women’s health care, and sometimes life-saving health care; but it’s clearly health care. When government addresses contraception, it does so for health reasons, not religious reasons. Government can adopt rules to protect women’s health and safety without violating the First Amendment.
What about the “establishment clause”? This is how the bait and switch happens. The Catholic Bishops do not believe contraception should be used; it shouldn’t be available at all. They don’t mean just unavailable to Catholics; they mean not available to anyone. They want the legal rule to be: no contraceptives for anyone, so no insurance coverage for contraception services for anyone.
Religious freedom says they are free to believe contraception is wrong, that it violates their religion. Government can’t force them to believe otherwise; it can’t force them to exercise a religion they don’t believe, except that government can, for health and safety reasons, require everyone to obey reasonable rules to protect peoples’ health and safety, even if some believe such regulations are inconsistent with their religious beliefs.
Religious freedom doesn’t mean the Catholic Bishops, or any other religious leaders, have the right to impose what they believe on everyone else. When we cross over to the realm of what the rules should be for everyone, and the pushing is coming from a religious purpose, it’s more likely we’re talking about that other clause, the establishment clause. And that’s exactly where the Bishops are.
Those who oppose any contraception insurance coverage want to prevent the government from having a rule that requires contraception, or have it adopt a rule prohibiting the coverage of contraception. And they want this not for health/safety reasons, but for declared religious ones. In other words, they want a government rule that imposes their religious beliefs on everyone else. That’s not about the “free exercise” clause; that’s “establishment of religion.”
It is the Catholic Bishops and the GOP politicians exploiting this who are pressing to have government violate the establishment clause of the First Amendment. And that’s the real Constitutional violation at stake here.
(h/t to Digby on the Boies video)