Supreme Court on Freedom of Religion

In an earlier post, I had said that I did not think the requirement that health insurance including contraceptives being available to the employees of church-related institutions violated the constitutional right to the free exercise of religion. This afternoon I came across a passage from the SCOTUS Opinion on Employment Division v. Smith (1990) and think it supports my view, though the circumstances of the case were very different. The Opinion was penned by Justice Scalia.

Here is a portion I think relevant to the contraception discussion (read the full document if you wish.) :

We have never held that an individual's religious beliefs [p879] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594-595 (1940):

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.

(Footnote omitted.) We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. "Laws," we said,

are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Id. at 166-167.

Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a

valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).

United States v. Lee, 455 U.S. 252, 263, n. 3 (1982) (STEVENS, J., concurring in judgment); see Minersville School Dist. Bd. of Educ. v. Gobitis, supra, 310 U.S. at 595 (collecting cases).

I would argue that this seems that the general health care insurance requirement, which is valid and neutral, and not explicitly religious, would not be held as a prohibition of the free exercise of religion. I'm also pleased to see that Justice Scalia makes the argument I did concerning withholding ones taxes out of a religious objection to the fact that some of those taxes are used for warfare.

Tobias Stanislas Haller BSG

Contraception Coniption

In response to my earlier post on the subject of the extent to which religious expression has to engage with a larger social world, one correspondent expressed astonishment that I did not see what he believes to be the point: that a constitutional right is being infringed by a merely civil action.

My point, of course, in that post, and now, is that there are in fact limits to the free exercise of religion, and many of them are parts of statutory law. These regulations do not prohibit free exercise of religion, to use the language of the Constitution, and they provide some separation between the religious doctrine and the civil provisions.

Some Roman Catholics are upset at having to provide health insurance to employees in church-related institutions that includes coverage for procedures or prescriptions to which they are opposed on religious grounds. I do understand their opposition. They do not understand the legal principles at play, and have come up with analogies — such as Bishop Lori's Kosher Deli required to serve ham — that go far to revealing their lack of understanding.

What they fail to grasp is that health insurance is but one part of employee benefits. Some of these benefits have long been mandated by law, as, for example, minimum wage. The provision of health care insurance is now similarly mandated. But the fact that the health insurance includes coverage for contraception is ultimately no different — ethically speaking in regard to the employer's responsibility or agency either for the provision or the use of contraceptives — from the salary itself being spent on things of which the employer might disapprove on religious grounds. To take the Bishop's example, there is nothing to prevent a Kosher deli-worker from spending his wages on ham, or even bacon-and-swiss, sandwiches. Neither the deli nor the church is responsible for the religiously objectionable act. They may not like it, but they are not morally responsible for it.

To take an extreme example, imagine a Roman Catholic priest who uses a portion of his stipend to pay for his sister's abortion. This is, needless to say, a very grave matter and carries a very serious penalty, which the church is by all means free to impose. But for that very reason it would be absurd to suggest that the church itself was "providing for the abortion" simply on the basis of the fact that its funds, paid as a stipend, were used to that end, and by one of its officials at that.

No individual's religious rights are being abridged or impeded by the provision of health care insurance — nor is the church's collective right to teach as it chooses to teach. There are several degrees of separation between the teaching and the insurance, any one of which is sufficient to insulate the church from any moral responsibility. It is as simple as that.

Tobias Stanislas Haller BSG

Religious Freedoms Are Limited

The recent to-do over insurance plans providing contraception seems to me to be a good example of exactly where the boundary to religious freedom lies -- with oneself and those who share ones beliefs. Thus it is perfectly fine, to my mind, for a church to be allowed to tell its clergy and its religious employees not to have a certain kind of insurance coverage -- or to let the coverage be there but unused, which it seems to me is the real ethical point. (I mean, just paying for something because you have to does not indicate approval --- Lord knows I can mention several foreign wars of the last five decades upon which I wish my tax money had not been spent.)

But it is wrong to assert that the mere provision of a benefit is unacceptable in the context of something not directly a religious institution such as a church, but what the old orders would call "a work" (a school or hospital, for example), in which employees may well not be adherents of the particular sect or beholden to its beliefs.

In short, it is fine for the Roman Catholic Church to teach against contraception, and to insist its adherents make no use of it, but completely specious to claim that they are morally compromised by providing insurance coverage that happens to include this benefit to people who are under no obligation to use it, nor, in some cases, under any obligation to adhere to the teaching.

Otherwise, any Jehovah Witness-sponsored organization should have the right to insist that its secular employees not be covered for blood transfusions; 7th Day Adventists should be able to forbid their non-church employees from being fed hospital food containing meat, and Jews and Muslims, pork. And let's not even get started with the Christian Scientists, who ought, under this understanding, to be able to refuse the need to provide health insurance to anyone who works for them.


On that, just to be clear, I do defend the right of any person not to have health insurance on the basis of their religious belief; and I think that Christian Scientists should be granted that individual exemption, just as some of the Mennonite (Amish) groups members are --- though for different reasons concerning opposing receipt of government assistance.


But let's be clear: the individual right to make moral decisions for oneself is not something to be spread and imposed on others. If you don't want health coverage, no one is forced to use it, even if you are required to pay for it. A truly principled "martyr" would pay and stand tall in refusal to use.


Tobias Stanislas Haller BSG

Thought for 02.10.12

Your religious rights end with your own body. You have no right to expect or demand that all will do as you believe all ought to do.

Tobias Stanislas Haller BSG
with the emphasis on the expectation; one can, of course, “demand” anything one likes, but no one need heed those demands