Religion clause jurisprudence is much more nuanced than all the recent political
demagoguery surrounding the birth control coverage recommendation made by the
Institute of Medicine to the United States Department of Health and Human Services.
Jurisprudence provides no consensus model of interpretation for our 1st Amendment's
religion clauses (nonestablishment and free exercise); specifically, it offers no single
definition of the term religion. Some interpretations could rely on specific contexts and
draw upon parallels from other clauses. For example, when religious expression is at issue,
the free speech clause might guide us; when discrimination is at issue, the equal protection
clause might offer insights. At any rate, if we look at our history to see what government
has clearly established, legislated, enforced and adjudicated, perhaps we can also better
circumscribe what it is that the free exercise of religion would necessarily entail or not?
Clearly, the government HAS NEVER established liturgical or devotional norms, whether
theistic or not, for the creedal, cultic or communal dimensions of any faith or other
concerns regarding ultimacy?
Just as clearly, however, the government HAS INDEED routinely established practical and
moral norms, both prescriptive and proscriptive, notwithstanding competing stances by
religious authorities?
Now, it is implausible that the term religion, which, in the 1st Amendment, was used once
and shared by both clauses, has different meanings in each clause? On the surface, then,
isn't it a little disingenuous to invoke the phrase "religious liberty" for a position that is
essentially moral and practical rather than liturgical, devotional, creedal, cultic or
communal?
Is this really an unprecedented and historic attack on "religious freedom" or the common
sensical administration of what are essentially PRACTICAL norms, not that much different
than:
1) mandated compulsory education even over the "religious" objections of many
Amish?
2) mandated medical intervention for minors even over the "religious" objections
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of many Christian Scientists?
3) mandated immunizations for an std even over the "religious" objections of many
Evangelicals?
4) mandated metabolic screenings of week old infants even over the "religious"
objections of many Scientologists?
5) mandated MMR immunizations even though the rubella vaccine was developed
from FDA-approved fetal tissue cell-line cultures even over the "religious" objections of
many Roman Catholics?
6) outlawing of polygamy even over the "religious" objections of many Mormons?
7) and so on and so forth ad nauseum?
Both individual and societal risks, as accounted for in public health concerns, can be
regulated by government without violating so-called "religious" liberty! Public health laws
that are generally-applicable and religion-neutral do not interfere with the right to free
exercise of religion. This is the logic used by state courts in holding that mandatory
vaccination of school children does not interfere with religious liberty. Not only do states
not have a constitutional "obligation" to enact religious exemptions, when it comes to
vaccines, it remains unclear whether they even have the constitutional "authority" to enact
them!
Catholics do not ordinarily differ, significantly, from the rest of the population on gender,
sex and life issues. Because SUPERMAJORITIES favor both embryonic stem cell research and
in vitro fertilzation, clearly both IUD's and morning after pills are morally acceptable forms
of birth control to them, along with condoms and other contraceptives. Taken together, all
of these forms of birth control can drastically reduce the numbers of abortions (despite the
incredibly tortured logic and oft stated counters to the contrary). Given that, as gestation
advances, there is an increasing consensus among those of otherwise divergent views
regarding the moral significance of the embryo, many find it poignantly sad (some even
morally repugnant) when birth control access is curtailed since it could head off so many of
these truly tragic choices. And they find it similarly sad (again, often repugnant), that so
many die from AIDS where condom access has been curtailed (e.g. African missions). The
public health consequences of the Dept of HHS mandates that now hang in the balance are
clearly not insignificant and the expressed will of the overwhelming supermajority of
Americans should not be thwarted, much less the welfare of hundreds of thousands of
workers, by those who imagine they can invoke a religious liberty even as they advocate
what is otherwise an essentially moral stance. And that stance enjoys VERY LITTLE
normative impetus in the public square because the arguments in its favor are not
compelling to most people of large intelligence and profound goodwill, including the
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coreligionists of the vocal minority protagonists!
At the most, this recent dust up might should evoke a federalism debate. But religious
liberty? Give me a break!
We've got an unequivocal right to free exercise of our faith but where any given moral
calculus impacts significant public health issues with enormous consequences vis a vis
societal risks, the emperor is indeed naked who imagines he can cloak an essentially moral
stance under a religious garb that just ain't there!
Finally, I'm not saying that religious institutions have not had a most efficacious role in
forming morals and ethics throughout history. This is true, too, for other institutions like
the family, like schools, like manifold social organizations. All of these institutions should
continue to thus contribute to human moral formation and public moral discourse. But
they must translate their moral arguments and articulate them in a manner that is
transparent to human reason without relying on what are essentially religious arguments,
without invoking mere religious authority, without resorting to ad hominem excuses (that
blame those who, despite their sincerest efforts, cannot make sense of their terms and
categories, much less their logic). For once, maybe look at the man in the mirror or talk to a
human being who has ovaries.
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