American Jewish Committee supports contraception mandate

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Logo of the American Jewish Committee

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Logo of the American Jewish Committee


Logo of the American Jewish Committee

Logo of the American Jewish Committee

More than 80 friend-of-the-court briefs have now been filed in the Supreme Court’s contraception mandate case, and the most provocative question they address is whether for-profit corporations have a First Amendment right to the free exercise of religion. But even if the Court says they do, that doesn’t guarantee Hobby Lobby and Conestoga Wood their exemptions from the mandate.

That’s because they’d still have to meet the standard established in 1993 by the Religious Freedom Restoration Act (RFRA) to mitigate the effects of the Court’s Smith decision. That is, they’d have to persuade the justices that the federal government either doesn’t have a compelling interest for imposing the mandate or fails to impose it in the least restrictive way possible.

In the brief he’s written for the American Jewish Committee (AJC) and the Jewish Council for Public Affairs, the AJC’s Marc Stern makes a strong case that the mandate is justified by a compelling government interest in promoting both gender equality and public health — gender equality by ensuring that women don’t pay more for health coverage than men and public health by reducing unintended pregnancies, improving birth spacing, reducing invasive abortions, and preventing various reproductive disorders. The brief makes clear that less restrictive ways of achieving the same ends would be impracticable or unacceptable to the plaintiffs.

It’s not that Stern, an Orthodox Jew who played a key role in drafting RFRA, is dismissive of the plaintiffs’ religious concerns. Indeed, he assumes that the mandate “imposes a substantial burden on their religious practices.” But, he writes, “A nation as large, diverse, and religiously inclusive as the United States simply could not function if it were required to accommodate every citizen’s religious objections under all circumstances.”

The free exercise of religion, like every other constitutional right, is not absolute. There are times when, “in furtherance of an important interest,” the government will take actions that are “offensive to the sincerely held religious beliefs of some of its citizens.”
  • samuel Johnston

    Department of Human Resources of Oregon vs. Smith, 494 U.S. 872 (1990)
    “To permit this (the use of peyote) 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.” Thus, the Court had held that religious beliefs did not excuse people from complying with laws forbidding polygamy, child labor laws, Sunday closing laws, laws requiring citizens to register for Selective Service, and laws requiring the payment of Social Security taxes.” Judge Scalia
    City of Boerne v. Flores, 521 U.S. 507 (1997)
    “The Court held that it holds the sole power to define the substantive rights guaranteed by the Fourteenth Amendment—a definition to which Congress may not add and from which it may not subtract.” Wikipedia

    Dr. Silk writes:
    “…the most provocative question they address is whether for-profit corporations have a First Amendment right to the free exercise of religion.”

    I wonder. What is the substantive difference in this context between a, for profit, and a non profit institution? What additional constitutional right should/does the non profit have over any other combination of free citizens?

  • Stern’s brief provides a basis for differentiating religious non-profits from for-profits. In a nutshell, it’s that religious non-profits are, or tend to be, manifestly designed to serve a religious end; whereas for profits are, well, for profit.

  • Brian

    Mr. Stern misses a piece of information about the Religious Freedom Restoration Act: it requires the burden to be in furtherance of a compelling government interest *as*applied*to*the*Claimant*. Unless the government can show such an interest with respect to Hobby Lobby and Conestoga, this piece of the RFRA requirements fails.

  • The fault is mine, not Stern’s, to the extent that I suggested that the burden of proof lies with the plaintiffs. In actual pleadings, of course, plaintiffs (or amici) need to make sufficiently persuasive counterarguments to the effect that the government interest is not compelling and/or that the means are not the least restrictive. The relevant part of the law reads:

    “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
    (1) is in furtherance of a compelling governmental interest; and
    (2) is the least restrictive means of furthering that compelling governmental interest.”

    Stern makes arguments to demonstrate both.

  • Larry

    The problem with applying the RFRA to this situation is the question of whose religious expression is to be given priority. Are we to believe an employer’s religious beliefs trumps an employees? That there is a private right of employers to engage in acts of sectarian discrimination under such laws? No.
    Interpreting it to give a right of an employer to use coercive force against the religious beliefs of an employee defeats its purpose.

    The thing is, there is no rational or sane concept of corporate religious beliefs. Applying such would open the door for every form of labor law to be ignored by claiming it violates “deeply held beliefs” of a specific member of the corporate ownership. It cannot exist without leading to sectarian discrimination in the workplace. Its an untenable belief. The religious conservatives in their efforts to thumb their nose at the current administration are trying to open a door to destroy notions of rule of law.

  • Samuel Johnston

    I don’t just mean to be a stickler, but, for example, Doctor’s Without Borders is not a religious organization, but it is non profit. Can/should their moral position be disadvantaged because it is not “religious” but only moral? Conversely, a religious publishing house may make a profit, but does that make them less deserving of religious protection? It seems to me that the clear assumptions of the framers, are no longer so clear in today’s society.
    “A nation as large, diverse, and religiously inclusive as the United States simply could not function if it were required to accommodate every citizen’s religious objections under all circumstances.”
    By the same token, morally based institutions should be afforded the same protection as religiously based groups, in a society that has become as ” large, diverse, and religiously inclusive as the United States.

  • It’s not a problem, legally speaking. The government passes a law; someone affected by the law files suit under RFRA; the courts decide. That’s how the system works. If, say, Hobby Lobby wins, then some of their employees can file suit, perhaps under RFRA, perhaps under the Establishment Clause; and again the courts decide.

  • How would Doctors without Borders be disadvantaged? Many non-profits have income (most colleges and universities, for example). But a for-profit is, we assume, about making a profit in a way that those non-profits aren’t. Are you arguing that morally based institutions should not have to abide by the contraception mandate?

  • Larry

    Procedurally anyway. But the idea that the RFRA applies to the actions of the collective ownership of a for profit corporation at all is extremely dodgy.

    Religious rights are individual personal rights.

  • Larry

    A non profit religious organization assumes its members are all of the same religious faith and acts in furtherance of said faith.

    A business entity acts in furtherance of acquiring money for its owners. It can’t be assumed its owners or members are of the same faith or can have a group religion without engaging in sectarian discrimination.

  • Not only individual personal rights — religious institutions have rights too. There is a real conundrum here, to be sure. The privileging of individual conscience is preeminently a Protestant thing. Other traditions emphasize the collectivity.

  • samuel Johnston

    “The privileging of individual conscience is preeminently a Protestant thing. Other traditions emphasize the collectivity.”
    The founders were Protestants (or deists). They specifically rejected granting group religious rights as had most European countries. I agree with Larry-“Religious rights (as granted by the American Constitution) are individual personal rights.” Any group right is derivative. Catholics are always going on about their traditions. Well, this is our American tradition, and if it is a Protestant one, so be it. We (well, my great, great, grandfather) might have chosen to keep non Protestants out. How about a little gratitude?
    “Are you arguing that morally based institutions should not have to abide by the contraception mandate? ” Well, yes. If Catholic hospitals (St Vincent’s here is the largest, employing thousands) are entitled to such an exception, then what would be the justification to deny them the same right. Mark, you were prudent to punt on my request define Spiritual. Defining religion or religious is even more treacherous. I submit that a moral claim is the only justification for the body politic to grant privilege to religion.

  • Larry

    Provided the institution’s purpose is solely to service members of a given religion. If they are hiring and/or serving people outside their faith, that is not necessarily the case.

    In New York, Catholic Charities lost at all state court levels (SCOTUS declined to hear it) on such grounds for the same issue.

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