March 21, 2016

‘All or nothing’ Obamacare objections threaten religious liberty (COMMENTARY)

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Holly Hollman is general counsel for the Baptist Joint Committee for Religious Liberty. Photo courtesy of Baptist Joint Committee for Religious Liberty

Holly Hollman is general counsel for the Baptist Joint Committee for Religious Liberty. Photo courtesy of Baptist Joint Committee for Religious Liberty

Supporters of the Affordable Care Act celebrate after the Supreme Court up held the law in the 6-3 vote at the Supreme Court in Washington on June 25, 2015. Photo courtesy of REUTERS/Joshua Roberts *Editors: This photo may only be republished with RNS-NUNS-CONTRACEPTION, originally transmitted on July 14, 2015 or with RNS-HOLLMAN-COLUMN, originally transmitted on March 21, 2016.

Supporters of the Affordable Care Act celebrate after the Supreme Court up held the law in the 6-3 vote at the Supreme Court in Washington on June 25, 2015. Photo courtesy of REUTERS/Joshua Roberts
*Editors: This photo may only be republished with RNS-NUNS-CONTRACEPTION, originally transmitted on July 14, 2015 or with RNS-HOLLMAN-COLUMN, originally transmitted on March 21, 2016.

(RNS) On Wednesday (March 23), the U.S. Supreme Court will hear a case about the application of the Affordable Care Act’s contraceptive mandate to religious nonprofit organizations. The case could have a significant impact on religious liberty law, far beyond what the case means for the objecting religious employers and those whose benefits will be affected.

Specifically, the court has the opportunity to clarify and hold high, or muddle and further erode, the role of religious exemptions in our religious liberty legal tradition. The court should protect religious liberty by ruling against these religious claims.

The number and variety of parties and claims make this case complex, but the underlying conflict and effort to resolve it are easily understood. Consistent with the ACA’s emphasis on preventive health care and equality, regulations require most employers to provide employees access to a full range of contraceptives at no cost.


RELATED STORY: Why Obamacare’s contraception mandate hurts minority religions (COMMENTARY)


With knowledge of religious objections to contraceptives, and particularly those viewed as abortifacients, the government developed a regulatory system with religious liberty and health care in mind.

First, churches and their integrated auxiliaries were exempted from the mandate. Second, religiously affiliated nonprofit entities (a much larger set of employers) were given a means to avoid providing contraceptives. It requires the employers’ secular insurance companies to provide the coverage separate from the employer’s plan. The regulatory road may have been long and winding, but the system is sound.


RELATED STORY: Supreme Court faces new challenges to Obamacare’s ‘contraceptive mandate’


In Zubik v. Burwell (the name under which several cases, including the Little Sisters of the Poor, are consolidated), a few dozen religious nonprofit employers argue that even the exemption system violates their religious freedom. In short, the litigants say they cannot in good conscience provide contraceptives, and they likewise object to the government’s alternative for providing them. These religious employers make far-reaching arguments against the exemption designed for them. In doing so, they threaten to take religious freedom law down with it.

The employers’ claims rely on the 1993 Religious Freedom Restoration Act, a federal law that has long enjoyed broad, bipartisan support. Unlike the specific administrative exemptions provided for churches and the religious nonprofits in this case, RFRA provides a general standard that protects religious freedom through a balancing test that weighs substantial burdens on religion against compelling interests of the government, without regard to any particular federal law or religious practice. Both specific exemptions (like the ones provided in the contraceptive mandate) and the standard in RFRA are essential to religious liberty.

As explained in a brief filed by the Baptist Joint Committee for Religious Liberty and professor Douglas Laycock, the Zubik claims go too far. Indeed, they threaten the whole enterprise of religious exemptions.

First, these employers argue that courts must give absolute deference to their claims of “substantial burden.” The employers have been relieved of the obligation to pay or contract for the services. They describe the burden on their exercise of religion in various ways to object to the government’s regulation of the insurance companies with which they do business.

While courts should defer to religious claims of burden — and complicity in contraceptives can be a religious burden — whether it is a substantial burden under the terms of RFRA or too attenuated must be a matter of law for courts to decide. Total deference ignores the statutory scheme and changes RFRA, which invites its demise.

Holly Hollman is general counsel for the Baptist Joint Committee for Religious Liberty. Photo courtesy of Baptist Joint Committee for Religious Liberty

Holly Hollman is general counsel for the Baptist Joint Committee for Religious Liberty. Photo courtesy of Baptist Joint Committee for Religious Liberty

Second, the religious nonprofit employers make a more direct and potentially devastating attack on specific religious exemptions. They argue the mandate’s exemption system is too narrow because these employers are not treated exactly like churches.  At the same time, they argue it is too broad because if the government does not cover church employees it must not have a compelling interest in coverage. Government efforts to craft religious exemptions to protect religious liberty, while also protecting other important governmental interests, should be encouraged, not discouraged with such “all or nothing” exemption claims.

The Baptist Joint Committee and Laycock have worked for more than 25 years — often together — to advance religious liberty and to enact, implement and defend the Religious Freedom Restoration Act. It is unusual, to say the least, for us to file for the government in a free exercise case. Religious liberty is often threatened by government indifference or oversight. As this case demonstrates, it can also be endangered by exaggerated claims and overreaching.

(Holly Hollman is general counsel for the Baptist Joint Committee for Religious Liberty)


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  • Bill

    The government’s argument is: As an employer, you don’t have to provide for morally objectionable medical treatment, just sign a paper to direct your insurance company to provide the morally objectionable medical treatment. And in “government-world” you are not involved in providing said treatment.

    In the real world, signing the paper makes you part of the provision of morally objectionable medical treatment. It is a simple issue of conscience.

  • yoh

    That is pure nonsense. They are not providing the treatment. They are not paying for it. They are not doing anything. Their “involvement” is standing aside while employees exercise free and personal rights. Churches have no right to control personal decisions of their staff on such matters. This is not conscience, it’s an expectation of privilege and desire towards coercion.

    Religious freedom does not entail a right to force others to follow your beliefs.

  • Everett

    Now that’s an interesting take. Thinking that the free exercise thereof (religion) actually means the free exercise thereof.

  • Everett

    Just sign a paper. Just sprinkle a pinch of incense on the fire and recite Kaiser kyrios.

  • Re: “In the real world, signing the paper makes you part of the provision of morally objectionable medical treatment.”

    Really? How? The objecting employer has been removed from the equation. The issue becomes moot for them. How does removing the employer from any involvement, automatically involve them? To believe so is to buy into a contradiction.

  • G Key

    If a religious non-profit objects to paying for contraceptives for its private-citizen employees, they simply notify the government of their objection, and they don’t have to pay. Case closed.

    What the government does afterwards is none of the non-profit’s business. Case closed.

    The idea that “If we won’t pay, you can’t, either” is pure 2-year-old “No!”-fixated hubris. Non-profit religious orgs aren’t the government, aren’t responsible for the government, and can’t control the government. All they can control is themselves, if only they would. Case closed.

  • Lisa B

    Actually the paper the employer signs doesn’t direct anyone to do anything. It simply says they won’t do it. Someone else does all the directing.

    However, how do these people get away with giving anyone a paycheck, if they’re conscience is so burdened by what will happen afterward?

    Do they actually think employees aren’t using their paychecks to fund things that create a burden on their employer’s conscience?

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  • “The employers’ claims rely on the 1993 Religious Freedom Restoration Act”

    RFRA continues to be an insufferable nuisance. It is almost as subversive to democracy as Religion itself.

    Religion is simply on the attack. If people don’t stand up to these religious decrees and religious efforts to subvert democracy the country will stop functioning as every voodoo charlatan claims a religious priveledge to act above the law!

    “During almost fifteen centuries has the legal establishment of Christianity been on trial. What has been its fruits? More or less, in all places, pride and indolence in the clergy; ignorance and servility in the laity; in both, superstition, bigotry, and persecution.” – JAMES MADISON

    Abandon religion while you still can!

  • Betty Clermont

    When a Republican governor instituted Romneycare in Massachusetts which provided coverage for abortion, the Church was silent. When a Democratic president instituted the Affordable Care Act, there have been, at enormous taxpayer expense, over 100 lawsuits filed in federal courts challenging the birth control benefit. The vast majority were brought by Catholic bishops and their affiliated institutions. (see nwlc.org)

  • Zachary

    Saying “Religion is on the attack” generalizes the issue. Even saying the conservative right is on the attack generalizes the issues. I personally find it interesting that many who are arguing against the contraception mandate would say secularist are on the attack.

    I have said it here and elsewhere, in the end, all we have control over is ourselves. We can influence someone’s decisions and actions if they are open to such influence, but for many, the path they are on is set. I think one has to assume, based on personal experience and bias, that those passionately speaking against the mandate believe or feel they are meeting their personally held religious and moral convictions. Doing anything else would be a denial of conscience.

  • Tom

    Liberals claim to be tolerant , but force their views on others. Conservatives just want to be left alone and have the government out of their lives.

  • Ben in oakland

    you can’t have an abortion. We’ll make laws that say you can’t.

    You can’t serve in the military of you are gay. We’ll makes laws that say you can’t.

    You can’t live your life in peace because we want the government to make you a criminal because we think your sex life is sinful and icky.

    You can’t get legally married in your own church because our freedom of religion says you can’t. We need a law.

    Your children will learn the creationist myths of desert goat herders from 2500 years ago because science offends our religious beliefs.

    We’ll take over federal lands, owned by the people, lands which were stolen from their original owners, because we wish to steal it from the current owners.

    We want the government out of our lives, except when the government is giving us money from Medicare, Medicaid, disability, and social security.

    What were you saying again?

  • Ben in oakland

    It’s funny that their moral imperatives and denial of conscience always seem to be about making other people follow their wishes, not themselves.

  • Henry the 8th just wanted Thomas More to sign a little piece of paper and then forget about it. The Saint would not cooperate with evil!

  • Zachary

    This is true no matter if it is religious or another belief system. Take the struggle between the north and south over slavery. This is not to say we should ignore injustice and allow a free for all, but I think we should error on the side of caution when considering writing off someone else’s belief system as nonsense, for it is too easy to do. Dialogue is the key to understanding one’s perspective. Through understand, one can begin to work on changing the necessary social, environmental, cultural constructs to move someone to a new position.

  • Zachary:

    “Doing anything else would be a denial of conscience.”

    Nonsense. There is no room in America for religious laws or decrees. Keep your religion to yourself – avoid abortion and contraception if that is your wish. But in America you are compelled to send your tax dollars to the PENTAGON whether your conscience agree with Nuclear War or not. Similarly, you shall be compelled to provide coverage for contraception under the Affordable Care Act.

    If religious people have a better argument they need to do that work in their churches, mosques and synagogues – keep it away from the rest of us!
    Religion has done enough damage to American law. Just look at Ted Cruz or Sarah Palin – creations of religion!

  • TOM,

    “Liberals claim to be tolerant , but force their views on others.”
    You are not talking about the 10,000 Right Wing Christian broadcasting stations pumping out religious speeches 24/7 are you? Why can’t Christian Conservatives keep their religion to themselves?

    “Conservatives just want to be left alone and have the government out of their lives.”
    No, that is delusional – Conservatives want the government in every bedroom and the military at war with every country. And they don’t care how much of the Constitution they must destroy to get to it!

  • yoh

    It wasn’t an act of conscience for Thomas Moore either. The Catholic Church was been trying to spin that chestnut into a moral issue for centuries. That one was nonsense from the start. Moore thought Henry would cave in to the might of Charles V who held the Pope hostage. What apologetics (revisionist. !iars) always forget is the Pope was not opposed to divorce in general at the time. Just the divorce of the aunt of the man who imprisoned him.

    In this case there is no act of conscience in attacking the ability of employees to seek medical care outside of their approval.

    There is no religious right to force others to follow your dogma.

  • Tom

    Abortion and homosexual marriage aren’t in the Constitution. Nor are the forced participation in programs like Social Security, Medicare or Obamacare. Liberals have secret glasses that find hidden meanings in that document and use activist judges to get their way. If you wanted abortion and homosexual marriage ,get a law passed through the legislature. I can destroy all of your claims. Not enough time here.

  • Zachary

    “Just look at Ted Cruz or Sarah Palin – creations of religion!”

    Yes and no. Religion plays a part just as cultural, social, and economic status does. Religion has even created you in some way whether you were directly part of it or not.

    As mentioned earlier, I am not advocating we ignore injustice, but that we take the time to listen and understand opposing points of view. In a similar article, I had confessed my own lac of understanding of the logic used in cases like this and hobby lobby.

    In the end people use what they can to advocate their own point of view, just as you and I use RNS to advocate for our personally held beliefs.

  • Nate

    ‘Second, religiously affiliated nonprofit entities (a much larger set of employers) were given a means to avoid providing contraceptives. It requires the employers’ secular insurance companies to provide the coverage separate from the employer’s plan.’

    Only if insurance companies segregate their incoming premiums by ‘secular’ and ‘sectarian’.

  • yoh

    Actually both marriage equality and abortion are in the constitution. Under equal protection under the law in the 14th amendment and the right of privacy under amendments 1, 3, 5, 9 and 14. The social safety net s part of the constitutional right of taxation. Of course people rail against the judiciary when they lack reasonable legal and constitutional arguments. It’s not their fault they can’t justify such positions so it has to be the fault if the judges./sarcasm. The lousy lawyer lament.

    Conservatives rely on ill informed arguments and notions that “might makes right” is a more important principle than civil liberties.

  • Mack

    Killing babies is wrong.

  • Tom

    The SCOTUS grossly distorted the meaning of “due process” in the 14th Amendment. It all started with Roe vs Wade and it became a gateway for imaginary rights. If you want abortion or homosexual marriage pass a law through the regular processes.

  • yoh

    That’s a load of bull. The system of judicial review and “activist judges” has been around for over 200 years. Suddenly it doesn’t work because you can’t get the results you want? Lol!

    The reality is you can’t cough up sane and rational legal arguments to support your position. So you rail against the entire court system.

    Arguments for banning both abortion and gay marriage were laughably vacant nonsense. The arguments of the church here are so far from what religious freedom means that it insults the term.

  • yoh

    Your statement is a non sequitor babies are born.

  • Ben in oakland

    You know what isn’t in the constitution? the defense of marriage act. But that didn’t stop antigay people from doing it, did it?

    You know what else isn’t in the constitution? Corporations are people, money is speech, your religious beliefs should have dominion over my life, tax exemptions for religious groups, bans on birth control and pornography, copyright laws, too big to fail, and that there is an unfettered right to own and use as many guns of as many types as you like.

    And by the way, considering its YOU, Jew hatred is also not in the constitution.

  • Ben in oakland

    How do you have a dialogue with some one who says, “God said it. I believe it that settles it.”

  • Tom

    Congress can pass laws to prevent you from doing something . They can’t pass laws which force you to buy something. I don’t hate Jews, I feel sorry for their misguided ways.

    By the way, DOMA was signed by Bill Clinton -Democrat.

  • Tom

    Presidents Wilson, FDR, Truman, Johnson, Clinton were all Democrats and hardly “conservative” by any stretch. That didn’t prevent them from getting the USA involved in WW1, WW2, Korea,Vietnam, Bosnia. You better learn better history amigo. Check the casualties too. Lol

  • yoh

    Congress has to cough up reasons to ban something besides religious or prejudicial reasons. The Supreme Court is where they get to present arguments to justify their behavior.

    The anti-gay crowd couldn’t cough up a single rational and secular argument for banning gay marriage. Yet you blame the entire judiciary for their failure.

  • Ben in Oakland

    Jews are just mIsguided. No, you don’t hate us at all. You merely despise us and acknowledge yourself as our superiors.

    Congress cannot pass laws which oppose the constitution. They did exactly that with the full faith and credit clause.

    Yes indeed, Bill Clinton signed DOMa and DADT. The Democratic Party, and increasingly, republicans, have recanted their mindless homophobia, realizing that it was and ancient and enduring prejudice, not faith, but bigotry, not freedom or love.

    The question is, when will the rest of the gay haters grow up?

  • G Key

    What a woman does with her own body is none of your business, or mine, or some religion’s.

    It might be different if you offered to pay for her limited work duty & maternal leave, medical costs & transportation, parental costs (including surrogate parenting wages if she wasn’t ready, willing, or able to be a parent), from birth thru the child’s 20th year (including food, clothing, medical care, school & college, room & board, automobile & fuel, maintenance, insurance, and all other childcare costs), plus pain, suffering, & inconvenience fees, payment for loss of opportunities during all those years, and whatever further payment she might demand for agreeing to do all this, including catering to your beliefs instead of following her own, just so you’d feel better about what she did with her life. Yes, it might be different then. But only if she accepted your offer.

    And that would be just as much her exclusive choice as are contraception & abortion.

  • yoh

    Check your own history. The US didn’t initiate any of those conflicts and two of them brought the US in because we were attacked first. Same can’t be said if the Iraq War. Granted, Iraq was primed for a Syria style meltdown anyway with or without our invasion. But that is a different story.

  • yoh

    I have come to the conclusion that the anti birth control and anti abortion POV is not so much a position but a character flaw.

    A certain level of narcissism, arrogance and indifference that makes them feel that their opinions must override the personal and intimate decisions of others. Decisions that are none of their business. To do as you have put it before, a trespass upon others.

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  • In that case, you would also be complicit in the suicides of LGBT people who are subjected to discrimination. You would be complicit in the self-mutilation of women who have to attempt self-abortion due to clinic closings. That wedge has two ends on it.

  • Catholic schools and institutions have far too many lay employees to be forcing their own opinions on everyone they employ. Designate a lay person to sign the paper.

  • Religion has been playing the guilt burdened, punishment inflicting victim for far too long. It is time for them to get along with society, and stop trying to punish the world for all of their court losses. Remember your faith in “god will provide” and “in god we trust”, and stop interfering in the lives of the non-catholic.

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