All eyes have been on the Supreme Court for three days now as the justices have listened to oral arguments about the Affordable Care Act.
If the law is overturned, the controversial HHS contraception mandate would be a moot point. But I want to call your attention to a piece on Obamacare and religious freedom that makes a compelling point: if this article, by lawyer Howard Slugh, is right, the administration’s disregard for the First Amendment right of freedom of religion is even more serious than we thought.
Slugh notes that at first glance the mandate is “bewildering” because the exemption for religious organizations is so narrow. Churches are exempted but hospitals and schools aren’t—it’s as if they just aren’t religious enough to be granted an out from an activity they regard as morally objectionable. So what is going on here?
The exemption is only understandable if you accept the premise that it was never intended to protect religious objections. If you read the text of this exemption in light of the administration’s arguments in the Hosanna Tabor Supreme Court case, it becomes clear that this exemption was intended to protect a right rooted in the freedom of expression, not the free exercise of religion.
The Hosanna Tabor case, which the administration lost, was over whether there is a “ministerial exception” that prevents people fired by a religious organization from suing the organization if fired for religious reasons. Hosanna Tabor was filed by a teacher at a Lutheran school, and her lawyers argued that the school wasn’t a sufficiently religious institution to avail itself of the ministerial exemption.
The Obama administration took a far more radical approach, arguing that the Free Exercise Clause did not create a ministerial exception at all. The government’s lawyer stated, “We don't see that line of church autonomy principles in the Religion Clause jurisprudence as such. We see it as a question of freedom of association.” She clarified that this protection was no different than the protection afforded to any other group that gathered for expressive purposes. The main inquiry in such a case would be whether the regulation at issue interfered with the organization’s ability to “express and share a religious belief.”
In light of this argument, the limited conscience protection makes more sense. The limitations on the exception are perfectly rational if their sole purpose is to ensure that an organization remains free to “express and share a religious belief.” The exception never intended to protect people’s moral and religious beliefs, only their expression.
If the administration had won, the door would have opened to the federal government’s one day stepping in and ordering the Catholic Church or Orthodox Jews to hire female priests and rabbis.
Slugh makes the point that the “accommodation” the administration offered to religious employers can be understood in this light: the accommodation, which allows religious employers to remove what they consider morally objectionable from their insurance receipts, does nothing to assuage their moral concerns. In other words, it allows them to express themselves—freedom of expression—but it does nothing to protect their freedom of religion.