Thoughts from the interface of science, religion, law and culture

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

EVENTS

Court Rejects Challenge to Contraception Mandate

A Republican-appointed federal judge in Missouri has rejected one of the many legal challenges to the contraception mandate in the Affordable Care Act, ruling that the mandate is not a significant burden on the religious freedom of the plaintiffs. You can read the full ruling here.
The case was brought by a Catholic business owner under the Religious Freedom Restoration Act (RFRA), which allows individuals to ask a court to grant them an exemption from any federal law that poses a “substantial burden” to their exercise of religious freedom unless the government can show a “compelling state interest” in applying the law to them, and under the Free Exercise Clause of the First Amendment. The court rejected both claims.

Plaintiffs allege that the preventive services coverage regulations impose a similar ultimatum, and therefore substantially burden their free exercise of religion “by coercing Plaintiffs to choose between conducting their business in accordance with their religious beliefs or paying substantial penalties to the government.” However, the challenged regulations do not demand that plaintiffs alter their behavior in a manner that will directly and inevitably prevent plaintiffs from acting in accordance with their religious beliefs. Frank O’Brien is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.

RFRA is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own…

Just as in Mead, plaintiffs must contribute to a health care plan which does not align with their religious beliefs. In this case, however, the burden on plaintiffs is even more remote; the health care plan will offend plaintiffs’ religious beliefs only if an OIH employee (or covered family member) makes an independent decision to use the plan
to cover counseling related to or the purchase of contraceptives. Already, OIH and Frank O’Brien pay salaries to their employees—money the employees may use to purchase contraceptives or to contribute to a religious organization. By comparison,the contribution to a health care plan has no more than a de minimus impact on the plaintiff’s religious beliefs than paying salaries and other benefits to employees.

Under plaintiffs’ interpretation of RFRA, a law substantially burdens one’s religion whenever it requires an outlay of funds that might eventually be used by a third party in a manner inconsistent with one’s religious values. This is at most a de minimus burden on religious practice. The challenged regulations are several degrees removed from imposing a substantial burden on OIH, and one further degree removed from imposing a substantial burden on OIH’s owner and manager, Frank O’Brien. Because there is no substantial burden imposed on either plaintiff’s religious exercise, plaintiffs have failed to state a claim under RFRA.

There are a few dozen similar cases filed all over the country and this is one of the first rulings to come down on it.

Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives.

I’m pretty sure that my employer trying to discourage me from making my own private medical decisions on my own time, and believing zirself a legitimate party to my own personal intimate choices, is a hostile work environment!!

A Republican-appointed federal judge in Missouri has rejected one of the many legal challenges to the contraception mandate in the Affordable Care Act, ruling that the mandate is not a significant burden on the religious freedom of the plaintiffs.

Good. (Drinks to that.)

Even Republican appointed and similarly philosophically inclined judges think the current Republican party has gone too far.

Already, OIH Frank O’Brien pay salaries to their employees—money the employees may use to purchase contraceptives or to contribute to a religious organization. By comparison, the contribution to a health care plan has no more than a de minimus impact on the plaintiff’s religious beliefs than paying salaries and other benefits to employees.

This is exactly the argument I’ve been using since this whole debacle began. I have yet to hear a coherent rebuttal to it… and by the sound of it, neither has this judge.

@tbp1 – I could see them doing just that. They might structure it the other way around – you, employee of religious org, get a salaray of X. Prove to us that you never bought or used birth control in the year and we’ll give you a promised bonus of $10,000. Btw, everyone is getting a $10,000 pay cut this year.

They’d lose on this one as well but I can see it as the next up for the on going battle.

I found this ruling to be a well-constructed argument. I also liked the shield/sword metaphor, which does a great job getting at the heart of the same matter DaveL points out though from a slightly different aspect.

In broader terms, the judge just shot down the “I-can’t-oppress-you-with-my-religious-nonsense-therefore-you’re-stomping-on-my-religious-freedom” bullshit argument used by Xians all the time. For example:

Xian: ZOMG! Allowing same sex marriage will mean the government can force the Church (capital ‘C’ universal) to perform same sex marriages! What about our First Amendment rights?

Let’s hope this gets appealed. I suspect if it keeps going up the chain, SCOTUS will run into their own ‘standing’ rules. If taxpayers can’t challenge their money being given to religious organizations, then the religious shouldn’t be able to challenge where their taxes go, either.

(Not that I expect consistency from Scalia or Alito, but the others might be consistent enough to make this a non-issue.)

Plaintiffs allege that the preventive services coverage regulations impose a similar ultimatum, and therefore substantially burden their free exercise of religion “by coercing Plaintiffs to choose between conducting their business in accordance with their religious beliefs or paying substantial penalties to the government.”

No, that’s not the choice. You don’t do one OR the other of those two things. You do BOTH of them, OR you do neither.

RFRA is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others.

Fantastic! But now I’m curious. Weren’t Catholic universities and churches given an exemption? Shouldn’t this same reasoning apply to them?

From page 19 –

The religious employer exemption in the ACA is one of a number of instances of government accommodation of religion.10 As the Supreme Court has frequently articulated, there is space between the religion clauses, in which there is “room for play in the joints;” government may encourage the free exercise of religion by granting religious accommodations, even if not required by the Free Exercise Clause, without running afoul of the Establishment Clause. See, e.g., Walz, 397 U.S. at 669; Locke v. Davey, 540 U.S. 712, 718-19 (2004); Cutter v. Wilkinson, 544 U.S. 709, 713-14 (2005).

That appears to state that the law could have been applied to churches and/or religious schools and not have violated the First Amendment.

Nothing about choosing to make this accommodation singles out any religion, denomination, or sect. It also appears that there is nothing about the First Amendment or this accommodation, that would prevent removal of this accommodation.

I am not a lawyer, but that seems to be what Judge Jackson is ruling. A higher court may disagree with that ruling.