If one looks at the common commentary given by random "liberals" you will see a very anti-religion, specifically anti-Christian strain in the commentary. This cannot be denied by anyone who is honest. Even if you agree with the general critique of "The Church" you must admit that not a few liberals would love to dictate the religious liberties of certain religious people (if not ship them out the country as soon and as fast as possible).
On the right there is a concerted effort to ban abortion and other reproductive choices of women. This is undeniable. Due to this fact it is easy, if you are against these efforts, to be alarmed at anything the right is for. As easy as it is to fall into these two camps, the problem with taking sides in this particular case is that neither concerns are relevant. What no one is talking about much, if at all, is what the relevant law is on this matter. In this entry I'm going to lay it out.
The Constitution
Nowhere in the popular discussion of this recent controversy have I seen from my friends on the left is any mention whatsoever of the U.S. Constitution. This is particularly bothering because it seems to me that they, just like their counterparts on the right are fully prepared to trash the Constitution if it serves their own purposes. These same folks were very quick to point to the Constitution when the issue was so called "anchor babies" or "voter ID laws", but suddenly they are all mute on the Constitution. So let us look at the relevant passages.
The First Amendment to the U.S. Constitution reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Congress cannot pass a law (and since the executive cannot pass laws, they cannot make rules either) respecting the establishment of religion or prohibiting the free exercise thereof. What does this mean?
Firstly this means that the Congress cannot establish a church. For those familiar with the history (which should be anyone moving their lips on the subject), the reason that the English first came here was due to religious persecution by the king of England who was also the head of the officially established Church of England.
So first and foremost the First Amendment prohibits the establishment of a "Church of the United States".
Secondly the Congress cannot pass any law; none whatsoever; that prohibits the free exercise thereof. Now I'm not clear as to whether this means that say human sacrifice could not be outlawed (it is illegal to kill) but I'm going to err on the side that the intention here was not to allow for what would be considered criminal behavior being covered by religion. So for the sake of argument the Congress cannot tell any adherent of a religion what it's precepts are, what books,if any, are or are not valid, etc.
There is only one breech of this that I can think of. The admission of Utah into the Union came with the stipulation that polygamy be outlawed. Polygamy was a tenet of the Mormon faith and was clearly abridged (and continues to be abridged).
So generally speaking there is no law congress can pass that forces a religious person to do something against their faith. Quakers cannot be forced to join the military and kill for example. This concept extends to church organizations. This is clear.
The Civil Rights Act of 1964
As a result of the struggles of African people to secure their citizenship rights the Civil Rights Act of 1964 was passed. The Act contains Title VII section 702 which states:
Exemption:
This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.
A religious corporation, association, educational institution, or society....to perform work connected with the carrying on by such corporation, association, education institution, or society of its activities.
Therefore if a church opens up a hospital and considers it a part of it's "ministry" and employs persons, it can not only discriminate against those person on whatever religious grounds it likes but due to the first amendment the Congress cannot pass a law to prevent it from doing so.
I became familiar with this concept in October of 2005 when I discussed a ruling on the Salvation Army
But the judge's 48-page opinion upheld the principle that a religious group can hire and fire employees on the basis of their religious beliefs and practices, even if their salaries come from taxpayer funds. That principle is at the heart of the Bush administration's policy.
"It's huge," H. James Towey, head of the White House Office of Faith-Based and Community Initiatives, said of the decision. "It's certainly a vindication of what President Bush has been saying from Day One -- that religious groups do not have to sell their soul, compromise their hiring practices, in order to partner with government in providing social services."
At the time I was against this ruling because I took the position that the receipt of government funds preempted the right of discrimination found in the Civil Rights Act. I noted this conflict writing:
So we see that there is a conflict of interest here. The government cannot by law give funds directly to organizations that discriminate, yet "faith based" organizations are free to discriminate.
I was wrong then in thinking that the state could preempt the First Amendment right of a religious group to essentially do whatever they please in the name of religion. I have changed my position due to seeing over the seven years that passed, the danger of passing laws that abridge constitutional rights. It is a slippery slope that I gleefully jumped on at the time.
But what is worse for those on the left is that this 2005 decision underscores the correctness of the Republican position on this matter and provides precedence.
The Contraception Issue
With the law on this matter now in hand, we can properly look at the whole contraception issue. The Catholic Church (and possibly other religious organizations) have a religious objection to contraception. It does not matter whether we the general public like it. It does not matter if 90% of American Catholics don't listen to the church about contraception. It is the constitutional right of citizens to use or not use contraception. It is also, as we showed, the constitutional right of the church organization to have it's policy and to not be burdened by the Congress with any law that prohibits the free exercise of that policy. That is the law. There is no way around that without trashing the First Amendment and the 1964 Civil Rights Act.
The Viagra Argument
It does not matter one bit, under the law, whether the Catholic church provides for Viagra. In fact, putting the law aside, it is NOT contradictory for the Catholic church to provide coverage for Viagra (if it does) and not contraception. The Catholic church, as I understand it, is pro reproduction. If Viagra helps a catholic couple to reproduce, then it makes sense that the Catholic church would cover it. We should ask then what would be the equivalent male contraceptive coverage?
If the Catholic church provided coverage for say condoms and vasectomies and whatever other means for preventing a male from inseminating a woman while denying women equal access then we would have an actual case of contradiction, even though legally it wouldn't matter.
But Contraception Can Be Used for Things Other Than Contraception
This is a common argument I am seeing on this matter. I would guess that the prescription of contraceptives for reasons other than contraception is what we would call "off label use". I do not know the Catholic church's policy on the off label use of contraceptives. I would hope that if a woman is prescribed the chemicals used in contraception for treatment of a disease (pregnancy is not a disease), that such use is covered by the Catholic church. But even if it does, that does not mean that those who want contraceptives because they simply do not want to get pregnant have a leg to stand on because the church has a problem with the purposed use of the chemicals (as far as I know) and not the chemicals themselves.
It's About Who Pays
I've seen way too much commentary that this particular issue is about controlling women's vaginas, ovaries and whatever. Nothing could be further from the truth. Lets be clear the Catholic church may want to control a woman's vagina. Republicans may want to control a woman's vagina. However this issue is about the constitutional right of religious organizations to have their religious precepts and principles and their right not to pay for something that is against those precepts and principles.
The Catholic Church does not [now] have the power to deny women the right to contraception. I submit that the Catholic Church in the US has never had such power. It does however have the right to not pay for providing it. The women employed by the Catholic Church have the right to purchase contraception and, as far as I know the Catholic Church cannot prevent them from doing so while they are employed by the church.
The risk to this current prohibition against the church being able to dictate the private lives of it's employees are these precedents of employers being able to hire, discipline and fire people based on their non-work activities. I have also warned people about that issue and the danger such actions have on the rights of citizens. However; too many people are not paying attention to the long term threats posed by things that are not a part of their pet issues.
In the end, providing coverage for contraception equals providing contraception. The Catholic church does not approve of or provide contraception. The Congress cannot pass any law prohibiting the free exercise of religion. By mandating that the Catholic church provide contraception via insurance policies is congress prohibiting the free exercise of the Catholic church. The legal ground is clear. This shouldn't be up for debate because the entire proposal is unconstitutional on its face.
The president and the Congress is duty bound to protect and defend the Constitution. If they want to change it they ought to do so by the means provided by the Constitution.
