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Friday, March 02, 2012

Some Recent Nonsense on Freedom of Religion in the Times

The last month or two have been a reasonably interesting time for students of law and religion, and would be even if we didn't have Rick Santorum publicly expressing symptoms of nausea over John F. Kennedy's famous speech on the relationship between religion and politics. I have found some of the doctrinal discussion around current issues quite interesting and educational; the public and political expressions of opinion less so. Here are two examples of what I mean, both opinion pieces in the Times. The first is a piece from a religion professor at the University of Toronto, Molly Worthen. It combines some of the sillier expressions of skepticism about President Obama and his faith with some more valid (although not all of them have been seriously and thoughtfully made) expressions of concern about the Obama administration's approach to issues of religious freedom and especially accommodation of religion. It argues that "[t]he charge that the president is a faker on religious freedom is the most recent iteration of the ongoing attack on his legitimacy: it is the new 'birther' movement." She argues that critics of the President's stands on religious fredom are really trying to "impose" their values on others, and concludes: "Conservatives’ accusations that Obama disrespects religious freedom have little to do with the White House’s actual policy: his administration has a strong track record in supporting faith-based organizations and ensuring that prisoners have access to religious literature, for example. They have everything to do with resurrecting old challenges to the president’s legitimacy and framing the 2012 campaign as a battle between honest Christian Americans and atheist subversives."

The second is a signed editorial from this past Sunday by Dorothy Samuels, a member of the paper's editorial board. Titled "Back to First Principles on Religious Freedom," it takes a similar tack: "[T]he real departure from the Constitution is their specious claim to a right to impose their religious views on millions of Americans who do not share them. Virtually all American women, including Catholic women, use contraceptives sometime in their lives. In essence, the bishops and their allies are arguing that they are above the law and their beliefs should be elevated over pressing societal interests."  She argues that the exemption is clearly supported by current doctrine--although that focus makes the headline rather odd and ill-fitting--and concludes that the effort to win a legislative exemption represents "an outrageous assault on the First Amendment."

Both editorials strike me as quite silly. I'm not engaging in mere Times-bashing here; for one thing, I generally pay no attention to newspaper editorials in general, and add them to neither the plus nor minus side of the ledger in thinking about a newspaper's value. Nor do I think there are no good doctrinal arguments in support of the mandate or that there are no valid issues to argue about here. I just think both pieces do a poor job of making those arguments. Contra Worthen, there are of course many individuals, conservative and otherwise, who think this administration has not done a great job on religious freedom issues, from its briefing in the Hosanna-Tabor case to the latest eruption over the mandate. We might have expected better from Obama, given some of the things he has written on these issues in the past, although the truth is that issues of these sort are often susceptible to capture by party functionaries and interest groups lower down the chain. Of course the broader political and historical issues she raises in her piece are worth discussing, but it is just not the case that all expressions of criticism of the administration's position on religious freedom are mere stalking horses for Christian Reconstructionists and so on. And Samuels' piece is an odd mix of faith in current doctrine and rejection of the same doctrine. If she thinks Smith is good law, both as a matter of doctrine and normatively speaking, then it is odd that she should call legislative accommodations an "assault on the First Amendment," or argue that seeking a legislative accommodation represents a view that one is "above the law" (leaving aside the complexities of what it means to be "above the law").   

Posted by Paul Horwitz on March 2, 2012 at 11:05 AM in Paul Horwitz | Permalink


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Anon and Anon2:

Both your points only work if we take as a given that an employer has health insurance. Let's start at time 0 with no health insurance. The employer then says "hey! I'm going to develop my own in-house risk pool and pay for employee benefits."

At that point, what argument does a man or a woman have for demanding additional care? You can't make the argument about "contraception costs less" because you're not allowing employers to run their own actuarial tables. You can't make the argument "it affects women differently" because there are a host of other things that affect women differently that might not be included (does the plan include calcium / iron supplements? Should we require this?).

Also, Anon2's thought experiment isn't apt unless the WHOLE PLAN was contraception. "We offer health care, but not to women." And even that is a tough case. It may be a question of equality, but the government banning such a free lunch is SURELY religious discrimination.

Posted by: AndyK | Mar 5, 2012 9:34:36 AM

I'm glad you posted this, Paul. I had a very similar reaction to the Times piece. I think it's obvious that Samuels doesn't understand the structural holding at Smith's heart. Moreover, I have yet to see any commentator account for state RFRA's (or RFRA itself's application to federal laws) and the seemingly strong legislative presumption these provide in favor of accommodation.

In fact, I am struck that these pieces are every bit as political as the Republican's effort, and I'm not sure what, if anything, this discussion has to do with "first principles" of religious freedom...

Posted by: Ian Bartrum | Mar 2, 2012 6:14:36 PM

AndyK -

My understanding (which could be entirely off) is that the contraception coverage requirement is an issue of gender discrimination. I think the argument is that if an employer offers otherwise comprehensive medical insurance to its employees, failure to cover contraception is gender discrimination, given that pregnancy is a condition that only (directly) affects women. Arguably, allowing religiously affiliated employers not to provide equally comprehensive coverage to men and women thus imposes the empoyer's religious views (about gender equality) onto its employees. I think a closer free lunch analogy would be if a religiously affiliated employer offered free lunch to all employees, but, per the tenants of the employer's religion, said that menstruating women were unclean and not permitted in the cafeteria (and thus unable to partake in the free lunch) while menstruating. Arguably, in that case the employer is imposing its religious views on its employees.

Posted by: anon2 | Mar 2, 2012 1:14:58 PM

@AndyK: I do not think that the free lunch analogy works in this case. Employees presumably could easily get their lunch elsewhere -- the lunch is just a nice perk. On the other hand, for many employees affordable health care is only really available through employment-based health insurance benefits. Given this fact, there is much more of an imposition placed on employees who want access to contraception but whose access is blocked by employers who are foisting their religious beliefs upon them.

Posted by: anon | Mar 2, 2012 12:40:45 PM

I am usually capable of holding alternative propositions in my head whether or not I actually believe them, but I am having real trouble here. I understand the reason for the spin, but the claim that not requiring X to purchase a plan that offers contraception is affording a "right to impose their religious views on millions of Americans" is absurd.

But I'm hearing this spin all over the place! Do people really believe this? If a private, Islamic charity offered a free lunch to its employees, and the administration decided to require all employers that offer free lunches to offer a pork alternative, how on earth would opposing this be an imposition? It's OPPOSING an imposition!

Posted by: AndyK | Mar 2, 2012 11:35:54 AM

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