Wednesday, March 07, 2012

First Amendment Fan's Take on Birth Control/Abortion Mandate

I wanted to post this response from a raging facebook debate I took part in recently with several professors from Wayne State College. It is very informed and I hope you all enjoy it.



The author is Dave Skalka (a self proclaimed fan/expert on the First Amendment):

I preface this by stating I am NOT taking a position nor arguing about contraceptive use or abortions or whether they should be provided free by the government, etc. Not a chance. The First Amendment is my favorite amendment, and I will take a position regarding the Constitution. This is most certainly a First Amendment issue, and enhanced by the 1993 Religious Freedom Restoration Act, which was unanimously upheld by the Supreme Court. Indeed, this is an area of law that the Supreme Court has had consistent unanimous opinions in support of religious freedom.

The argument is: Can the federal government tell a church that as part of its charitable operations it must pay and provide for its employees to take actions 180 degrees against long held religious beliefs?  The argument of Federal Labor Standards would certainly work if the regulation was that Catholic-run institutions cannot fire a non-ministerial/non-priestly employee if they go out on their own and have an abortion, or buy contraceptives. But that is not Sebelius' regulation (who, not coincidentally, is an ex-communicated Catholic). And the exemption provided is so narrow Jesus and his disciples would not meet it. Seriously. Because if the church organization serves people who do not share its faith, the exemption fails. And it is scary from a constitutional perspective that many I have heard say that it's ok because a large majority of Catholics don't follow their leaders' teachings -- an argument that states that there comes a subjective point that the government can step in and tell a religion it may no longer lead by example or actions and instead must conform to the government's position.

Assuming that a law is neutral in its application (not just facially) (and if not neutral it's toast), the court then asks two related questions: Does the law's burden on religion serve a "compelling government interest," and is it "narrowly tailored" or the least restrictive means to furthering the government's interest? Even a neutral law may not substantially burden religious exercise unless that burden is the least restrictive means necessary to serving a compelling government interest.

The interest stated by Sebelius is access to contraceptives. But there are in fact no barriers to adults obtaining contraceptives in the U.S. other than cost. So then what it really becomes is the interest is to make an employer pay for employee's contraceptives. That's not a compelling state interest. And it's not least restrictive (could have the government pay), and demands as to Catholic institutions that they commit "a grave sin" as stated by Pope Paul VI. Which, I add, is the furthest inquiry a government may take into a religiously held belief -- that it is an honestly held belief not raised simply to avoid the present circumstances. The government is not allowed to interpret the Bible for the church, or say well if "Catholics" took a democratic vote they would side with the government.

Additionally, and I don't remember the case but it was from the 80's, the exemption itself has a strike against it because the Supreme Court rejected fabricated lines between a church itself and the missions it carries out through education, health care, etc. -- a church cannot be compelled to guess what a secular court or president determines is their religious mission.

In regard to comments regarding the church's most "profitable ventures". The church has no such thing. Operating hospitals is a mission. Running charitable operations is a mission. Without donations/grants/foundations, Creighton Hospital would be bleeding in red ink in its care of bleeding shooting victims dropped on its doorstep every week, particularly when it was legal for the other hospitals in town to turn such emergency patients away who had no insurance.

If this makes it to the Supreme Court, it will be stricken. And it will be UNANIMOUS. Just like the 1993 Lukumi case. Just like the 2006 Gonzales case. And like the Lutheran church case issued just this January.

GO FIRST AMENDMENT!

Mr. Skalka went on to clarify:

1. I'm not citing the ministerial exemption, I'm citing the supposed institutional exemption Sebelius proposes, which is what has caused the uproar. If it involved an employee with a ministerial duty there would be no discussion to have. Normally there is an institutional exemption to protect religious charities and their freedom of religion, but here Sebelius' regulation on this states that charitable institutions can claim an institutional exemption only if they "serve primarily persons who share the[ir] religious tenets." Other than church services themselves, most of the church's lay organizations and all of its charitable work (as directed by the Bible) serve those in need regardless of religious tenets. It's not within her power to decide that going to church on Sunday is religious but operating a charity is not.

2. It is true the Lutheran church case involved such a ministerial person and would not be directly applicable here (although the Gonzales and Lukumi cases would) but I referred to it to note that this a rare area of constitutional law that the most liberal and most conservative judges agree. You are wrong about the RFRA. The RFRA was unanimously ruled constitutional for all federal law purposes which is what this is.

3. A federal "labor standard" does not trump the First Amendment. "Labor standard" is not in the Constitution -- here it is a interpretation of power from the interstate commerce clause combined with crossing their fingers it is not interpreted as regulating insurance which has always belonged to the States. And there is a less restrictive option -- have the government pay for the contraceptives or insurance coverage.

4. In regard to the double standard argument (In God We Trust on $)-- I frankly don't care what is on coinage. I will say as a country I believe we have been blessed more than others over our 230+ years because of the First Amendment and general belief among the populace instilled through Jewish, Christian, and Muslim faiths that we owe it to our creator to cherish life, treat others in certain ways, and not be all about "me." I suspect you are one who believes the protection provided in the First Amendment must be freedom "from" religion rather than freedom "of" religion. Taking your double standard argument, it means freedom of speech can only be freedom of speech if it is freedom "from" speech. What a scary country that would be.

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