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January 27, 2012
Skeel on Religious Freedom in the Wall Street Journal
My friend David Skeel (Penn Law) has a good op-ed in today's Wall Street Journal about recent religious freedom matters. I thought this point about the politics of religious freedom was especially well-taken:
The Obama administration's reluctance to accommodate is also at odds with many years of progressive efforts to enhance protection for those whose religious views are out of the mainstream. Liberals were strong supporters of the Supreme Court's decision to exempt Jehovah's Witnesses from saluting the flag in 1943, and they were vociferous critics of a 1990 Supreme Court decision that upheld the denial of unemployment benefits for Native Americans who smoked peyote, an illegal drug, in religious ceremonies.
Posted by Michael Moreland on January 27, 2012 at 09:58 AM in Moreland, Michael | Permalink
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"Just as the decision was beginning to sink in, the federal department of Health and Human Services (HHS) announced that numerous religious organizations won't be exempted from ObamaCare's requirement that employer health-care plans cover all of the costs of contraception. The message to Catholic hospitals and ministries that object to contraception: No accommodation for you."
Let's assume that the Federal courts allow for a religious exemption from the contraception mandate for Catholic institutions and the like. The tragedy in this situation is that non-religious institutions and physicians have no grounds to object to such a mandate.
What if a hospital or insurance plan determines based on science or actuarial analysis that contraceptive drugs pose a substantial risk to the health of a woman, and as such, maintain a policy reject all such contraceptions as uninsurable. There would be no conscience exemption based on the truth revealed by empirical data and science, because a bunch of idiotic lawyers in DC have created a federal law prohibiting such a policy from entering the marketplace.
This is legal positivism at its worst since not only does it forclose the Truth in conscience from being exercised but it also forecloses the truth in science from being realized in the market. The silver lining to a mere religious exemption would be that truth seeking scientists, actuaries, and doctors may have to find a home in Catholic institutions. Fides et ratio in practice.
Posted by: CK | Jan 27, 2012 1:13:12 PM
" Liberals were strong supporters of the Supreme Court's decision to exempt Jehovah's Witnesses from saluting the flag in 1943, and they were vociferous critics of a 1990 Supreme Court decision that upheld the denial of unemployment benefits for Native Americans who smoked peyote, an illegal drug, in religious ceremonies."
The difference, though, is that here liberals perceive access to contraceptives (and abortion) as a matter of *equality* whereas the Jehovah's Witness case stems more from concerns about individual liberty. When the uncompromising blade of an equality claim stands against religious freedom, the left will usually come down on the former.
Posted by: Don Altobello | Jan 28, 2012 9:11:33 AM
I am on the left and join Skeel in disagreeing with the Obama administration's position. But Skeel's notion that courts should play an insubstantial role in this area, I think, is difficult to defend. I posted about this at religiousleftlaw, see http://www.religiousleftlaw.com/2012/01/the-first-amendment-dog.html. I wonder Michael if you agree with Skeel on this point.
Posted by: Steve Shiffrin | Jan 28, 2012 5:25:38 PM
