January 15, 2013
More on the mandate
A few new contributions to the ongoing debate about the wisdom, justice, and legality of the HHS contraception-coverage mandate. Marybeth Hicks urges us, here, to "stand with Hobby Lobby," and in so doing to "rally around a Christian family whose religious liberty is being infringed." In Commonweal, my Notre Dame colleague Cathy Kaveny argues that it is a mistake to contend, as some of the mandate's opponents do, that the mandate objectionably "defines religion," when in fact, she says, it "define[s] exemptions to the mandate applicable to institutions that certify themselves as religious, while balancing competing concerns in light of the purposes of the particular law [it is] implementing." At Distinctly Catholic, Michael Sean Winters replies to Kaveny, and re-iterates his case against the mandate:
[T]his fight has always been about the integrity of our Catholic institutions. They may govern themselves badly or govern themselves well, but they should be permitted to largely govern themselves. They will be different from their secular counterparts, to be sure, but why is homogenization a good thing? I thought liberals liked diversity? There are certainly overriding government interests that should bind religious institutions: They should not be able to discriminate on the basis of race, after all. And, protecting women’s health is, like preventing racial discrimination, and clear and compelling government interest. But, there are easy alternative methods for meeting the compelling government interest of providing free access to contraception and I do not discern any such corollary in terms of preventing discrimination. HHS could, at very reasonable expense, provide this coverage to women who work at exempt institutions through the exchanges that are being set up, or through a government website. In fact, devising such an alternate route would achieve what women’s groups say they want, universal coverage, which is something that they do not have now and will not have under any iteration of the final rule. It is vital that the decision makers in the White House see this: Instead of fighting over the scope of the exemption, they should be finding a way to keep a robust exemption and deliver the desired coverage by a different means.
Kaveny's piece also connects with this essay, from Public Discourse, "The Religious Liberty Case against Religious Liberty Litigation," by another Notre Dame colleague, Phillip Munoz. It's worth re-reading.
I agree with Cathy that, in a pluralistic society, the project of accommodating religion is more challenging than it would be in a homogenous society. In some cases, religious objectors cannot be accommodated, consistent with the common good. In this case, though, it seems to me both that (a) on the merits, the mandate does not advance the common good and (b) even if it did, the government could easily accommodate -- and therefore should accommodate (and also, in my view, is legally required to accommodate) -- those who object to it for reasons of religious conscience or religious institutional character.
I am also inclined to agree with Cathy that the claim that the mandate is wrong because it "defines religion" is not entirely right, or is at least more complicated than those making it sometimes make it sound. After all, if one has a legal regime -- as we do -- that singles out "religion" for distinctive treatment (see, e.g., the First Amendment, but also RFRA and various tax-law provisions) one has no alternative to defining, for particular purposes, and not necessarily in an all-encompassing or grand sense, "religion." That said, the exemption-eligibility definition -- whether in the mandate context or in another -- does and will reflect certain premises and judgments about religious practices, traditions, beliefs, and believers, and those premises and judgments can be more, or less, appreciative of religious faith, religious conscience, and religious institutions' freedoms. Here, they are not appreciative enough, in my view.
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