Mirror of Justice

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Tuesday, May 7, 2013

HHS Gives in on Tyndale House Publishers and the Mandate

The government's has voluntarily dismissed its appeal in Tyndale House Publishers' 'suit against the potential-abortifacient parts of the HHS mandate.  The dismissal order is here.  From the news release by Tyndale's lawyers, the Alliance Defending Freedom (congratulations to Matt Bowman and ADF on the win!):

“Bible publishers should be free to do business according to the book that they publish,” said Senior Legal Counsel Matt Bowman. “The government dismissed its appeal because it knows how ridiculous it sounds arguing that a Bible publisher isn’t religious enough to qualify as a religious employer...."

This of course this doesn't presage the administration's position, or the result, in the cases involving general commercial businesses (factories etc.) run by objecting religious individuals.

As to those cases, here is the latest amicus brief I filed on behalf of Bart Stupak and the Democrats for Life, this time in the Sixth Circuit, supporting the rights of commercial businesses and their owners to object to the coverage of abortifacients, on the ground that our tradition of protecting conscience rights regarding abortion is especially expansive and strong.

http://mirrorofjustice.blogs.com/mirrorofjustice/2013/05/hhs-gives-in-on-tyndale-house-publishers-and-the-mandate.html

Berg, Thomas | Permalink

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This is likely litigation strategy pure and simple. Tyndale is a much more sympathetic plaintiff than Hobby Lobby. From the government's perspective, it is better to let the district court opinion stand rather than establish precedent that is controlling for an entire circuit.

Posted by: CLS | May 8, 2013 10:27:50 AM

"Bible publishers should be free to do business according to the book that they publish"

If the bible in question justifies breaking the law, should they be free to break the law? The statement is overblown -- it has to have SOME caveat.

Posted by: Joe | May 8, 2013 10:48:38 AM

"If the bible in question justifies breaking the law, should they be free to break the law? The statement is overblown -- it has to have SOME caveat."

{sigh} Joe, I think we're all grown up enough to realize that a statement in a news release isn't the articulation of a fully-fleshed legal argument, principle, etc.

Posted by: Josh DeCuir | May 8, 2013 12:08:51 PM

From the Government's perspective, they would like to limit Religious Liberty, or they would not have chosen contraception to be the "wonder drug" that must be made available to all, rather than a drug that actually serves to sustain Human Life.

Posted by: Nancy | May 8, 2013 12:16:22 PM

A "Senior Legal Counsel" is quoted here specifically and it is not a matter of a "fully-fleshed" legal argument. It is the limits of even the citation of a basic legal principle. It is on that level quite, with respect, vapid. Religious works repeatedly have principles that clash with the law. Those who sell such works have to follow secular law, even if it clashes with the work itself. RFRA etc. provides accommodations, but only up to a point. Sorry if this is tiresome but the comments on this blog continuously speak about religious liberty w/o enough context.

As to the last comment, a few replies. One, the Catholic Church has accepted the Griswold decision as a matter of constitutional law, including as a matter of religious liberty. Second, contraception "must be available to all" is exaggerated. The law doesn't apply in various cases, including a church that purely employs members of the faith.

In other cases, the law promotes religious liberty by helping individual employees to have the means to make health choices guided by their individual religious beliefs. Such as, a person who is married but a pregnancy would negatively affect her health or for a range of reasons be problematic. Aside from the beliefs of the average Catholic (the vast number of them), it is common for Christian faiths to accept contraceptives as moral.

Also, 'the government' isn't the only one behind the law here, one that matched other state laws, laws in place for years, and which have similar or even more restrictive requirements. An institute of health expert study determined that contraceptives have various preventive health values so along with other things should be provided for that reason.

Finally, the irony of inhibiting something that will cut down on abortions to some degree (note: Plan B is not an abortifacient -- it works before conception) continues to be surprising.

Posted by: Joe | May 8, 2013 1:36:05 PM

[the brief btw has a heading that says the government must respect individual religions definitions of "abortifacients" ... the term has a meaning ... it is not akin to the personhood of the trinity or something ... on some level it is an objective matter of scientific fact ... if the word is going to be tossed around and what amounts to birth control pills are covered, let's be clear about it]

Posted by: Joe | May 8, 2013 1:41:27 PM

Joe, I take your point that several studies say that Plan B does not prevent implantation of an embryo. However, the FDA labeling and the government's own statement--including its position in the lawsuit--is that Plan B may operate to prevent implantation (it's just preventing implantation is not, according to the government, an abortion). As the brief argues, at least until there is consensus on the implantation effects, the objector is entitled to take seriously the government's statements that they may exist. Why should the objector have to make the move and conclude before the government does that there's no risk? The brief does not argue for an absolute subjective definition on the risk, just for a meaningful range of deference to the objector's weighing of risks--and objectors did not just make up this issue. Moreover, how seriously one assesses even a small risk, as a matter of conscience, depends on how serious one thinks the possible harm would be. When an objector sincerely understands the harm to be the termination of innocent life, it is understandable for him to be concerned even if the risk is not huge. And finally, I must also note that nothing you've said has application to Ella, as to which the FDA hearings in 2010 revealed substantial worries that the drug could not have its asserted several-day effectiveness without operating post-fertilization.

Posted by: Tom Berg | May 8, 2013 3:07:57 PM

In the second sentence of my comment, the parenthetical should read "(it's just that preventing implantation is not, ..."

Posted by: Tom Berg | May 8, 2013 3:10:32 PM

Tom

I don’t think there’s much disagreement about whether persons who object to contraceptives or abortifacients have the right to refuse to use them. As I understand it, the issue the “individual mandate” raises is whether such an objector may take advantage of their position of employer to interfere with an employee’s access to contraceptives or abortifacients.

As long as these products are legal and considered by the medical community as safe to use then the power of the government to require Insurance companies offer them seems clear. Insurance and medical care are both–in reality–interstate commerce. Whether employers can interpose their beliefs between the employee and the insurance company seems clear also: they cannot or at least should not.

Much is said about protecting the religious rights of employers, but what seems to be elided over is that the individual mandate protects the rights of employees to choose or reject according to their beliefs. Upholding the mandate will not interfere with the employer’s religious rights, it will only require them to not interfere with the employee’s religious rights.

sean s.

Posted by: sean samis | May 8, 2013 3:47:26 PM

Here is how the mechanism of action of Plan B is described on the label: "Emergency contraceptive pills are not effective if a woman is already pregnant. Plan B One-Step is believed to act as an emergency contraceptive principally by preventing ovulation or fertilization (by altering tubal transport of sperm and/or ova). In addition, it may inhibit implantation (by altering the endometrium). It is not effective once the process of implantation has begun."

I believe the correct interpretation of the all-important words "may inhibit" is that one mechanism by which Plan B works MAY OR MAY NOT be inhibition of implantation. The labeling does not indicate that most of the time Plan B works by preventing ovulation, but some of the time by inhibiting implantation.

Tom Berg says: " However, the FDA labeling and the government's own statement--including its position in the lawsuit--is that Plan B may operate to prevent implantation (it's just [that] preventing implantation is not, according to the government, an abortion)."

It is true that the government, and many medical authorities, would not define preventing implantation as abortion. But I don't believe that is the issue here. I don't think the government is trying to convince anyone that preventing implantation is not abortion, and consequently religious organizations should not object to drugs that prevent implantation.

The Catholic Church in Connecticut and the German Bishops have both approved the use of Plan B in cases of rape. There are any number of things (cigarette smoking, for example) that are *proven* to interfere with implantation. Of course, there is a difference between doing something that lessens ones chance, if an egg is fertilized, of having it implant and taking an emergency contraceptive with the intention of possibly preventing implantation. But it is an interesting question what the morality is for women of childbearing age to smoke cigarettes. (Of course, a moral case against smoking can be made even without considering its effects on implantation.)

Posted by: David | May 8, 2013 3:56:49 PM

David,

Your comments on cigarettes and implantation are very interesting. A quick google turned up:

“There are around 13 research studies which have considered the effect of a woman's smoking habit on the chances of falling pregnant. The results have found that the chance of conception is reduced by between 50 and 70 per cent. ... Not only does smoking reduce the chance of falling pregnant, it also increases the risk of miscarriage by around one and a half. Later in pregnancy smoking has been found to be associated with placental abruption (when the placenta separates from the womb), bleeding during pregnancy, restricted growth problems, premature labour and early spontaneous rupture of the membranes. Smoking after the baby is born may increase the risk of cot death.

http://www.dailymail.co.uk/femail/article-183788/Will-smoking-reduce-chances-pregnancy.html#ixzz2Sjc9ixcl

Other sources corroborate this. Smoking seems a major hazard to children both before and after birth.

So, if a young woman smokes, this is pretty much the same as using a weak form of contraception/abortifacient which also puts any unborn child at significant risk. Cigarettes are a daily-use-Plan-B.

Yet I’ve never heard pro-lifer’s going after cigarette use, nor the Catholic Church; not with the zeal they go after contraception generally. Are they just unaware (as I was) or is this an inconsistency? Makes me wonder. Just how effective would cigarettes need to be to trigger a response? Hmm...

Could an employer forbid employee smoking even off-premises (pardon the expression) on religious grounds?

sean s.

Posted by: sean samis | May 8, 2013 4:36:35 PM

I appreciate the response but as suggested by other replies do not know what sort of "consensus" is required here exactly, especially given that other things have some of "risk." It is important to note again that the rule set forth here is general; it isn't for one specific drug or result. If some small possibility, one not intended, is likely here, consistency would be a range of things might be blocked here for general employees, not just ministerial ones.

Also, it is my understanding that even the labeling was overly cautious. There is very well some "consensus" that the drug will act as a contraceptive (sic). Finally, again as to word usage, "abortion" is a generally used term with medical implications. If "abortifacient" is used, the common understanding is that something is "aborted" from the uterus. I have a somewhat different view there possibly than David.

The fertilized egg -- if that even occurs -- not even implanting would not result in any "abortion." And, if a broader use is applied, then, birth control pills generally would be considered abortifacients, including if we factor in the small probability of what might occur. But, that simply is not the usage. If a specialized usage is provided for a term (unlike even the use of "marriage"), we should be clear. I leave what the government "wants to do" here open to make that broader point.

I reaffirm the point made by sean that to me is very important -- RELIGIOUS LIBERTY is protected by protecting employee choice here. A religious employer like a church can set rules for their own members. They don't need under the law to have an on campus supply or to promote usage. Under the law though if they wish to use the public sphere to employ non-members and provide them a salary which by law comes with health benefits, the employee has a right to use both to follow his or her faith and health needs. Some other employer, e.g., might not want to insure a "wrong" birth, such as of a rape and this might be its honest religious belief. This is not okay. And, we can't rely on "right" belief here. That isn't how it works.

As to Ella, first, it is unclear there too that "abortion" occurs. It also is geared "to help prevent pregnancy by delaying ovulation" but there is a chance, like other drugs or activities might, to not allow implantation. http://www.ella-rx.com/ That is not what "abortion" generally is understood to mean, but like "marriage," I understand a church might think differently. Birth control pills or IUDs might do the same thing here. It also would be a much narrower claim if only this type of drug is opposed.

But, that really isn't how health insurance benefits should work. If it was, employers, even for profits according to some here not religious based as such (like a wedding photographer), could complain about a range of health benefits because in some fashion it conflicts with their religion. Thus, if there is some hazy risk factor to something that might risk abortion, perhaps a certain pre-natal procedure should not be paid for, if the result is only "mild" health effects. Or, something totally unrelated to abortion, that clashes with some other religious belief.

I don't think this works unless we favor certain beliefs over others. We already do this for what is clearly abortion, even though many religions believe that abortion is moral in a range of cases, which is wrong enough. We should not do it when "abortion" very well might not actually occur at all. Especially in such a way that burdens religious beliefs of employees in general. I think ultimately religious liberty, full stop, is actually not what is at issue here, though that is used (misleadingly) as a justification.

Posted by: Joe | May 8, 2013 5:33:35 PM

Joe and Sean, thanks for the comments. Your central shared claim is that it is the employer who is trying to deny religious liberty to employees, denying them access to contraception (including emergency contraception). This is a somewhat unusual definition of "denying access": in the ordinary sense of the term, the employer is not denying access since it's not blocking the employee from accessing contraception in any way other than through the insurance policy that the employer pays for. On the other hand, if the baseline is set at at "employers must provide whatever the government says," then the employer is denying access. It's entirely a question of what baseline to choose. But you can't simply assert your chosen baseline without argument--any more than I can simply assert without argument that the proper baseline is to presume the employer should not have to pay.

Actually, I think that these baseline questions are difficult in a society that regulates the for-profit economy substantially, but that also values liberty of conscience and does not require you to confine your conscience to church and purely private life. Both baselines can find support in aspects of our tradition. The amicus brief we're discussing makes the narrow argument that, in the context of abortion (including procedures that one may colorably fear cause abortions), our tradition is to accommodate conscience broadly: we don't make even for-profit employers pay for abortions, or even facilitate them indirectly. The Affordable Care Act itself (along with other provisions like the Weldon Amendment) directly recognizes this by providing that, among other things, no employer group plan may be required to cover abortions. Under your approach, Joe and Sean, such provisions are unjustifiable, because they "deny access" to an employee for a "legal procedure." But the provisions reflect that with abortion, our societal tradition is to weigh the objector's conscience heavily because this is, in the objector's view at the least, a matter of innocent life at stake. That argument does not, in fact, mean that all conscientious objections to any medical procedure must be accepted. The argument of the brief is purposefully narrow.

Then the question is whether the distinctively strong tradition of abortion-conscience protection should extend to objections to emergency contraception on the ground that objectors colorably fear they cause abortions. I understand your claim that the tradition should extend only to procedures that inherently, unequivocally are abortions. However, we generally give conscientious objectors some deference in deciding what acts carry a great enough risk of involvement in a wrong that they believe they should not do it.

I'm going to have to break off here to meet some deadlines. Maybe our thread has played itself out, or others will pick up the slack?

Posted by: Tom Berg | May 8, 2013 7:27:25 PM

Prof. Berg,

I'll pick up the slack. I think your last comment touches on a fascinating question: Set aside contraception for the moment, and let's suppose the HHS mandate required employers to provide insurance coverage for late-term abortions. Should employers have the right to object to the requirement to provide late-term abortion coverage? I'm genuinely curious as to how today's HHS-contraception-coverage supporters would answer the question, because I simply don't know what they would say. I don't know whether they would agree with the employer's religious liberty objection to late-term abortion insurance coverage, and if they did agree with the employer's objection in that case, I'd be curious to learn what is the difference in their mind between objecting to late-term abortion coverage and objecting to contraception coverage.

Posted by: Thales | May 8, 2013 11:28:07 PM

The "employers must provide whatever the government says" is exaggerated but I will take it to include various caveats. That is, e.g., if the "employer" is purely employing members of the faith (phrase it as you will). Or, let's say have on campus access at the clinic. And, various methods are used to separate the insurance so the connection here is indirect. http://takingnote.blogs.nytimes.com/2013/02/01/contraception-compromise/ Just to be clear.

I agree there are complicated issues here but rights clash. In the past, it was a strong belief that it violated liberty to force people to serve black people (or if you like, largely Catholic Irish people). Such things honestly could arise from religious belief (e.g., some do not want to associate with "sinful people" like those who have sex outside of marriage).

Now, we have more general rules of public accommodation. The employer cannot tell the employee that they cannot spend their salary, paid by the employer, in ways that clash with the employer's religion. This includes even abortion. Health insurance is now in effect part of the salary. The employee earned it. The employee can use it per their religious faith. This protects religious liberty. The employer, religious or not, entered the public sphere. If it was purely ministerial employees or the like, different. Some accommodation is even made as seen above for those who hire non-believers. Not "whatever the government says."

I respect btw that you wish to limit things here but as noted the "fear of abortion" rule is fairly broad. The actual rule in place has to my knowledge be applied to clear-cut cases of abortion. Now, I find this rule problematic myself, as noted (especially when the woman's health is at risk -- see Harris v. McRae, Stevens' dissent). Selectively we are picking and choosing what religious beliefs should be honored. It is a limited religious establishment and there have been others (Catholics know this -- see the history of bible reading is schools). But, at least we should cabin it. Spreading it to what will cover birth control pills (which after all might do what Plan B or Ella does) is too much.

As to the final comment, it is "fascinating," I guess if we should deny a janitor who needs a third trimester abortion for health reasons, an abortion that can costs thousands of dollars, and can only be obtained by some people if they had insurance that now is tied to employment. I guess we can send the person to a public hospital, at least when things get desperate, and the money will in one way or the other be partially paid by the employer in the long run. That is, unless perhaps the employee was able to save money up, perhaps by denying herself and family other important things, money given to her by the employer. Somehow, this is different. Doctrinal niceties, i guess.

Anyway, honestly, I appreciate Mr. Berg's replies. Some of the comments here have been strident, but he respectfully disagreed. Thanks.

Posted by: Joe | May 9, 2013 9:56:23 AM

ETA: Reference is made how "our tradition" treats abortion differently. Yes, but voluntary action by the government is different from some "right" to override a general rule, a compromise of sorts, set forth by the government to try to respect the various faiths of society. The compromise includes not providing a certain broad definition of abortion or the danger thereof. It includes exceptions for health and life & in various cases certain other things (like rape or a brain dead fetus). So, the appeal to tradition has limitations.

Posted by: Joe | May 9, 2013 10:04:48 AM

We are all sinners, in need of a Savior. This does not change the fact that there is a difference between sinning, reconciling with God and those we have offended, and serving our Penance, and denying a sin is a sin..

Posted by: Nancy | May 9, 2013 10:09:51 AM

Tom and Thales,

Let me address the hypo Thales suggested: given the hypo that the government has mandated insurance coverage of “late-term abortion” under a more general health care mandate, “Should employers have the right to interfere with employee access to the required late-term abortion coverage?”

Please notice I have modified Thales question. Everyone has a right to “object” to anything; the question is what they have the right to do about their objections. Do employers have the right to interfere with insurance coverage mandated by federal regulations because they object to them?

I also presume the mandated coverage has been properly enacted and not enjoined by any judicial challenge.

Given the hypo, and my inferences about it: No, employers should not IN THAT HYPO have the right to interfere with employee access to the mandated insurance coverage.

I say this because, if such a mandate were established, presumably it represents the view of a majority in congress (including at least 60 members of the Senate) that this coverage is justified by at least an important government purpose. Given all that (which very unlikely outside a hypo) then it is within the State’s authority to mandate this coverage and to deny employers the right to impose their beliefs on their employees.

I realize that late-term abortions are controversial, but the hypo implicitly assumes that the controversy has passed a critical stage and the majority no longer are troubled by it. Obviously this is unlikely.

Tom mentioned something to the effect that employers pay for insurance policies, this is not standard. Usually employees pay for part and in either event insurance is considered part of an employee’s compensation.

As for where the baseline should be set, since health care is now a basic need, having the government set a baseline seems necessary. Putting this in the hands of the employer means a basic need is controlled by an unaccountable private actor.

I don’t think our tradition is to “weigh the objector's conscience heavily” in these questions when the impact of the objector’s conscience is to limit the rights of others.

A final thought for no one in particular: the only reason this Individual Mandate is even an issue is because the US continues a very backward practice of providing access to health care through employers. A comprehensive Universal Health Care system would take employers out of this fix and eliminate the burden on their consciences instantaneously. But by and large the very same conservatives who belly-ache against the Individual Mandate also fiercely oppose any UHC in the US. There are exceptions of course, but the general observation holds.

So if you are troubled by the Individual Mandate, stand up and advocate a UHC system.

sean s.

Posted by: sean samis | May 9, 2013 1:48:40 PM

Sean,

I agree with you that a single-payer, non-employer-based system would reduce the religious liberty concerns. I tend to think it would be better on general policy grounds too, although I'm no expert. So don't assume that everyone has monolithic either "progressive" or "conservative" positions on this range of issues.

Your position is that as long as the majority in Congress authorizes it, there should be no exception. Thus, if Congress 20 years from now required insurance coverage for the costs of euthanasia/assisted-suicide procedures--on the ground that this was necessary to facilitate individual choice and save runaway medical costs--could an employer seek an exemption? Your logic would say, "Well, if things get to that point, there must be a good enough reason for the mandate that no employer should be able to legally object." That shows more confidence in the government than even regulation-sympathetic progressives should have. Government, including our governments, can be on the dark side too. For example, we tend to treat racial segregation now as exemplifying how laws should be able to regulate business practices carte blanche through nondiscrimination laws, but during the the segregation era laws prevented some entities that wanted to served blacks (colleges for sure, likely some businesses) from doing so. My point is not to be conspiratorial or apocalyptic, but rather to say, in response to your broad argument for deference, that there are reasons to preserve in principle some room for businesses to claim an exception--at some point well before what everyone regards as the most extreme case comes along. (The history of the 20th century teaches us we shouldn't assume that what seems unthinkable now will always be unthinkable.)

Posted by: Tom Berg | May 9, 2013 2:24:04 PM

Sean,

In your hypo, if the majority of Congress passes a law (or an enabling act which forms the basis of an agency's regulation) requiring coverage of procedure that some find objectionable on religious grounds, this is OK.

It seems to me that the very purpose of the First Amendment was to curb such majoritarian limitations on religious liberty.

Maybe I'm wrong. Perhaps the founders meant that Congress shall make no law prohibiting the free exercise thereof unless the law was . . . uh . . . made by Congress.

Your reasoning seems to do away with the First Amendment all together.

Posted by: CLS | May 9, 2013 2:35:54 PM

Sean,

In your hypo, if the majority of Congress passes a law (or an enabling act which forms the basis of an agency's regulation) requiring coverage of procedure that some find objectionable on religious grounds, this is OK.

It seems to me that the very purpose of the First Amendment was to curb such majoritarian limitations on religious liberty.

Maybe I'm wrong. Perhaps the founders meant that Congress shall make no law prohibiting the free exercise thereof unless the law was . . . uh . . . made by Congress.

Your reasoning seems to do away with the First Amendment all together.

Posted by: CLS | May 9, 2013 2:35:56 PM

CLS,

It wasn’t my hypo, it was Thales'. I just answered it. I do not endorse the hypothetical mandate.

What free exercise would the hypothetical mandate interfere with? Only the “right” of an employer to interfere with an employee’s choices. If an employer gets to decide what an employee does, THAT does away with religious liberty altogether.

... and I’m sure you know there’s more to the First Amendment than the religious clauses...

sean s.

Posted by: sean samis | May 9, 2013 2:47:44 PM

"What free exercise would the hypothetical mandate interfere with? Only the “right” of an employer to interfere with an employee’s choices. If an employer gets to decide what an employee does, THAT does away with religious liberty altogether."

If the employee feels so strongly that someone else has to pay the $9 per month for her birth control pills then she should go work some place else. The idea that a private employer is taking away an employee's "rights" by refusing to pay for her birth control: (1) shows an appalling ignorance about how the Constitution works; and (2) demonstrates an alarming approval of the government forcing individuals to act against their conscience based upon very minor inconveniences to those the government approves of.

Posted by: Brian English | May 9, 2013 3:21:40 PM

Sean,

Of course I do...

But, in the case of a mandate where an employer is required to pay for a service to which the employer objects, the employer is the one with a cogniziable First Amendment religious liberty interest, not the employee. The employer cannot violate the "religious liberty" of the employee in a manner cognizable by the First Amendment.

Posted by: CLS | May 9, 2013 3:25:31 PM

The government regulates the public sphere including in ways that helps individuals to be equally treated no matter what their race, gender, sexual orientation or religion might be. This promotes equality and freedom, including religious liberty. So, e.g., employees have a right to various religious accommodations at the work place.

How about this. Some people think it is immoral for certain women to have children. If they get pregnant, they even might think abortion is preferable (e.g., if the child might be severely handicapped). If Congress requires the employer to provide insurance anyhow since many simply don't have the means to pay w/o it and should not have to work elsewhere since they have the "wrong religion," is it a violation of the 1A?

As to the euthanasia scenario, if we define things broadly and worry about risk, we can imagine a range of issues. DNR orders? Just what is euthanasia? The Catholic Church provides a bit of a margin here where care can be denied, others might have more absolutist views. If drugs for pain might cause death even if it is not the intent, can they be paid for? Can the employer not let the employee use their salary for such things?

Single payer might be best but it is not politically feasible. So, we have an imperfect system that includes employment based insurance with various accommodations made. This includes a public sphere where the good of all people must be considered, the religious liberty of all. Including the pregnant woman who wishes to have a costly childbirth even if the employer finds that immoral pursuant to his or her faith. That faith counts if we have equal religious liberty.

Posted by: Joe | May 9, 2013 3:29:39 PM

--> The employer cannot violate the "religious liberty" of the employee in a manner cognizable by the First Amendment.

This has been addressed in the past. We are aware that non-government employers are not state actors for purposes of the 1A. But, religious liberty is secured in a range of ways, including various regulations of the public sector. Such as accommodations at the work place for religious believers. Employers therefore can inhibit religious liberty here by violating such rules.

Brian, not only are contraceptives more costly, you might not wish to rely on "minor inconveniences," since abortion costs can be quite high. Also, that is not how we treat salaries. Employers don't get to look into the minutiae of how we spend the money they pay, "small" amounts not important, if you care so much, work elsewhere where your religious beliefs are more well respected. And, "someone else" isn't paying. SHE is paying. It is part of her compensation for her labor. Perhaps tossing about "alarming" is not a good idea.

Posted by: Joe | May 9, 2013 4:05:22 PM

CLS,

Regarding “But, in the case of a mandate where an employer is required to pay for a service to which the employer objects, the employer is the one with a cogniziable First Amendment religious liberty interest, not the employee.”

This is off the mark for at least two reasons: the employer is paying for the insurance costs for an employee as part of the employee’s compensation. Normally they pay only PART of the insurance costs, the employee pays the rest. So why let the employer veto what they pay for together?

Employers do not pay for the individual services (pharmacy, lab tests, etc.); they do not pay any co-pays; they only pay PART of the costs of insurance. They do not pay for the services themselves.

The insurance MIGHT cover services they don’t approve of; the employee MIGHT seek these services. The employer may claim that there’s an unacceptable risk that an abortion will be paid for, but that is not a stronger liberty interest than the employee who believes they need such an abortion and is unable to obtain it because it has been made cost-prohibitive due to a third party’s religious beliefs.

Ironically, after medical need, one of the more common reasons a woman might need an abortion is because she is financially unstable and she cannot afford the child. This is ironic because if the employer paid a living wage, this would not happen.

Health care is not optional, it is literally life-and-death. This is not employers interfering with employee vacations, this is their meddling in their lives.

This problem is no different than an employer who does not want insurance to pay for employee blood transfusions, or employers who object to the risk of transplants occurring between donors of different races. It is beyond the employers’ rights to make these decisions for employees. If employers exercise this power to suit their religious beliefs, this is when they would “violate the ‘religious liberty’ of the employee in a manner cognizable by the First Amendment.”

If the government in its wisdom has decided that these services must be covered to provide adequate health care for as many as possible, then the State has a legitimate and important purpose for the regulation, the burden on the employer is de minimus and the coverage must be provided. Whether or not abortions fall into this “adequate health care” is debatable; Congress can decide it does and barring a contrary court decision, the requirement stands.

The solution to this problem is to get employers out of facilitating health care, but that is not going to happen soon. As long as employers participate in health care in the way they do, they cannot filter treatment options for others through the sieve of their own religious beliefs.

sean s.

Posted by: sean samis | May 9, 2013 4:33:36 PM

"But, religious liberty is secured in a range of ways, including various regulations of the public sector. Such as accommodations at the work place for religious believers. Employers therefore can inhibit religious liberty here by violating such rules."

So free access to contraceptives is a religious belief? What religious denomination is that?

"Brian, not only are contraceptives more costly, you might not wish to rely on "minor inconveniences," since abortion costs can be quite high."

No they are not, and I realize that you would consider no health care plan complete with the free destruction of unborn children not included, but we have not yet arrived at the sorry state. Yet.

"Also, that is not how we treat salaries. Employers don't get to look into the minutiae of how we spend the money they pay, "small" amounts not important, if you care so much, work elsewhere where your religious beliefs are more well respected. And, "someone else" isn't paying. SHE is paying. It is part of her compensation for her labor. Perhaps tossing about "alarming" is not a good idea."

This is not her salary. The insurance policy is obtained by her employer. The policy is a benefit that is part of the enticement to work at a certain place. If she doesn't like the total benefit package, she shouldn't work there.

You keep missing the point that the employer is being forced by the government to act against his or her conscience. You better have something else on your side of the scale than the minimal cost of birth control pills.

Posted by: Brian English | May 9, 2013 4:44:19 PM

No Sean,

It is called the state action doctrine. Absent regulation, the employer/employee relationship is governed by contract. Once the government enters the equation via regulation, we can then see whether or not the government's action places an unconstitutional burden on someone by requiring them to contract for services for which they object on religious grounds. Because the mandate is on the employer, the employer is the one with the constitutional claim. The employer is not a state actor, so the employer cannot violate the free exercise rights of the employee.

Absent regulation, the employee's rights are governed by contract law.

Posted by: CLS | May 9, 2013 4:44:44 PM

CLS,

State action doctrine prevents employees from suing an odious employer, but the doctrine does not erase employees’ liberty interests.

The State can through regulation, impose a de minimus burden on the employer in furtherance of a legitimately important state interest. The State has two interests here: providing what it has determined to be necessary health coverage to employees and refusing to exempt employers who wish to impose on their employees’ rights.

The employer’s a religious interest in not “facilitating” objectionable services is too weak to trump the employees’ interests in exercising their own liberty to make private choices. “Facilitating” is simply too broad a concept; religious liberty, BY DEFINITION, means you must in some sense facilitate religious practices you don’t approve of.

An employer can be required for public policy reasons to purchase services (which are normally by contract) as part of rational business regulations. Reasonable employee compensation, benefits, and working conditions fall into this category.

As long as our society continues to make employers’ participate in providing health care, society has a right and interest in making sure everyone has access to whatever basic healthcare services society selects. If that includes contraceptives, so be it. If that includes abortions so be it.

If an employer is too offended to accept this, then they need to get out of the business; that may seem a harsh thing to say, but it’s no harsher than saying the deprived employee should go work somewhere else.

sean s.

Posted by: sean samis | May 9, 2013 5:15:47 PM

You are pitting real interests rooted in the text of the Constitutions against interests that you are asserting without reference to the constitution or case law.

Posted by: CLS | May 9, 2013 5:43:35 PM

CLS says sean samis is pitting "real interests" rooted in the Constitution against "interests" that he is "asserting" without reference to it or case law. Was the comment intentionally slanted?

Anyway, sean cites "real interests" too and they also rest on the Constitution. He noted how the government is regulating interstate commerce. They can regulate it to promote the general welfare, including health care for all. This is text and case law can be found. He argued compelling interest and minimal effects for one vs. the other. This too paraphrases basic principles of case law. A state itself also has general power to protect the good by having requiring the employer to provide insurance. This would have to be balanced against religious belief and exercise. sean did this.

---

Brian English replies, continuing his disparaging tone:

"So free access to contraceptives"

The access is not "free." The person is working and in return the person gets compensation. Part of this compensation is insurance benefits.

"is a religious belief? What religious denomination is that?"

Depends on the person. For instance, they might be married and believe that sex is important to the sacrament of marriage, but believe also that if a child is for various reasons a problem, that it would be sinful to bring a child into the world. So,they use contraceptives to prevent this. It was quite possible in the 1960s the Catholic Church might accept artificial contraceptives so this failure of imagination and empathy is that much more ironic.

"No they are not, and I realize that you would consider no health care plan complete with the free destruction of unborn children not included, but we have not yet arrived at the sorry state. Yet."

Please stop sneering especially when saying untrue things.

Abortions -- which sorry if their beliefs don't count -- is not believed to be "destruction of unborn children" by lot of people with religious beliefs -- on average can costs hundreds of dollars. To cite one link: "At the Jackson Women's Health Organization, Mississippi's only remaining abortion clinic, a surgical abortion costs $405 if the pregnancy is in the first trimester, $495 at weeks 13-14, and $640 at weeks 15-16." http://civilliberty.about.com/od/abortion/f/Average-Cost-of-an-Abortion.htm Late term can cost over $1000. Your low income worker simply might not have an extra $500 around.

As to birth control, even that is more than you said. A quick search said $15-$50 though it could be more. $50 is not pocket change for some people who live worrying if their pay will cover their basic expenses either.

"This is not her salary. The insurance policy is obtained by her employer. The policy is a benefit that is part of the enticement to work at a certain place. If she doesn't like the total benefit package, she shouldn't work there."

It is a "fixed payment," which can be a range of things, including in kind goods and services. Such things in general are "enticements." If a car is part of a job, it is part of the salary. All of these things are provided by the employer. The employer is required to give a minimal wage and at times minimal in kind things such as insurance. The insurance here is obtained for the employee. The employer in return might get tax breaks. They also get various benefits for taking part in the public sector. This involves certain requirements, such as minimum wage, insurance and various basic work place goods like restrooms, safety materials if necessary etc.

"You keep missing the point that the employer is being forced by the government to act against his or her conscience."

I'm not missing the point. The employer has to follow certain rules when they take part in public accommodations and choose to employ people outside the faith in this fashion. Serving people might be against their conscience. But, the compelling interests and the minimal requirements (down to the very costs of birth control not be paid by them) cited by sean and I justify the rules here. In the public sphere, EVERYONE, not merely the interests of the employer must be respected. This includes in ways the furthers the religious liberty of customers and employers.

"You better have something else on your side of the scale than the minimal cost of birth control pills."

Sneer sneer. I do. But, "minimal cost" is again not something you should be rest on. Then, when it is costly, what do you have left? Still, even a $9 tax would not be legitimate for those who work or shop at public accommodations and are denied because they have the wrong beliefs. Including not believing the right thing about abortion, something many Christians disagree with you about.

Posted by: Joe | May 9, 2013 8:49:07 PM

CLS,

The “real interests rooted in the text of the Constitutions” are the rights and interests of every person, not just of employers.

Joe’s comments are also on point regarding this.

sean s.

Posted by: sean samis | May 10, 2013 9:24:37 AM

My last comment suggests something about Brian English's tone, which reflects to me fair inferences. If the tone, like CLS' word choice that seems to slant things against sean samis is not intentional, fine -- we can you know get boggled down on subjective things like that. But, I hold to the basic arguments set forth regardless.

Posted by: Joe | May 10, 2013 10:13:01 AM

"So,they use contraceptives to prevent this. It was quite possible in the 1960s the Catholic Church might accept artificial contraceptives so this failure of imagination and empathy is that much more ironic."

You still haven't identified a religion that mandates the use of contraceptives so that an employer failing to pay for the supplying of them to an employee somehow violates her constitutional rights. And in any event, the employer is not prohibiting the employee from using contraceptives. She could probably even take her birth control pills at work as long as she is discrete about it. The employer is objecting to being forced to pay for something that violates his or her conscience.

"is not believed to be "destruction of unborn children" by lot of people with religious beliefs"

It has nothing to do with religious beliefs. At conception a new member of the human race is created. Secular humanists and, sadly, some religious believers have convinced themselves that that new human being is not a person deserving of protection under the law, but that does not change the fact that an unborn child is being destroyed.

"A quick search said $15-$50 though it could be more."

At the time Ms. Fluke was making a fool of herself, monthly supplies of birth control pills were available at Walmart or Target pharmacies for $9. But even taking your higher number of $50, you are still forcing an employer to violate his or her conscience just because the government disagrees with that belief. Make it $1,000 a month. It is still wrong.

"Late term can cost over $1000."

You mean the sainted Dr. Carhart doesn't do his butcher's work pro bono for the less fortunate? My faith in mankind is shaken.

"This involves certain requirements, such as minimum wage, insurance and various basic work place goods like restrooms, safety materials if necessary etc."

So being required to pay for contraception is the same thing as regulations saying you can't chain the emergency exits and put cans of paint thinner next to the furnace?

"I'm not missing the point. The employer has to follow certain rules when they take part in public accommodations and choose to employ people outside the faith in this fashion."

You really believe that the public accommodation concept entitles the government to force business owners to do anything the government wants, even when it means trampling the business owner's religious beliefs. Tell me, can you imagine any scenario where you would be willing to say a law passed by Congress violated the religious rights of a business owner? Or does the fact that Congress passed the law automatically make it constitutional as well?

"Sneer sneer."

What can I say; I find the soft totalitarianism you and Sean espouse to be sneer-worthy. I will say that your comments here have value because they are an honest statement of the views actually held by the current administration.

"I do. But, "minimal cost" is again not something you should be rest on. Then, when it is costly, what do you have left? Still, even a $9 tax would not be legitimate for those who work or shop at public accommodations and are denied because they have the wrong beliefs."

The cost element of my argument has nothing to do with the Constitution. It has to do with the basic concept of how civilized people should live together. Using the power of the government to force employers to act against their conscience based on a minimal inconvenience to the employee causes discord where none should exist.

Posted by: Brian English | May 10, 2013 11:14:03 AM

"You still haven't identified a religion that mandates the use of contraceptives so that an employer failing to pay for the supplying of them to an employee somehow violates her constitutional rights. And in any event, the employer is not prohibiting the employee from using contraceptives. She could probably even take her birth control pills at work as long as she is discrete about it. The employer is objecting to being forced to pay for something that violates his or her conscience."

I explained how the usage -- which insurance provides more equal liberty to be done by each individual as their faith requires -- can grow out of religious belief. There is no need to cite some specific "religion" as such though I think my summary matches the general beliefs of various religions -- sex is "unitive" and preventing pregnancies is sometimes a good thing. Some Christian faiths think abortion is acceptable in certain cases but would strongly support avoiding it when possible. Contraceptives help that. The employer isn't being asked to do a lot of things either. They are not even "forced to pay" under the latest formulation; if anything, they might SAVE money. Insurance however makes religious exercise more practicable as does a minimum salary and not denying unemployment benefits to those unable to work for religious purposes.


"It has nothing to do with religious beliefs. At conception a new member of the human race is created. Secular humanists and, sadly, some religious believers have convinced themselves that that new human being is not a person deserving of protection under the law, but that does not change the fact that an unborn child is being destroyed."

A fertilized human egg (sic) is not what the average person thinks is an "unborn child," and your statement underlines the difference of religious beliefs on these questions.

"At the time Ms. Fluke was making a fool of herself, monthly supplies of birth control pills were available at Walmart or Target pharmacies for $9. But even taking your higher number of $50, you are still forcing an employer to violate his or her conscience just because the government disagrees with that belief. Make it $1,000 a month. It is still wrong."

The cost was variable. The employer has to do various things that might violate conscience. Some don't like social security taxes or serving women in public places. It is not based on mere disagreement. It is part of the law because an expert health study determined various things are important for preventive health and this was one of them, this provided a compelling enough interest along with questions of gender equality (and if one wishes, limiting abortions somewhat) for the provision. Meanwhile, a general requirement here helps each individual employee to make their health choices based on personal needs and morals.

"You mean the sainted Dr. Carhart doesn't do his butcher's work pro bono for the less fortunate? My faith in mankind is shaken."

Your tone doesn't change that abortions can cost a lot of money. So, best not to rely on that argument alone.


"So being required to pay for contraception is the same thing as regulations saying you can't chain the emergency exits and put cans of paint thinner next to the furnace?"


The overall requirement to provide insurance is certain respects are "the same" as things that have a compelling purpose. The quote addressed here was part of a wider discussion.

"You really believe that the public accommodation concept entitles the government to force business owners to do anything the government wants, even when it means trampling the business owner's religious beliefs. Tell me, can you imagine any scenario where you would be willing to say a law passed by Congress violated the religious rights of a business owner? Or does the fact that Congress passed the law automatically make it constitutional as well?"

I have not supported this straw-man "anything." The business owner is not being required, e.g., to say contraceptives are good things or to hand out pamphlets or have advertising promoting their usage. They need not avoid anti-same sex marriage events since it might offend employees. They can go to the church of their choice or the like. But, when they run a public business, they have to follow certain rules. This includes minimal salaries, certain in kind goods and insurance. And, even there, if the "business" was merely a church serving their own members, they can put limits since they are not serving the public at large. Finally, as noted by sean, the compelling nature of insurance matters.

"What can I say; I find the soft totalitarianism you and Sean espouse to be sneer-worthy. I will say that your comments here have value because they are an honest statement of the views actually held by the current administration."

The contraceptive mandate followed rules in place in over 20 states, including some fairly conservative leaning ones, and if anything, the Administration offered more accommodations than various states have. The "soft totalitarianism" is providing insurance to employees, who can use it like they use the salary, both earned by them, to follow their own religious beliefs. This is how things are done in many Western nations. A curious use of the term. In return, when I point out to the religious beliefs of those you disagree with, you belittle them as for some reason not counting or something.

"The cost element of my argument has nothing to do with the Constitution. It has to do with the basic concept of how civilized people should live together. Using the power of the government to force employers to act against their conscience based on a minimal inconvenience to the employee causes discord where none should exist."

The alleged minimal burden would have some sort of constitutional relevancy and if set forth generally -- $9 for the sake of "civilized" togetherness, it would not meet current constitutional law. A $1 burden of that sort selectively applied would be a religious discrimination.

Overall, the basic rule here has to apply to all types of religious beliefs. Your rule, evenhandedly applied, would result in micromanaging personal health choices, each individual one perhaps in violation of the beliefs of the employer. This is not how it works for salaries and as noted insurance is of that category. The basic rule stands: public accommodations require various neutral general rules, some which quite honestly clash with religious beliefs. Be it who you serve, what you pay or any number of things.

Posted by: Joe | May 10, 2013 2:05:53 PM

"They are not even "forced to pay" under the latest formulation; if anything, they might SAVE money."

The coverage is created by the policy purchased by the employer. The goofy accounting stunt fools no one who doesn't want to be fooled. And I love the "You may be sacrificing your beliefs, but look at all the money you saved!" justification.

"A fertilized human egg (sic) is not what the average person thinks is an "unborn child," and your statement underlines the difference of religious beliefs on these questions"

No. It is not an unborn puppy. It is not an unborn pony. It is an unborn human being. You and those who think like you can declare that unborn human beings can be arbitrarily killed because they are not legally a "person", but you cannot be allowed to seek refuge in a fiction that you are not extinguishing the life of a member of our species.

"They can go to the church of their choice or the like."

Ah yes, the Freedom of Worship. How magnanimous of you. Just keep your silly superstitions out of the public square and we will let you still go to the church of your choice.

" Finally, as noted by sean, the compelling nature of insurance matters."

There is nothing compelling about contraception coverage. The employee can buy her own (and why do men still have to buy their own?) or she can go work someplace else.

"A curious use of the term. In return, when I point out to the religious beliefs of those you disagree with, you belittle them as for some reason not counting or something."

This has nothing to do with an employee's religious beliefs. They can use their salary for anything they want. You, through the state, are forcing an employer to violate his or her conscience. You seriously do not see a difference between those situations?

" A $1 burden of that sort selectively applied would be a religious discrimination."

The employer is not the state. He or she is not burdening anyone's constitutional rights.

" Your rule, evenhandedly applied, would result in micromanaging personal health choices, each individual one perhaps in violation of the beliefs of the employer. "

No. An employer purchases an insurance policy for his employees that is consistent with his beliefs. The employee doesn't like it, and she leaves. A new applicant sees the benefits package, doesn't like it, and never goes to work there. How have the current or prospective employees' constitutional rights been violated?

Posted by: Brian English | May 10, 2013 4:14:59 PM

"The coverage is created by the policy purchased by the employer. The goofy accounting stunt fools no one who doesn't want to be fooled. And I love the "You may be sacrificing your beliefs, but look at all the money you saved!" justification."

A major concern (even a three pence!) behind religious freedom was rejection of monetary support of other faiths, so yes, the cost issue is quite important. Your scorn aside, people actually do care about this issue and accept it, and separation of money in this fashion even though in some fashion money is fungible is accepted in other areas.

For instance, when religious institutions obtain government funds, they are allowed to use it for secular purposes, even though in the long run this means they have more money for religious purposes. This is not seen as "goofy accounting," but shown as a reason why such government funding is not actually illicit religious entanglement.

"No. It is not an unborn puppy. It is not an unborn pony. It is an unborn human being. You and those who think like you can declare that unborn human beings can be arbitrarily killed because they are not legally a "person", but you cannot be allowed to seek refuge in a fiction that you are not extinguishing the life of a member of our species."

It's an unborn human fertilized egg. You can toss around the word "arbitrary," if you wish, but this is a matter that deeply divides society, which on the whole believe in God and is majority Christian in some fashion. They believe, as do specifically many religious faiths, that it is not "arbitrary" in various ways to have an abortion, particularly if it is early in the pregnancy. Since you respect religious freedom so much, I assume you respect such religious belief, even if you think it is wrong.

Likewise, again, the average person does not think an fertilized egg is a "unborn child" any more than they think a fertilized egg of a dog is a "unborn puppy." I'm not saying it is not a member of the "species." It remaisn that those who have in vitro fertilization do not generally believe that they are killing "unborn children" in the process. I realize some so believe. But, it is not "absurd" to believe that a "child" is an entity that is a later stage of development than a fertilized egg.

"Ah yes, the Freedom of Worship. How magnanimous of you. Just keep your silly superstitions out of the public square and we will let you still go to the church of your choice."

The examples go beyond freedom of worship (e.g., refusal to provide certain advertising), regarded public events (anti-SSM events, including public rallies) and I said nothing about "silly superstitions."

I continuously noted that the insurance requirement furthers the religious liberty of all employees. Under your lights, if a person thinks God does not want a rapist's baby to be born (which is surely the belief of some people), it would be a violation of their faith to provide insurance to a female employee (earned from her labor) to pay for the expensive pregnancy and medical care, which she deems God's will.

I respect the employee's beliefs and her ability not to have to find work elsewhere to live them. And, think the general requirement here regarding the public marketplace allows for my rule. "Religious liberty." Nothing about "superstitions."

"There is nothing compelling about contraception coverage. The employee can buy her own (and why do men still have to buy their own?) or she can go work someplace else."

Contraceptive services are provided to both sexes, including if it is for a male's dependent. Health care is a compelling human need and insurance provides a means to make it possible for each person to have it when necessary, including when it is very expensive, it paid for by spreading the cost to the pool as a whole. The insurance provides a range of services. It's a range of services. Cost is not your determinant anyway -- again, abortion is not cheap. But, even there, $50 is not pocket change for many people. Half that much isn't.

And, again, I do not think people with the "wrong beliefs" should have to work elsewhere. Nor, should those who want to use other parts of their compensation, such as their main salary, to pay a tithe to a church their employer finds immoral should go elsewhere. This is also not a violation of religious freedom, since when the employer takes part of the public marketplace, he or she has to do things like that.

"This has nothing to do with an employee's religious beliefs. They can use their salary for anything they want. You, through the state, are forcing an employer to violate his or her conscience. You seriously do not see a difference between those situations?"

The employer is paying the salary. Many people think it sinful to pay for things that are sinful. But, the employer is required to let the person use their pay. The same applies to insurance, which is part of the compensation. Yes, "seriously," why one is "petty totalitarian" and the other isn't, is unclear to me. Employer based insurance did not start with the PPACA. Health care includes various things some employer might find sinful, but it still was required. Even some who support some of these lawsuits think for profits have a much weaker case. But, you know, keep up the "you are a bit slow" tone.

"The employer is not the state. He or she is not burdening anyone's constitutional rights."

The issue here is how the state is regulating the public sector. The rules in place there are set to evenhandedly protect employers and employees, customers and sellers. In that respect, if the state said that such and such religious believers should like "civilized people" accept differntial treatment because they only have to pay "$9" extra, it would be a problem. I am not saying the employer is is violating constitutional rights there though can in some fashion inhibit religious liberty (e.g., not allowing prayer in the break room).

"An employer purchases an insurance policy for his employees that is consistent with his beliefs. The employee doesn't like it, and she leaves. A new applicant sees the benefits package, doesn't like it, and never goes to work there. How have the current or prospective employees' constitutional rights been violated?"

I did not say the employer violated "constitutional rights." I said your desired policy would result in having the employer having power to burden the liberty of the employee because the employer would have broad veto power whenever such and such health choice might violate the employer's beliefs.

Employees simply don't have freedom of movement in the real world. They need their jobs, especially if they have families and costly health needs. Your policy would tell people with certain beliefs that they should go elsewhere. This cannot be done on the sake of race or gender, even if the employer has religious beliefs that would demand that. The net result is that employee, in the real world, has to suffer or maybe even violate their religious beliefs because they need that job with that insurance policy. That isn't a sacrifice made with monetary salary. It shouldn't be here.

The public sphere is a zone where religious beliefs of all must be respected. This is furthered by evenhanded rules, including being allowed to use your salary and insurance benefits pursuant to your beliefs.

Posted by: Joe | May 11, 2013 11:22:09 AM

ETA: The inhibitions (it's a matter of degree) of freedom of movement between jobs was a key thing cited to support the PPACA. For instance, pre-existing conditions repeatedly was not paid for by certain employers' insurance packages. Thus, the freedom to move between jobs, a burden on interstate commerce, was clearly present. The fiction that one simply can go to another job if the employer denies you an important insurance benefit is belied by experience.

I will end there for now. Thanks for taking the time to make your case.

Posted by: Joe | May 11, 2013 11:30:22 AM

The reason I made my hypothetical about late-term abortions was to see if there was some government requirement for employment that would go too far, that would infringe too much on a private employer. Apparently Joe and sean think that requiring an employer to cover late-term abortion in their employment insurance coverage is not too much. If I understand sean's position, as long as the government approves something as being important for the common good and for people's health, and since the majority elected the government, then no one has any legitimate standing to complain about the government regulation.

But consider the absurdity of that position. There HAS to be a government regulation that goes too far on infringing on people's rights and liberty. Suppose the government thought that it would be supportive of people's well-being and the common good if the employer was required to provide insurance covering sex-change surgery, or drugs for euthanasia, or a how-to-commit-infanticide-with-minimal-pain guide, or hallucinogenic drugs. And why limit it to insurance programs? Suppose the government thought that it was supremely important for an employee's well-being and the common good that all employers were required to provide porn in the workplace, or to remove all religious items from the workplace, or to renounce allegiance to a church as a condition of being an employer in a certain field? It cannot be that just because the government thinks a requirement on an employer or other person is necessary, then that requirement is justified and no one has a right to complain about it.

We (supposedly) live in a modern, enlightened, civilized society, that recognizes that people have different beliefs that inform their consciences in different ways. A civilized society recognizes these different beliefs and permits reasonable accommodations for people to live and work in accordance with those different beliefs. The society where a government regulation, imposed because the government thinks it is necessary for the common good, always trumps the rights of an individual is not a civilized society -- it's a tyranny.

Posted by: Thales | May 11, 2013 12:08:10 PM

Thales,

The reason I responded the way I did was just because I was worried you’d misunderstand my response, and you did indeed misunderstand anyway.

I do not support nor endorse any mandated coverage of ANY abortion, early, middle or late term.

The hypo (as I stated) assumes the Government has reached the conclusion that this coverage is appropriate and that the courts had not blocked the regulation; would it have the power UNDER THOSE CIRCUMSTANCES to mandate the coverage? I qualified my ‘Yes.” answer appropriately.

At no time did I say anything that even approximates the claim that in this scenario “no one has any legitimate standing to complain about the government regulation.” Everyone has “legitimate standing” to complain about ANY government regulation. As I said in my response, my answer assumed that the Courts had determined the hypothetical regulation was properly enacted.

Your misunderstanding of my answer (I’ll let Joe speak for himself) is an example of why these hypos often go unanswered; what is the point if my putting any effort into responding if you will not acknowledge what I actually said instead of spinning it?

Of course there are regulations that could or have gone too far, but that was not your question. Would such a regulation go too far? I think yes, but it’s the Courts who decide and if they disagree with me and you (and Joe?) then that ends the matter until the law changes.

sean s.

Posted by: sean samis | May 13, 2013 12:35:11 PM

sean s.,

I'm not misunderstanding you -- but you may be misunderstanding me: I'm presuming a government regulation that is legitimately enacted and that the courts say has been legitimately enacted.

"The hypo (as I stated) assumes the Government has reached the conclusion that this coverage is appropriate and that the courts had not blocked the regulation; would it have the power UNDER THOSE CIRCUMSTANCES to mandate the coverage? I qualified my ‘Yes.” answer appropriately."

Exactly. That's the same hypo I'm assuming. Aren't you saying that a regulation is legitimately enacted and that passes the muster of the courts is a regulation that one can't object to?

Posted by: Thales | May 13, 2013 11:16:50 PM

sean,
I should add that if you are saying that a regulation that is legitimately enacted and that passes the muster of the courts is a regulation that one can't object to... then I must vehemently disagree with you and I suggest that your position is a step on the path to tyranny.

Posted by: Thales | May 13, 2013 11:20:33 PM

Sean,

I believe, as I've said, that recognizing gay marriage is right and fair. But to say that same-sex discrimination is unfair does not mean it should be equated in every respect with race discrimination.

If same-sex discrimination in the context of marriage is exactly the same as racial discrimination, then many, many more things should follow. All religious non-profits with such a policy of any kind--virtually every evangelical, Catholic, and Orthodox Jewish charity in the nation--should be stripped of their tax-exempt status, as Bob Jones University was. No religious non-profit should be able to claim a "bona fide occupational qualification" defense--for example, a conservative religious elementary school defending its right not to hire an openly gay teacher--because no BFOQ defense is allowed in race cases. Any TV commentator who publicly expresses--even in measured terms--the view that marriage is "one man, one woman" should be boycotted or fired, because that is what happens to commentators who make racist remarks, even measured ones.

Most people, I think, would balk at these results, even people who believe in gay rights and gay marriage. Perhaps it's just a short transitional stage and we'll end up there in a few years. But I think that the difference in reaction will persist and that it tells us something about the two cases, not just about people's current reactions.

This analogy, in fact, has not gone unanalyzed by those of us working in this area. I'll paste in a paragraph from an article I wrote in 2010:

"I would argue that despite the similarities between racial and sexual-orientation discrimination, there are several differences. First, as a matter of constitutional history, racial discrimination is unique: it is the only wrong over which we have fought a civil war, the only one that resulted in four amendments to the Constitution. [FN166] As a matter of social history, the movements for same-sex marriage and even gay rights are relatively new--while the passage of the race-discrimination laws in the 1960s and '70s responded to an oppression that continued for more than 100 years after the national charter had been amended to prohibit it as wrong. Dissenting from basic racial equality after that century showed an intransigence that bespoke a permanent dismissal of African-Americans as full humans. In comparison, the debate about same-sex marriage has just begun, in relative terms, and is already producing some shifts in public opinion. To use the law to push one side of the debate out of semi-public settings like social services or business is unfair and ill-advised, even if one concludes that side is wrong. There is a serious debate about the relationship of sexuality and procreation to marriage, and about the relevance of the 'centuries of tradition--of accumulated social knowledge-- which the world's great religions embody' and which almost uniformly has treated marriage as a relationship between a man and a woman. [FN167] Those are the words of Jonathan Rauch, a strong and effective proponent of same-sex marriage.... One who supports the recognition of same-sex marriage, Rauch argues, should still acknowledge that it is 'a big change,' and that most opponents of it are not bigots but 'are motivated by a sincere desire to do what's best for their marriages, their children, their society.'"

Posted by: Tom Berg | May 14, 2013 12:59:42 AM

I should add that saying same-sex discrimination is different in some ways from race discrimination does not prove there should be exemptions for, say, commercial businesses. It's just to say the race analogy does not carry through in all respects.

Posted by: Tom Berg | May 14, 2013 1:04:34 AM

Tom,

With respect, you went through a lot of words about how the analogy between racial discrimination and sexual orientation discrimination “does not carry through” and yet you could not specify any reason the analogy is invalid. Inconvenient, yes it is. Invalid? No. It’s right on the money.

In the first part of your comment you object to the analogy between homophobia and racism because if we treat homophobia like we treat racism, then homophobic organizations will suffer like racist ones.

You warn that “All religious non-profits with [homophobic policies] of any kind--virtually every evangelical, Catholic, and Orthodox Jewish charity in the nation--should be stripped of their tax-exempt status, as Bob Jones University was.”

Problem: if the analogy is valid, analogous results are appropriate.

Bob Jones U. was given many chances to fix their policies, it took years to finally strip them of their tax-exempt status. Likewise religious non-profits with homophobic policies will have time to get their houses in order. Why is that bad? Do you think homophobic policies are Good?

Question: was the Bob Jones U. case mishandled? Do you believe that religious non-profits with racially discriminating policies should be able to keep their tax-exempt statuses?

Question: Many “religious” organizations had racially discriminatory policies in place during the days of Jim Crow; do you think forcing them to change was BAD?

The latter part of your argument seems to be that, with regard to homophobic discrimination, we are just “going too fast”.

Much like the complaint southern racists made in the 1950s; we’re going too fast then too. “Sorry Rosa Parks, but you’re just rushing things. Give us time. Now go in the back and sit in a seat reserved for your folks.” I was around then; I recall the complaints that we were just going toooo fast. Now we look back and wonder why it took so long.

Question: How long Tom? How long until this injustice is fixed? Can you give me a date? A decade? A century? How long would you wait?

Question: How many people must be disrespected and denied their human dignity while waiting around for others get comfortable with the idea of treating people like, well, like people? How many more must suffer at least a little before it’s finally too much?

Question: why place the comfort of the homophobe ahead of the ones they abuse?

Question: If homophobic discrimination is wrong, why wait even a minute?
Question: Is homophobic discrimination wrong?

It took centuries to fix racial oppression; that was not because we were trying not to go too fast. The racists didn’t want any progress. It just took that long for the population to realize that it was wrong. Once they did, they acted pretty fast. There were complaints that we went “too fast” but any progress was “too fast”.

Now that we’ve realized homophobic oppression is just as wrong as racism, there is no reason to slow down. “Going too fast” to fix an injustice is just not a good enough reason to slow progress. It should never be good enough. An evil identified should be rooted out immediately. Homophobia is an evil.

You wrote that “Most people, I think, would balk at these results, even people who believe in gay rights and gay marriage. Perhaps it's just a short transitional stage and we'll end up there in a few years. But I think that the difference in reaction will persist and that it tells us something about the two cases, not just about people's current reactions.”

Again you allude to some imaginary difference, but that is old news.

I think you are correct about this: this is just a transitional stage. But history shows that if you let up during a transitional stage, it can quickly turn into a regression and all progress is lost. That is why I don’t pause.

At the end of the day, the difference between homophobia and racism is not in the attributes, but in attitudes people have toward the attributes. Hatred of gay and lesbian persons today is remarkably similar to hatred of blacks in the past. It took a long time to get over the first, we’re still working on the latter; there’s no reason to let up now.

The most overt and vile racism is a feature mostly of the past; the most overt and vile homophobia remains a contemporary vice. Both were founded on “sincere religious beliefs” and giving up racism was painful for many. But necessary and now everyone seems to have forgotten just how painful that was.

And your proposal is to wait on fixing the current vice. How long? Forgive me Tom, but this “bandage” needs to be ripped off. No long, slow pull. Get’er done and move on.

sean s.

Posted by: sean samis | May 14, 2013 10:11:15 AM

There is no correlation between discriminating against a person due to race or ancestry, and discriminating between behavior that respects the inherent Dignity of the human person, and behavior that is not respectful of the inherent Dignity of the human person.

Posted by: Nancy | Jul 10, 2013 11:42:44 PM

If you Love someone, you desire that they treat themselves and others with Dignity and Respect in private as well as in public.

Posted by: Nancy | Jul 10, 2013 11:44:20 PM