June 27, 2013
A Freedom-of-Religion Question
An MOJ reader asks:
Assume that in a state that grants access to civil marriage to same-sex couples the law requires all employers (including private employers) who employ more than a specified number of persons to make health insurance benefits available not only to its employees but also to the the families of its employees--including, of course, spouses. Does it violate a Catholic employer's religious freedom to require the employer to make health insurance benefits available to the same-sex spouse of an employee?
As far as I know, no Catholic organization or private employer refuses to provide insurance coverage to people who are divorced and remarried, who, in the eyes of the Church, are not in a second marriage at all but are living in adultery. In states that have legalized same-sex marriage, same-sex couples who enter into civil marriages are just as married as divorced and remarried couples. If Catholics want to take a principled stand that they will treat all "non-marriages" the same, and give insurance benefits only to those married couples who are married in the eyes of the Church, that would be one thing. But for the Church to discriminate against same-sex civil marriages, on the groups that people of the same gender cannot marry each other, but not against adulterous opposite-sex civil-marriages, which can't be "real" marriages in the eyes of the Church, then they are discriminating against same-sex couples.
It seems often to be the position of Catholics that same-sex marriage (or, as some are fond of saying, same-sex "marriage") is impossible, and the state can no more create same-sex marriage than it can declare by legislation that darkness is light and light is darkness. But as far as I can tell, this is merely a debating point, not a legal issue. It seems to go without saying in all the legal wrangling that I have seen that the state unquestionably *can* permit same-sex marriage.
Posted by: David | Jun 27, 2013 2:11:09 PM
It seems that the kneejerk reaction against religious freedom by some including Cathy Kaveny, her readers and other progressive Catholics, is hitting a wall in court.
Posted by: Matt Bowman | Jun 27, 2013 2:19:51 PM
This question or its like has been discussed many times on this site. The answer is still ‘No’. The employer is subject to laws of general applicability and reasonable business regulations. By choosing to operate in a regulated business, the employer has chosen to subject him/herself to those regulations.
The regulation in question does not violate the employer’s religious rights; the employer is not required to engage in any activity that violates their religious beliefs, they are only required not to impose their beliefs on others (the employees).
David makes an additional point regarding Catholic employers and divorced/remarried couples. It is hard to make a straight-faced claim that your religious beliefs compel one to refuse to do something which you have been doing for decades. If benefits to divorced/remarried employees does not violate a Catholic employer’s religious beliefs, then benefits to a same-sex partner don’t either.
Posted by: sean samis | Jun 27, 2013 2:31:16 PM
A state could not pass such a law; it would be preempted by ERISA.
Posted by: Susan Stabile | Jun 27, 2013 3:45:15 PM
Susan; does the holding in Windsor apply to the benefits specified in ERISA?
Posted by: sean samis | Jun 27, 2013 3:49:40 PM
Tenth Circuit grants Hobby Lobby's injunction.
Yeah, I think this does have major religious liberty ramifications. Contrary, to what folks on the left have been saying, this will affect you if you are a religious organization or a religious business owner. Apparently, according to Sean, et al., that is just peachy.
Posted by: CLS | Jun 27, 2013 3:50:26 PM
Re: Hobby Lobby
This brings the score to 22-6 that the preventive services mandate is a First Amendment violation. (these have all been for-profit cases)
Posted by: CLS | Jun 27, 2013 3:55:35 PM
Hard to answer that question so broadly, Sean, and I'm still trying to work out various impacts.
There are various provisions impacted.
One example: ERISA requires pension plans to provide that, in the case of a married couple, benefits to a married participant must be paid in the form of a joint and survivor annuity unless the non-employee spouse waives the right. Under DOMA, same-sex spouses did not get this benefit. Now, however, the JSA provision should apply to a same-sex married couple in a state that recognizes same sex marriage. Similarly, qualified domesetic relations orders are saved from ERISA preemption. Under DOMA, a domestic relations order to a same-sex couple could not qualify as a QDRO. After Windsor (provided all the other requirements are me) it should.
Posted by: Susan Stabile | Jun 27, 2013 3:56:26 PM
I agree with sean and David & there is a sort of "this again" tenor. I say this a bit sarcastically, but it warrants saying: perhaps, we can get a list of Catholic doctrines that "really really matter" so we know when religious exemptions are necessary to avoid "kneejerk reaction against religious freedom."
Contraceptive usage is trivial, e.g., since it goes on w/o much response.
We can then determine what state concerns, such as racial (but not full fledged sexual or sexual orientation) discrimination, can balance things off.
Some of this, to be fair, has been discussed in the past, but repetition is helpful to keep track. Again, I do not generally mean to be sarcastic. Society overall thinks these things and a serious Catholic response would factor that in.
Posted by: Joe | Jun 27, 2013 3:57:13 PM
It would seem to me to be part of religious liberty that even different organizations of the same denomination might have different understandings of the demands their religion makes of them. So, its really up to each Catholic entity to decide on its own what "really really matters" and to possibly change its mind on this over time. Courts are not supposed to be in the business of determining what members of different religions should or should not be tolerating within their institutions or as part of their lives.
Posted by: CLS | Jun 27, 2013 4:07:08 PM
CLS, there is real truth in that, but being aboveboard here would still warrant a clear statement on such questions. Instead, some make generalized arguments about Catholic doctrine being followed. If certain doctrine is not as important and need not be enforced much or benefits that breach its tenets can be provided, it is helpful if a clear discussion be made about it. Anyway, the Catholic Church still seems to believe, e.g., divorce and then re-marriage is not appropriate and that most forms of contraceptive violates marital sacraments.
Also, it is not "just peachy" if for profit hobby stores get benefits that are being strongly pushed for religious institutions, and not just those on the "left" think this. In fact, some who support strong measures for actual religious institutions think "pro-profit" general businesses are not the same thing. They believe lines are reasonably drawn and trying to do much can very well, shall we say, water down the brand.
If "religious employers" can demand exceptions here, again, "religious liberty" cannot just favor those against contraceptives. All religious beliefs must be respected. So, down the line, in every single possible health coverage required by PPACA, the corner grocer can determine it violates his or her religion. As has been shown when I defended the religious liberty interests of women using contraceptives, some will belittle some of the religions, probably.
I won't be running a tally though. I have said too much already so have a nice weekend all.
Posted by: Joe | Jun 27, 2013 4:36:08 PM
CLS wrote: “It would seem to me to be part of religious liberty that even different organizations of the same denomination might have different understandings of the demands their religion makes of them. So, its really up to each Catholic entity to decide on its own what ‘really really matters’ and to possibly change its mind on this over time. Courts are not supposed to be in the business of determining what members of different religions should or should not be tolerating within their institutions or as part of their lives.”
Exactly right. This is why in Employment Division v. Smith the Court held that laws of general applicability usually escape religious liberty concerns. If this was not the rule then courts WOULD have to “be in the business of determining what members of different religions should or should not be tolerating within their institutions or as part of their lives.” The price of keeping the courts out of religious matters is that general laws and regulations apply regardless of religious beliefs.
To leave it up to an employer to decide what their religious beliefs allow or mandate is to impose an enormous uncertainty on employees. That is unjust and a bad practice.
BTW, I am not “on the left”. To steal a line from Newsroom, “I only seem liberal because I believe that hurricanes are caused by high barometric pressure and not gay marriage.”
Posted by: sean samis | Jun 27, 2013 5:14:03 PM
Posted by: Matt Bowma | Jun 27, 2013 5:18:57 PM
Sean, you can't deny the fact that it is not necessary, nor is it proper, for any State or The Federal Government to coerce any employer into providing Health Insurance for their employees from an Insurance Company that condones the use of contraception.
Posted by: Nancy | Jun 28, 2013 12:22:23 PM
P.S. F.Y.I. :
Posted by: Nancy | Jun 28, 2013 12:23:36 PM
It is proper and appropriate for a State or the Federal government to require any employer to provide health insurance for employees which includes coverage for contraception.
Is it necessary? As long as we rely on employers to provide or participate in health care, yes it is.
We could switch to a Universal Health Care system and get employers out of this role, but most conservatives, the GOP, and some others refuse to support such a program. So until then...
Posted by: sean samis | Jun 28, 2013 12:35:26 PM
Sean, changing to a Universal Health Care system will not change the fact that those of us who for religious and/or moral reasons do not want to purchase health insurance from an insurance company that condones contraception, will be forced to choose, as Father Jenkins has stated, between violating our religious and moral principles and/or going without health insurance.
Posted by: Nancy | Jun 28, 2013 3:59:21 PM
Posted by: Nancy | Jun 28, 2013 4:04:25 PM
If it comes to that, in what way is your dilemma not self-imposed? You are not describing moral principles that forbid you to do something; you are describing “moral principles” that demand that you make choices for others. I am not sure such “principles” are even moral. I am quite certain that the principles you describe are contrary to the basic idea of religious liberty.
If your “moral” principles demand that you oppose religious liberty FOR OTHERS, why is your dilemma worse than the loss of liberty you seek to impose on others?
Posted by: sean samis | Jun 28, 2013 4:25:14 PM
Sean, why do you keep trying to change the nature of the debate when you know it is not necessary nor is it proper for any State or the Federal Government to coerce every Insurance Company into being a contraception provider?
Posted by: Nancy | Jun 28, 2013 6:46:52 PM
1. My comments are right on point for this debate.
2. I cannot know things that are not true; no one can do that.
3. I've already explained why it is reasonable and proper—and likely necessary—for the government to impose the requirements we are discussing.
4. Nothing is to be gained by repeating myself.
5. If you have something new to add, I will be happy to reply.
Posted by: sean samis | Jun 29, 2013 7:37:01 AM
Sean, your comments are right on point for a debate that serves only to change the definition of Religious Liberty through the use of coercion and deception. Let no one deceive you. Health Care is about sustaining and preserving Life, which is why we can know the HHS contraception mandate was not about providing affordable and quality Health Care, to begin with. Nothing is to be gained when you repeat the same error, as error begets error, while truth begets truth. In order to be prepared for the Storm that is coming, you do need to be able to read the Signs of The Time we are living in. Stay Awake!
Posted by: Nancy | Jun 29, 2013 10:59:20 AM
Posted by: Nancy | Jun 29, 2013 11:00:48 AM
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