Thursday, February 1, 2018
Another episode in religious liberty and contraceptives mandates --- indifference in Virginia's Senate
There's a long-running dispute about which reason is worse for why people sometimes get the law wrong: stupidity or willfulness. That does not exhaust the possibilities, though. And I recently encountered a third explanation while at a meeting of the Virginia Senate Committee on Commerce and Labor. That third explanation is indifference.
I spent almost five hours Monday afternoon waiting to testify for two minutes against a state-level contraceptives mandate with no religious exemption. My basic points were: (1) this bill would invite religious liberty litigation that the Commonwealth would lose; and (2) there is no evidence (according to the Guttmacher Institute) that the federal contraceptive mandate has altered the rate of contraceptive use or mix of contraceptives used. The proposed law isn't just a solution in search of a problem (because of its failure to advance a government interest), but a problem in search of a problem (because of its invasion of religious liberty).
Shortly before the bill's sponsor presented the bill to the Committee on Commerce and Labor, a substitute bill was introduced. This one had a sort-of exemption for "religious employers," but the definition of "religious employer" was the narrow four-part definition that turned out to be inadequate even in the view of the Obama Administration at the federal level. If the bill had passed, we would still have seen the same litigation play out as at the federal level (although primarily under Virginia's religious freedom law rather than RFRA).
The bill's sponsor, Senator McClellan, contended that the point of the bill was simply to codify what was in federal law. I believe this contention was sincere. But Senator McClellan was wrong.
The scope of religious freedom protection from the federal contraceptives mandate has been a flashpoint of controversy over the last five years. And the result of that controversy has been expansion of the exemption for religious employers over time. Some of this expansion was voluntary; other aspects came as the result of litigation and the presidential election. Yet this state bill would have codified as a matter of state law a definition of "religious employer" that would have resulted in losing lawsuits for the Commonwealth.
The committee carried the bill over to next year, effectively killing it for this year. But that came with a swipe against churches by one of the senators and a paean to contraceptive coverage by another.
The waters are choppy out there. True, if this law had passed, the fees from successful litigation would have been enough for some jet skis (and then some). But far better for the bill not to have passed. The resulting litigation would have been further evidence for my recent observation about religious liberty litigation these days: "If you're litigating, you're losing."