A Reconsideration: Obstruction and Teaching are Different

I was going to offer this as an update to my post from earlier this week, but the comment grew too long in the composition. As much as I enjoy the idea of authoring a post that generates hundreds of comments, this is probably weighty enough to start a new thread in the conversation. The issue remains the same, however — regardless of whether we like or dislike the idea of a Federal law mandating employers to provide insurance coverage including contraception, if that law violates the Constitution, that’s the end of the story. Earlier, I concluded that there was a serious Constitutional problem. Commenters offered a wealth of facts, research, and argument in debate. Now, I’m kind of on the fence.

What’s more, it looks like the first legal challenge offering the theories I explored in the OP as against the new “compromise” regulation proposed by the President has hit the courts. Priests for Life v. Sibelus looks like it makes a good claim to standing in its description of its entity plaintiff as sanctioned under RCC canon law, a nonprofit corporation controlled by RCC clergy, engaged in the advocacy of RCC religious teachngs. Most interestingly, it looks like the attorneys representing the plaintiff entity have anticipated the exploration of the Employment Division v. Smith case described here — the complaint goes out of its way to argue that PPACA is not a law of general application in paragraphs 17-22.

I’m interested in the fact that apparently regulations propounded by HHS under the PPACA adopts, at 45 C.F.R. § 147.130,  a definition of a “religious employer” very similar to that evaluated in a California state case under which Catholic Charities of Sacramento was found not to be a religious employer and therefore subject to the mandate. I think that this definition of a religious employer is a reasonable one (although not the only reasonable one possible), and it’s useful to have a more or less objective test by which we can distinguish between an inherently religious entity and an entity that is controlled by devout believers.

The argument that the law is the law and pretty much all of us have to do things that at least indirectly support governmental objectives we dislike, simply by the inherent nature of living in an even semi-democratic government, is also one worthy of weight. This is essentially the argument in Employment Division v. Smith — that case held that if Congress criminalizes peyote, then no one can eat peyote buttons, even if it’s for a sincere religious purpose; there’s no Free Exercise issue at all in that question. I think Smith was wrongly decided but I also think there are things that the government can force us to do despite our individual moral objections. In other words, there must be a balance between individual liberty and effective government.

Now, I remain convinced that Employment Division v. Smith as written nearly completely emasculates the Free Exercise Clause with respect to issues like these, to the extent that it is nearly a dead letter. That can’t be right. It’s legally intolerable that a Constitutional right be reduced to balancing laws of general applicability against the burdens they impose on religious practice as a mere statutory matter. There is still a Constitutional issue here, despite the troublesome and sweeping language of Smith. Something like the Sherbert test still needs to be in our jurisprudence somewhere, somehow, if the Free Exercise Clause is to have more vitality than the Privileges and Immunities Clause.

I’m just no longer nearly so certain that the Constitutional issue in this situation really does resolve in favor of the RCC-affiliated entities.

What’s getting me to reconsider is primarily the argument that providing insurance that includes contraception coverage may not really work a substantial burden on the ability of an RCC (or other religious) entity to practice its religion. Bypassing the issue of whether the entity can appropriately stand in the shoes of the individual employees, officers, or other stakeholders in asserting an individual right, the entity’s purpose is to teach that (among other things) usage of contraception is sinful, and otherwise dispense moral guidance. The insurance’s purpose is to make contraception available. The decision about whether to use that contraception or to comply with the moral teachings of the RCC remains wholly with the employee (or the employee’s dependent).

Does being required to, indirectly and through a different entity, make contraception available prohibit a RCC-affiliated entity from teaching that the use of that contraception is sinful? And once the teaching and moral guidance is dispensed, what other exercise of religion is at issue? The plaintiff entity attempts to frame the issue in the starkest of possible terms in paragraph 70 of this new lawsuit:

Priests for Life’s sincerely held religious beliefs prohibit it from providing insurance coverage for contraception, sterilization, abortion, and related education and counseling. Priests for Life’s compliance with these beliefs is a religious exercise.

In other words, the plaintiff claims that denying access to both information about contraception, tangible objects that are used for contraception, or services that implement contraception (as well as abortion) is, itself , the exercise of the RCC faith. Now, right away, this makes the issue a political winner for the Administration. Contraception is popular, and popularly considered to be an individual choice. Very few people like the idea of anyone else interfering with a personal, private decision like that, and in this lawsuit the argument that a religiously-affiliated employer ought to be given the latitude under the law to do exactly that has now been flushed out into the open.

But it seems to me that the religious exercise here is teaching that contraception is a sin, urging a Catholic (or anyone else for that matter) not to sin. That is not impaired by the mandate or its regulations. The questions now hanging unanswered in my mind are first, whether the entity is really engaged in the exercise of religion by obstructing access to contraception, and second, whether the entity has the ability to assert this right at all.

Your thoughts are solicited.