When does religious liberty shift from the freedom to practice one’s faith to the imposition of that faith on a diverse public? Or to put it another way—when does liberty for some become discrimination against others?
This is more than a theoretical question. It’s one that is playing out right now with a proposed federal rule that implements part of the Affordable Care Act. The rule requires employers to include in their health insurance plans coverage for contraception and other basic preventive health services. The real-life question has to do with religious organizations that are employers but believe contraception is a sin. Should they be exempt from the rule?
According to the Department of Health and Human Services, which promulgated the proposed rule, the answer is a qualified yes. But a number of religious organizations that would not be exempt under the rule are fighting to broaden its exemption requirements to include them.
The proposed HHS rule says that employers must meet the following criteria in order to qualify:
1. The purpose of the organization is to inculcate religious values.
2. The organization primarily employs those who share the religious tenets of the organization.
3. The organization primarily serves those who share the religious tenets of the organization.
4. The organization is a nonprofit under the IRS Code.
That leaves out large Catholic universities such as Notre Dame that employ people of many different religions—as well as those with no religion—yet do not want their health care plans to cover contraception. They argue that contraception violates Catholic teachings and to be forced to include it is a serious infringement of their religious liberty.
Those on the other side argue that religious organizations such as Notre Dame that choose to operate in a pluralistic secular democracy must respect the religious liberty and consciences of their employees, many of whom are not Catholic—or religious at all. For virtually all these workers, contraception is not a sin but an essential part of moral responsibility around creating a family and parenting. To deny them access to such a basic health service is to unfairly impose a particular set of theological beliefs on people who believe differently.
What’s more, say proponents of the rule, this isn’t even a matter of the Catholic Church versus other religions, since the vast majority of Catholic women—98 percent, according to the Guttmacher Institute—use contraception. Such a statistic raises an important question: Who is the Catholic Church? Is it the millions of people in the pews who disregard official church teachings in some cases—or is it a much smaller group of church leaders?
Religious organizations cannot have it both ways. They cannot on the one hand claim a religious exemption that requires everyone who works for them to abide by their religious beliefs, and at the same time employ people whose worldview and beliefs are very different from theirs. Here’s where religious liberty for some is likely to turn into religious discrimination against others.
One last point: A principle that virtually everyone can agree on is the importance of reducing the need for abortion in the United States. A sure way to do that is to reduce the number of unwanted pregnancies by making contraception accessible and affordable. Another desirable goal is to increase the number of healthy pregnancies, healthy babies, and strong families—all of which are more likely when women use contraception to plan their families and ensure healthy intervals between their children.
Religious liberty is written into the First Amendment of the Constitution. You can’t get much more bedrock than that. Throughout our history, scholars and advocates on the ground have contested the amendment’s scope and scale. That is what is happening now. It is democracy in action, with each side putting forth its best arguments, seeking to persuade policymakers and the public.
As they battle it out, two other American values will likely come into play—pragmatism and compromise. We usually manage to work things out, with each side giving up something and getting something in return. Such a compromise could happen in this case—and in fact one was recently proposed by Melissa Rogers, a First Amendment-religious liberty expert and scholar.
Rogers looks to state laws in Hawaii and New York, where religious employers may refuse to provide coverage for contraception, but then must provide workers with access to an outside equally affordable health care plan that does include contraceptive coverage.
While not perfect, it is workable and partly satisfies each side. In these days of vituperative rhetoric and demonized opposition, that might just count as a win-win.
Sally Steenland is Director of the Faith and Progressive Policy Initiative at American Progress. For more on this initiative, please see its project page.