Stretching the definition of religious liberty

Claims for exemptions from laws based on religious belief are proliferating

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The Nov. 23 Post-Gazette editorial, “Church and State: The Courts Must Balance Health Care Rights,” was right to criticize the injunction won by the Roman Catholic dioceses of Pittsburgh and Erie against contraception coverage in the Affordable Care Act, but not for the reason given in the editorial.

The editorial cited the court decision as a threat to the rights of employees of religious institutions. But when a non-Catholic goes to work for a Catholic institution, or any religious institution, that worker knows the nature of the mission of the employer and knows that this mission will affect the employment relationship in a variety of ways.

Anecdotally, I can report that non-Catholics, like me, at Duquesne University are very happy to work for a religious institution and are among the first to criticize when Duquesne does not live up to its Catholic values. We employees are in no position to complain about the religious commitment of our employer.

What the editorial did not make clear, however, is that religious institutions are not required to provide contraception and other objected-to medical coverage under the Affordable Care Act. Instead, the religious institution is required only to forward a list of its employees to its insurance carrier, which must then provide the coverage itself if the employees want it, without cost to the employer.

One may doubt the economics of this arrangement — how could the coverage really be free? — but this was not the objection of the religious plaintiffs in this case. They objected to the presence of certain coverage in their policies and even objected to forwarding a list of employees. This claim has been raised by religious employers in litigation across the country.

To see how extreme this position is, imagine that the Obama administration had offered yet another compromise: that the religious institution need only offer a list of its employees to the government and the government would provide health insurance ecoverage. If religious employers had really wanted to compromise, they could have lobbied for this option. But, undoubtedly, they would have objected even to this requirement.

The problem is the Religious Freedom Restoration Act itself, which provides a statutory claim of exemption whenever a religious claimant feels that his religious liberty is substantially impaired by a federal law. RFRA has encouraged all manner of extreme assertions of religious liberty against the Affordable Care Act.

Even closely held for-profit corporations have claimed exemption under RFRA, as if these corporations had religious consciences. The owners of these corporations assert that their corporations are alter egos of their human shareholders, when, in fact, the whole point of the corporate form is to shield the shareholders from the debts of the businesses. When it comes to money, the corporations and the owners are quite separate.

RFRA was never intended to operate in this maximalist fashion. Under the free-exercise-religion claims that RFRA replaced, religious plaintiffs usually lost their cases against the obligations of generally applicable laws. And even today most religious believers find ways to compromise with government programs and requirements with which they disagree. Catholic judges, for example, for years have granted divorces, even to Catholic couples. These judges have not asked for exemptions in these cases.

But instead of compromise and goodwill, the Affordable Care Act has provoked overheated rhetoric and over-the-top objections on the part of religious institutions and individuals, many of whom opposed the act from the beginning and are now continuing their political campaign in the courts.

I consider myself to be a defender of religious-liberty claims against legal requirements that threaten religious conscience. I am part of an informal coalition of law professors who lobby state legislatures to include religious exemptions in gay marriage legislation.

But if RFRA really means what the plaintiffs in the Affordable Care Act litigation claim that it means — that religious believers are free to invoke the protections of the act no matter how minuscule their legal obligations appear to be and despite a commercial and even profit-making context — then RFRA is unworkable and will inevitably be repealed. If that occurs, religious believers will have inadvertently undermined the very religious liberty that they now invoke and that America rightly prizes.

Bruce Ledewitz is professor of law and co-director of the Pennsylvania Constitution website at the Duquesne University School of Law. His most recent book is “Church, State, and the Crisis in American Secularism.”

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