President Obama signed an executive order just a little more than a week ago requiring all companies to provide birth control medication in their health plans. The reasoning of the president was that it would provide women with the widest range of options. That is a justifiable reason for the requirement. But, it ran into opposition from religious organizations, especially from the Catholic Church, and all of the presidential candidates from the Republican Party. The Catholic Church believes that its adherents should not use birth control medication or have an abortion. (Many birth control pills can be used as a morning after drug for an abortion.) Both the church and the presidential hopefuls framed their argument as infringement of the freedom of religion.
The president has since backed down from the original executive order and apparently thinks he has found a compromise that will satisfy all parties. But, it doesn’t satisfy anyone. He should have stood up to the opposition by presenting case law and supporting his own reasoning on the issue.
Obama was wrong for caving on the issue.
The Responsible Community’s blog last week supported President Obama’s original requirement. The rights that we did not forfeit to the community and that are guaranteed in the Constitution are individual rights, not collective rights. It is the individual that must make the decision about using birth control and that her rights are paramount to the institution. If the institution was able to withhold legitimate products or services from the individual it would deny rights to the individual the Constitution guarantees. In practice, it would place more power in the hands of the institution (in this case the church, but could be any corporation) and would mean the institution knows better than the individual what is good for them.
Since the order by the President and the blog supporting it, much has come to light with just a small amount of research. The case law that the research brought to light supports Obama’s original decision and shows the irrationality of the opposition. Much of the case law that supports Obama comes from an unlikely source. Antonin Scalia, arguably the most conservative Supreme Court Justice, uses many court decisions to support his own opinion on a case that is just a few years old.
In a 1990 case, Employment Division v. Smith, the Supreme Court is asked if a defendant, fired from his job for the use of peyote, can be denied unemployment benefits. The defendants state that they took the drug for sacramental purposes at a ceremony of the Native American Church, which both of them are members. Since it was during a religious ceremony and part of a recognized religion, by the state and the federal government, the defendants believe the act should be protected religious action and unemployment benefits provided. Scalia disagreed.
The court ruled, with a majority opinion delivered by Scalia, sense the use of the drug was both within the legitimate conduct of the State of Oregon to prohibit and that the law was not directed to any religion, there could be no exemption from the law based on religious practice. Obama’s requirement that all organizations provide birth control to all employees was not directed at any one religion. The President was well with the rights of the office to make the requirement.
To support Employment Division v. Smith, Scalia sites past case law in support of his decisions. First, he discusses a Supreme Court decision from 1878, Reynolds v. United States. A Mormon living in Territory of Utah was charged with bigamy under the Territory of Utah’s law on marriage. The man argued that since he was a Mormon, he was required to marry more than one wife. The court ruled that the law was not directed (at least in its text) at any one religion and that the territory had the right under the Constitution to make and enforce such a law.
The second case Scalia uses to support the court’s decision is United States v. Lee in 1982. Lee is an Old Order Amish carpenter that hired people to help him with his work. The Old Order Amish, according to the court case, don’t believe in supporting governmental systems like Social Security. During the period of time that Lee employed people, he didn’t pay the social security tax of the individuals or the employer’s share. The IRS finally caught up with him and ordered him to pay the tax.
The Supreme Court ruled, as sited by Scalia in support of his opinion, that:
“While there is a conflict between the Amish faith and the obligations imposed by the social security system, not all burdens on religion are unconstitutional. The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.”
Three things are spot on in the above. First, no right is absolute and this includes religion. If the community has a compelling reason to restrict a right, it may do so. In the case of Obama’s requirement, it is the community protecting the rights of individuals.
The second issue is equity. It is inconsistent with the reasoning behind in the Fourteenth amendment to restrict the rights of some while protecting the rights of others. If the rights of the Mormons or the Amish can be restricted by a compelling community interest, then so can the rights of the Catholic Church.
Finally, there are about 1,000 recognized religious organizations in the United States. If every one of them was allowed to decide what laws they should follow, there would be chaos in the community. It would also mean that all a corporation of any kind would have to do is declare that they are a religious organization and they would be exempt from a large section of the Unites states code.
The presidential hopefuls on the right are being hypocritical. Why aren’t the candidates coming to the support of individuals that are members of the Mormon Church, the Amish or Muslims? People of those religions have plenty of complaints about the infringement of their religious rights. If this is a nation of freedoms, including the freedom of religion, then one religion can’t be given greater rights in the community than any other.Certainly, not more than an individual woman’s right to choose.