Which First Amendment?

The Obama administration ruled on a policy. And as sure as the sun will rise tomorrow, the conservative talk-shows are lit up with (feigned?) outrage over what is being construed as a Constitutional travesty. The past few years have shown us that there is perhaps nothing the President can do without drawing fire. Tell kids to work hard and stay in school? Indoctrination!  Stoop down to shake the hand of a shorter king? Treason! Order Dijon mustard on a sandwich? Too French. Go home to see family for Christmas? Waste of taxpayer money.

Despite all the crying wolf (and deer and bird and caterpillar), I can at least see where the Religious Right are coming from this time. Secretary Sebelius of the Department of Health & Human Resources has clarified that all employers receiving federal money must comply with the mandate in a duly passed law that employees be provided with insurance that covers women’s health services and products, including birth control pills. Contraception control of any kind is prohibited by the Catholic Church, so naturally they are claiming discrimination.  There is an exception carved out for strictly religious organizations, such as individual churches, but not to large institutions like hospitals and colleges, both of which benefit substantially from federal money in the form of Medicare or Student Loans and grants.

When an organization has long gotten its way, it is understandable that it will feel slighted when asked to change. In response to the requirement, Catholic Church officials essentially making two arguments: First, they are claiming that this has never been the case in the past. Second and more interestingly, they are claiming that this is not only discrimination, but a violation of the First Amendment to the (U.S.) Constitution. The first point is easily dismissed. Argumentum ad antiquitam (Appeal to Tradition) is a logical fallacy. Defending a policy simply because it has always been the policy is a logical fallacy. Despite the sentimental appeal of such arguments, they are not a reasonable justification for passing laws or ignoring mandates. The second, I think, derives from a misunderstanding of the First Amendment.

Anyone with strong religious convictions likes to think that the First Amendment is primarily about free speech and freedom to practice religion. And most of us are grateful for that part. There is simply nothing quite like the U.S. protection of speech and religion anywhere else in the world. A person really can say almost anything, no matter how vile, discriminatory, critical, or just plain weird through any number of media and be protected on the federal level. Persons can also practice any religion, whether it be one of the “big five” of Christianity, Islam, Judaism, Buddhism, or Hinduism, or one for a few or one practitioners, or, my favorite, no religion at all. Simply put, the government cannot prevent anyone from practicing his or her own religion. This is the argument on which the Catholic position lies.

But there is another part of the Amendment; one that prohibits establishment of a state religion, which has been determined to also extend to favoring one religion or another. This is the part where the Catholic argument fails. Indeed, the government cannot prevent anyone from going to Mass, praying the Rosary, writing religious songs, or even attempting to convert others. The government also must allow Muslims to build mosques and pray as freely as Christians do, and accommodate religious attire to the maximum extent possible. Sometimes this goes so far as to allowing Sikhs to carry ceremonial daggers into places where weapons would otherwise be prohibited.

These actions all have something in common—they are positive expresses of faith, by individuals or groups. The protections of religious actions follow necessarily from the freedom of speech. However, a religious policy designed to prevent legal behavior or established rights for religious and only religious reasons, cannot be protected without running afoul of the First Amendment. Catholic Hospitals and Universities employ people of all faiths and genders—people who are guaranteed to have the same options for healthcare as anyone else. The argument against the Administration is legally and logically backwards. Discrimination lies in telling non-Catholics that they must give up rights that the Church does not acknowledge. One cannot expect to use taxpayer money to pay the bills on one hand while working against the larger citizenry on the other.

I think the Administration has a winning argument based on a whole, rather than selective reading of the Constitution. That does not mean it has a winning political argument. Already, there is talk of finding a compromise or amending the policy so as not to offend conservatives. It is an election year after all.

What do you think? Who is discriminating against whom here? Does the Catholic Church have a winning argument from a Constitutional, rather than political point of view? Should the President stick by a sound policy or would it be better to simply pick another hill to die on?


Posted on February 7, 2012, in Politics, Q & A and tagged , , , , , , , . Bookmark the permalink. 4 Comments.

  1. Hi! I love your blog! I came here from Rachel held evans’ blog. I totally get what you are saying here but i think the issue is more than the freedom of religion. I did make a similar argument to a friend about employees who are not religious. For them, it is aiding in a death of a potential human being = murder. No matter what my views on viability of a fetus, don’t they have the right to object ideas they consider immoral as well? is it correct for the government to infringe on anyone’s moral conscience? Are you really ok with the government saying that they must aid in the death of a human being just for the sake of your non-religious employees?

    You bring up the role of the state in this, Catholics may argue the same but I things with in regards to taxation, but that would be where your argument would stand because the state IS a non-religious institution. quakers are staunch pacifists but still pay taxes to fund wars.

    • Token Atheist

      I don’t think Catholic institutions are being coerced into violating their conscience or mission so much as protecting a privileged status. As you rightly point out, Quakers still have to deal with indirectly funding wars, and nearly all of us have some objection to what the government is doing in part, but we don’t hold ourselves up as victims when we don’t get our way. These institutions want to receive taxpayer money on one hand, which indirectly funds religious activity such as prayer and outreach (see JW’s comment below), while simultaneously claiming that they cannot possibly abide by the State’s policies.

      The reality is that you probably cannot by a hamburger without indirectly supporting birth control or abortion with some fraction of that money. Any commerce will lead to the funding of objectionable behaviors, but most of us do not seek to control what happens to our money once it is surrendered. To say that an Insurance company cannot pay for abortions is like asking McDonald’s to only use the money from my meal to pay a pro-life employee. Economies do not work that way.

  2. I work for a Catholic healthcare entity. The reason that I do so is because of the nature of that entity. In the Mission, it states that the reason that the organization exists is to serve God’s purpose. We pray (nondenominationally) before meetings. As part of orientation, new employees are explained our mission, our history, and our values. As a private employer, who employs free citizens — anyone who doesn’t want to work for us or doesn’t like the Mission is not obligated to work for us. Our healthcare offerings have long been centered around our mission, values, and history. This includes our benifits. We don’t pay for abortions, birth control, vasectomies, or tubal ligations unless there is a medical reason for such procedures. That is consistent with who we are as an organization. Personally, I don’t have a problem with birth control or vasectomies or tubal ligations. I understand that a Catholic entity, being a Catholic entity will not fund those things — and as a private company, I think they should have the right to NOT go against their mission, values, or history. As a free citizen of the United States, I have the option of working for a different healthcare system. That’s my choice. If you, as an employee, don’t like the benefits of the company that you work for, then you can choose to work for a different company.

    • Token Atheist

      I too work for a health care entity. Some 71% of our funding comes from the government in the form of Medicare and Medicaid. That negates any illusion I have of being a private institution. It is all well and good to say that an organization will not pay for certain procedures or products directly, but asking insurers to conform to the organization’s policy is quite a different matter. Insurance companies are regulated by the State and the State has the regulatory authority to dictate what is and is not covered. Ultimately, we all wind up indirectly paying for a lot of activities and products that we object to. One person’s moral stance is another’s discrimination. The best we can do is to vote for those who adhere most closely to our values and support businesses that are like-minded, but that does not and should not guarantee success.

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