Blog Archives

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?