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When the Enlightenment and Evangelical Christianity Got Together

Last week, on January 16, America marked Religious Freedom Day. The day commemorates enactment of the Virginia Statute for Religious Freedom of 1786, a precursor of the First Amendment. Written by Thomas Jefferson, the Virginia statute disestablished religion in the commonwealth—“no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever”—and prohibited civil penalties for the expression of religious belief—“all men shall be free to profess, and by argument to maintain, their opinion in matters of religion.” Jefferson saw the statute as one of his three great accomplishments; along with the Declaration of Independence and the founding of the University of Virginia, he directed that it be noted on his tombstone.

The Virginia statute, and the debates surrounding it, have had a significant impact on our constitutional law—a disproportionate one, as Mark David Hall recently argued on this site. Justice Hugo Black’s opinion in Everson, the Court’s seminal Establishment Clause case, relies heavily on the Virginia statute to explain the original meaning of the First Amendment. But Virginia’s approach to church-state relations, informed by the views of Jefferson and James Madison, was more separationist than other states’ at the time of the Framing. Massachusetts, for example, kept establishments for another fifty years. Why look to Virginia and not Massachusetts? But that’s water under the bridge. Maybe the Court will one day reconsider its reliance on Jefferson’s statute. For now, though, it is the urtext for the meaning of religious freedom in America.

It’s fascinating, therefore, to go back and read the statute in its entirety. Three things stand out. First is the skillful way Jefferson combines two dramatically different strands of thought to justify religious freedom—Enlightenment Liberalism and Evangelical Christianity. (As a good lawyer, Jefferson knew how to make an argument in the alternative). “Truth is great and will prevail if left to herself,” the preamble declares; “she is the proper and sufficient antagonist to error.” Through free debate, people could reason their way to truth, in religion as in other matters. No justification existed, therefore, for prohibiting people from expressing their religious opinions and trying to persuade others.

This Enlightenment defense of free inquiry was not likely to convince everyone, though, so Jefferson added an argument from Evangelical Christianity as well. Religious freedom was the plan of “the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either.” Establishments had resulted in “false religions over the greatest part of the world,” including, presumably, Catholicism and Islam. The point was clear: a good Evangelical Christian should support religious freedom, for Christianity’s sake. This combination of Evangelical and Enlightenment reasoning is a major theme in American church-state law, and it’s interesting to see how far back it goes.

Second, Jefferson’s statute relies on a metaphor—perhaps the metaphor originates with him, I don’t know—that has become axiomatic in America: the religious marketplace. A major problem with religious establishments, Jefferson wrote, is that they rely on taxes to support churches rather than voluntary contributions. Establishments thus “deprive” the citizen “of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern” and “withdraw from the ministry those temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labors for the instruction of mankind.”

In other words, religious establishments are market distortions that allow unworthy churches and clergy to survive—unworthiness being judged in terms of popular appeal. Now, you might object that popular appeal is not a great way to evaluate churches or clergy. The market can corrupt faith, just as government can. But Americans have faith that, on the whole, leaving the success and failure of churches to voluntary contributions—to the aggregate of personal choices in the religious marketplace—presents fewer dangers than state financial support.

Third, one cannot help notice how narrow Jefferson’s statute is. It protects only religious opinion and belief. There is not a word about religious exercise. By its terms, the Virginia statute only declares that people are free to believe what they want and to express their opinions; it says nothing about whether people can put those beliefs into practice. To be sure, protecting freedom of religious expression is not insignificant; at the time, the Virginia statute was a radical step in favor of liberty. In many parts of the world today, it still would be radical. But the statute has nothing to say to groups like the Little Sisters, whose religious convictions cause them to act in ways the government disapproves. To protect religious exercise, rather than religious opinion, one would have to look elsewhere.

Reader Discussion

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on January 27, 2017 at 08:18:50 am

"Religious freedom was the plan of “the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either.”

"It protects only religious opinion and belief. There is not a word about religious exercise." - surely Jefferson wasn't inferring that the body should be thus coerced into not freely moving upon the promptings of its mind.

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Paul Binotto
on January 27, 2017 at 10:42:52 am

"Third, one cannot help notice how narrow Jefferson’s statute is. It protects only religious opinion and belief. There is not a word about religious exercise. By its terms, the Virginia statute only declares that people are free to believe what they want and to express their opinions; it says nothing about whether people can put those beliefs into practice."

With all due respect, by affirming that Religious freedom was the plan of “the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either", Thomas Jefferson recognized that in order to be in communion with God, The Essence of Perfect Love, one must be in communion in both body and spirit; Love is an action word. Love is not possessive, nor is it coercive, nor does it serve to manipulate for the sake of self-gratification. No one can coerce another to Love them, for Love is a gift given freely from the heart.

No greater Love is there than this, then to desire Salvation for one's beloved.

"Love one another as I Have Loved you." - Jesus The Christ

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Nancy D.
on January 27, 2017 at 11:42:26 am

IF we are to interpret the First Amendment in light of its "generating history," it seems only reasonable to interpret it in light of an accurate account of that history. As Justice Rehnquist wrote in Wallace v. Jaffree, “stare decisis may bind courts as to matters of law, but it cannot bind them as to matters of history."

As a fun aside, the Virginia Statute arguably did not disestablish the Anglican church in Virginia. In Thomas Buckley's words: "Exactly when disestablishment took place has been a favorite parlor game for Virginia historians for years. But it seems to me that it was the repeal of the Incorporation Act in 1787 that really disestablished the church. That 1784 act had fixed the polity of the Protestant Episcopal Church in Virginia. I think that’s about as close to an establishment as one can get” (Thomas Buckley to Mark David Hall, February 12, 2012)."

Finally, if we are looking for examples from the founding era to follow, why not follow the example of PA, RI, or other states that never had an establishment?

For more on these sorts of matters, see my “Jeffersonian Walls and Madisonian Lines: The Supreme Court’s Use of History in Religion Clause Cases,” Oregon Law Review 85 (2006): 563-614.

With all of this said, I hope it is clear that I agree with Professor Movsesian that state establishments of religion are bad for everyone, but perhaps especially for people of faith.

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Mark David Hall
on January 27, 2017 at 11:42:33 am

Here is something that may help, re: Jefferson and religious *expression*

"Arguing that Jefferson would cheer federal dictates on the choices of health insurance for nuns is therefore either high ignorance or deliberate obtuseness. In fact, we have a historical record for Jefferson’s thoughts on the freedom of religious expression specifically for Catholic nuns, in his own hand. Joanne McPortland reminded us of this yesterday at Patheos:

In 1804, the Ursuline Sisters, who had fled the anti-Catholicism of the French Revolution to found schools, orphanages, and hospitals in the Louisiana Territory, wrote to President Thomas Jefferson of their concerns that the United States government, now in control of New Orleans, would interfere with their freedom to operate their institutions and set their own regulations. They were aware of Jefferson’s support of the French Revolution and of his writings concerning the “wall of separation” he saw in the First Amendment’s guarantees.

Jefferson’s letter in response–often omitted from collections of his works–is respectful, clear, and reassuring. Read the text and substitute Little Sisters of the Poor for the Ursulines, and it’s immediately apparent that Stiehm is conjuring the wrong guy.

I have received, holy sisters, the letter you have written me wherein you express anxiety for the property vested in your institution by the former governments of Louisiana.

The principles of the constitution and government of the United States are a sure guarantee to you that it will be preserved to you, sacred and inviolate, and that your institution will be permitted to govern itself according to its own voluntary rules, without interference from the civil authority.

Whatever the diversity of shade may appear in the religious opinions of our fellow citizens, the charitable objects of your institution cannot be indifferent to any; and its furtherance of the wholesome purposes of society, by training up its younger members in the way they should go, cannot fail to ensure it the patronage of the government it is under.

Be assured it will meet all the protection which my office can give it.

I salute you, holy sisters, with friendship and respect."

The letter, in Jefferson’s hand, is on display in the museum of the Ursulines in New Orleans, where I’ve seen it. It is recognized, rightly, as one of the founding documents in our American understanding of freedom of religion.

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gabe
on January 27, 2017 at 13:14:00 pm

[T]he statute has nothing to say to groups like the Little Sisters, whose religious convictions cause them to act in ways the government disapproves.

What actions specifically did the government disapprove? I know of none.

To the contrary, the Little Sisters encountered a problem not for their actions, but for their inactions--specifically, for refusing to comply with a part of the individual mandate, which the Supreme Court upheld as a legitimate exercise of the Congress's taxing powers.

Now, the Little Sisters were and are free to express conscientious objection to government policies, and to refused to comply with the government's taxing powers as a result. And they should endure the fate of conscientious objectors generally.

Congress discussed conscientious objection extensively in the context of drafting what would become the Second Amendment. (Apparently Congress operated under the delusion that the Second Amendment addressed to well-regulated militias, but that's a whole 'nuther matter....) At no time did Congress entertain the idea that people should be free to shift their share of social burdens onto others merely due to conscientious objections.

The Little Sisters are no more burdened in their free exercise than any other taxpayer who objects to a government policy. Members of the Christian Scientists and Jehovah's Witnesses pay taxes that fund Medicare, Medicaid, all kinds of medial stuff that runs contrary to their religious beliefs. Deal with it.

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nobody.really
on January 27, 2017 at 14:08:53 pm

Your understanding of the burden and, even of the "best" compromise the Administration could come up with is either lacking or disingenuous.

Furthermore, seeking to go after the Little Sisters of the Poor was the most foolish miscalculation of elitist ideologues, so drunk with power and self-righteousness, as to be no longer capable of appreciating the political consequences of the "win at all cost" mean-spiritedness demonstrated; and, likely one of nails in Obamacare's coffin.

Pressing the mandate in this manner had nothing to do with providing contraception to the masses, or in uniformly enforcing the law, but everything with wielding power for power's sake and for insuring that everyone's hands were equally stained in the blood of the innocent unborn. IF that was not tyranny, we shall never know it when we see it.

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Paul Binotto
on January 27, 2017 at 14:26:23 pm

You understand that your tax dollars go to provide birth control to, for example, members of the US military, right? So apparently all taxpayer’s “hands were equally stained in the blood of the innocent unborn” already.

I don’t begrudge you your religion. But your religion is not entitled to any greater protection than anyone else’s. I know this is a bitter pill to swallow; just take comfort that this pill doesn’t also prevent pregnancies.

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nobody.really
on January 27, 2017 at 14:43:20 pm

You make the best argument as to why healthcare should never be a function of government or mandated by the Federal Government.

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Paul Binotto
on January 28, 2017 at 15:10:40 pm

Seems to me the Little Sisters of the Poor did what citizens should do when faced with government coercion regarding matters of conscience: prosecute a claim that the government coercion is improper in their circumstances. They did, and the Supreme Court seems to think they did it correctly. The petitioners in Tinker v. Des Moines Independent School District did the same. They did not "take the consequences" of their protest and meekly accept suspension. They forwarded a claim that government coercion was improperly infringing their First Amendment rights.

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z9z99
on January 29, 2017 at 00:23:32 am

The Supreme Court declared Obama Care to be a tax. The obscene fine placed on those employers who desired to provide their employees with Health Care Coverage that did not include contraception and abortifacient drugs, because the fine was a gross violation of the principle of proportionality, can only be construed to be a means to" influence the recipient of the said fine", and thus violate their inherent right to Religious Liberty.

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Nancy D.
on January 29, 2017 at 07:43:30 am

Fair enough as a matter of process. Suffice it to say, I disagreed with the court's rulings.

As I noted, all taxpayers contribute to the military providing birth control. Perhaps a cleaner example, all taxpayers contribute to the military engaging in killing. Some people have religious objections to either of those practices. Yet when people have engaged in tax protests, the courts have rejected those claims.

I surmise that the US could establish single-payer health insurance, and taxpayers would again be in a position to file their grievances with the court, and the court would again be in the position to reject their claims. (Have any Jehovah's Witnesses or Christian Scientists been able to evade paying taxes because they have religious objections to Medicare and Medicaid?)

The only difference here is that the finance mechanism is via an individual mandate rather than a single-payer system--a mechanism that the courts have upheld as a valid exercise of the taxing power. I find it hard to countenance that matters of conscience hinge on a choice of financing mechanism, rather than on outcomes. But clearly, people differ.

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nobody.really
on January 29, 2017 at 18:31:55 pm

As per your habit, you make some valid arguments. However, valid is not necessarily persuasive. Your arguments seem to rely on certain assumptions that one is not obligated to concede. Without any attempt to identify and address all such instances, I will venture the following as examples:

1.) That contraception is to a conclusive degree healthcare. It is certainly not intuitively obvious that interfering with a properly functioning biological process that is not only intrinsic to healthy individuals, but which is essential to both humanity's past and future, is an essential of good health. It is not beyond dispute that fertility is a condition to be treated rather than a fact of existence for a species that depends on procreation for survival.

2.) That even if, for the sake of argument, contraception is considered healthcare (which is not beyond dispute), that such consideration imposes obligations on the part of others to pay for it. The example of blood transfusions is illustrative. Endurance athletes occasionally engage is a practice known as "blood packing;" i.e. receiving autologous blood transfusions. A demand that the public fisc be accessed to pay for such a service (blood transfusions are healthcare after all) will likely be met with suspicion. Furthermore, if you were to sever your iliac artery and present to an emergency department while exsanguinating you will receive a blood transfusion if you need one, regardless of insurance status. If however, you are an uninsured couple showing up in the same ER demanding Norplant, you should not be offended by being referred for services elsewhere.

3.) That if one's immediate employer does not subsidize contraception, that person is therefore denied it, and has no choice but to be serially pregnant. People that have neither jobs nor insurance manage to avoid pregnancy if so motivated. These people are not thereby oppressed, second class citizens or victims.

Now the point is not that the assumptions addressed above are wrong, or cannot be established by reasoned argument. The point is that there can be good faith arguments for and against them, by decent people with honest motives, and it is these types of disputes that are particularly inappropriate subjects for government coercion. That is why "contraception" and "mandate" may be regarded as inharmonious in the same sentence. Jocelyn Elders wanted to make sure that "every child is a wanted child." The Little Sisters of the Poor choose to believe that the dignity and worth of every human does not depend on whether or not they may have been unwanted once, by someone. That is what they choose to believe, and how they wish to live their lives in their little sphere, and seeing how their view does not depend on the coercive power of the state for maintenance, perhaps there is something to it.

Finally, it is worth noting that this issue arose, not because contraception was discovered on January 20, 2008, but because a creeping incrementalism and ideological hegemony butted up against the values of a devout group of nuns. There has been for well over a century (I am sure Gabe is much more informed about this than I am) a strain of anti-humanism that advocates for eugenics, euthanasia, forced sterilization, "life unworthy of life," etc. The results of these policies are almost universally autrocious and dystopian. These ideas can be found in the rationalizations of the Armenian genocide, the Holocaust, The killing fields of Cambodia, the Tuskegee syphilis research, and in the cynical neglect that accommodated the crimes of Kermit Gosnell. I am not claiming that contraception is an incident to genocidal atrocities; obviously many good and caring people who are appalled by such things use contraception and are no less decent for it, and that is the point. We know that there are views of the value of human life that are repugnant and evil, but there is no mathematical precision to where the line is drawn. I can't draw it, Kathleen Sebelius can't draw it, and Nietzche can't draw it. If there is an order of nuns who are not content to object only to the easy and extreme cases, to genocide or mass murder. but who are moved to make their stand on a more fundamental notion, that no human life is an ordinary thing, well I am okay with that. I think the burden is on those who want to change the status quo Obama to make their case, not the other way around.

That's my opinion. Best to you.

Joe

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z9z99
on January 30, 2017 at 01:38:54 am

our arguments seem to rely on certain assumptions that one is not obligated to concede.

1.) That contraception is to a conclusive degree healthcare.

I make no such assumption.

Rather, I argue that if a) insurance covers X and b) Y is a cheaper substitute for X, then it makes sense for insurance to also cover Y. A fire insurance company might elect to subsidize smoke detectors and sprinklers for their customers. You are free to argue that smoke detectors and sprinklers are not fire insurance—but no one would care.

2.) [No one should be obligated to pay for someone else’s birth control, regardless of its status as health care.]

Here’s the fundamental fact underlying the ACA: Thanks to the insurance market, unfunded mandates on emergency rooms, and government programs, health care costs are already socialized. We all pay when someone goes through pregnancy. And if that someone WANTS to undergo pregnancy, fine. But if she’d be just as happy to avoid pregnancy, and doing so would be cheaper, I’d just as soon offer her an option that would be cheaper for EVERYONE.

(Admittedly, not all health care costs are socialized, then or now. Prior to the ACA, people consumed less health services because they couldn’t afford it. To the extent they elected to bear costs in terms of pain, discomfort, and loss of health, they bore that cost alone—mostly. Society would bear costs in terms of lost productivity, spread of infectious disease, etc. But when these people finally turned to health care, they would choose the most expensive, least effective form of care: the emergency room. This strategy would saddle society with the highest cost/benefit ratio. The ACA has had the effect of reducing the rate of growth in health care cost while greatly increasing the benefits.)

3.) ….People that have neither jobs nor insurance manage to avoid pregnancy if so motivated.

Great. So how do you motivate them?

Again, health care costs are socialized. That means that your choices affect my costs, and vice versa. Now, we can remonstrate to heaven about the injustice of this reality, but that doesn’t change the reality. In a real sense, I am a hostage to your choices, and you to mine.

Given that situation, I cannot compel you to make the choices I would prefer. But I can remove any needless impediments for your doing so. I can’t keep you from getting pregnant—but I can make it easier for you to avoid it if you want to.

We might all agree that other people are morally responsible for their own pregnancies. But if we are the parties who will be financially responsible, then that moral responsibility is kind of beside the point.

The point is that there can be good faith arguments for and against them, by decent people with honest motives, and it is these types of disputes that are particularly inappropriate subjects for government coercion.

So you’re saying that because wars are controversial, military drafts are inappropriate? It’s a fine argument, but it hasn’t prevailed so far. The transcendentalist author and philosopher Henry David Thoreau was widely regarded as a decent man with sincere motives—and when he refused to pay taxes that would support slavery and the Spanish-American War, government coercively threw him in jail.

Suffice it to say, I don’t see the connection between offering health insurance and genocide.

Finally, consider this: Imagine the Little Sisters reached the conclusion that employees could acquire birth control not only with insurance, but also with their SALARIES! And based on that observation, they then proceeded to conclude that they have no duty to pay anyone any accrued salary, on grounds of conscience. And they rescind all accrued vacation balances for fear that employees might use vacation time to have recreational sex. As far as I can tell, the conscience issues are identical.

The law has addressed this issue before. Yes, as an employee, you can seek reasonable accommodation to avoid working on the Sabbath. But no, it’s not a reasonable accommodation to demand that ALL employees avoid working on the Sabbath. That is, you don’t get to impose your religion on others.

And so it is with the Little Sisters: The issue is not birth control; the issue is agency. The people who bear the moral responsibility for using birth control are the people using birth control. Quite simply, the Little Sisters have become Big Brother. The Little Sisters are free to refrain from using birth control themselves, and to pray for, exhort, implore, whathaveyou, their employees—but they can’t run their employees’ lives. Employees get to do that for themselves—yes, even at the risk of mortal sin. It’s called free will, a Catholic doctrine that pre-dates birth control.

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nobody.really
on January 30, 2017 at 07:41:09 am

It would be interesting to see an essay on Patrick Henry's approach to these questions. He had a much different stance on taxpayer support of Christian pastors and churches.

Also, would Jefferson hold his ideal of religious liberty today with the advent of Islam in America?

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William Brown
on January 30, 2017 at 07:46:51 am

Again, you only buttress with your comments the reason federal government should not control or mandate healthcare insurance.

Progressives have arrived at the notion that since an individual can make a free choice (engage in sexual intercourse, 1) not only "must" they engage in it (or it would be stifling their expression of free-will for them not to), but 2) society must bear the burden of that individual's free-will action collectively, otherwise, society is denying that individual of his/her freedom/rights.

How is the Little Sisters of the Poor's case different than Hobby Lobby? Why did Hobby Lobby receive an exemption to the Mandate, but it was denied the Little Sisters? The Little Sisters did not take the extreme argument your cleverly contrive, but instead thought a reasonable accommodation would be for the government to set up a contraception pool separate from their healthcare pool, so employees who wish to purchase, or have government purchase contraception for them, could do so without staining the Little Sisters conscience rights - but the government wouldn't hear of this option; not because it was overly burdensome for government, insurance co, or individual, but because 1) They were ideologues drunk with power and need to win at any cost) 2)they have already decided "what" is the moral rightness (all the while denying moral rightness can be known), 3) they deem it good to control population (even while the entire population of the world could fit in Texas comfortably), 3)they are wish to break "The Church" because it stands in the way of what they have decided is the public good and "progress".

How can I draw these conclusions? IF you want to see the motives of the mandate, you need only look as far as the penalty for failure to comply. The government was well aware a head of time that the Little Sisters and other similar religious (mostly Catholic) groups would resist on conscience, and the government made the conscience decision to go to battle with the Church; in their eyes, once and for all, they were going to be the champions of progress, and remove the last vestige standing in the way of modern society.

This is why, I do not think it enough for Trump/Republican Congress to repeal Obamacare and permit the Little Sisters court case die with it, but rather, in my opinion, they should first get a Supreme Court Justice seated and then let the Court take up the Little Sisters case again with a full compliment of Justices and force a ruling on the constitutionality of these types of coercive mandates - otherwise, in four, or eight years the issue will be back again.

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Paul Binotto
on January 30, 2017 at 08:08:11 am

",,,I am not claiming that contraception is an incident to genocidal atrocities ..."

I think that a good argument can and has been made that contraception and the attendant mentality leads to an anti-human 'culture of death', one in which killing children is deemed acceptable.

--William Francis Brown MD
Forest, VA

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William Brown
on January 30, 2017 at 10:02:43 am

Recall that in Burwell v. Hobby Lobby, four justices voted to reject the conscientious objector claim outright. And a fifth justice, Kennedy, concurred with these four—but found that birth control created a special case, and therefore voted with the majority instead. Birth control was a special case not because of any special moral issue, but because insurance companies could pay for providing birth control with the savings generated by the avoided pregnancies. This permits us to avoid saying who is “paying” for this birth control coverage. This is no different than if a fire insurance company concluded that it could reduce the claims it pays by buying smoke detectors for all its customers, and the reduced claims would be enough to pay for the detectors.

Because of a peculiar economic dynamic, it might be possible to accommodate the interests of conscientious objectors without diminishing the public’s interest in reducing health care costs. Thus Kennedy sides with the majority only because “this is not a case where it can be established that it is difficult to accommodate the government’s interest, and in fact the mechanism for doing so is already in place.” Under the Religious Freedom Restoration Act (RFRA)--

“[t]he Government must demonstrate that the application of a substantial burden to a person’s exercise of religion “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000bb–1(b).

As to RFRA’s first requirement, the Department of Health and Human Services (HHS) makes the case that the mandate serves the Government’s compelling interest….

But the Government has not made the second showing required by RFRA, that the means it uses to regulate is the least restrictive way to further its interest. As the Court’s opinion explains, the record in these cases shows that there is an existing, recognized, workable, and already-implemented framework to provide [contraceptive] coverage…. Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities.... The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs.

But crucial to the accommodation is that the insurer provides birth control only to its own customers, not to the public at large. the insurer wouldn’t derive any benefit from providing birth control to people when the insurer wouldn’t be liable for the pregnancy costs. After all, a fire insurance company may find it profitable to give away smoke detectors to its own customers—but not to everyone in the world.

In contrast, the Little Sisters began their case by rejecting the “accommodation” identified by Kennedy. I haven’t been about to figure out what exactly they want, but it appears that they are unwilling to take any steps that would permit the identification of the employee receiving birth control coverage with the employee receiving other coverage.

By Kennedy’s reasoning, having found that the government has demonstrated a compelling interest in the birth control mandate, and finding (based on the Little Sisters’ position) that there is no accommodation for achieving that end, then the Little Sisters should forthrightly lose. In short, the Little Sisters would appear to have adopted a suicidal litigation strategy.

But, of course, the Court is loath to rule against a group as sympathetic as the Little Sisters, and so is standing on its head in order to avoid doing so. Moreover, government has no interest in intruding on the Little Sisters’ metaphysical distinctions; it just wants to ensure that people get the coverage to which the law entitles them. So rather than ruling against the Little Sisters, in Zubik v. Burwell the Supreme Court told all parties to go find the verbal figleafs they need to give everyone what they want:

Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company…. The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

I haven’t heard any developments since then. But if the Little Sisters insist that no such deal is possible, then the clear conclusion is that they lose (even with a new justice on the Court).

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nobody.really
on January 30, 2017 at 10:18:17 am

I think that a good argument can and has been made that contraception and the attendant mentality leads to an anti-human ‘culture of death’, one in which killing children is deemed acceptable. - See more at: http://www.libertylawsite.org/2017/01/27/when-the-enlightenment-and-evangelical-christianity-got-together/#comment-1517231

See Steven Pinker's The Better Angels of Our Nature: Why Violence Has Declined. Homicide rates have declined as birth control has become more plentiful. I don't mean to suggest a cause and effect (although some have argued that legalizing abortion reduces crime). I merely wish to note that the correlation is the opposite of what Dr. Brown suggests.

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nobody.really
on January 30, 2017 at 13:33:36 pm

Again, a thoughtful response, albeit an oblique one. I would prefer that our exchange not devolve into a game of "spot the frailty in the analogy," But I would briefly reply to two:

1.) The purpose of fire insurance is to mitigate the burdens of fires, The subsidizing of fires is illegal. The is no utility to arson except perhaps to criminal enterprises.The same cannot be said of procreation. One may more effectively prevent of the burning of houses by preventing the building of them perhaps, but this is somewhat contrary to the purpose of houses. We may prevent illness in people by preventing people, but this approach does not have a happy history. The analogy between fire insurance and health insurance (or, to be more consistent with the analogy, unhealth insurance) is not persuasive.

2.) The economic arguments lead down a dark a path. An overdose of pentobarbital or a few whiffs of Zyklon B are cheaper than a lifetime of rituxumab, or apixaban or several days in ICU.

3.) If the only defining characteristic of wars is that they are controversial then, yes, government coercion is inappropriate. But it is not. There is a reason why the United States has an all volunteer military while Israel does not.

I stand by my larger point: it is not necessary for either you or the Little Sisters of the Poor to prove one position correct and the other wrong. The basic principle is that, when there is a good faith dispute as to the religious burden of any form of government coercion, the burden is on the government to find the least burdensome means to achieve its interest. And I think the rationale is a good one. People will vary in their conclusions as to what is an unacceptable level of participation in a morally objectionable practice. Some nurses refuse to hand surgical instruments to abortionists; some pharmaceutical companies refuse to provide drugs for lethal injection; some media outlets refuse to sell pornography. The better policy is not for the government to try and decide which levels of participation should be acceptable to which people in which circumstances, but rather to recognize that mandates and prohibitions are inelegant, clumsy and often abused tools that should be last resorts, not opening salvos. Given the history of contraception, how it has been available and who has paid for it in the past, I think the Little Sisters have the stronger position.

There is no universal model for what constitutes participation in a morally unacceptable practice. Raymond Hunthausen was the Catholic Archbishop of Seattle who withheld half of his income taxes in protest of the Trident missile program, and nuclear weapons in general ("Tident is the Auschwitz of Puget Sound!"). The government responded by simply garnishing his wages. This arrangement seemed acceptable to the parties, but of course is vulnerable to several critiques: i.e. the money comes from the same place and goes to the same place; it is hypocritical; mutually assured destruction is just like having fire insurance, etc. But the parties found enough difference between forcing Hunthausen to sign a check and simply garnishing the money to reach an accommodation. Such is the way of moral dilemmas.

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z9z99
on January 30, 2017 at 16:48:11 pm

2.) The economic arguments lead down a dark a path. An overdose of pentobarbital or a few whiffs of Zyklon B are cheaper than a lifetime of rituxumab, or apixaban or several days in ICU.

Oh, I quite agree. And the people who are most keen to save money on health care costs are the ones who want to eliminate Obamacare, Medicare and Medicaid. I am much less worried about “death panels” than the existing statistics showing the correlation between poverty and bad health outcomes. We might expect many forms of illness to affect the rich and poor alike, but rich people get treated for pretty much every type of illness more than poor people.

One exception is amputations—poor people get more of those. (Congratulations!) Of course, that's not a sign that the poor are getting attentive treatment in this regard; rather, a sign of insufficiently attentive treatment earlier in a condition.

In contrast with these problems, I see little harm arising from simply seeking the most cost-effective means to provide health care. Yeah, people grumbled about HMOs and limited provider networks, but they provided good care while curbing cost increases. And yeah, people complain that the generic version of their medication tastes worse than the brand name version. But by the standards of health care problems, these are small potatoes. You’re welcome to pay the upcharge to buy the brand name if you want.

[W]hen there is a good faith dispute as to the religious burden of any form of government coercion, the burden is on the government to find the least burdensome means to achieve its interest. And I think the rationale is a good one.

I agree. And so does the RFRA. And Justice Kennedy.

He identified a least burdensome means possible. The Little Sisters then rejected that means (allegedly; again, it’s hard to determine what actual remedy they proposed). It appears that the Little Sisters were not interested in identifying the least burdensome means for implementing the public policy; they objected to implementing the policy regardless of the burdens their objections would impose on others. And, as Scalia observed in Employment Division v. Smith, we can’t have every religious adherent becoming a law unto himself. Sincerity is not a license to shift your share of social burdens onto others.

[T]he Catholic Archbishop of Seattle … withheld half of his income taxes in protest of the Trident missile program, and nuclear weapons in general (“Tident is the Auschwitz of Puget Sound!”). The government responded by simply garnishing his wages. This arrangement seemed acceptable to the parties….

And maybe that should be the remedy.

As I argued previously (but the moderators chose to remove), the individual mandate violates neither the Free Exercise Clause nor the RFRA—but the magnitude of the penalties for non-compliance may. If a conscientious objector shifts a burden onto others, the remedy should be to tax the objector in the amount of the burden shifted—AND NO MORE. Any additional burden would impose a policy that is not the least burdensome means for achieving state policy (in violation of the RFRA) and would burden Free Exercise (in violation of the First Amendment).

We may need to leave the discussion at that. I’ve already been kicked off First Things; I don’t need to provoke the moderators here. 

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nobody.really
on January 30, 2017 at 17:34:05 pm

Hey, Nobody:

Have you had comments removed as well?
I gave up on this essay after having comments removed. also had one removed on the "After Administration" essay.

I find this quite distasteful, BTW!

Heck, I didn't even swear!

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gabe

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