Dear Colleagues, Thank you for this important discussion about the contraception mandate. I have a few interconnected questions (legal, religious, and political) that I’d like to explore over a conference call scheduled for Friday, December 6, 2013 at 12 noon EST. If you are interested in participating in this collegial discussion, please send me an email at nathan_wal...@mail.harvard.edu. I’ll reply with the 800–number and participant code.
In the mean time, here are my seven questions. *** 1. At what level of indirectness? The mandate currently requires that for-profit corporations offer health insurance to their employees, including coverage of contraception. Tom Berg clarifies that Hobby Lobby and Conestoga “object only to certain medicines/methods that they believe cause abortions of fertilized embryos.” Doug Laycock clarifies that these plaintiffs are not opposed to the pill. In this context, Eugene Volokh recommends that the government should offer an alternate least-restrictive option. Specifically, “to have the government offer such a plan, which employees could buy from the government (or from some other entity), without the employer being involved.” Would not the objecting business owners and their corporations still be indirectly subsidizing (twice) something they object to by financially supporting the very government that offers and administers contraception coverage? How effective is this strategy if their individual and corporate tax dollars are still used to indirectly hire a government to subsidize/administer activity that offends their religion? At what level of indirectness should one be granted conscientious objector status? Where does it end? The argument that there is an even more least-restrictive means to achieve the compelling state interest seems like a slippery slope. *** 2. Registering as conscientious objectors? When a government drafts a religious objector to serve in the military and mandates the non-violent citizen to kill a foreigner, the burden rests on the citizen to have previously registered as a conscientious objector. (I have a hundred+ page document claiming my conscientious objector status just in case there is another draft.) Will for profit corporations, or at least the owners of the corporations, have to do the same and preemptively document their conscientious objections? If not, why? This is a distinct legal process from, say, Henry David Thoreau refusing to pay taxes in protest against indirectly subsidizing the Mexican–American war. Is it not the role of Hobby Lobby and other corporations to demonstrate that the burden is equal to or more substantial than the government forcing a non-violent citizen to kill another human being for one’s country? Is the direct killing argument the basis of the objection to indirectly subsidizing abortifacients? If so, is not such a claim a religious/ethical opinion and not a medical fact? The medical community and our current legal system routinely reject the claim that an abortifacient equates to murder. How can an opinion or belief about indirect subsidies of abortifacients be equated to the government directly putting a weapon in the hands of non-violent citizens and mandating them to kill for their country? This equation grossly diminishes the significance of the conscientious objector status, one that if claimed, would require years of documented objection and pre-certified recognition by the state. Have Hobby Lobby and Conestoga prepared such pre-certified conscientious objector documents? The argument about indirect subsidies of abortifacients brings up another contradiction. *** 3. Which is it: direct or indirect? Owners of Hobby Lobby, and those currently seeking exemptions, have historically claimed that when parents use school vouchers, the state does not, indirectly, subsidize private religious schools. The Hobby Lobby owners and their supporters now claim that when the state mandates insurance coverage for contraception, their corporations are, indirectly, subsidizing sin. In one arena, these groups argue that indirect subsidies are constitutional. In another they claim indirect subsidies are unconstitutional. Which is it? Is it not in the best (political) interest of these groups to stay on message and consistently argue that “indirectness” does not equal “subsidize”? *** 4. Whose freedom? The Affordable Care Act currently exempts an organization from the mandate if it “has the inculcation of religious values as its purpose; primarily employs… and serves persons who share its religious tenets; and is recognized by the IRS as a religious non-profit organization.” The administration has therefore defined the least-restrictive means as issuing exemptions to those religious non-profits that meet this definition. This brings up a set of other questions. Whose religious liberties are being privileged when attempting to exempt religious owners of for-profit corporations? The CEOs? The Shareholders? The employees? Let’s pretend there is such a thing as a for-profit corporation where the employer, the employees, and all the customers shared the same religion. Would they share the same theology or religious ethics? No. To assume so is a gross misunderstanding of the nature of religion. Take for instance, the Roman Catholic Church. The Church forbids the use of contraception, yet, recent Gallup polls show that 82% of American Catholics view birth control as morally acceptable (as do 87% of Republicans). By using a religious shield to protect the theological views of the CEO will it not turn religious liberty into a sword for those who do not meet religious for-profit corporations’ creedal tests? *** 5. Establishing for-profit corporate religions? If conscientious objector status were given to owners of corporations when general neutral laws offend the objector, would not this fundamentally change the legal definition of organized religion? Why is the proposed solution to issue exemptions for for-profit corporations? Are there not more effective ways to achieve their goal? For instance, Hobby Lobby can simply re-incorporate as a religious non-profit and serve as a charitable organization to a cause of their choice. After all, in 2012 the owners of Hobby Lobby donated $500 million to Christian groups, including Liberty University. Why not simply reincorporate as a truly religious non-profit charitable foundation rather than profit from what they define as religious activity? As a senior minister of a religious non-profit church established in 1796, I am deeply concerned by the attempt to establish corporations as profiting congregations with their owners as the high priests. The proposal to exempt corporations significantly diminishes the legal definition of religious non-profit organization. Is the desired goal that the theology of one employer can be used to rule all employees in the name of profit? Is that not a Christian sin? Pope Francis has rightly warned us about the “new tyranny” of capitalism and the “idolatry of money.” *** 6. Intended or unintended consequences? I am deeply concerned about the consequences of this demand for corporate exemptions. I am even more concerned that some of these consequences may be intentional. I hope to receive a particularly intellectually honest answer to this question: is the desired goal that owners of for-profit corporations can have the same “liberty” as religious non-profit organizations? As currently constituted religious non-profit organizations and private religious schools can legally: a. terminate the employment of pregnant women because they are not married to a man (Michelle McCusker’s case); b. terminate the employment of women who conceived a child with their fiancés before they were married (Hamilton v. Southland Christian School, Inc.); and c. terminate the employment of pregnant women because they are single and used in vitro fertilization, which involves destroying embryos (Dias v. Archdiocese of Cincinnati); d. terminate the employment of married, heterosexual pregnant women for using in vitro fertilization. Is the desired goal to allow owners of for-profit corporations to have the same religious “freedom”? Do these corporations truly want to use theological rationale to determine their employment practices, such as terminate the employment of pregnant women? If so, why would a government permit a corporation to profit from such invidious discrimination? *** 7. The “God Told Me So” standard? This leads me to my final question, for now. I am deeply concerned about the underlying nature of the attempt to make the “God told me so” claim a legal standard. What if Rakesh Gangwal, the former CEO and Chairman of US Airways said, “God told me to refuse medical coverage to my employees because the medical industry experiments on mice. I will not subsidize a system that does things against my religious beliefs as a practicing Jain”? What if a Christian Scientist who owns a daycare center refuses to offer employees health coverage because my religion teaches me that sickness is an error that can be healed through prayer? What about the 1,000 medications that contain pork or beef? Could not some Muslims, Jews, or Hindus refuse to offer health insurance that covers their employees’ anesthesia, intravenous fluids, prostheses, and pills covered with gelatin? What if, as we saw in Minneapolis a few years ago, a Muslim-taxi driver who refused to drive passengers who carry a bottle of wine; or like we saw in Texas, the Swaminarayan family that refused to be subjected to DNA testing; or like we saw in Hawaii, the Bed and Breakfast owners who refused to house a lesbian couple; and then there’s of course the photographer in New Mexico, the florist in Washington, and the inn keeper in Vermont all refusing to serve gays on their wedding. The most urgent example is obvious. What if a CEO were hosting a corporate event and did the same thing as the religious cleric did this year in Saudi Arabia and “forcibly removed” two men from a festival? Why? Because the men were, quote, “too handsome.” God told the clerics that the women would find these men too irresistible. Do we really want to create a legal system where the “God told me so” doctrine is the new gold standard? This does not sound like religious freedom in a pluralist democracy. It sounds like a theocracy. I am reminded of Justice Waite’s 1879 assertion that to exempt religious acts from civil law “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” *** I look forward to discussing these questions with you on Friday, December 6, 2013 at 12 noon EST. Peace, Nate Reverend Nathan C. Walker, Senior Minister First Unitarian Church of Philadelphia Nathan C. Walker and Edwin J. Greenlee, eds. (Palgrave Macmillan 2011) Whose God Rules? Is the United States a Secular Nation or a Theolegal Democracy? Foreword by Tony Blair with contributions by Alan Dershowitz, Martha Nussbaum, Kent Greenawalt and Robbert Geroge. Cornel West calls it "provocative and pioneering.” nathan_wal...@mail.harvard.edu Cell: (215) 701-9072 www.NateWalker.com _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
