Will the Supreme Court Distort Religious Liberty?


by Rev. Rob Keithan
Director of Public Policy, RCRC

This past Tuesday, December 31, was the final day of the “safe harbor” period that allowed religiously-affiliated nonprofit organizations to delay compliance with the contraceptive mandate of the Affordable Care Act. Not surprisingly, there was a flurry of legal action in the remaining days of 2013 as some groups filed for injunctions to avoid the fines for noncompliance. Most notably, Supreme Court Justice Sonia Sotomayor granted a request made by the Little Sisters of the Poor Home for the Aged in Denver. In her order, Sotomayor blocked the government from enforcing the requirement on the agency until further notice from the Supreme Court. The government has until Friday January 3, at 10 a.m. to respond.

There are some notable differences between these matters concerning nonprofit organizations and the Supreme Court cases concerning for-profit businesses, but the central theme is the same: some people who run businesses and nonprofit organizations want to limit the healthcare options of their employees using a distorted definition of religious liberty. They are not content to have religious liberty as a shield protecting their own individual choices, they want to use religious liberty as a sword that allows them to dictate decisions for others. It is an an utterly skewed view of what it means to have “free exercise.” At the Religious Coalition for Reproductive Choice, we believe that religious liberty should protect every individual’s ability to make decisions according to their own values and conscience.

We believe that it is important, appropriate, and moral to expect businesses and non-profits that operate in the public sector to abide by the public rules that serve the common good, such as requiring insurance coverage for a full range of healthcare options. Employers should not be able to limit their employees access to contraception any more than they should be able to dictate how their employees spend their salaries. This is the crux of the issue: if employers are given the right, as they are asking for in these cases, to opt-out of “facilitating access” to services which they find objectionable, it opens a Pandora’s box of opportunities for businesses and non-profits alike to challenge whatever regulations they dislike—under the cover of religious liberty.

Thankfully, both American jurisprudence, as well as common sense, have long-recognized that it would be utterly disastrous to allow individuals, organizations, or businesses to pick and choose which laws they followed. There are obviously practical reasons for this, of course, as trying to evaluate and track these objections would be hopelessly complex and resource-intensive. However, there are also ample democratic, moral, and religious reasons that support requiring everyone to play by the same rules. For example, if you believe—as many religions and religious Americans do—that every single person has an inherent worth and dignity, then fairness is a fundamental value. Respect is a fundamental value as well, including the importance of respecting the right of other people to hold views and make decisions that may be different from your own.

Yes, sometimes playing fair and following the rules will mean that all of us are indirectly supporting things we find objectionable. This is an unavoidable part of living in our society, and it should be an expected part of operating a business or non-profit organization. There is a tremendous difference between the personal actions of an individual acting voluntarily and the professional actions of an employer complying with a set of public rules. If the mandate required individuals to use contraception, then it would be appropriate to talk about violations of religious liberty, but that’s not the case. All the mandate requires is that employers do their part in helping more Americans get access to one of the most important, economical, and widely-used forms of healthcare. Moreover, those religiously-affiliated non-profit organizations who object to contraception do not even have to administer or subsidize the coverage; the negotiation happens directly between the employee and the insurance provider. It is a creative and reasonable solution that protects the interests of all parties.

As both the non-profit and for-profit cases move forward, I pray that the courts will not distort religious liberty into a tool that a few employers can use to impose their opinions, but instead uphold the principles of fairness and respect for individual conscience that should guide us all.