Jan 3, 2013

What 'religious liberty' means

The lower courts considering religious objections to the new health care law have -- up to this point -- reached varying and sometimes conflicting conclusions. The legal precedents in these cases about corporatations' religious practices aren't particularly clear, it seems. The unanswered questions are bound to eventually go to the Supreme Court.

A bit of a consensus is emerging, though -- a coherent argument -- among the federal courts that have rejected the religious objections to the Obama administration's mandate that employee health insurance include coverage of birth control. The courts have sidestepped the question of whether corporations have religion, though noting that that's the fundamental issue, but have made a pair of critical arguments about what "religious liberty" means.

Or, more precisely, what religious liberty doesn't mean.

This can be seen in two rulings, as Religion Clause points out.

Judges Carol E. Jackson and Sarah Evans Barker both have argued that "religious liberty" can't mean requiring employees, as a condition of their employment, to adhere to owners' religious beliefs.

Here they flip the religious liberty argument on its head, and make the case that those who say they're defending "religious liberty" are actually asking for the right to impose religious beliefs on individuals who may not personally hold those beliefs. I.e., that they're saying it's a protected practice of their religions to require people who don't adhere to those religions to follow its precepts anyway. This, the two courts have said, is not protected by the "free exercise" clause of the First Amendment or the Religious Freedom Restoration Act.

The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [a health care] plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. 
[The Religious Freedom Restoration Act] is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own.
We can imagine a wide variety of individual behaviors that might give rise to religiously-based scruples or opposition, such as alcohol consumption or using drugs or tobacco, or homosexual-related behaviors, all of which can threaten health conditions requiring treatment and care. If the financial support for health care coverage of which Plaintiffs complain constitutes a substantial burden, secular companies owned by individuals objecting on religious grounds to such behaviors, including those businesses owned by individuals objecting on religious grounds to all modern medical care, could seek exemptions from employer-provided health care coverage for a myriad of health care needs, or for that matter, for any health care at all to its employees.
These arguments are not so distinct from the question of who or what can "have" or "exercise" a religion, though. Not as separable from that problem as the courts seem to suppose. In fact, the assumptions built into both arguments seem to be that one can only individuals practice religion, and individuals' religious exercises are only valid, only constitutionally protected, insofar as that practices is not a matter of imposing a particular religious exercises on others.

A counter argument to this -- an argument I think has to be taken very seriously, even though (or, rather, because) the argument is essentially that pluralistic societies are impossible -- can be found in First Things. Greg Forster, writing about Starbucks making a political statement, writes:
This determination to protect people’s right to live in an amoral system of economic work is directly connected to the current threat to religious liberty. The basic idea is that only individuals have conscience rights; institutions like businesses are expected to be morally and even culturally neutral. This seems to be easily accomplished by giving every individual employee a veto power over the firm’s ability to say or do anything morally or culturally significant. However, in reality all human action is moral and cultural; this system doesn’t actually remove moral and cultural formation from business, it just requires businesses to conform to whatever beliefs are so socially predominant that the majority don’t even recognize them as beliefs
The question of the identity of the subject who has religion, of the definition of the agent doing the things religions' entail, has to be answered, as I see it. The question of what "religious liberty" means can only be answered when that prior question has been dealt with: answers to one entail certain answers to the other.

Judges Jackson and Barker haven't answer the question of who can have or practice religion, but they have begun to work out what one answer would mean for the definition of "religious liberty" and the scope of that sort of subject's "free exercise thereof." It's the beginnings, if nothing more, of a coherent and on-point answer to this question of the meaning of free religious exercise that has arisen in response to Obamacare.