Is Religious Freedom the Issue With the Contraceptive Mandate?

By:  Jack Kenny
Is Religious Freedom the Issue With the Contraceptive Mandate?

Employers are legally persons, too, at least until the Supreme Court rules otherwise. They also have rights, including the right to religious freedom. More to the point they have the right to be left alone from unauthorized, unconstitutional government mandates. That's why we have a Constitution in the first place.

The First Amendment of the Constitution of the United States is a mighty defense against tyranny, and the first of the five freedoms named therein (Quick: Can you name them all?) is the free exercise of religion, which accompanies the prohibition on an establishment of religion by Congress. Since Article I of the Constitution places all legislative powers in a Congress of the United States, the ban was understood to prohibit an establishment of religion by the federal government period, before a substantial power of lawmaking was taken over by the justices of the Supreme Court.

Still, it is at least debatable that the optimum strategy for opposing the contraceptive mandate under ObamaCare is to claim it violates the religious freedom of the employer. That certainly is the strategy of the U.S. Conference of Catholic Bishops, which, after decades of lobbying for Caesar to please give us a national healthcare program, discovered that the one we finally got includes (surprise!) a requirement that all employer-based health insurance programs include coverage of contraceptive products and services, including abortion-inducing drugs, with no deductible or co-pay. Other employers, including Hobby Lobby and Conestoga Wood Specialties Corp., claim that while their businesses are for-profit corporations, the mandate also violates the religious freedom of conscience of the owners, who are evangelical Christians and Mennonites, respectively. The companies' objections were argued Tuesday at the U.S. Supreme Court.

Indeed, the program, as it now stands, offends the First Amendment in myriad ways. To begin with, it gives the government the power to decide which organizations qualify as, for the purposes of receiving an exemption from the mandate, religious institutions. The Amish apparently qualify, given their voluntary isolation from secular society and people of other faiths. But Catholic or other religious-affiliated schools and hospitals do not quality, since they both hire and serve people of other faiths and thus their internal policy decisions do not all flow from their adherence to the doctrines of their respective churches. Thus, the government policy is said to protect employees of other faiths or no faith from being limited in their healthcare decisions by a restrictive policy based on someone else's religion. But this sets a dangerous precedent in that it empowers the government to determine what is or is not a religious institution, a practice that might reasonably be considered a government establishment of an overarching religious authority in violation of the First Amendment's establishment clause.

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