Compromise and Contraception—Two Words Combined that Can’t Make Sense?

By: Justin Grant

What has been lost in the debate over the Health and Human Services’ [HHS] birth control mandate is the simple fact that the First Amendment’s Establishment Clause requires both freedom of religion and freedom from religion to operate in a sensible way.  The government may not restrict the right of religious expression or of individual conscience, nor may a church use the government to impose its sectarian views upon the populace at large (or even upon its own adherents).  This, for example, is why the Supreme Court corrected its earlier error in Minersville School District v. Gobitis^[1] by its holding in West Virginia State Board of Education v. Barnette.^[2] The State could not compel individuals to engage in activities contrary to their religious beliefs: “[N]o official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”^[3]  It is also why that Court held in McCollum v. Board of Education^[4] that religious instruction was not permissible in public schools—even if it were ecumenical:

“To hold that a state cannot … utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals does not … manifest a governmental hostility to religion or religious teachings. …  For the First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. …  The First Amendment had erected a wall between Church and State which must be kept high and impregnable.”^[5]

There is significant disagreement with both the “of” and the “from” of religious freedom jurisprudence.  There are the fringes: The anti-theists who feel that religion is a source of strife and conflict and should be suppressed into oblivion—they see only the “from.”  Many (though not all)^[6] religious conservatives liken the Court’s decisions to limit religion’s influence in the public sphere to the transformation of the Russian state into the officially atheistic Soviet regime—they see only the “of.”  Somewhere in the middle are most of the rest of us, who realize that the contraception issue is not a holy war—it is a balancing act.

That balancing act is between the individual guarantees of worship and conscience derived from the Establishment and Free Exercise Clauses (and some of the rest of the First Amendment) and the requirement that the government not meddle in religious affairs.  This was not how the fight over the mandate requiring religious organizations to pay for contraceptive coverage was framed.  Instead, the loudest voices came to the forefront.

Though those of us in the middle fell on one side of the issue or the other, there was a healthy debate to be had either way.  As someone who values personal liberty above the collective rights exercised by a group, I had compunctions with the original mandate, but they were not enough to make me oppose it. The idea inherent in the mandate was to give individuals the opportunity to choose according to their own beliefs.  Meanwhile, the mandate exempted churches and other religious organizations—those composed primarily of adherents—from the requirement to provide contraceptive coverage.  But my compunctions stemmed from the sound arguments of the other side: that the government should not force a religiously-affiliated hospital or other employer to pay for coverage it found spiritually offensive; that it should not be the government’s job to determine which organizations fell under the exemption and which did not.

Balancing individual liberty with governmental non-interference is a tricky business.  Oftentimes, there is no easy answer.  After listening to the concerns of the affected parties, the administration amended their mandate.  They took the religious organizations out of the equation completely—leaving the insurance companies to handle everything entirely independent of the employer.  Several religious organizations—among them, the Catholic Health Association, a lobbying group representing a number of Catholic hospitals throughout the United States—approved of the compromise.  What it had accomplished was surprisingly elegant: it had maintained the original aim of preserving individuals’ freedom of conscience while no longer sacrificing the will of some religious groups in the process.  Under the compromise, there is no longer a conflict between individual freedoms and preventing government entanglement in religion.  The decision is left entirely up to each individual in accordance with his or her religious belief or conscience.

Somehow, pulling this issue out of the religious sphere altogether, by putting the decision into the hands of individuals and individuals alone, was a “clear attack on religious freedom.”^[7]  The U.S. Conference of Catholic Bishops released a statement that claimed, in part, that this mandate still required “needless government intrusion in the internal governance of religious institutions and … threaten[ed] government coercion of religious people and groups to violate their most deeply held convictions.”

It is hard to understand how leaving this decision up to each individual’s conscience could possibly be a “government coercion of religious people [or] groups.”  Even Mitch McConnell, though intending to attack the mandate, defeats the argument with his own words: “[T]he government doesn’t get to decide for religious people what their beliefs are.  They get to decide that.”  Indeed they do, Senator McConnell.  And just as we enjoy freedom of religion in this country, so do we enjoy freedom from religion.  For the government to allow anyone—the Catholic Church, some other denomination, or even an employer— to prevent any person to decide for him or herself whether to make use of contraception coverage is unconstitutional.  Everyone should be free to act according to “what their beliefs are.  They get to decide that.”

While both sides had arguments to be made under the original mandate, now that HHS has compromised, all that remains is a collective of individuals, churches and religious groups who wholly oppose contraception and any kind of insurance coverage for it.  This collective now aims to foist its views on the rest of the American population.  Few things—besides, perhaps, ideological blindness—could prevent one from seeing that this is exactly the sort of scenario the Danbury Baptists feared and which the Framers anticipated^[8].  It is the very essence of theocracy.  Preventing it—and leaving individuals free to act according to their own beliefs—is exactly what the First Amendment was designed to do.

Thank God for that.

^[1]310 U.S. 586 (1940).

^[2]319 U.S. 624 (1943).

^[3] Barnette at 642.

^[4] 333 U.S. 203 (1948).

^[5]> McCollum at 211-212.

^[6] For example, Rev. Paul Simmons, a Baptist minister and president of the Louisville, Kentucky chapter of Americans United for the Separation of Church and State, was asked to comment on the original birth control mandate.  He said that while a woman “can seek all the counsel in the world she desires (from anyone, including religious figures), she should not be subject to anybody’s conscience but her own.”  Baptists—starting with the Danbury Baptists to whom Thomas Jefferson wrote about the “wall of separation” created by the First Amendment in 1802—have long been strident advocates for strict separation.  With evangelical influence on politics increasing over the past 30 years and the danger those Baptists feared—of other religions rising up and persecuting them—removed, this has begun to change.

^[7] John Brehany, executive director of the Catholic Medical Association.

^[8] See note 6, supra