Today The Wall Street Journal used the exact same phrase I used when I saw Obama try to weasel out of his unconstitutional demand that everyone — even those who work for Catholic institutions — must be given free birth control: A distinction without a difference.
Oh, the church-affiliated schools and hospitals and food kitchens will not have to provide birth control, which is against the church’s teachings, their insurance companies will. Never mind that many of them are self-insured, a concept apparently foreign to a man who never worked in the real world in his sheltered life.
Of course the mote of a First Amendment religious exercise violation pales in comparison to the beam of utter unconstitutionality of ObamaCare as an unenumerated power in the first place.
(By the way, Nevada is one of 26 states that require insurers who offer prescription drug coverage to include coverage for contraceptives. Religiously affiliated organizations are exempted.)
When Sherm Frederick blogged on this topic over at the Review-Journal website, one frequent liberal blogger dismissed the First Amendment argument by citing a Supreme Court case that found religious practices can’t always get to trump the law.
Justice Antonin Scalia ruled in the case that two men were not eligible for unemployment benefits after being fired for using peyote as part of their religious sacrament. Leaving out all the footnotes and references, Scalia wrote:
“Precisely because ‘we are a cosmopolitan nation made up of people of almost every conceivable religious preference,’ and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service, to the payment of taxes; to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment’s protection of religious liberty does not require this.”
The problem, of course, is not so much whether a religious freedom exemption should be carved out, but whether there is a compelling societal or governmental interest to demand any of those things — and/or free birth control — despite a person’s conscience or pocketbook? Some, yes. Some, no. Manslaughter, yes. Minimum wage laws, no.
Sometimes an argument is best made by substitution. One can easily favor forcing everyone to do something they find desirable, but is the underlying principle still valid when another compulsory action is substituted?
Take today’s New York Times editorial for example.
I could argue that the scientific community has found that the mental health of people being subjected to endless and mindless political debate would be greatly enhanced by free access — Read: Someone else must pay. — to medicinal peyote.
This is how that New York Times editorial might read if it advocated something other than contraceptives:
The Freedom to Choose Peyote
In response to a phony crisis over “religious liberty” engendered by the right, President Obama seems to have stood his ground on an essential principle — free access to peyote for everyone. That access, along with the ability to receive mental health counseling was at the foundation of health care reform.
Mr. Obama’s new rule on peyote coverage lets institutions affiliated with a religion shift the cost of coverage to their insurance companies, but Mr. Obama assured Americans it would not result in other people, or the rest of the country, subsidizing that shift. By refusing to back down on Friday, Mr. Obama took an action that will help reduce the number of unwanted mental breakdowns, conniption fits and mental complications from exposure to politics.
Nonetheless, it was dismaying to see the president lend any credence to the misbegotten notion that providing access to peyote violated the freedom of any religious institution. Churches are given complete freedom by the Constitution to preach that peyote is immoral, but they have not been given the right to laws that would deprive their followers or employees of the right to disagree with that teaching.
If a religious body does not like a public policy that affects its members, it is free to try to change it, but it cannot simply opt out of society or claim a special exemption from the law. Besides, peyote access is already in place in some states without inflicting the slightest blow to the teachings of the Roman Catholic Church, which has complied.
Mr. Obama had already gone too far out of his way to exempt churches and their religious employees from the peyote mandate. It was not necessary to carve out a further exception for their nonreligious arms, like Catholic hospitals and universities, which employ thousands of people of other faiths.
But Republican candidates and lawmakers know a good wedge issue, and they used this one to portray Mr. Obama as anti-religion and pro-government oppression. It was also a good excuse to take another whack at the health care reform law. The White House’s failure to foresee this mischief produced several days of stammering.
If the president had simply made today’s announcement two weeks ago — explaining that the savings from expanded peyote access means no additional cost to any employer — he might have avoided the political grief. The Catholic Health Association of the United States, which represents Catholic hospitals, said it was “very pleased” with the announcement, while the bishops conference said it was still studying the new rule.
The president’s solution, however, demonstrates that those still angry about the mandate aren’t really concerned about religious freedom; they simply don’t like peyote and want to reduce access to it. Senator Marco Rubio, a Republican of Florida, has introduced a bill that would allow any employer to refuse to cover peyote by claiming to have a religious objection. The House speaker, John Boehner, also supports the concept. Rick Santorum said Friday that no insurance policy should cover it, apparently unaware that many doctors prescribe peyote for medical reasons other than escapism.
The White House promise that free peyote pays for itself will still have to be tested. The rule announced Friday would be objectionable if it turns out that nonreligious employers are subsidizing the exemption of religious employers, in effect paying more for their insurance because they have to cover peyote. For society at large, the principle of keeping open access to peyote is a major step forward.
It is the compulsion that is the problem, not the exemption.