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Religious Liberty

Posted by Bob Moore on

Bob Moore

Bob Moore

When political debate becomes a battle of slogans, we all lose. Some issues are far too complex to be understood by sound bites and partisan pundits on Fox and MSNBC.

A case in point is the ongoing conflict between religious liberty and contraception. The Catholic Church has objected to new healthcare rules that they interpret as requiring the Church to provide contraception, sterilization and chemical abortifacients. The Church views all of these as moral sins meaning they condemn one to Hell.

The Church's religious objections are countered by women's right advocates, who argue that access to contraception should not be limited only because one's employer is a faith-based organization. They argue that if all employers must provide healthcare with contraception coverage then faith-based groups must also. Religious rights are clashing with reproductive rights and the battle for public opinion high ground is in full swing.

In addition, the Obama administration has muddied the waters by first imposing a compromise without actually negotiating with the religious groups that the compromise effects. Then in a reversal, the Administration has called for public discussion and pushed the deadline for final bureaucratic rules to August 2013, which is safely past President Obama's re-election. Lost in this debate are the legal standards that might enlighten the discussion.

In 1993, Congress passed the Religious Freedom Restoration Act (RFRA) that reversed a 1990 Supreme Court decision, Employment Division v. Smith. In its 1990 ruling, the Court argued that religious groups must follow any laws that apply to all other citizens or groups and only those laws that unfairly target religious groups are unconstitutional.

The 1993 RFRA directed the Court to use the standard that government involvement in religious must produce the least possible entanglement between church and state. In addition, the government must have a compelling state interest to interfere with religion and it must be the least restrictive interference possible.

Compelling interest means there must be a crucial and not a preferred reason behind the government's action. Based on RFRA, the Supreme Court has ruled that religious groups are free to give hallucinogenic drugs to their church members including minors -and the Federal government cannot interfere.

Religious groups are not agents of the state. Even when they cooperate with the government or follow government mandates, they do not lose their autonomy as religious organizations. With their First Amendment rights, religious groups have fairly unique and broad freedoms to be free of government restriction and to be free to define what their faith means, and how it is publically expressed.

The Supreme Court in the 1960s already settled the issue of accessibility to contraception. The debate now is should religious organizations be required to cover the costs of providing contraception, sterilization and chemical abortifacients even if they find it morally reprehensible? Without demeaning the concerns of women's right advocates, the question that has not been asked or answered is, "Is there a compelling state interest at stake in this issue?"

There is definitely a political one and both President Obama and Republicans have used this debate to fire up their supporters. However, almost no one has made the argument that in this debate there exists a compelling interest of the government. Is this section of the insurance plan such a crucial right that the belief system of the Catholic Church must be trumped?

Any time there are conflicting rights there are gains and losses, winners and losers. The Supreme Court in January ruled 9-0 that federal workplace discrimination law does not protect ministers. In this case, the Court believed that federal law did not have a compelling reason to eclipse freedom of religion in hiring and firing ministers. The rights of the individual under federal law were trumped by religious liberty. Absent a compelling interest, it is difficult to see how the same principle does not apply to this contraception debate.

Opinions expressed here are those of the author and do not necessarily reflect the views of Andy Rapp, Q-TV, Delta College, or PBS.


Currently Speaking host Andy Rapp

Veteran journalist Andy Rapp has been hosting Currently Speaking since 1999.

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