Obama’s Contraception Decision and the Incompatibility of the Establishment and Free Exercise Clauses

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In what many progressives see as a slight stiffening of Obama’s President-of-all-the-people-not-just-the-loud-and-crazy-ones spine, his Administration has taken a position favoring women’s health care in opposition to the vigorously expressed wishes of some Catholic bishops.  It has decided against a broad religious exemption from the requirement that all contraception methods be covered by health insurance plans, without co-pay.  Explicitly religious entities, like churches, will still be exempt from this requirement, but entities with only religious affiliation – hospitals, charities, schools – will not be.  So, for example, female employees of Catholic hospitals, whether they are Catholic, non-Catholic, or non-religious, and female students at Catholic universities, whatever their worldviews, will have full insurance access to the important health and welfare benefits of contraception.

The negative response to the narrowing of this religious exemption has been predictably hyperbolic.  At least three of the Republican presidential candidates have referred to the decision as Obama’s “war on religion” or “war on the Catholic Church”.  Numbers of Republican congresspersons have issued statements in ringing opposition to it.  Most attacks I have seen have emphasized the speaker’s feeling that the decision diminishes “religious liberty.”  Many have explicitly labeled the decision “unconstitutional.”  Thus, the First Amendment issue is raised.

While only spottily discussed in the literature, the looming incompatibility of the First Amendment’s ban on legislating any “establishment of religion” and on any legislation “prohibiting the free exercise” of religion is apparent.  If, for example, your Islamic belief system mandates that you pray in prostration facing mecca five specific times each day, and if you are a student in a public school, the Free Exercise clause seems to require that you be excused from class and furnished with an appropriate, perhaps spacious, facility in which to pray, while the Establishment clause seems to prohibit the school from using its resources to so favor your particular religious activities.  The school cannot both fully withhold its favor from any religion, and religion generally, and fully permit the free exercise of this exemplar religion, or any religion – as long as we are considering behavior.

As a consequence of this apparent incompatibility, Supreme Court decisions concerning these clauses have been inconsistent, sometimes favoring free exercise and sometimes favoring disestablishment.  When both clauses are at issue, the Court has avoided the conflict by ignoring or diminishing one clause or the other.  Historically, there have been periods when the Establishment clause was in ascendancy and periods when the Free Exercise clause was.  Scholars have argued about whether the wider culture or the personalities of the justices are the dominant drivers of these differing treatments.  No Court opinion has come right out and admitted that the two clauses are incompatible, as long as we are talking about behavior.

But the First Amendment never could have intended “free exercise” to refer to behavior.  The Founders were sophisticated men and, even in those days before 9/11, they were well aware of the excesses that various religions permitted or demanded.  They would have seen the inherent incompatibility of the two clauses, at the level of behavior.  But this incompatibility did not arise because they knew that the essence of religion is not behavior, but belief; and that the essence of government is the opposite:  action, behavior, not belief.  Thus, government is prohibited from acting to establish any religion and from constraining the free exercise of the belief system of any religion.  With this understanding, the two clauses are not only compatible but complementary:  you may believe anything you want about the character of the universe, supernatural or otherwise, and government cannot act in any way that explicitly values or devalues that belief.

These essentially separate realms of government and religion – behavior and belief – naturally dictate the so-called “separation of church and state” that permits the amicable functioning of one structure to govern an electorate of diverse religions and irreligions.  The First Amendment constrains the behavior of government.  It does not address the behavior of religionists.  And it certainly does not legitimize and protect all religiously motivated behavior without limit, which is what some religionists seem to claim for it.

A brief look around the culture reveals the almost unlimited, usually apparently sincerely held, beliefs that various current religions express today in this nation.  Such beliefs are constrained only by the limits of human imagination and they are all viewed with neutrality by the First Amendment.  And the government is required to give the private, and public to a lesser extent, expressions of these beliefs wide latitude.  Only when these expressions bump up against the sensibilities of non-adherent citizens, as with the recent live-animal slaughter by the Santerians down in Florida or the laid-back-dude rituals of “the marijuana church” here in my home state of Arizona (not to mention the lethally crazy ones like Jim Jones’ Peoples’ Temple and Marshall Applewhite’s Heaven’s Gate), do we get evidence of the full smorgasbord of beliefs that we are required to tolerate, right in our own backyards.  This requirement alone is sufficient to enshrine our Constitution in the history of our species, no matter how long we may last.

But it is the beliefs we are required to tolerate, not the behavior.  We tolerate the behavior only until it impinges upon the common good, the province of government.  This is what the Catholic Church appears, and the opportunistic rabble-rousers cynically pretend, not to understand in the current contraception kerfuffle.  The health of the populace, physical and economic, is definitionally the province of government; it is the province of behavior, action.  The myriad benefits of contraception to physical and economic health in every nation in the world are well-documented and can be perused at length by anyone with internet access; these benefits exist separate and apart from one’s religious beliefs about sex.  Our government is Constitutionally prohibited from favoring or disfavoring any such beliefs and no religion is Constitutionally empowered to compel action or inaction in this public health province, regardless of its beliefs.  This is the coherent import of the Establishment and Free Exercise clauses.

To entertain the thought that governmentally requiring inexpensive access to contraception is “an affront to religious freedom”, as one Republican congressperson asserted in a press conference today, is to mock the First Amendment.  Such an assertion suggests that the government should subordinate its assessment of the public health and welfare benefits of contraception to the supernaturalistic beliefs of men uneducated in medicine, men uneducated in economics, men who are avowedly voluntarily celibate, men who have removed themselves from the world in which contraception functions.  To listen to such men on the evils of contraception is to listen – and I promised myself I wouldn’t do this – to Jim Jones on the benefits of Kool-Aid.  Such opinions are deceitfully, dangerously ignorant and they have no Constitutional privilege.

ARC – 2/9/12

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