Constitution and Religious Mandates

As a “political-atheist” I like to wait a while after politicians and media finish telling me what to think and believe about an issue.  Then do my research of objective facts and constitutional law. Then think for myself.  That’s why I did not respond to this issue right after the media’s reactionary rhetoric.

The latest topic to manufacture consent on is mandated contraceptives to institutions run by religious organizations when it runs counter to that religious organization’s tenants.  An unpopular phrase to ask on these kinds of issues is also the logical question …”Where’s that in the constitution?”   Kathy Hochul,  D-NY representative answered that question on 2.24.12 during a press conference by stating: “Well, basically, we’re not looking to the constitution”…on that issue.  That statement sent me ducking behind my Captain America Shield!  Politicians swear on a bible to protect and defend the US Constitution.  What’s happening here?  Time for some research.

One argument in the debate is that the Catholic Church is making these decisions which are out of sync with the modern woman. The Catholic Church has taken a basic stance on reproduction for about 500 years…that the tradition and biblical interpretation defines a fundamental tenant that all life is sacred.  If modern western women wish to descent then it’s an issue for the Vatican not the United States political establishment.  I suggest we put this one aside.  It’s a distraction that makes for good talk show banter. 

A strong argument for supporting the mandating contraceptives has been that 98 percent of Catholic women use them.  Are we now to make policy based on what Catholic women do?  Doing some research on this I found the source of this argument.  The Guttmached Institute in April, 2011 released a study of 7,356 Catholic women aged 15 to 44.  This is the study that Representative Pelosi used for her famous 98% comment that sent the news media and eventually Mainstream America marching without fact checking.  Read deeply and get someone who understands statistics to help.  You’ll find the study shows that 2% of the 7,000+ Catholic women interviewed said they used Natural Family Planning (NFP) in the past year, and 11% used no method at all.  Yes, statistics can be used to redefine the truth.  Misrepresenting a study to deflect a vetting of the constitutionality of a law contributes nothing to the discussion and adds fuel to emotions, not solutions.  The legality of government intrusion into a hospital, college or other social service institution run under the tenants or beliefs of a religious entity is the issue at hand.

So this brings me back to what’s real.  We are a nation of laws as grounded and guided by the Constitution.  There-in lies the true essence of this debate.  Does the regulation meet the legal test of constitutionality?   I’ve found some interesting things.  The record over the past forty years shows that the development of exemptions from government mandates when they may violate the religious views of those impacted by the regulation has been a common occurrence.  Yet the constitutional boundaries for defining “conscience” exemptions are yet to be clarified.  So far, the government has provided exemptions to churches, but not of equal scope to hospitals, colleges, or other social service institutions directly affiliated with a religious organization. Where the constitution stands will not be easy to determine.

However, it is settled Constitutional law that government is prohibited from operating a program that favors one religious faith over another.  Additionally, government cannot run a program that is based on hostility to a disfavored faith.  Guarantees of religious neutrality in government and the assurance of a religious organization to freely run its own affairs without government intrusion is solidly spelled out in the First Amendment.   The Supreme Court has yet to define a “conscience clause” to these broad principles.  Case law has yet to define what the Constitution requires and allows in public policy for such a clause.  Nor does it address how to handle a situation when a religious organization claims its religious freedom has been infringed upon.  There are however, cases where a mandate on birth control for employees of religiously affiliated medical and educational facilities are addressed.

Historically, some significant cases that support a challenge to the mandate: Watson v. Jones, 1871, government may not judge or define the tenets of a faith or religion.  Corporation of Presiding Bishops v. Amos, 1978, government may exempt religious employers from religious bias claims in workplace policies;  Larson v. Valente, 1982, government can not discriminate against a religious denomination, on the basis of church revenue raising;  Church of Lukumi Babalu Aye v. Hialeah, government may not ban religious practice if done based on disagreement with the tenets of that faith;  Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, 2012, government must provide exemptions to laws against discrimination for workplace policies involving church leadership and ministry.

There are also court rulings that suggest favorability to the birth control mandate. United States v. Lee, 1982, an employer must pay Social Security and unemployment taxes;  Alamo Foundation v. Secretary of Labor, 1985, religious organizations must pay their workers minimum wages;  Employment Division v. Smith, 1990, generally applied laws and regulations that do not single out religious organizations are upheld even when intruding on religious practices.

Considerable judicial labor will be required to sort out the mandate debate.  The social behavior, opinion surveys and polls are interesting.  However, we as a people,  need to remember that such rhetoric, while good to agitate the citizenry, promote divisiveness and, generate ratings and poll numbers,  has no bearing on whether an issue is legal or not.   We are a nation governed by laws embodied in the Constitution.  But with the wisdom of our framers, The Constitution is sometimes broadly written so that when the issues of society, unique to an era, are in question, it can be used to guide us.  This requires each of us to do some homework and let the judicial system vet things out.  As yet, this political atheist has not found the objective answer whether or not contraceptives can or should be mandated to religious organizations.  

But I will say this.  The whole purpose of the American Revolution was to liberate the people from the rules and mandates of the magistrates.  The Framers set the government in the position that the citizenry mandates to the government.  And given that the nation was founded and populated by people seeking freedom from religious persecution, this should be an interesting Supreme Court ruling.