Using “Religious Liberty” to Hide Religious Overreach

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Commentary Religion

Using “Religious Liberty” to Hide Religious Overreach

Rabbi Dennis S. Ross

We have been hearing plenty about “religious liberty” lately. Now let’s see who’s using the term “religious liberty” in a novel way, trying to conceal a campaign of religious overreach.

We have been hearing plenty about “religious liberty” lately. Now let’s see who’s using the term “religious liberty” in a novel way, trying to conceal a campaign of religious overreach.

The issue has to do with the faith-based legal challenges to the Affordable Care Act (ACA). Recently, a Missouri mining and manufacturing holding company, O’Brien Industrial Holdings, filed a lawsuit against the U. S. Department of Health and Human Services.

The lawsuit challenges the ACA employer requirement to include birth control coverage in employees’ health insurance. The American Civil Liberties Union (ACLU), along with the American Civil Liberties Union of Eastern Missouri filed an amicus brief supporting the ACA contraception rule. The brief examines the O’Brien complaint and considers the arguments in light of modern legal history.

Even though O’Brien is a secular business, the company maintains that the birth control rule violates its religious liberty—a claim that does not stand up to deeper examination. First of all, workers earn their employer-sponsored health insurance. The insurance belongs to the worker like any other earned benefit, such as salary and pension; it is as much a worker’s personal property as a pay check—the employer’s religion doesn’t belong there. After all, workers may well have different and personal moral understandings about access to birth control and no judge, politician, or office boss has any business barging in.

Roe is gone. The chaos is just beginning.

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Moreover, a look back at recent history shows two things. First, similar laws in New York State and California have prevailed in state-level legal challenges. And second, as described in the ACLU brief, a business cannot use religious liberty as an excuse to practice religious discrimination.

In 1966, three African-American customers, denied service in a South Carolina restaurant, sued for discrimination under the federal Civil Rights Act. The restaurant owner claimed his faith required that the races be kept apart and that the Civil Rights Act violated his religious liberty. The owner lost and rightly so. Ten years later, Virginia’s Roanoke Valley Christian Schools added a “head of household” salary supplement to the pay of married men—not women. When sued under the Equal Pay Act, the schools offered another religious liberty defense, asserting that their faith imposed different expectations for married men. They lost, too. And in the 1980’s, the religiously affiliated Bob Jones University of South Carolina relied on faith teachings to ban inter-racial dating and marriage under threat of student expulsion. A lawsuit followed and the school lost. In all these cases, the courts agreed: Each person has a right to hold and express a private religious belief, and is allowed to act on those beliefs, but only up to a point. Religious liberty does not exempt a person or organization from respecting the civil rights of others; religious liberty does not allow for religious discrimination.

You see, the ACA is about insurance coverage; it is not asking anyone to use birth control. And the worker earns the insurance and owns it—the employer’s religion is secondary. Yes, O’Brien’s human resources office will carry a tiny responsibility here— processing paper that has the words, “birth control” written on it, but that concern is minor compared to the moral standing of the employee who privately decides to rely on prescription birth control for basic preventive health care and family planning. What is more, the employer bears no additional cost by including birth control coverage. An insurer actually saves money when a policy includes birth control, as opposed to spending more on care when a policy does not. Bottom line: Your boss does not belong in your medical decisions. A court recently ruled against O’Brien, whose lawyers say they will appeal.

My faith, along with many others, has long recognized that birth control, including emergency contraception, are critical health and economic concerns for many American women and their families. Our denominations have long affirmed women should be able to get birth control and we are heartened to see it available just like any other preventive prescription. Religiously-motivated lawsuits, like the one brought by O’Brien Industrial Holdings, a mining company, are intended to make it harder for women to get birth control, which is all the more tragic during these challenging economic times when many families lack the income to make ends meet.