"RFRA [Religious Freedom Restoration Act] is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one's religion forbids, or forbids action one's religion requires; it is not a means to force one's religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one's money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one's own..."What this says to me, is the court is going to weigh the rights of the employees when determining these types of cases. (Well, these specific types of cases anyway.)
Thursday, December 27, 2012
Individual mandate and religious challenges
I have been insanely interested in the mandate for health insurance and how religious institutions, non-profits, for-profits, and everyone in between have been reacting to it. Since a friend and I have discussed this issue before and she brought up the issue of those entities who provide employees with health insurance through self-insured plans, I found today's ruling to be quite awesome. An Indiana federal district court refused to grant a preliminary injunction to a for-profit company with Catholic owners who claimed their religious freedoms were being infringed upon by the Affordable Care Act. The court quoted heavily from the O'Brien case, a similar case where the Missouri federal district court came to the same conclusion. Per O'Brien,
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7th circuit appeals court activity in the Korte's matter:
http://tinyurl.com/bp83g8s
From the ruling itself:
"We conclude that the Kortes have established both a reasonable likelihood of success
on the merits and irreparable harm, and that the balance of harms tips in their favor."
Darn, United ruling.
Well, shit, that just sucked some of the joy out of the moment. Darren had an interesting argument. When I asked him to explain why the mandate was needed, he - I'll sum this up poorly - basically said that with the power imbalance that exists between men and women, we have to mandate care that would primarily benefit women.
Questions I always have:
When the government is not actually forcing anyone to use the methods made available by such mandated coverage, how is that infringing on anyone's rights? (This includes things like requiring religious cab drivers to pick up clients they know to be holding alcohol, and requiring pharmacists to distribute medication.
We know that women flocked to the first birth control when it was made available (think the opening of the first planned parenthood). We know that large numbers of women of faith have reconciled their faith with relgious doctrine and still use birth control.
When the bible does not directly (and arguably not even indirectly) mention birth control - and, in fact, does include infanticide - where is the "evidence" that using contraceptives/abortions is wrong?
Lots of things happening: http://www.volokh.com/2012/12/29/contraception-mandate-faces-justice-sotomayor-and-seventh-circuit/
Sorry to be the bearer of joy-sucking, but you did say "insanely interested."
It looks like both Hobby Lobby and K & L are non-publicly owned corporate entities; that may be influencing the 7th Circuit's thoughts. A publicly-held corporation would evidence a greater distance factor (see the 7th's dissent) that might moot the issue.
Some things that come to mind:
- If there was a single-payer option [I emphasize option] as found in the UK, the whole mandate issue would vanish. Why O-care did not go this route, I don't know (OK, it's probably because the insurance lobby would have made life even more hellish than the existing congress seems to be); it surely would have simplified things.
- I remember my Aunt getting dispensation from the Pope (!) to use birth control (maybe around the early 60's) because a pregnancy represented a life-threatening medical risk.
- The cab driver example is a different axis; they're not being required to proffer EtOH (even if it were not consumed). I don't know if K & L or Hobby Lobby ever suggested not employing those who have used contraceptives or abortifacients.
- The only thing I recall even close to contraception was the prohibition on wanking (or seed-spilling, I think it was called). As a cranky cynic, I always figured that was there as a guilt inducing feature... useful for driving people to the confessional.
And, as long as I'm providing joy vacuuming services, I'll point out (as I did at the gym, greatly annoying a fiscal cliff whiner on the next-door exerbike) that the cliff was a bi-partisan solution to the budget crunch that raises taxes and cuts spending. It's also fun to see Ms. Pelosi, who long railed against the Bush tax cuts, now saying that it's "imperitive" they be maintained. [sorry for that last off-topic bit, I'm just weary of this whole breathless fool's panic attack]
I think much like how Clinton had to take the ridiculous 'don't ask, don't tell' first step when addressing the issue of homosexuals serving in the military, Obama had to take this ridiculous first step toward a system that will eventually get us to a single-payer option. He couldn't just jump in with that option - it would not only have been a fight he couldn't win, it would have hindered progress on this issue for several years to come.
Are there any cases you know of that involve Christian Scientists who refuse to offer any medical care at all based on their beliefs? Much of the debate seems to be around Catholics. I'd say it is common knowledge that Catholics (in general) don't condone the use of contraceptives but do we know where this comes from? Shouldn't there be some validity to the religious tenet? Do we consult scholars at all on the subject?
Why the deference to religion at all on something like this? Accommodation cases always leave me baffled. If the state is not requiring religious people who don't want contraception or abortion services to take birth control or use said services, that is as far as the accommodation should go.
As to Christian Scientists, I believe there are about 45 states which now embody language permitting refusal of traditional medical care on behalf of themselves or (of import to your question) their minor children. This did not prevent prosecution (see the Massachusetts Twitchell case) resulting in an involuntary manslaughter conviction that was, in keeping with a child abuse exemption for religious objectors in that state, overturned by the Mass. Supremes. Thus it would appear that religious practice exemptions are established dicta.
As to the Catholic prohibition on contraception, I would guess that Genesis 38:9 and the story of Onan (my earlier "wank" reference) is a good start, but as a practical matter, harken back to the Crusades where fodder was needed in the Holy Land. That there is a military bent to this is clear from, by way of non-limiting example, the Baltimore Catechism's item 330 answer:
"Confirmation ... enables us to profess our faith as strong and perfect Christians and soldiers of Jesus Christ." [emphasis added]
I would say that the "validity" of the tenet stems from a desire for strength in numbers, but I'm not what you'd call a learned scholar in this regime.
Clearly the gummint has the rarely disputed power to force people to do things they do not wish to do (e.g., pay taxes), but the waters muddy quickly when such a secular function is replaced with one commingled with religion. That is why I answered a co-workers inquiry as to whether I favored a gay marriage ban, I could happily say that I thought government had no damned business in the marriage game at all. If they wish to promote the right to inherit property and all the other goodies that stem from current marriage law, simply codify that aspect and leave the religious bits to the religion industry.
Strap in -- this is going to be an interesting ride. Justice Sotomayor's rejection of the Hobby Lobby's injunction request touched on aspects we (not the Royal We, the "you and I" we) raised here:
- "closely held corporation" ; and
- US v. Lee where an Amish dude tried to reject the payment of Social Security taxes (what I would call a secular function) on religious grounds and was denied by the SCOTUS.
And yes, this is a bed the Supremes made for themselves in the Citizens United thing by giving corporations 1st amendment rights, which includes the "Congress shall make no law... prohibiting the free exercise thereof..." bits. I'm not even sure US v. Lee would survive the CU precedent.
Happy New Year!
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