A consortium of Catholic institutions, including the University of Notre Dame, is suing to overturn the Obama administration’s contraception mandate. I hope they lose. I think.
The birth control mandate strikes me as a very hard policy to defend, though I’ve done my part to put together the best possible arguments in its favor. For the record, I do think there’s a quite reasonable case to be made for some insurance mandates — primarily with regards to pre-existing conditions and catastrophic illnesses. (There’s also a very good case against those mandates, so don’t take this as an endorsement!). Those mandates at least address plausible market failures. A contraception mandate pretty clearly fails that test (though see the discussion at the linked post for some reasoned argument to the contrary).
So I believe the mandate is bad policy, both in its specifics and in its general presumption in favor of government power. If this isn’t unconstitutional, we need a better constitution. But that’s not the basis of Notre Dame’s lawsuit. Notre Dame’s position, as I understand it, is that Catholic institutions (as opposed to, say, General Electric) should be exempt from the mandate because religious objections (as opposed to, say, financial objections) have some kind of special exalted status. That strikes this non-lawyer as straying perilously close to a law respecting the establishment of religion. And if that’s not unconstitutional, then we really need a better constitution.
I would very much like the opportunity to negotiate away much of my health insurance coverage. I am annoyed that my government prohibits this. I’ll be even more annoyed if they prohibit it because I am not a Catholic.
So I’m of two minds here. I believe the mandate is a bad thing, and I therefore like seeing it chipped away via special exemptions. (Even that’s not cut and dried, because as soon as you start making special exemptions, you create a market for those exemptions, which gives your Congressman one more way to shake you down.) But I also believe that the framers pretty much had it right when they insisted that your fundamental rights should not vary with your religion. All told, then, I think I’m rooting for Notre Dame’s lawsuit to go down in flames. But I’m prepared to be swayed by your comments.
So you hope that Notre Dame does not win its rights in court because it is using an argument that applies to itself? The court only listens to arguments from parties in lawsuits. If Notre Dame wins, then you are free to file your own lawsuit asking for the same deal that Notre Dame got.
Liberals like to ridicule Hayek’s premise in Road to Serfdom but this is a classic example of what he was saying. The road to forcing Catholic institutions to provide contraception to their employees passes right through the middle “mandating employers to prov ide health insurance” and “mandating the scope of health insurance”.
Regulatory schemes which fly in the face of market principles and human nature always descend into this morass of detail and prescription, resembling nothing more than tyranny. I don’t have much sympathy for those who oppose forcing employees to cover contraception against their principles if they don’t also oppose the broader mandates. By providing the Catholic employers and out we are burying the real issue. Better to force people to confront it in the interests of some long run sanity on health care policy.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The first clause is widely read to mean BOTH that congress can neither establish a religion nor mess with one established by anyone else; they simply have no say in the matter.
Thus the reason that ND has a legal case is precisely because it IS a religious institution, and the First Amendment prohibits government restrictions on religious institutions. In simple terms, they ARE a special case exception under our Constitution.
It isn’t clear whether newspapers have a similar exception. :-)
… of course, if you’re arguing that the amendment should read “Congress shall make no law respecting any kind of establishment whatsoever,” … I’d have to agree with you!
“That strikes this non-lawyer as straying perilously close to a law respecting the establishment of religion. And if that’s not unconstitutional, then we really need a better constitution.”
The mandate itself is what is unconstitutional, no? That is what I understand Notre Dame’s argument to be. If the federal government is issuing mandates that go against one’s religion, and are outside the powers granted to the federal government, then they are the ones behaving unconstitutionally.
And to build upon the point made by J Storrs Hall, the first amendment was originally a restraint placed on the federal congress only. Several of the states had established religions at the time, and the feds were not allowed to interfere. It is hard to believe that, at one time, the constitution actually meant what it said!
The religion portions of the first amendment, “free exercise” and “no establishment of religion,” suffer from the same inherent inconsistency as Pigovian economics. As currently understood, the first amendment’s religion provisions say that the government can’t give religions (or religion in general) special benefits and that the government can’t put burdens on people because of their religions. (These are, of course, somewhat oversimplified descriptions.) Since every break religious people get gives them something that others don’t get, every free exercise right violates the principle that religion can’t get special breaks. Coase could have had a lot of fun with this one. It’s the same thing in principle as the Pigovian belief that the government shouldn’t let anyone impose costs on anyone else and shouldn’t require anyone to give someone else a benefit. This, as Coase showed, led to the conclusions that (1) the government shouldn’t let A pollute B’s land, because that would let A impose a cost on B, and (2) the government shouldn’t stop A from polluting B’s land because that would be requiring A to give B a benefit.
Back when government occupied a relatively small portion of people’s everyday lives, the inconsistency between the two religion portions of the first amendment was something we could live with simply by adopting common-sense conclusions about specific issues. The bigger government gets, the clearer the problem becomes. In a world in which people are responsible for their own medical care (or any other activity), medical care raises only a few first amendment problems, mainly involving children; with t he government taking over medicine (or any other activity) conflicts become everyday affairs.
In this particular case, I have mixed feelings. For much of my life, most of my Catholic friends have pushed for ever-increasing intrusion by government into people’s lives. So it’s hard to keep from thinking “serves you right” when this issue comes up.
So, the Catholics do not want the law struck down because it is unconstitutional, but are happy to let it stand as long as they get an exemption? Is this correct?
If so, then Roger’s point is not quite right.
If the mandate is unconstitutional, then it should be struck down. if not, then let it apply to everyone. I don’t like the idea of exemptions on the basis of religion -where will it end?
If my religion says “don’t pay taxes”, then the law makes me do something that is against my religion. I cannot kill in the name of my religion, so the law “prevents the free exercise of” my religion. The principle is quite clear and there are many precedents. (What about Sikhs and crash helmets, although I think these are all State laws.)
If mandated contraception is of sufficient import to be included in the law, then it should apply to everyone, like death and taxes.
Harold:
If the mandate is unconstitutional, then it should be struck down. if not, then let it apply to everyone. I don’t like the idea of exemptions on the basis of religion -where will it end?
If my religion says “don’t pay taxes”, then the law makes me do something that is against my religion. I cannot kill in the name of my religion, so the law “prevents the free exercise of” my religion. The principle is quite clear and there are many precedents. (What about Sikhs and crash helmets, although I think these are all State laws.)
If mandated contraception is of sufficient import to be included in the law, then it should apply to everyone, like death and taxes.
Thanks for putting this so well.
A quick trip to the JesusIsLord blog — Bob Murphy’s place — will show that I am no admirer of religion. (Roger on this blog will tell you too.) Yet I hope they win.
First, as others have pointed out, the constitution does grant special protection to religious belief. So they seem right on the law.
And I think it should protect religious freedom. Religious toleration is just an important pragmatic recognition that reasoned argument and comity often stop at the church, mosque, or synagogue door — and that the danger flows both ways. To put it pithily: freedom OF religion is the price for freedom FROM religion.
Steve is wrong in this: “religious objections (as opposed to, say, financial objections) have some kind of special exalted status.” Not so. It is the nature of the resulting encroachment, not the objection, which has special status. Religious objections to bank lending exist, are well-known, and are not honoured by courts for this reason.
Finally I cannot let this go unremarked: “I am not a Catholic” Now Steve, you should never boast in boldface.
You said, “Notre Dame’s position, as I understand it, is that Catholic institutions (as opposed to, say, General Electric) should be exempt from the mandate because religious objections (as opposed to, say, financial objections) have some kind of special exalted status. That strikes this non-lawyer as straying perilously close to a law respecting the establishment of religion.”
Two things, (1) if they want Catholic institutions to be exempt and not GE, then yes, that’s not fair. What if the CEO or shareholders or employees of GE are Catholic?
(2) If they want everybody exempt, which is what they should want if they want to be consistent with their own religious beliefs, then that’s not a violation of the establishment clause, that’s obeying the FREE EXERCISE CLAUSE, you know, the one that comes before the establishment clause. What’s the difference? Free Exersice means I’m allowed to be free to practice my religion and the gov’t can’t stop me. The estabilishment clause means the gov’t can’t force me to practice my religion or your’s or their’s. got it?
I agree with J. Storrs Hall. I thought the case would be based on “prohibiting the free exercise thereof”.
“That strikes this non-lawyer as straying perilously close to a law respecting the establishment of religion.”
From Wikipedia:
The “Establishment Clause,” stating that “Congress shall make no law respecting an establishment of religion,” is generally read to prohibit the Federal government from establishing a national church (“religion”) or excessively involving itself in religion, particularly to the benefit of one religion over another.
If you agree with Wikipedia, I don’t see how trying to keep the government out of religion is even remotely close to establishing a national church.
You can chip away at the problem (starting with religious freedom) or you can go for an out-and-out frontal assault. Both are methods of stopping a bad law and certainly the Catholic church has had instances of succeeding and failing in both circumstances.
Do you really want the freedom to make your own choice? That’s never going to happen if concede to the state absolute rights because you cannot tolerate exceptions.
I hope the Catholic Church wins. I would rather have imperfectly applied liberty than perfectly applied tyranny.
I think I have to go with Ken B here. I’m a little confused what else someone would imagine “free exercise” means.
And Dr. Landsburg, before you point me to the “we need a better constitution” part of your post, if you can imagine a better constitution that doesn’t allow free exercise of religion, I’m really unclear what you mean by “better”.
Steve, I think the confusion underlying this lawsuit stems from the legal (rather than economic) notion of who is paying for what. Legally, the mandate requires that employers purchase insurance of a certain variety. Economically, we know they will pass the costs of insurance directly on to those who are insured.
Thus, if Notre Dame et al win their case, they will have defended the rights of conscience of religious institutions but *not* expanded rights of conscience of religious individuals. Of course, individuals can always quit their jobs without ceasing to exist, but that’s a steep requirement on conscientious objection.
It’s hard to see why a Catholic institution should have a right to conscience that a Catholic individual does not. Why shouldn’t Catholic individuals working at a private (or government) institution have the right to opt out of markets they judge to be morally wrong?
“Religion” as it is defended in the Constitution can include any belief system, not just those with a structure. Thus, requiring an atheist to submit to a payroll deduction in order to provide free crucifixes to all employees – as a condition of employment – would be roughly the same.
(It bears mentioning: this is distinct from the power of government to tax and spend as it sees fit, which clearly includes the power to make war with taxes collected from pacifists, for instance).
To me, a non-lawyer and a non-theologan, a critical point seems to be that no-one is forced to use contraception under the mandate. The Catholics may not want to pay for it, but no catholic will be forced to go against Church doctrine. Quakers are consciencious objectors, but they still have to pay for the military.
@Harold: There is a difference here, between paying taxes and the govt buying X and being compelled to buy X dirtectly. However in the case of the RCs there is a more pressing concern. The church claims a measure of moral authority. This claim is undercut if the church is both preaching against contraception and paying for it for it’s office workers. They want the right to walk the walk whilst they talk the talk.
Harold – Has anyone ever claimed that the mandate forces people to use contraception?
If Quakers are a church, are they tax exempt like other churches? If so, the church itself does not pay for the military.
Steven, if you want a different Constitution, go for it. Since World War I conscientious objectors have been exempted from the Draft for religious reasons. Since 1942 school kids have been able to opt out of the Pledge of Allegiance for religious reasons. My understanding is that the Amish and Muslims are exempt under the ACA from the individual mandate for religious reasons. The Amish are also exempt from Social Security taxes for religious reasons.
As this isn’t a law blog, I sense Landsburg desires to discuss the concepts — not the established legal doctrines — of religious non-establishment and religious freedom. And, in this respect, I share Landsberg’s preferences.
And I think Alan Gunn aptly observes that there is an irreconcilable tension between the non-establishment and religious freedom clauses. I prefer addressing the tension by saying that the state may regulate – even at the expense of the free exercise of religion – in the interest of promoting a bona fide governmental interest.
Similarly, just the state should not discriminate in favor of religion, I argue that the state should not discriminate AGAINST religion. Thus, the state should not be allowed to restrict the use of school vouchers at a school simply because the school teaches a religious point of view. And the state should not be able to offer scholarships for any graduate program EXCEPT a religious one. For better or worse, the courts have not always seen things my way.
Now, to tarry a bit into legal doctrine:
Following the adoption of the First Amendment the US adopted the 14th Amendment. Section 1 states in part –
Courts have interpreted this language to say that many of the rights that a citizen can assert against the federal government can also be asserted against a state government; to do otherwise would violate a citizen’s “privileges or immunities,” their right to “due process,” or their right to “equal protection of the laws.” Thus, when people cite the 1st Amendment, it’s understood that they often mean to cite the 1st Amendment as applied to the states via the (5th and) 14th Amendments.
For what it’s worth, Justice Clarence Thomas argues that the 14th Amendment does NOT apply the non-establishment clause to the states, and that states should retain their historical freedom to establish a state religion. See Thomas concurrence in Elk Grove Unified School Dist. v. Newdow.
I am wondering if there is a parallel between ND’s argument and the argument successfully advanced by conscientious objectors to conscription?
I think this is a parallel question that might shed some light: would you rather allow anyone to claim conscientious objector status, no one to claim CO status, or only Quakers, Mennonites, etc. to do so?
As an ND alum I’m glad the University is making a stand on this, but I’d much prefer if there public statements (if not their statements to the court) recognized that I should have every bit as much of a right to exercise my own conscience as they do.
I’ve previously noted the parallels – and lack thereof — between the contraceptive issue and Conscientious Objection.
@Seth, Friends (Quaker) Meetings do not have to pay taxes, but individual Friends do have to support the military via their taxes.
Re. the ACA, Notre Dame as an employer does not have to pay anything to provide contraception to its employees. It is not seeking to avoid payment, but to avoid allowing its insurance carriers to provide it. So how does freedom of religion play into the discussion? If I am say, an Episcopal (or for that matter an atheist) Notre Dame employee, is Notre Dame arguing that its freedom of religion trumps mine?
I can argue religious freedom with anyone. My father was raised a Quaker, but is now a practicing Catholic. My mother was raised an Episcopalian, but is now a Wiccan. I was raised an Episcopalian, but I’m now an atheist.
I’m not sure whether it’s still done the same way (though I think it likely), but when I worked there, Notre Dame, like most large employers, self insured except for expenses exceeding some figure ($100,000 per year per employee back then). So, assuming things are still the same, it is wrong to say that ND wouldn’t have to pay for contraception because its insurance companies would pay for it. And, in any event, insurance companies are not charities and do not pay for things they don’t expect their premiums to cover. In the end, insureds pay for everything their insurance covers, unless the insurance companies mess up in calculating premiums.
Ken B and others: “There is a difference here, between paying taxes and the govt buying X and being compelled to buy X dirtectly” There is indeed, but this goes to the constitutionality of the whole measure. IF the whole measure is constitutional, why should the church get an exemption?
Seth: good point about churches not paying tax, ignore my Quaker point. However, what is the basis for them not paying tax? Is it because of charitable status?
Nobody.really. I think your phrase from that other post says it well:
“While contentious objectors could be freed from providing personal services that offended them, there was never any idea that they could be freed from PAYING for policies that offended them”.
In this context, I do think that certain exemptions for religious individuals makes sense. i personally have no particular objection to Sihks being exempt from motorcycle helmet laws, largely because if affects only them directly. I can see point in mandating helmets, because it is possible that people make a systematic error in thire choice. For Sikhs, the choice is not thorough an error, but a rational consequence of their beliefs. Since they can be readily recognised as a group that would not benefit from the mandate, then an exemption makes sense.
For nobody.really: I read your post (had not seen it when it was first posted) and agree with your logic and conclusions.
I’m pretty sure first amendment case law distinguishes between generally applicable (facially neutral) criminal laws and pro-active regulation like the mandate that infringes upon religious teaching. Therefore, you can’t say that your religion requires you to kill me or not pay taxes. That’s what civil disobedience is all about – you break the law for your conscience, but you have to serve the time. I know there was that Indian tribe that lost at the Supreme Court some years ago when they argued that smoking peyote was part of their religious tradition.
However, I may not have this distinction quite right
I don’t think financial objections have ever been granted *any* status with respect to actions that are “necessary and proper” to the execution of *enumerated* powers. The problem is we’ve re-defined away those traditional qualifiers so individuals can be taxed for nearly any purpose, and increasingly all we have left is organizations ‘clinging’ to those principles that are seemingly less ‘evolutionary’ like freedom of religion.
So I agree with those who think the perfect shouldn’t be the enemy of the good here, and I hope ND wins so more people / organizations will press their own objections e.g. spurred by the apparent inconsistencies, preferences and arbitrariness of what constitutes religious expression. With any luck that will lead us back to a renewed debate over the broader issues involving *individual* liberty.
Alan Gunn – not sure I’m buying the notion that not forcing someone to do something is the same as providing them with a benefit. Perhaps the founders viewed liberty as the starting point.
And nobody.really — I think we’re re-hashing old ground here, but note that saying you’re not ‘compelled’ to buy something, just penalized if you don’t, isn’t a principled position, it just depends on the size of the penalty.
Fair enough. The point is simply to observe that the issue here is one of taxation. Taxes are obviously coercive. But if you think people should be able to opt out of paying taxes without consequence, fine — and you can anticipate where that will lead. If you don’t like that, then I would expect you to recognize the need to comply with ObamaCare as you would recognize the need to comply with other tax laws. (Of course, you’re still free to dislike ObamaCare as you might dislike any other tax laws.)
If ND’s argument is: this mandate should not apply to us because of our religious belief, then I reject it with great contempt. I support no exceptions passed on religious beliefs. Sadly members of the Native American Church are allowed peyote and the Amish do not pay into Social Security.
David Wallin,
That doesn’t make much sense to me. We can all imagine a continuum from a person who honestly claims his religion requires him to kill all infidels and therefore stopping him infringes on his religious practice and a law that bans the display of a crucifix. If someone wanted to be intentionally dull, they could very honestly say that there is not difference between these two laws – both stop people from practicing their religion and the legal system would be wrongly picking which religion they liked more if they struck down the first and upheld the second law.
The first amendment does not mean: “It’s my religion so I get to do it.”. It has always required a balance between the state’s need for uniform law enforcement and those laws that appear on their face to be religiously discriminatory and therefore require the state to satisfy the famous “strict scrutiny” test, which means the court will look very closely at whether the state had a serious need for this law (I.e. Banning the crucifix would fail). Whereas the ban on murdering infidels is not anti-religious on it’s face and therefore need only be rationally related to a legitimate govt. purpose To be constitutional (although the example I gave of killing infidels would easily satisfy the strict scrutiny test as well.)
I know the peyote case caused a firestorm after it came out. I thought that was a close one. Because the Indians weren’t lying but you could easily envision a group of stoners starting a church centered around LSD use and expecting the same exception. Or a crack house for God
I think, first and foremost, that the discussion of exactly what the first amendment religion clauses state, intend, and mean (according to legal interpretation) should be had with President Jackson. During my time at UR, I had the distinct pleasure of taking a semester-long course with him on this very subject. He can certainly explain it better than I can. Religion DOES have a special, exalted status, above almost any other kind of speech or action. Whether you think the fathers were correct in this decision is not particularly important from a legal perspective.
As for the mandate itself, one major problem with it is that a religious exemption still exists, but is very narrow. Under this policy, the government can determine whether or not you are religious enough to deserve an exemption from this policy, thereby placing Catholic colleges, hospitals, and charities in an untenable position. There is also the issue of omission v. commission when it comes to religious exemptions to laws; it is more rare to see the government force a religion to do something they do not want to do than it is to see them force a religous group to stop doing something they do not want them to do.
Furthermore, religious exemptions exist in a great multitude of places. There is absolutely no reason for Catholic organizations to be refused an exemption to the HHS mandate. The Amish are exempt from FICA taxes and the individual healthcare mandate. Jehova’s witnesses are exempt from vaccination mandates. Schools cannot generally prohibit religiously mandated headscarves, even if headgear is generally prohibited. During Prohibition, a sacramental wine exemption existed. Quakers and other “conscientious objectors” were exempted from compulsory military service.
Therefore, I contend that unless you oppose ALL religious and philosophical exemptions, it is hardly rational to argue against that for which Cardinal Dolan, Franciscan University, and the other plaintiffs in this lawsuit argue.
Matt Dinan. “Therefore, I contend that unless you oppose ALL religious and philosophical exemptions, it is hardly rational to argue against that for which Cardinal Dolan, Franciscan University, and the other plaintiffs in this lawsuit argue.”
I do not know if constitutionally there is a distinction, but I can put an argument I hope is rational. My main consideration is whether the exemption undermines the purpose of the law.
From the examples you cite.
The Amish object to insurance, not tax. If it had not been called “insurance” they would have had no problem. They argue that they do not accept money from Govt programs, so their not contributing the “insurance” will not leave anyone worse off. There is pretty good evidence to back up what they claim to do as a community regarding looking after their own. There is a valid argument that their exemption does not undermine the purpose of the law.
Prohibition is intended to reduce alcohol abuse. Sacramental wine does not increase abuse, therefore an exemption does not undermine the purpose law.
Vaccination protects not only the individual, but everyone through “herd immunity”. The purpose of the law, I believe, is not so much to ensure that individuals are vaccinated, but to ensure sufficient are vaccinated to achieve herd immunity and prevent the spread of disease. If the un-vaccinated portion is small enough, herd immunity is not compromised. So one could argue that not vaccinating witnesses only will not be enough to affect herd immunity, as long as there are not too many of them.
The purpose of banning headwear in schools (whatever it is – probably some sort of respect thing) is probably not undermined by the wearing of religious headgear.
Conscientious objectors are objecting to being directly forced into action they object to – a different case which has been discussed earlier.
Now take the current law. The purpose is to ensure (for whatever reason) that those with health insurance policies provided by an institution (employer or college) have contraception included in that policy. The “group policy” does not guarantee individuals cover for things that the Govt. thinks are necessary. The exemption for the Catholic institution totally undermines the central purpose of this law in a way quite different from the other exemptions.
I do recognise some weaknesses in my argument, but I do believe there is a valid point that some religious exemptions make more sense that others. I do not necessarily see a need to reject either ALL exemptions or none.
‘Notre Dame’s position, as I understand it, is that Catholic institutions (as opposed to, say, General Electric) should be exempt from the mandate because religious objections (as opposed to, say, financial objections) have some kind of special exalted status. That strikes this non-lawyer as straying perilously close to a law respecting the establishment of religion. And if that’s not unconstitutional, then we really need a better constitution.’
This appears unreasonable. It may be that the primary purpose of Notre Dame is Religious unlike the primary purpose of G.E. They may assert that a change in the Law has the effect of frustrating their primary purpose in a manner that breaches, in a specific manner, a right they already have and were intended to have under the Constitution.
It may be that some argument for a better constitution arises in this connection but that can’t be a reason for hoping that Notre Dame- if it has not been disingenuous in its pleading (for e.g. if its primary purpose is not Religious- fails in securing a Constitutional protection it otherwise attracts. To hope that Judges don’t apply the Law or break the Law simply because the Law is a bad Law is scarcely a rational proceeding.
LIke the commerce clause lets’s call this the Harold-Steve clause
“If the government declares something to be important enough it can ignore every objection”
@Harold: I think the law SHOULD be invalidated for all. And those are the terms under which I responded to SL: “A consortium of Catholic institutions, including the University of Notre Dame, is suing to overturn the Obama administration’s contraception mandate.” Steve is exercised that religious *arguments* are being privileged. My rebuttal is, no, certain religously significant *consequences* are and should be (for important practical reasons unflattering to the faithful) privileged.
I do not in other words disagree with you I think. I disagree with our host.
This has an interesting connection to the gay marriage thread that I want to point out because I think nearly everyone on this blog (except moi) seems to get it wrong. Marriage rights should be the same regardless of your sexual preferences. And they already are. Nothing in the law that specifies who I can or cannot marry makes any reference to my liking having sex with them. There is no discrimination on the basis of sexual taste; a gay man can marry a woman if he chooses to. We should change the law on the basis of its ill effects and uncaring nature, not some bogus claim of discrimination.
nobody.really: “If you don’t want to participate in ObamaCare, you simply pay a fee (tax).”
Except it’s not a tax or a fee, it’s a penalty. This is quite explicit. And again, because what people think and feel matters, and because labels matter, and because legal precedents matter, this difference has consequences.
Look, thge crucifix industry provides jobs for parents raising kids. Don’t you care about the children? If we had a crucifix mandate, everyone has to own a gold or silver crucifix, and be prepared to prove they own one. Think of all the jobs. Think of the economies of scale. Thin k of the children.
But we don’t really want to force anyone — people get cross — so if you don’t then you just pay $50,000.00
We’ll call it a fee.
Ken B. I believe that religion should not be a factor in deciding exemptions. I can argue a case that where a clearly identifiable group loses more than it gains from a law, and that an exemption does not harm anyone else, then there are grounds to consider an exemption. It may be that that group is a religious one, but it does not have to be. It may be that an exemption would be administratively impossible, or other effects may make it undesirable.
For example, were I to pass a law mandating a firearm in every houshold, I may well exempt housholds where there were no sighted people. I thought I would be able to quickly think of non religious groups this might apply to, but I find myself struggling for examples.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Cut the crap.
My religion says that I can have four wives. Is there a chance in the world that I can marry a second wife without breaking the law?
The Mormon’s traded polygamy to get statehood. It is absurd that the US government’s position was that a group of people had to change the religious tenants of the huge portion of the people in the territory to get statehood.
I lived in Cairo for a while and married my second wife, who happened to have been born in New York City. My first wife was born in Egypt. That made it very convenient when we moved to Chicago. The government refuses to accept my religious beliefs.
On the plus side, we pay less taxes because my “American” wife files as a single person.
@Harold: In general I would prefer no exemptions. Instead I would prefer such intrusions of the govt as this mandate would have to survive a challenge by any religious group and stand or fall as a whole. This is th epoint I was trying to get at with my gay marriage comment. The infringement on the catholics’ perogatives is an infringement upon mine as well; it just thappens that they care more, but if it trashes their rights it trashes mine as well and should be discarded.
In this way we enlist minority groups to fight for the rights they care most about, defending the rights of the apathetic thereby. Exemptions undercut that.
The fact that this whole can of worms only exists b/c the administration chose not to try to sell the ACA as a tax (which sadly would sail through the SCOTUS today) is a result I find delicious, and itself a reason to support ND.
Harold – presumably the underlying policy goal is to ensure that people who *want* contraception have access. It’s not clear why in a free labor market such exemptions would necessarily undermine that goal, due to self-selection.
As an extension of Harold’s point re. Sikhs wearing motorcycle helmets, I would argue that there is no reason to provide an exemption, because they can choose to drive cars intead of ride motorcycles. However, if Sikhs were granted an exemption, would insurers be allowed to discriminate against them? Could an insurance company refuse to insure Sikh motorcycle riders due to the increased risk of traumatic brain injury? South Carolina does not have a helmet requirement, and thus the rate of traumatic brain injury is 8 times the rate in North Carolina, which does have a helmet law.
Re Sikhs and helmets. Just let insurers charge more or insert no-helmet-no-pay clauses in the insurance. No need for mandates.
It’s not even obvious that the total cost per insured motorcycle rider would be greater in SC (e.g. higher fatality rate might actually cost less); like seatbelt laws it’s an empirical issue. And note the medical costs are the *only* rationale for how this imposes a burden on others (and even there it’s a burden we choose to bear). Other than that they are worse than victimless crimes – if forcing people to wear helmets or seatbelts does in fact make them drive less cautiously, it actually *increases* the risk to others. (“I am most safe when I am wearing a seatbelt, and nobody else is.”) In that sense laws against cellphones etc. are much easier to defend.
‘The Mormon’s traded polygamy to get statehood.’
Indeed, they made a bargain. I don’t see how that violates the First Amendment. Now if the people of Utah decided to reinstate polygamy and the Federal govt claimed they couldn’t do that…that WOULD be a constitutional matter.
I also agree that this isn’t an establishment clause issue, but it is a free exercise one. As Iceman said, it all could have been avoided if congress had been straightforward about what they wanted. Just pass a tax and spend law to accomplish it. Heck, simply change the age of eligibility for Medicare to; ‘day of your birth’.
Finally, I’m not sure that Coase had psychic costs in mind when he wrote about Social Cost, but then, Mrs. Landsburg thinks I don’t get Coase, and I have returned the compliment (elsewhere). But, that’s another story.
‘Other than that they are worse than victimless crimes – if forcing people to wear helmets or seatbelts does in fact make them drive less cautiously, it actually *increases* the risk to others.’
Wasn’t it Tulloch who said that if we want to increase safety we should mandate every car have a sharpened steel spike protruding from the steering wheel aimed at the driver’s heart?
iceman: “presumably the underlying policy goal is to ensure that people who *want* contraception have access. It’s not clear why in a free labor market such exemptions would necessarily undermine that goal, due to self-selection.”
I am not sure that the policy goal is quite as simple as that – I think it must be to encourage contraception use. It is not clear that people who want access to contraception do not have it already. In a free labor market, it is not clear why the mandate is required at all, as compensation for lack of cover would have to be offered (higher wages, better education or something). I think the objections you raise are more directed to the policy itself, rather than the exemption. I would add that the labor market is not free. Employees cannot be fully informed, and cannot rationally asses all the different factors.
Regarding helmets – the insurance companies should be allowed to offset the increased risks – either with lower compensation or higher premiums. The choice not to wear a helmet should not include everyone else paying for it. Alternatives to mandates exist, as Ken B says, but I am assuming that a mandate has been chosen. Would an exemption then make things better or worse? I have some sympathy with Ken B’s point about exemptions. If one is required, there is a fair chance that some alternative policy would be possible.
On polygamy – anyone is free to set up a houshold with as many partners as they want. They can have their own ceremony, and anyone who wishes can recognise them as “married”. The State will not recognise it, or provide any legal protection for second and susequent partners.
Ken B: “Re Sikhs and helmets. Just let insurers charge more or insert no-helmet-no-pay clauses in the insurance. No need for mandates.”
I think the point here is that people underestimate the risk of accident. They therefore under-use helmets. Altering the insurance policy will have little effect, since they don’t believe they will require it. We must imagine the person at the margin here – the person who will be persuaded that the extra insurance factors tip the balance to helnmmet wearing, on top of the risk of death or serious injury. A mandate is a different matter, because they have a very high probablity of being caught, so will use a helment for this reason.
@Harold: Perhaps the point is that people overestimate the discomfort of helmets. I don;t have a crystal ball, and I doubt you do. I suggest we let people bear more of the cost, and then they can decide.
Ken B: we do not need a crystal ball to tell us the errors people make most often. We are bad at rare events, like accidents. We also know that people are bad at estimating their own driving skills – something like 70% classing themselves in the top 20%. Because we do not know everything about human mind does not mean that we must assume we know nothing.
@Harold: But why then are rule-makers exempt?
The nice thing about prices is that they allow learning. You don’t have to get it right, as long as there are reasons to do it better next time. (Never again will I make the error of spending more than 7 cents for a cup of Starbucks coffee.) Another nice thing is that markets recruit information from more sources, and usually more reliably.
@Ken B. Rule makers are not exempt, they must use information gathered from research, and should be able to justify their conclusions as at least reasonable from the data.
Where there are market failures, I think it reasonable that Govt corrects the failure (if it is practicable). One of the requirements for a free market is informed, rational actors. This is where I think economists may often overlook the failure of the market – they identify externalities and suchlike, but it is possible that they underestimate just how far from the true “market” solution we end up because of our myriad irrationalities.
Very often, there is nothing we can do about it, because we cannot find out what that “true market” solution is. But sometimes, I think we can make a pretty good attempt to get closer to it.
When we are children, we are not assumed to have enough information to guide our path through life. We are guided and compelled. When we become adults, we do not suddenly have all the answers. We therefore know that we are diverting from the “best” path we could take. In some cases, it might be possible for the state to know better than the collected individuals, and guide us closer to the right path.
With helmets, where’s your evidence of market failure?
“In some cases, it might be possible for the state to know better than the collected individuals, and guide us closer to the right path.” It might. Usually not, as experience shows clearly. It’s also harder for me to oppress you in a market. But I’m not arguing some grand law of non-intervention. I’m talking about helmets.
Harold wrote “On polygamy – anyone is free to set up a household with as many partners as they want. They can have their own ceremony, and anyone who wishes can recognize them as “married”. The State will not recognize it, or provide any legal protection for second and subsequent partners.”
An established American religion could not practice their religion as they wanted. An offshoot of that religion cannot practice their religion today. (Statutory Rape IS a PROBLEM)
An established worldwide religion cannot be practiced today because of conflicts of US law.
I honestly do not understand how Muslim marriages involving a second wife can be prohibited in a country that has our First Amendment.
By ‘self-selection’ I mean people might not need to be compensated for not being provided something that they don’t care much about. (In fact this might represent a real way to lower HC costs, under the theory that once something’s covered people figure they might as well use it.) It also isn’t clear a priori that helmet laws reduce overall costs (setting the freedom issue aside).
One thing that makes policy based on alleged irrationality tricky is its potentially self-fulfilling nature. The labor market will certainly appear less mobile when we grant employees’ demands for specific benefits etc. from particular employers. In general, people will act less rationally / responsibly when we remove their incentives to do so. I know the last thing I want to do in my spare time is think about retirement planning or insurance; so much more tempting to say “aw the govt will take care of it” and hit the driving range. But I think I am, and therefore presume most other people are, capable of figuring stuff out if required to, and we‘re best served basing policy on the rule and dealing with the exceptions.
The flip side is Ken B’S important point about people’s ability to learn and adjust their behavior (when not disincentivized to do so). I suspect all it takes in a mythical world that does not reward moral hazard to materially address the ‘problem’ of the voluntarily uninsured is a few stories like “hey did you hear about what happened to Joe, and he didn’t have insurance?” It’s true there isn’t an age of sudden omniscience, but there is for various purposes an age of consent. And freedom includes the freedom to make ‘dumb’ choices.
Iceman and Ken B: “But I think I am, and therefore presume most other people are, capable of figuring stuff out if required to, ”
Herein lies the problem. We are not capable of figuring this stuff out, but we think we are. Myriad research bears this out. When buying a car, there is no way we can sift out the essential aspects that actually maximise our utility. We make some hashed up choice based on half understood things. Having made the choice, we justify it retrospectively, thus locking ourselves in to some stupid descision making.
When buying toothpaste, the wrong choice makes little difference, but how many people end up paying a lot more than necessary because they do not spend the time required to figure out if their choice will actually maximise their utility? Cheap own brand toothpaste probably does just as good a job as expensive proprietry brands. I think it is quite clear that choices are made on the basis of appeals to emotion, rather than rationality.
It seems obvious to me that we are not living the market dream. It is not so obvious that anything can be done to improve things, but I think we need to examine it to see, and recognising that laissaiz faire will not result in utility maximisation is a good starting point.
Ken B has certainly recognised this in the past, having commented that perfect markets do not happen on their own.
@Neil Wilson: I am not sure what you are getting at, there is no established USA religion. I think you are using the term established in a different sense. Anyone can set up a household with as many parters as they wish – provided it does not contravene USA laws. Underage sexual partners would contravene these laws. I doubt that any religion requires the taking of underage partners, although some may allow it.
Why do I think that when Steven sees “advancing” or “inhibiting” religion, he reads in “subsidizing” and “taxing”?
Well, I’m up, so I’ll give a shorthand explanation (this is via iPhone, so I’ll skip quite a bit, however).
The objections here seem to be to any “specialness of religion,” that religious beliefs would get more protection than others beliefs: Why should person X, who lost her job by refusing to work on the Sabbath, receive unemployment benefits, while person Y, who’s Saturday pursuit of happiness concerned nonreligious(?) college-football reasons, would not. Doesn’t the First Amendment, especially the Establishment Clause prohibit such distinctions on the basis of the religious or nonreligious character of the activities involved?
Sometimes, but not in many cases. The First Amendment’s text clearly singles out religion for special protections. The Religion Clauses are not framed in terms of neutrality or equal protection. The free exercise of religion is protected in a way that other forms of belief and association are not. Likewise, nonestablishment implies that government’s institutional relation to religion is subject to standards different from those applicable to its relation to other forms of belief or association.
This is true, even if the result is asymmetry in the treatment of
i.e., beliefs based on the prophecies of a magic hat, and those based of “secular considerations of policy, pragmatism, or expediency.” And so believers typically may be exempt from generally applicable law, i.e., where employment discrimination that laws conflict with the Roman Catholic male priesthood; regulations requiring hard hats in construction areas that would effectively exclude Sikhs; practices of public hospitals that conflict with the religious scruples of doctors re abortion; laws giving authority to preservation commissions, if applied to churches, that would result in second-guessing of ecclesiastical decisions. Exemptions from such laws are easy and administer, and promote religious freedom at little cost to public policy. (Of course, the First Amendment is not a trump card. The religious objectors win less than they lose, when, inter alia, the government’s interest in regulating is insufficient: murder law, theft law, safety laws, certain bans on race discrimination, applicable tax laws all apply despite objections. )
That exemptions are over or under-inclusive is not all that compelling. Lots of laws have that in common. And a more extreme formal neutrality standard, under which religious accommodations are unconstitutional, would be problematic. It would force the legislatures to either ignore religious objections to generally applicable laws, even when their own assessment is that accommodations would be practical and beneficial or that the effect would be to outlaw deep-seated religious practices, making underlying legislation much more controversial and difficult to enact), or to forego legislation altogether, which sometimes isn’t a better alternative. It seems to be an extreme apriorism to prefer an interpretation of the Free Exercise Clause when the principal arguments in its support are such that, if applied logically to the Establishment Clause, would be so obviously untenable.
In any event, if it makes Steven feel better, the Constitution by itself does not, at least since 1990, compel the religious exemptions involved in the HHS case. In Employment Division v. Smith, the Court (re-) instituted a statutory exemption regime (religious objectors got exemptions if and only if the statute provides for one), rejecting a doctrine of constitutional exemption (where sincere religious objectors have a presumptive right to an exemption). So long as a law doesn’t directly discriminate against religious objectors, but applies generally to people, it’s constitutionally valid. If religious objectors want an exemption, they can (for better or worse) lobby like everyone else. What’s at issue with the HHS mandate, however, is the Religious Freedom Restoration Act, which Congress enacted in 1993 in response to Smith to give religious objectors a statutory presumptive entitlement to exemption from generally applicable laws (essentially thwarting Smith). The RFRA provides that the federal government may *substantially burden* a person’s *exercise of religion* only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
There are too many issues to get into them all, but one serious question with the mandate is that that the HHS on its own that decided the Church is not involved in an “exercise of religion,” when, as part of its mission, it runs a school, or hospital, or soup kitchen, or bookstore, and, for religious reasons, refuses to provide health insurance that covers contraceptives and abortifacients. (This is something of a curious position, since by establishing exemptions from the mandate for an extremely narrow category of “religious employers,” HHS is thus acknowledging that these employers are engaged in an “exercise of religion” and thus implicitly concedes that other employers who refuse, for religious reasons, to provide health insurance that covers contraceptives are likewise engaged in an “exercise of religion.)
Cjohn: I am not quite clear on that last paragraph. It seems reasonable that a church has a main purpose of “the exercise of religion”, which it does through services, sermons, ceremonies etc. It can also run schools etc, who’s main purpose is not “the exercise of religion”. So it seems reasonable that the church may have an exemption for the former, but not the latter, for example employing priests compared to employing teachers. I am not quite clear on what the HHS position is or why it is a curious one.
No, I think it’s the last paragraph that wasn’t clear. I’ll use smaller sentenced so I don’t confuse myself.
The HHS asserts that when X refuses to provide health insurance that covers contraceptives and abortifacients for religious reasons, he is not engaging in an “exercise of religion.”
Yet, the HHS also exempted a very narrow category of religious employers (those whose primary purpose is “inculcation of religious values,” and it “serves primarily persons who share the religious tenets of the organization”) from the mandate (“it is appropriate … to take into account the effect on the religious beliefs of certain religious employers if coverage of contraceptive services were required….”). But why would the HHS have this religious exemption other than these employers are engaged in an “exercise of religion” when they refuse to provide health insurance that covers contraceptives (there is no similar exemption for the same narrow category of employers re myriad run-of-the-mill regs. regarding commercial activities)? Unless there is a better explanation, the HHS seems to implicitly concede other that refusing for religious reasons to provide health insurance that covers contraceptives is “exercise of religion.”
Now, this issue is distinct from the issue of whether all aspects of a church’s mission (schools, hospitals, etc.) are entitled the same exemptions. But it is a very, very narrow interpretation to say that a church is outside of the of the free exercise clause once it is not operating internally to promulgate and express religious belief internally, but as part of its mission, it has decided to open its doors to the public to provide socially beneficial services. And by narrow, I mean largely rejected, including a 9-0 thumping last January in Hosanna-Tabor. To be sure, the line can be fuzzy; but, generally speaking, churches are entitled to exhibit their faith not just through worship, but to present the faith publicly, by, e.g., healing patients and teaching calculus.
Here’s a short example (example, not argument): Say a monetary sells homemade caskets in order to pay the bills and maintain its endowment. Monks take a vow of poverty. Some of the monks complain, however, that, as religious employees engaged in ordinary commercial activities, they are entitled to a minimum wage under the Fair Labor Standards Act. Can they bring a FLSA case? The HHS would probably agree: let the monks can donate their minimum wages to the church. As courts have repeatedly held (in variants on the above example, and in myriad other cases) the results would bring a court deep into religious controversy and church management. (Suppose the monks were asked to donate it back to the monastery; but some did not and were expelled. Is there an actionable FLSA violation?)
A can of worms indeed. There does seem to be a distinction between the monks (who have agreed the monastic life, which is principally a religious choice) and say, a student at a Catholic college, who may be an atheist. It seems to me that the “act of religion” distinction should fall at the point of “employment” or “enrolment”. The monk is performing an act of religion when joining the monastery. The student (or teacher) is not. I agree that the college may well be performing an act of religion when deciding not to provide contraception, but that is not central to the colleges relationship to the student. Thus the monastery could be exempt from FLSA cases, whereas the college would not be exempt from HHS.
It seems wrong to assert that the college is not performing an act of religion when they decide not to provide contraception, and slightly odd that this assertion would be required. I would argue that this act of religion falls outside the contract they have with the student. The contract with the student is not primarily of a religious nature, and therefore should fall outside the exemptions given for reliogious reasons.
If the college required a religious declaration before enrolment, then it could be back inside the exemption.
This interpretation may make no sense legally, it is obviously a very complex area. It just seems to me that churches should have the right to run themselves as they wish, and should therefore get exemptions in some cases, but when they operate in the secular sphere, they should stick to the secular rules.
Two things to consider:
(1) American churches provide an astonishing amount of charitable service: hospitals, soup kitchens, drug treatment centers, immigration services, schools, etc. Were they to stop (i.e., providing free medical services, because they’d be required to offer sterilization services ), either (a) the the absence would be felt immediately by the poor, or (b) we’d need to spend billions to make up the difference.
(2) If the effect us to put Churches in the same position as everyone else, do you really want to them to start being a lobbying force?
Is either preferable to a rule that probably no direct negative impact on your life?
@Cjohn
First off, just to provide a little corrective to one of your earlier statements. I think you misunderstand Hosanna-Tabor. The case concerned whether or not a woman was working in a “ministerial” job or not. If she was a minister, then the laws in question would not apply, but if she was not a minister, then the Christian school would have been required to follow the ruling of the EEOC. The court determined that she was a minister, and that the school was therefore exempt from the workplace regulations at issue and she could not sue over having been fired. In the case of the PPACA, however, we are talking ONLY about people in non-ministerial positions. There are already exemptions written into the law for people working for their religious body in a religious capacity (such as your monks example).
As for your most recent points. Churches are already extremely prominent in the world of politics. They may not have formal lobbyists (I’m just not sure), but they most certainly have political opinions and use the force of their religious authority in an attempt to sway the political scene.
“American churches provide an astonishing amount of charitable services.” –> yes, they do, and they also receive huge amounts of taxpayer funding to do so. Yes, they found a lot themselves, but they are also paid for many of their services, particularly the ones that the government then attempts to regulate (hospitals, adoption agencies, etc.)
I believe you misunderstood why I cited Hosannah-tabor: it certainly is the latest of myriad federal cases that have held that a church’s exercise of religion (and its exemption from any number of applicable laws) extends beyond just holding services (for example, to ministering to the sick and teaching calculus). I made no mention of its bearing on the HHS mandate.
But, while HT was a relatively narrow ruling – in part to avoid running in to Smith – it certainly has some bearing on the HHS mandate, as the Court rejected, both specifically and sub silentio, a number of the arguments that are being offered in support of the mandate.
To be sure, some religiously-sponsored charities receive subsidies. Some is direct; most, though comes in the the form of tax breaks, Medicaid and Medicare payments, Pell Grants, etc.). But, for establishment clause and other reasons, it’s far less than the secular counterparts.
Harold:
“It is not so obvious that anything can be done to improve things”
“Recognizing that laissaiz [sic] faire will not result in utility maximization is a good starting point”
Actually if I think something can’t be improved I normally consider it maximized.
Look, I agree markets can run into limitations in processing and disseminating information…then again, sometimes markets come up with their own solutions like Consumer Reports. We should be open to examining things on a case-by-case basis, but avoid pre-ordaining the answers. Or of course comparing the real-world imperfections of one system with the utopian ideal of another — like presuming human beings can’t cope, until they put on a govt. tie? At a minimum, more people can process more information. What we should be looking for IMO are any systematic cognitive biases, like those resulting from situations where people don’t bother to process information thoroughly enough, i.e. where a dedicated bureaucrat actually might. Of course as I’ve mentioned here before, that in itself is also a good argument for limited govt.
Sorry, but I do not see how a lawsuit seeking relief from a law that (in my mind anyway) violates the Catholic Church’s First Amendment right to freedom of religion is in some way ‘establishing’ a religion. The lawsuits do not seek to impose their beliefs on everyone. If you want to make the argument that Catholic institutions must comply because they employ non-Catholics, isn’t there some burden on the employee to know who their employer is, and respect a religious organization’s self-imposed restrictions? Or is every employee/employer relationship supposed to be similar to the Sandra Fluke/ Georgetown relationship where the employee seeks out an employer for the express purpose of making the employer violate its own doctrine for the sake of the employee, who didnt have to seek employment there in the first place.
iceman: “Actually if I think something can’t be improved I normally consider it maximized.”
There is a difference between what we can actually acheive and what could in theory be acheived. Sometimes we may not be able to actually improve things, but recognising that we are probably a long way away from the “ideal” is a good starting point.
I agree with your point about where to start, with systematic cognitive biases. The thing is, these are very common.
JK:”Sorry, but I do not see how a lawsuit seeking relief from a law that (in my mind anyway) violates the Catholic Church’s First Amendment right to freedom of religion is in some way ‘establishing’ a religion”
The reductio of Landsburg’s argument is to consider a law mandating everyone own a crucifix. Can a Muslim object on religious grounds? Apparently not, as granting that relief would establish special rights for him.
Ken B:
The reductio of Landsburg’s argument is to consider a law mandating everyone own a crucifix. Can a Muslim object on religious grounds? Apparently not, as granting that relief would establish special rights for him.
This is a good analogue of my argument; it’s not a reductio unless you believe it’s self-evidently absurd.
If there were a law requiring everyone to own a crucifix, I’d be very upset with a judicial ruling carving out a religious exemption for Muslims, and therefore implicitly endorsing the imposition on everyone else.
Steven,
I’m not sure you have the mechanics right: the court(s) aren’t being asked to carve out anything. If there is an exemption, it’s already there.
The big question is whether the administration can show it has a compelling interest in making contraception marginally easier to obtain, such that it can interfere in the Church’s internal affairs.
Moreover, even apart from the RFRA question, the plaintiffs aren’t looking for “exemption” from a general rule; their argument, inter alia, rests on whether a regulatory scheme that involves myriad individualized assessments to determine exemptions can really said to be all that general.
It some sense, the questions are pretty mundane. I’m not sure what you’re looking for, but’s probably not in this case . (Check out the rules from Communion wine during prohibition. It’s not there either; but it’s probably closer to whatever it is you’re looking for).
@Steve:
“This is a good analogue of my argument; it’s not a reductio unless you believe it’s self-evidently absurd.”
Granted. So let me add, it is self-evidently absurd. Now let me try to convince you of that!
A crucifix mandate is passed. Someone, a muslim, objects. On what basis?
As a violation of the provision against quartering soldiers in private homes?
No. On the basis of religious freedom. Whose freedom exactly though?
A posited unborn great-grandson of Steven Landsburg? Mine? My dead aunt’s?
How could he, when he cannot know them?
No, the freedom in question is the freedom of the muslim who is complaining;
he has standing to complain about infringements of his liberty.
The basis of his complaint is his freedom, not anyone else’s.
But your argument would preclude him complaining on the basis of the law’s infringements upon him, precisely because he’s petitioning for his own rights.
That’s your objection isn’t it, catholics complaining about just the infringement upon catholics, rather than upon atheist professors of Jewish ancestry?
Note that his argument is not a religious argument. He is not making what you term a ‘religious objection[]’.
He is making a legal objection based on an infringement of a right, and that right is religious freedom.
You can see his objection is not religious because an atheist, a Jew, a Hindu, a Quaker, a Copt, a Sikh, an agnostic, a Zoroastrian can all make exactly the same objection on exactly the same grounds using exactly the same words.
I think you are confusing the scope and nature of possible remedies with the validity of certain complaints.
For the muslim complainant, an exception would remove the infringement upon him.
His complaint would be answered.
It would be a silly ruling in this case of course. The infringement is quite widespread.
But the silliness of that possible remedy would not reflect on his demand for relief.
I can though imagine situations where an examption might be more reasonable.
Would you allow conscientious objectors in time of war? After all if I apply for a CO exemption that will be on the basis of my beliefs.
Not everyone would qualify.
Harold – I meant to say “effectively maximized”. Of course we can always dream, but when it comes to making policy I think we’re best dealing in the real word. You know what they say about wishing with one hand and spitting in the other…
Supposing there are bureaucrats that are immune to these cognitive biases, I’m all for having them share their insights with the rest of us so we can make better informed decisions, at least as a ‘starting point’ vs. having them impose their omniscient solutions. E.g. citizens so enlightened may still come to different conclusions about what’s in their own or the collective best interest – and we are at the end of the day supposed to be a govt ‘of and for the people’, so at some point we either have to be willing to trust in that process or quit pretending. [And call me cynical but in the real world it seems as often politicians play on our ignorance (rational or otherwise) to serve their own purposes].
Ken B and Steve,
When I read the original post, I get the idea that you are arguing that the lawsuits seek to impose catholic doctrine on everyone else. This sentence is why I understand yoru argument that way: “That strikes this non-lawyer as straying perilously close to a law respecting the establishment of religion.”
As near I can tell, the lawsuits are opposite of that, seeking relief from the imposition of a ‘secular’ religion established by PPACA.
As far as catholicism having exalted status, it is exalted above PPACA by the first amendment to the consitution holding that the exercise of one’s religion should not be infringed. That is how I understand the constitution, although the more learned minds of the supreme court may rule differently.
As for the establishment clause argument, if there was a law compelling everyone to buy a crucifix in order to be eligible to work for the government, I think that would obviously be struck down as the establishment of a state religion ( as happened in England with the Anglican Church, which was the basis for the first amendment and the establishment clause). I think a better example would be the passage of a law that compels everyone to destroy their crucifix (or cresecent, or star of david, etc.) thus making it necessary to seek relief in order to keep said items.
@J.K: Just to clarify, I’m with you on this, not Steve. My crucifx mandate proposal is to highlight a flaw in Steve’s case. I think Steve’s argument amounts to saying “I’m sorry imam but we can’t overturn the crucifx mandate based on your religious objects to it, why that would be like establishing Islam!” Which is absurd. Steve seems to agree it’s a fair analogy to his argument, but he questions the absurdity.
Iceman: the bureaucrats do not need to be immune to cognitive biases, sufficient study in a particular area can overcome it. We citizens cannot do this in many areas, whereas specialists can do so in their area.
I imagine a huge data-base with our personality profiles stored by central government. Experts would examine every item on sale and match these with the ideal profile for each catagory. Every time we buy something, the checkpout is linked to the giant central computer, which cross checks the product against our personality profile and suggests the best option, as decided by the government experts…
No, not quite. I think there are some areas where our biases are likely to lead us astray. These include management of rare events, such as accidents, anything which requires us to evaluate our own abilities, choices with very long term consequences, anything involving children (since the customer is not the descision maker) and others. Where these conditions apply, it is a good idea to have a look to see if something can be done to overcome these biases. I think health and safety at work is a case where some regulation is likely to improve things.
These biases actually affect everything we do. There was an article in New Scientist last week hypthesising that we evolved to be persuasive, rather than rational. This is an attempt to explain these myriad reasoning errors under a single explanation. This explanation may or may not be correct, but the ubiquity of these errors is not really questioned.
You phrased your answer exactly right. Our Constitution does not allow Catholics to have their own law, except at a personal level. You may choose to deny yourself medical treatment, but you cannot force your employees to make that same choice.
If we were to allow Catholics to have their own law, then of course Muslims would demand recognition of Sharia Law.
Seth-
“If you agree with Wikipedia, I don’t see how trying to keep the government out of religion is even remotely close to establishing a national church.”
Allowing the Catholic church an exemption “benefits one religion at the expense of another.” For example, my Bible at home has this one misprint, it says “do NOT render unto Caesar…” Thus, it is against my earnestly held religious beliefs to pay taxes. Yet the IRS is surprisingly unwilling to yield on this issue. Maybe I need to give the Catholic churches lawyers a call?
Well, once I do, I hope you can see how a series of such “misprints” would lead to some fairly catastrophic issues for the federal government, if we accept that this sort of “religious freedom” is valid.
A German court has banned circumcising small boys. http://blogs.the-american-interest.com/wrm/2012/06/26/german-court-declares-judaism-a-crime/ This will affect Jews and Muslims, but not for example Hindus.