Ayatollahs in America

If a religious secular-service provider, like a Roman Catholic hospital, can ignore federal rules, then we will have anarchy. Employer-ayatollahs will control people’s freedoms. The government will be powerless to protect citizen rights.

1. Free exercise of religion and contraception.

The framers of the Constitution decided that government should not institute a national religion; nor interfere with the free exercise of religion; nor have a religious test for national office.

The Obama administration decided that hospitals and other organizations that provide secular services should, like every other provider of health insurance, cover contraceptive services. This is true even if those hospitals, etc., are sponsored by a religious organization. The Catholic hierarchy claims that this interferes with their free exercise of religion. They frame the issue apocalyptically.

2. Free exercise of religion versus privacy.

The Church’s "free exercise" claim in this controversy concerns its ability to impose its own religious doctrine upon non-Roman Catholics whom they employ.

That is, Roman Catholic-sponsored hospitals hire doctors, nurses, and others who are Protestant, Evangelical, Jewish, agnostic – there is no religious test for employment at one of the Church’s secular-service institutions.

The question is whether the federal government can make the Roman Catholic Church’s health-insurance companies provide a service that goes against church doctrine. The Church opposes a woman’s right to prevent pregnancy by external means.

Viewed narrowly, this should be easy. The First Amendment prohibits government from "prohibiting the free exercise of religion". If this controversy implicated only the First Amendment, that would tilt the issue, from a Constitutional point of view, toward the Church’s position.

But there is another civil right in this controversy. In Griswold v. Connecticut, the Supreme Court said that contraception was a private choice, and the government could not interfere in it. Griswold was decided in 1965; until then, Connecticut outlawed birth control.

So the issue in the present case is whether, ayatollah-like, the Roman Catholic Church, through its secular-service providers, can overwrite private choices by it’s employees, choices that have constitutional stature. It’s the Roman Catholic Church’s freedom to dictate personal choices versus its employee’s ability to make intimate personal decisions.

So the present controversy concerns the federal government’s ability to dictate limits to religiously-based secular-service providers. Specifically, it concerns the government’s ability to keep those providers from limiting their employees’ constitutional freedoms.

3. Free exercise of religion and anarchy.

The Roman Catholic Church’s position would limit personal freedom and lead to anarchy.

This is true because there is no basis to distinguish between power exerted by an institution and power exerted by an individual. So: newspapers have no greater news-gathering right than individuals. If an individual lacks freedom to go into a prison to interview a prisoner, a newspaper has no greater freedom. And newspapers have no wider freedom to publish without government interference than an individual enjoys. If Larry the lawyer can’t slander me, neither can the Los Angeles Times. There is no First Amendment distinction between Fox News and, say, me.

The same is true of religious freedom. I have no freedom to get high on LSD as part of my religious practice. It would make no difference if I accumulated hundreds of thousands of converts and passed out LSD in "churches" across the country. And it is unlawful for a man to be married to more than one woman at one time; it doesn’t matter if a church sanctions the practice.

So if the Roman Catholic Church can dictate the access of its secular-service employees to birth control, then so can the owner of Glenda’s Nail Parlor, Pete’s Pizza Emporium, and Walmart. If Walmart developed religious qualms about furnishing birth control to its insured employees, or if Glenda of Glenda’s Nail Parlor decided that all medical intervention defied God’s sovereignty over health, then the atomic religious scruples of individuals and corporations would demolish the law-making power of the federal government. Religious scruples, real or counterfeit, would loom over personal freedoms of employees and the government’s ability to protect those freedoms.

That would be anarchy.

4. Reasonably-restricted regulation.

The Obama administration has spread its rule to secular-service providers, but not to the churches themselves. The Roman Catholic Church is free to withhold contraceptive insurance to it’s employees who are employed by the Church as the Church.

But there has always been more freedom to make rules for secular services. A church pays no taxes on money that its congregants put in the collection plate. But if it operates a swimming pool that is open to the wider community, it pays taxes on pool-admission fees. Indian tribes pay no federal taxes on cigarettes they sells at their tribally-owned gasoline stations; but if the Presbyterian Church starts selling cigarettes, it has no special tax-exemption.

5. Conclusion.

The Supreme Court will have the last word about the constitutionality of the Patient Protection and Affordable Care Act. But if that act passes constitutional muster, it should be enforced as to secular-service providers. Americans don’t want their employers to become their ayatollahs. This is true whether that employer is Bob of Bob’s Discount Law Offices or the Roman Catholic Church.