The Senate is voting tomorrow on a transportation bill, to which is attached the
Blunt Amendment. The name of the section to be inserted into the bill is "Respect for Rights of Conscience." Aside from the fact that it's a funny bit of language to put into a piece of transportation legislation, it's Tea Bagging constitutional bullshit.
This is the GOP's play to deny birth control coverage to women, and not just if the employer is a religious institution. If the CEO at Big Corporation, Inc. decides s/he is morally opposed to birth control (or blood transfusions or vaccinations), that's it. No more coverage and a big flip of the bird to the Affordable Care Act.
All this under the guise of upholding religious freedom.
The GOP claims that the Obama administration has
"trampled" on the Free Exercise Clause of the Constitution by requiring
all employers, including religiously affiliated institutions, to provide
birth control to their employees under the new healthcare law. Churches
are exempt from this provision, but anti-choice loons are saying that
any organization that provides a secular service, i.e. university,
hospital, etc., with ties to a church ought to be exempt. By the way,
please note that I'm using "anti-choice" to talk about run-of-the-mill
birth control -- as in, the pill. And as mentioned above, Senator Roy Blunt's amendment (R-MO) would extend that exemption to allow
any employer to deny birth control coverage to its employees if doing so
would be contrary to its "religious beliefs or moral convictions."
Let's be clear: this is not really about religious freedom for the
GOP. This is about shoving women back into the 1950s and trying to hide
behind the Constitution while doing it. This is about the GOP making a
sharp right turn in an election year and attempting to take the rest of the country with
them. This is about giving corporations more say over women's health choices instead of leaving it to, say, women.
But let's
pretend for a minute that passing the Blunt Amendment is really about rectifying an alleged free exercise violation built into the Affordable Care Act. And let's also pretend that the Affordable Care Act was passed by Congress, signed by the President, and is therefore the law of the land until the Supreme Court takes it under consideration... oh wait, that second part is reality. Right.
So the question here is: Does a certain population deserve an exemption from complying with the Affordable Care Act due to their religious views on birth control?
Playing the free exercise card is, in theory, a good tactic. The
American people are all about free exercise (unless you're a Muslim).
Establishment clause... I think some people are a little vague on that
one (stop trying to put the Ten Commandments in every public space --
sheesh), but free exercise can be summarized with small enough words for
people to understand: the government shouldn't interfere with religion.
But in practice, free exercise is not a "Get out of jail free" card
for disobeying a generally applicable law. For example, I'd have been in
serious trouble had I refused to pay taxes based on my moral opposition
to the war in Iraq: tax evasion is a crime. In 1983,
Bob Jones University
lost its tax-exempt status because of the university's policy
prohibiting interracial dating, a policy allegedly grounded in the
university's religious values: can't take money from the feds and have institutionalized racism. And in 1989, the Supremes (I'm nothing if not
reverent on this blog) decided that use of an
illegal drug during a religious ceremony still counts as illegal use: illegal drugs are illegal (like that logic?).
The Supreme Court does not have a strong
track record of upholding individual religious beliefs over obeying valid
laws. Exemptions to complying with an otherwise constitutional and generally applicable law are rare, which is what Senator Blunt and his fellow GOP goofballs are asking for.
One Supreme Court Justice in particular has done some fascinating work on this issue. To illustrate my point and simultaneously stick it to the
conservatives, I turn to that bastion of conservative goofiness on the
U.S. Supreme Court, Justice Antonin
Scalia.
Justice Scalia has a brilliant legal mind. Like Vincent Van Gogh, this brilliance is accompanied by a fair portion of loony, his of the conservative jurisprudence variety, as opposed to the ear-chopping type. But loony or not, Justice Scalia is smarter than anyone reading this blog.
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Justice Scalia and his doppelganger, Mr. Bates, the brooding valet of Downton Abbey. |
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One of the cases I references above was a 1989 decision, a result of
Employment Division v. Smith. Back in the 1980s, a couple of guys in Oregon were fired from their jobs
and denied unemployment benefits after participating in a Native
American religious ceremony which involved smoking peyote. Peyote is
classified as a Schedule 1 controlled substance by the DEA, and at the
time of the employees' firing, this drug was illegal in Oregon. "Free
exercise!" they yelled. "That law infringes upon my right to practice my
religion!"
"Nope," said the Supreme Court.
Justice Scalia wrote the
opinion
in this case. As I've said, the man has some goofy ideas about
constitutional interpretation, but in this instance, he articulated the
real interest the United States has in narrowly defining the scope of
free exercise.
One of the first points the Court addresses in this decision is the idea of a
generally applicable law and its relation to the Free Exercise Clause. A
law that specifically targets a practice "
He continues:
And finally, Justice Scalia sums it up nicely:
e have never held that an
individual's religious beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the State is free to
regulate.
Whaddya say about liberal activist judges now, GOP?!
Ahem.
It's not a perfect comparison to what's happening with the Affordable Care Act, so please don't jump on me over the nitty gritty. The point I am trying to make, though, is that the Supreme Court has held that a religious or moral opposition to a law does not automatically constitute a violation of the Free Exercise Clause. I am morally opposed to a lot of things, but that does not mean that the law has to accommodate my every
whim just because I claim a conscientious base for my opposition.
And in the case of complying with the Affordable Care Act's mandate that employers provide insurance coverage for birth control, I have seen nothing to suggest that a particular group's religious beliefs were targeted. In 2012, birth control is part of basic women's healthcare. I don't care who you are, you know at least ten women who are on the pill. You probably also know (*gasp*) a woman who has had an abortion.
And if we as a country have decided that universal healthcare is essential part of our public policy, you better believe that women are included in "universal." Please see the Fourteenth Amendment.
In conclusion, GOP members of Congress need to read the Constitution of which they claim to be the sole protectors. I think they'll see that the founders built in a separation of powers; in addition, there's another constitutional tidbit called judicial review. So leave the constitutional interpretation to the guys in the black robes. Believe me, they're smarter than all of you.