Within the past two weeks, federal courts in two circuits have blocked the mandates of Obamacare on private businesses to fund abortion and contraceptives in their medical plans. In both cases, the owners of the businesses combined in the suits were Catholics. And the claim was made in all cases that the mandates compelled the owners to become accomplices in endorsing and facilitating acts that were in deep conflict with the moral teachings they had absorbed as Catholics. But what was striking about the judgments in these cases was that the judges did not rest their judgments on the “beliefs” of the owners.
In the case of Gilardi v. Dept of Health and Human Services in the D.C. Circuit, Judge Janice Rogers Brown noted that the case was not about “the sincerity of the Gilardis’ religious beliefs, nor does it concern theology behind Catholic precepts on contraception.” And in the cases of Korte v HHS and Grote v. Sebelius in the 7th Circuit, Judge Diane Sykes offered an argument that would apply with no less force in protecting atheists or owners with no religious convictions. The irony is that both cases were argued under the Religious Freedom Restoration Act (RFRA) an Act designed to give more insulation to the religious from the laws imposed more readily on everyone else. And this irony points to an awkwardness that has afflicted the defense of religious freedom in these cases.
However the argument is addressed, an argument that pleads for a special release for the religious turns into a plea merely for an “exception” to the laws imposed on everyone else. But the Catholic position on abortion has never depended on “beliefs” or appeals to faith. It has been a combination of embryology (the facts of science) woven with principled reasoning. And so Bishop William Lori, speaking for the Catholic bishops, did not seek an exemption for Catholics from the mandates on abortion. He insisted that a law compelling people to support abortions was an “unjust law,” rightly binding on no one.
But with the case presented under RFRA, the judges insisted that the mandates of Obamacare had to be tested with a “strict scrutiny” before the law could compel people to violate their religious convictions. The law, they insisted, had to be “narrowly tailored,” and in that way severely tested. If there is a “right to contraception,” none of these owners was blocking the access of anyone to contraceptives. As Judge Brown remarked, the “government has failed to demonstrate how such a right—whether described as noninterference, privacy, or autonomy—can extend to the compelled subsidization of a woman’s procreative practices.” If the law was offered as necessary to the “public health,” it is hard to see why that end could be served only by requiring the Gilardis, Kortes and Grotes to buy contraceptives for any particular person. If the purpose were to diffuse contraceptives widely in the land, there were surely other ways to do that without compelling people to violate their religious convictions. As Judge Sykes noted, “the government can provide a ‘public option’ for contraception insurance; it can give tax incentives to contraception suppliers to provide these medications and services at no cost to consumers; it can give tax incentives to consumers of contraception and sterilization services.”
It could also just pay for these contraceptives and fund them by taxes. What it did instead was to engage in a species of what used to be called “class legislation,” taking property from person A and transferring it to person B. In the past, that would have set off all of the alarms of a constitutional problem, a “taking of property” without compensation. Chief Justice Salmon Chase caught the sense of this matter many years earlier in the famous Legal Tender cases (1870) when he remarked that
[the provision on the taking of property] does not, in terms, prohibit legislation which appropriates the private property of one class of citizens to the use of another class; but if such property cannot be taken for the benefit of all, without compensation, it is difficult to understand how it can be so taken for the benefit of a part without violating the spirit of the prohibition.
After all, if a service is mandated by the federal government, the federal government should be required to fund that service, not transfer a public service to private persons to bear at private expense. That convenient device simply manages to avoid the discipline of constitutionalism, for it frees the government from the need to raise the money to cover its own commitments, and justify to the voters the added taxes that it is laying upon the public.
What was engaged were the deep principles of a regime of law, and Judges Brown and Sykes were bringing them to the aid of the religious. But it should be evident that the protections springing from those principles would not be confined to the religious. And so the problem for Judges Brown and Sykes would be: Why would these same arguments not work just as forcefully to protect people who are not religious? The interests of the religious are not demeaned when they call to their side those constitutional principles that work to protect the freedom of “the human person.” In fact, there is something curiously off-key in reducing the religious to a group of rare sensibility, pleading for an indulgence, or exception, from the laws laid down for others.
The religious tradition forms the deep moral reservoir from which our laws are drawn: It explains more powerfully than anything else what is so portentous about the taking of a human life, or why it is hardly trivial to restrict the freedom, or take the property, of those beings we call “moral agents,” those beings who alone can impart a moral purpose to property and to inanimate matter. And nothing has enlarged our sense of the moral meaning of that “human person” than the teaching, long preserved, that that “person” was made in the image of something higher. What other teaching could have shaped Lincoln’s understanding when he remarked that “nothing stamped with the Divine image and likeness was sent into the world to be trodden on, and degraded, and imbruted by its fellows”? The law has lived, and continues to live, on the moral capital of our religious teaching, even while the awareness of that connection has fled the memory of most lawyers.
The truth that seems to be missed, then, in the run of our cases is that “strict scrutiny” reflects the standard that should be in place for any restrictions of freedom, not merely restrictions on the religious, for it reflects the classic understanding of the connection between the “logic of morals” and the “logic of law”: When we move to a moral judgment, we move away from statements of merely subjective taste or private belief. We begin to speak about the things that are right or wrong, just or unjust, for others as well as ourselves. In the same way, the law works to override the freedom to make personal choices; it displaces private preferences with a rule imposed uniformly on everyone. And that state of affairs is precisely what required the law to give a demanding “justification” for itself.
In the curious state of our law now, the judges invoke RFRA in order to engage, for the religious, the demanding tests that were once thought to be necessary when the law restricts freedom or takes the property of anyone. Does RFRA simply mask for us now the fact that, unless we are dealing with religion, or with racial discrimination, we have settled in with the notion that we no longer require the law to face these same demanding tests when it would it would abridge any of our freedoms? Or might it be that, if we secure these exacting tests under the banner of religion, they may yet be restored to all other dimensions of our freedom?