Priests for Life, the nation’s largest Catholic organization dedicated to ending abortion and euthanasia, has filed suit against the Obama administration for its birth-control mandate, claiming it violates the Religious Freedom Restoration Act of 1993. It’s a plausible argument — and a role reversal for the Catholic Church.
In April 1990, the Supreme Court ruled in Employment Divisionv.Smith that the state of Oregon could deny unemployment benefits to men fired because they had used peyote, despite the fact that they had used it at a ceremony in a Native American church. Writing for the Court, Justice Antonin Scalia argued that the First Amendment did not prohibit “neutral, generally applicable” laws that incidentally burdened religiously motivated activity.
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The decision provoked outrage. “With the stroke of a pen the Supreme Court virtually removed religious freedom, our first freedom, from the Bill of Rights,” said Representative Stephen Solarz, a Democrat from New York. That July, he introduced the Religious Freedom Restoration Act with Representative Paul Henry, a Republican from Michigan. The act sought to reinstall an approach to the First Amendment previously enforced by the Court: The government couldn’t interfere with religious practice unless in pursuit of a “compelling government interest” — and even then, the government would be obliged to use the least restrictive means possible.
The secular Left and religious Right united in a political alliance: The American Civil Liberties Union joined the fight, as did the National Association of Evangelicals — and 48 other groups.
“You had the civil-libertarian Left that thought Employment Divisionv.Smith was wrong, and you had the conservative religious Right, who wanted to protect religious liberty, even though they were not particularly fond of drug use,” remembers Professor Michael Paulsen of the University of St. Thomas School of Law. “It was a wonderful strange-bedfellows combination that supported the passage of the RFRA.”
Testifying before a congressional panel, Nadine Strossen, president of the ACLU, even warned, as the State News Service reported, that the Smith decision “could force religion-sponsored hospitals to provide abortion or contraception services.”
But one religious institution opposed the the RFRA: the U.S. Conference of Catholic Bishops.
In 1990, Republican presidents had appointed the last four Supreme Court justices, so conservatives were hopeful that the Court would soon overturn Roe v. Wade. In that case, the conference was worried that under the RFRA women could claim the right to an abortion as a matter of religious belief.
The National Right to Life Committee shared this worry. “Our position is that we’re opposed to the bill unless it excludes these kinds of claims,” NRLC’s executive director Douglas Johnson said.
“We believe that the concern is not far-fetched,” said Mark Chopko, general counsel for the U.S. Catholic Conference. Nonetheless, Chopko added that “we want to be supportive of legislative remedies” to the Court’s ruling.
Chopko later admitted “the risk to human life [was] too severe” for the conference to support the bill without an amendment that made it “abortion-neutral.”
Jewish groups, meanwhile, were working in favor of the RFRA, worried that the Smith decision could threaten Jewish practices. “The Catholics are working very deftly behind the scenes,” an official with a major Jewish group told the Baltimore Jewish Times. “We can talk until we’re blue in the face about the fact that this is not an ‘abortion bill’; it’s about a very dangerous Supreme Court decision that threatens our most basic religious liberties. But they are pushing the issue very hard — and with an election year coming up, they’re making things very difficult.”
With Democrats in control of both houses, passage of the RFRA should have been relatively easy, but President George H. W. Bush promised to veto the bill unless it included the abortion language. That, for the Left, was a nonstarter. As a result, the bill went nowhere for three years.
But in June 1992, the Court upheld most of Roe v. Wade in a new case, Planned Parenthood v. Casey, signaling that abortion rights would be around for a while. “I think that played a big role in that objection’s losing its force,” says Professor Tom Berg of the University of St. Thomas School of Law.
And in September, presidential candidate Bill Clinton endorsed the bill. When he won election in November, the bill’s passage was all but assured.
In May 1993, the bill was resurrected by Representative Chuck Schumer. “Under Smith, the practice of using sacramental wine, wearing a yarmulke, kosher slaughter, and many other religious practices all could be jeopardized,” he warned the House when introducing the legislation.
Representative Nancy Pelosi also voiced her support: “This legislation is important because it protects an individual’s religious freedom from unnecessary government interference. It provides for the reestablishment of fair standards to determine if government intervention is necessary.”
As did Representative Steny Hoyer, who warned that, because of Smith, “one Catholic teaching hospital lost its accreditation for refusing to provide abortion services.”
Support was so widespread that the RFRA passed the House in a voice vote. In the Senate, the final version passed 97–3. Only Robert Byrd, Jesse Helms, and Harlan Matthews voted against it.
Now, the RFRA is the law of the land, and the conference is poised to assert its rights under the legislation. The switcheroo is amusing, but also embarrassing for Democrats, who, after preaching from the mountaintops the virtues of religious liberty, are riding roughshod over them.
— Brian Bolduc is an editorial associate at National Review.
Well, fortunately enough, they have to show more than a compelling interest. They have to show that the infringement is the least restrictive alternative and that it is neutral. They can do none of these.
Employment Division v. Smith was, and is, wrongly decided in law; the case facts might have implied the given result, but not as a matter of general applicability.
As far as peyote goes, the question ought to have been whether the substance was in general religious use (among those tribes) prior to the passage of any laws prohibiting substances such as peyote. If so, then usage of peyote by tribal members, at tribal ceremonies on tribal lands, ought never have been outlawed. And, if such a user is employed outside tribal lands by a non-tribal employer, the mere fact that the person used peyote in some other context ought never to have been a rationale for denying or terminating employment.
The exception would be if peyote had deleterious effects that continued to the outside scope. In such a case, there is a prevailing public health or safety issue, or possibly a work performance issue. But those factors can be measured. Thus, if peyote usage on Tuesday (by a tribe member at a tribal ceremony on tribal lands) had an aftereffect that imparied that person at a job on Wednesday, that would be a legitimate reason for termination or refusal of employment. I note that most passing references to the case do not elucidate wether or not these circumstances were put in evidence; if they were, the quoted rationale by Scalia is too broad for the facts in evidence.
On the other hand, if usage of peyote did not precede the restricting law, then it could be banned. Usage of a substance that had existed throughout history but not previously used, would be tantamount to a new religion. There is a difference between requiring someone to abandon a traditional religion, particularly one that is localized to traditional areas, and requiring someone to commence practicing or avoid practicing something new, particularly if there are external consequences. Thus, "externality," in the economic and environmental sense, is an applicable criterion.
In the case of Catholicism, abortion has been a grave sin at all places and times, throughout the religion. Contraception may be of recent origin, but the underlying religious concept (relationship between a man and a woman in marriage, and its purpose) dates to antiquity. So, arguments that "they didn't know about The Pill back then" are inapplicable. The Pope's 1960s-era declaration did not create a new religion, but merely elucidated existing religion for the benefit of the faithful who would otherwise not analyze the religious implications themselves (and that, I note, is an actual characteristic of the Church). The practicality of the papal declaration is immaterial.
Any argument that the majority of Catholics practice contraception, even ones who go to Mass regularly, is irrelevant. Persons who manage and provide medical services in Catholic hostpitals, and individual Catholic medical practitioners, are not the majority of Catholics. They can choose to violate tenets of their religion; but the state is barred from punishing them for it if they choose to adhere. The only expetion would be the kind of externality I mentioned for peyote.
What kind of externality occurs if a Catholic medical practitioner refuses to perform an aboution, provide contraceptives, pay for someone else to do it, or refer to such a place? None that I can see. The alternative is readily available, widely publicized, and can be subsidized by voluntary private organizations, for those ithout sufficient money.
The tax deduction described at CashInTheHand.org eliminates this problem. Read "Vision For America" & "A Vision for Health Care in America" "Two Problems with Every Tax Deduction Passed by Congress". This tax deduction puts the money to buy health insurance and health care in the hands of the individual. The individual decides if they want birth control, not their employer, not the state and not the federal government. Read "How Health Insurance Works" and "Health Insurance and Pre-Existing Conditions" to see how to cover people with pre-existing conditions.
A Vision for Health Care in America
Here is a vision for health care in America that all people can agree upon:
Imagine a doctor and patient sitting in a doctor’s office. The patient has all the money they need to pay for their medical needs. There are no insurance companies in the room. There are no government bureaucrats in the room. Just the doctor, the patient and the money.
How Do You Get There?
With the tax deduction “Cash in the Hand”:
For Individuals:
If you could deposit your income tax payment into your savings account, would you do it?
If you could deposit your property tax payment into your savings account, would you do it?
Waiters and Waitresses:
Would you like all the sales taxes collected each day by your employer to be divided equally between all the workers in the restaurant and deposited into your savings account for you?
Workers in a big box store:
Would you like your employers property tax bill divided equally between all the workers and deposited in your savings account for you?
Would you like your employers corporate income tax bill divided equally between all the workers and deposited in your savings account?
What can you do with the money in your savings account?
Buy Health Insurance
Pay for any health related expense
Conclusion
Do you want to live under the ObamaCare health care laws or would you rather have a Health Savings Account made possible by the tax deduction “Cash in the Hand”?
The Two Problems with Every Tax Deduction Passed by Congress
Problem One:
Congress passes tax deductions with the expectation of a certain result. Can anyone honestly say that Congress has gotten the desired results from all it’s tax deductions? Did the result happen?
Problem Two:
Congress gives businesses billions of dollars in tax deductions and “hopes some loose change” will trickle down to the worker. Does it? Did Congress get its money’s worth?
Solution:
The tax deduction “Cash in the Hand” solves this problem. If you give $1000 to a poor person for food, “Cash in the Hand” gives you a $1000 tax deduction, not a $5,000 tax deduction. If you hire a person and pay them $10,000 for health care, “Cash in the Hand” gives you a $10,000 tax deduction, not a $20,000 tax deduction. Notice that the desired results must be done first, then you get the tax deduction, but only for the amount spent.
“Cash in the Hand” is Results First, Payment Second, Dollar for Dollar.
You would not hire an auto mechanic to fix your car the way Congress hires companies to fix societies problems. Would you hire an auto mechanic by giving him thousands of dollars and then hoping that your car is fixed? Or would you require the car to be fixed before you paid the mechanic and you would only pay the mechanic a fair price for the work that was done?
Conclusion
The tax deduction “Cash in the Hand” fixes our economic problems. Every employer has a tax incentive to hire, pay well and provide health care. Every employee has an incentive to work hard and make their company profitable.
Most Democrats used to believe our Nation was founded under Christian principles. No doubt, most Democrats today support RFRA because they believe "it provides for the reestablishment of fair standards to determine if government intervention is necessary", regardless of these Christian principles, whereas the U.S.C.C.B., did not support the RFRA because they know this Nation was founded on Christian principles and when you compromise these Christian principles, you not only end up worshipping false idols, you change the very essence of our Nation, which, from the beginning, desired to be One Nation, Under God, Indivisible, with Liberty and Justice for all, but fell short of this desire every time our Christian principles were compromised.
Nothing could be more restrictive than forcing each and every Insurance Company or future Insurance Company, including those Insurance Companies that for a variety of secular and Religious reasons do not want to provide contraception in their Insurance Plans, to provide contraception, so that every person, including those persons who, for a variety of secular and Religious reasons oppose being forced to use an Insurance Plan that condones and supports the use of contraception, is forced to choose between an Insurance Plan that provides contraception or not being insured.
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