The president’s pretend compromise today does nothing to fix the religious-liberty problems he has created for millions of Americans who do not share his view that contraception and abortion are good things.
First, the idea that religious employers will not be paying for contraception, sterilization, and abortion drugs under this system is simply false. The coverage only comes through an insurance policy, and the religious employer is being forced by the government to buy that policy. For most religious believers, stapling the coverage on as a rider isn’t any better than including it on page 2 of the policy. At the end of the day, the employer still pays for the policy, the policy still provides the coverage, and the employer’s offering the policy is the trigger for the coverage. For most, that will be insufficient.
Second, remember that the big problem with the original rule was its exceedingly narrow definition of “religious employer.” What is the new definition of the other entities that are going to be protected? We have no idea — the president won’t tell us. Instead, he apparently wants even more time to think about it, at least until after the next election. So we have no idea what institutions are even going to get the thin protection of the alleged compromise.
Third, this does nothing to protect churches and other institutions like EWTN that are self-insured. The whole point of the compromise is to stick the burden on the insurer. Well, for many dioceses and folks like EWTN, they are the insurers — so they are still being forced to directly provide the coverage that violates their religion. Ironically, many of these institutions self-insure precisely in order to avoid state-law requirements to provide these drugs. So the president, whether intentionally or not, is eliminating the safety valve that works in many states to protect religious institutions. Thanks for that “compromise.”
Fourth, and most important, this compromise does absolutely nothing to protect individual religious Americans. To listen to the president and much of the media, the only people who have religious liberty in this country are churches and religiously affiliated institutions. But religious liberty is the inalienable right of all Americans, not just churches. The president’s compromise offers nothing to protect individual religious liberty — if you own a pharmacy or a doctor’s office or a gas station and you have a religious objection to buying these products, tough luck. Maybe if you wore a collar or a habit the president would respect your religious liberty, but not if you wear a tie, scrubs, or coveralls. Of course this is all entirely contrary to law — individuals have religious-freedom rights under the First Amendment and under RFRA. And to the extent the president thought he could avoid the First Amendment because of the Smith case, he just blew up his own argument: Try convincing a federal court that your law is “neutral” among religious objectors after you have publicly declared a three-class world — churches (which maybe don’t have to provide the coverage at all), religiously affiliated institutions (which have to do it by having their insurer staple on a rider), and the rest of us (who apparently have no rights). Obamacare never was neutral or generally applicable, but the president demonstrated it more effectively this afternoon than ever before.
The president has had three chances to get religious liberty right. He swung and missed terribly in August, setting off the first firestorm with his historically stingy definition of a religious employer. He swung and missed again in January, when Secretary Sebelius was kind enough to offer believers an extra year to “adapt” their religious principles to government orthodoxy. And he swung and missed today with his phony compromise seeking (yet again) to take the air out of the issue until election time.
Three strikes and you’re out, Mr. President. Instead of solving your religious-freedom problems, this series of half-measures is just keeping the religious-liberty issue on the front page. The administration’s stubborn refusal to offer real protection for religious liberty just ensures that they will continue to face a host of lawsuits. Those lawsuits will not disappear until the administration respects religious liberty. And until then, the president can expect to see more and more courts reject his narrow views of religious liberty as “extreme,” “untenable,” and out of step with the First Amendment, just as a unanimous Supreme Court did last month.
— Mark Rienzi is senior counsel at the Becket Fund for Religious Liberty and a professor of constitutional law at the Catholic University of America.