"And this is even a debate?"

It's a debate, because the assertion that the First amendment is being violated here is not a given fact. If you want to convince those who disagree with you - something that is key to changing the policy and winning the conversation on a national level - you have to actually build a logical argument that addresses the response from the other side; that this is NOT a first amendment issue in the slightest.

Does the 1st amendment proscribing laws 'limiting the free exercise of religion' mean whatever any religious person says it means? Are there no limits upon this right? How do you legally determine whose religious objections are valid to what laws, and whose are not? It's been clearly shown here at NRO that those who object to this current instance have no intention of allowing other religions to utilize their perceptions of which laws should and should not govern their behavior; how does the argument that this rule shouldn't apply to religiously-affiliated institutions respond to this?

Oddly enough, I find myself agreeing with your first paragraph. This entire issue exploded because of the mandate's impact on religious groups and employers, but it shouldn't be limited to a First Amendment argument.

What HHS and Obama ought to be doing, and have yet to do, is build a logical argument that addresses the response from the side. IE, the precise Constitutional position that grants authority to the Executive Branch to force ALL employers, including religious employers, to purchase ANY product under penalty of law. Would you be as relaxed about the issue if a President Santorum used the Affordable Care Act provisions to mandate that all employers, including Muslims and anti-alcohol groups, must provide free wine to all employees every Friday? A glass of wine has health benefits, after all, and that trumps everything. Right?

If I maintain that my religion grants me the freedom to drive 95 mph down a highway, there are concise and coherent legal arguments against my position. If I believe that my church should not be forced to perform same-sex wedding ceremonies, it is much harder to insist that the opposite position is not a violation of the First Amendment.

To answer Mr. French's question at least partially about where the Legal tradition came from etc., it's clear the philosophical tradition for it comes from Thomas Hobbes, for whom "rights" were just our individual de facto interests insofar as we have the means to pursue them. Thus there is no principle logic to establishing which rights are the objective ones, that only is to be settled by the negotiations made between rival right holders in a give and take fashion. This is behind the "abuse" of rights-talk, which is only an abuse to some folks at NRO because for them there is an objective normative sense to being a right such that rights cannot be negotiated nor exchanged. It is part of the logic of this view that the prudence it's logic recommends is to embrace the dictates of a napolianic Leviathan of authority to which everyone by acclamation to it and to each other willingly surrenders their natural rights. This is how the progressives understand the phrase "elections have consequences". 

In support fir this view, the suggestion is that on the alternative or "French/NRO" view cannot adequately account for cases where rights seem to create dilemmas such as the right to religious conscience and the right to life in the case of Jehovah Witness parents forbidding a life saving blood transfusion for their child in an emergency. If an outside agency acts against the parents to save the child, they could not, so it would be argued, give a reason that would not simply be ad hoc. Further, this only illustrated that such moral reason giving only illustrates the arbitrariness of rights talk in the first place. Thus, the French/NRO position is meaningless and can't be used to make sense of a document purporting to be a contract establishing a government such as the Constitution. In particular, it makes no sense to say that we are in any way beholden to a so-called right of the founders to respect their original intentions. The only validity the Constitution has is that we all agreed to be subject to its prescriptions. 

That something like this is for the most part behind your view is clear. But the response to it is that the differences between this and the French/NRO view are philosophical. The F/NRO view affirms something like an objective human nature which is rationally perceivable and which is more than just animal drives of pleasure and fear. Based on that nature, there are specific potencies and impotencies common to all that point to a specific good for humans. Since pursuing the good is as much a normative first principle of practical reason as the maw of noncontradiction is in pure reason, we can specify to a certain degree what those goods are and measure our laws against them. The fact that morality and the law aim at concrete decisions in contingent situations they are subject to greater qualifications about their specific conclusions, it does not take away from their intelligibility and objectivity. Variations across situations and times account for the diversity of codes and laws.  Further, the fact that our analysis due to the infinite set of possible circumstances can only be partial does not make them necessarily false. 

Now each view resting as it does on different presuppositions which ultimately rest on some claim to self-justification which not all parties accept cannot be adjucated by direct arguments. The Hobbes view sees parsimony favoring it only because it rejects the principle of verisimilitude applied to ethics and morality. It denies that there is such an intelligible reality to morality by a kind of scientism. But this is both circular (we only like what we can show through science) and self-defeating ("Only what science can justify is justified" is not justified by science). The F/NRO view accepts that to know anything at all in any field, some principles must be properly self-evident and that everyone has an epistemic defeasible right to accept that the world is as appears to them, including moral judgments. 

When confronted with the dilemma of these alternatives, what authority could be appealed to settle the question? For the Hobbesian view, only choice and the social contract, but for them that answer will be sufficient if the leviathan imposes it. But if so, the French/NRO may make a reasonable case that in the case of rational choice between uncertain principles, it is much better to wager on the French/NRO view, following the examples of Plato's Apology, Pascal, and William James. However, viewing the dilemma from the French/NRO side, the choice is a psuedo-choice which only appears to be plausible because of modern thought's rejection of classical essences/ends relation which made coherent sense out of the relation between the prescriptions of classical morality and rights and the descriptions of humanity as we find it, and without which one devours the other.  Nothing in science refuted the philosophical concepts of classical thought even though it clearly triumphed over classical folk science. Furthermore, rejecting teleology only aggravated the puzzles of theoretical thought such as mind abd body, free will and predestination, and morality and rights. From the begining, this trip was never necessary theoretically and only demanded for extrinsic reasons such as discontent with the slow pace of technical, economic, and political development. Thus the strife of systems is principally an artifact of this quest, and which has led to the loss if ends that provides no restraint to risk of total destruction. 

Thanks for the insightful viewpoint. This is something that I've heard tell before, but it may be time for us conservatives to start hammering it home ever more forcefully. Everything you want is not a right and the Founders purposefully didn't include things like a right to contraception, or even a right to food, medicine, housing, or clothing. They knew that what people needed guaranteed from the government was liberty, and that a government that tried to provide all those other material items would grow too strong and too powerful.

By the way, love the Incredibles quote, what a good movie!

Leaving religion and the first amendment out of the analysis entirely, I believe the "rights" debate on this issue neatly summarizes the difference that divides Americans. In one camp are those who believe they have the right to free stuff paid for by others. In the other are those who believe they have the right not to be forced by the government to pay for free stuff for others. Count me in the latter camp.

In the case of the Lutheran school, where there was a dispute over whether religious rights or rights of the disabled should prevail, the school won a unanimous Supreme Court decision. It turned out that the Obama administration was defending a practice that was unconstitutional. If the federal government decides to give a waiver to worship-connected churches or religious institutions, it is already basically conceding either that the church or religious institution has a right to be exempt from offering the insurance or seeing to it that it be offered or else the government can act without violating the constitution by giving a waiver, thus showing that the employees "right" was not so strong that it overrides the rights of the church or religious institution or the righ of the federal government to give an exemption or waiver. Note that in the 1947 Everson case, the Supreme Court did indeed smuggle the "separation of Church and State" and "wall of separation" phrases into the Constitution (rebutted by dozens of Rehnquist citations in his decision on faith-based initiatives). But the court ruled that that principle was overriden by the right of the religious student to choose to go to a religious school and to therefore receive government-funded bussing to his-her own religious school. The Supreme Court might well rule that a church or religion has the right to determine what its mission is and who its ministers are, and thus tha the non-worship organizations such as charities, schools, and hositals either are just as exempt from the insurance requirements and its variations or even that the government must give the exempt to them if it gives the exemption to the worship-connected church or religion. Note also today's AP story about the ongoing investigation of 300,000 sterilizations of women in Peru from 1995 to 2000. That resembles the charges--granted, contested charges--that 40% of Native American or Original American women have been sterilized in the U.S., wth many done between 1970-1975, and with charges of compulsion and deception. MSNBC and CNN could call for a hearing on these sterilizations, including calling in these American women. And questions could be asked about what cautions are being taken to assure that the requirement of insurance coverage for sterilization won't result in an increase in abuse. Recall that Hitler sterilized 400,000 before World War II. And recall that compulsory sterilization is considered to be a form of genocide.

+1000

Am I mistake, or is Mr. French a fan of Mary Glendon?

A law professor of mine persuaded me that political debate could be reliably improved by simply expunging the word "right" from permissible vocabulary. The use of the word isn't always wrong, but it's never necessary, and often harmful. By giving them a common name, it tends to conflate in our minds some very different "rights," from "natural," or "God-given" rights to mere benefits of memberships in private clubs. Being a big fan of the Founding Fathers, and not wanting to give up on the idea of natural rights, I struggled, but I ultimately failed to disagree with that professor.

Brilliant point.