Politics & Policy

The Devil & Daniel Brenner

It’s not about religious ethics; it’s about the Constitution.

Over at the Huffington Post, Rabbi Daniel Brenner recently published an interesting piece about contraception and the Jewish tradition. Daniel wonders why Rabbi Meir Soloveichik, who had testified against the contraception mandate before Congress, and had written two columns on the subject, “never once mentioned the Jewish position on contraception.” 

The reason he didn’t is that the Jewish position on contraception, like the Catholic one, is immaterial to the mandate controversy. The real issue here implicates the very basis of our social contract.      

Full disclosure: Daniel has been a good friend of mine since our days together at the University of Wisconsin. As most people who know him would say, he is pretty much one of my favorite people in the world. So I’m eager to hear his take on the constitutional issue of the controversy, because that issue should worry Jews every bit as much as it does Catholics, regardless of their position on contraception.

Of course Daniel is right that “The questions that exist around reproductive health care and religious ethics are profound and challenging and are faced by thousands of families and individuals every day.” But this controversy is not about those questions. It’s about the power of government. Daniel himself points to the reason why. He writes:

Whose morality (and religious liberty) should be favored then in laws concerning health care — that of the employee or of the employer? Should Catholics working at Jewish hospitals only be able to receive coverage for what is seen as ethical care according to rabbinic authorities? Should Jews working at Catholic hospitals be restricted to coverage for papal-approved care? These scenarios seem like an ill fit for an America where both Catholics and Jews are minorities and there are also various Protestant-associated hospitals of different denominations.

Those scenarios are an ill fit for our country. The employer’s morality should have nothing at all to do with its employees’ health-care choices. Employees of any organization, even Catholic ones, should be perfectly free to choose whatever health-care coverage they want. Alas, the federal government prevents that freedom of choice by forcing employers either to provide health insurance for their employees, or to pay the economic equivalent of a tax penalty. (The penalty becomes explicit — and more onerous — under Obamacare, but it has existed in one form or another since the administration of Franklin Roosevelt.)

After the federal government forces all sorts of institutions into the provision of health insurance, it then forces them to do things that are against the religious beliefs on which some of them were founded. The reason this scheme is an ill fit for our society is that the federal government shouldn’t be forcing employers into the health-care market in the first place. Indeed, if the Supreme Court were still in the business of protecting minorities’ constitutional rights from the tyranny of the majority (as it did until the 1930s), the federal government wouldn’t even be allowed to force employers to provide health insurance.

The issue here is not whether we should favor the beliefs of religious organizations over those of their employees, or whether contraception is ethical, or even whether employees of religious institutions should or should not have access to contraception. Let’s freely concede that employees of all organizations should have access to whatever health care they want and are willing to pay for.

The sole issue here is whether minority rights, such as religious freedom under the First Amendment, exist only at the pleasure of the majority, or whether the Constitution still imposes meaningful limits on federal power. We know where Obama stands: For him, the constitutional limits are just “some rigid notion about what government could or could not do,” as he said in his jobs speech last September. This controversy pits the tyranny of the majority against constitutional government — and Obama has been the most unabashed and unrestrained proponent of the former that we have seen since FDR.

The controversy is not about religious ethics, it’s about religious freedom. In fact, it’s not about ethics at all — it’s about constitutional protections. It’s about the right to avoid being forced to do things that your religion forbids — such as providing contraception to anybody, period.

Imagine this perfectly analogous hypothetical. Suppose the federal government starts regulating the content of school lunches at both public and private schools. Then imagine that the federal government requires all schools to serve pork fat to their students because of its nutritional value. Jews — and those who run Jewish schools — would be apoplectic, and I don’t even want to imagine how Muslims would react.

In this hypothetical the ethics of keeping kosher or halal are immaterial.  The key issue is the same as it is in the contraception mandate: Does the Constitution really still protect the free exercise of religion?

Once the federal government ceases to be a government of constitutionally limited powers and starts regulating every aspect of our lives, religious freedom exists only to the extent that the majority forbears to infringe upon it. Alas, that’s what our country has come to. It’s a sad state of affairs, and one that should make Jews every bit as depressed and fearful for the future as it makes Catholics.

— Mario Loyola is director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation. 

Mario Loyola is a senior fellow at the Competitive Enterprise Institute, the director of the Environmental Finance and Risk Management Program of Florida International University, and a visiting fellow at the National Security Institute of George Mason University. The opinions expressed in this column are his alone.


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