Bench Memos

Jay Michaelson’s “Report” on Religious Freedom: Part 2

Continuing with consecutive numbering from my previous post . . .

7.  RRL makes three factual errors about the HHS mandate.  First, Michaelson claims that it is really nothing new, writing: “In 2000, the Equal Employment Opportunity Commission held that failure to provide contraceptive coverage violates the 1978 Pregnancy Discrimination Act . . . Thus, contraception coverage has been the law for all employer-sponsored health plans for business with more than 15 employees for twelve years.”  This is simply wrong.  As the Becket Fund explains on its FAQ page about the HHS mandate:

The only federal court of appeals to rule on the issue has held that the 2000 EEOC opinion was unpersuasive and lacked the force of law. The U.S. Court of Appeals for the Eighth Circuit held that Title VII, as amended by the Pregnancy Discrimination Act (PDA), did not require employers to provide contraception to female employees. It rejected the reasoning of the 2000 EEOC opinion that interpreted the PDA as requiring employers to cover prescription contraception for women if they cover other prescription drugs and devices.

Indeed, if the federal government thought that the EEOC opinion already required employers to provide contraception, why would it have pushed the mandate through as part of the universal health reform law? The fact of the matter is that the EEOC opinion requires nothing.


8.  Second, Michaelson writes that “the Affordable Care Act itself required that contraceptive coverage be made available without a co-pay; HHS was enacting the law.”  Not that this would make anyone feel any better about his religious freedom being invaded, but it’s not even true.  The statute requires that “preventive care” be made available at no cost to insure employees, but it was Secretary Kathleen Sebelius who decided that the category “preventive care” would include all FDA-approved sterilization services and contraceptive devices and drugs, including abortion-inducing pharmaceuticals.

9.  In his third error about the HHS mandate, Michaelson puts across the Obama administration’s line about its new “accommodation” for religiously affiliated nonprofits, claiming that such hospitals, schools, charities, etc. will “not have to contract, arrange, pay for or refer for any contraceptive coverage,” and that female employees’ “birth control coverage . . . would through a separate individual plan.”  But as I have shown elsewhere (and here, here, and here too), this “accommodation” is a fraud on the public and the institutions concerned, since those institutions will still in fact be contracting and paying for the contraception-sterilization-abortifacient coverage of their employees and their dependents.  What Michaelson calls a “huge concession” did not fool anyone leading the affected institutions, which have continued their litigation against the mandate rather than dropping it.

10.  Michaelson is desperate to associate defenders of religious liberty with an “ultra-conservative” agenda of “theocracy” or “Dominionism.”  But he knows he doesn’t have the facts to substantiate such nonsense, so he resorts to innuendo, or to passive-aggressive making of a charge that is then immediately withdrawn.  So, in RRL’s executive summary we get this:

[T]he Right’s “religious liberty campaign is a key front in the broader culture war designed to fight the same social battles on new-sounding terms, and is part of a movement with old roots in Christian Dominionism (a form of theocracy) and ties to conservative Catholics who launched the antichoice movement . . . Proponents may sincerely believe that they are defending religious freedom, but the campaign’s endgame is a “Christian nation” defined in exclusively conservative terms.

My ellipses excise just one sentence, not relevant here.  Notice the aggressive claim that today’s advocates of religious liberty are somehow disguised theocrats—though how “Christian Dominionism” would get along with those “conservative Catholics” is a good question!—which is then immediately half-withdrawn, so that Michaelson ends by saying, in his typically confused way, that while we defenders of religious freedom may be “sincerely” pursuing that goal, we are actually pursuing a theocratic “endgame.”  Does he mean that we are unaware of our own “endgame,” since we are evidently “sincere” about pursuing something else entirely?  But how can it be our endgame if we are unaware of it?  There are deep psychological mysteries here—mostly having to do with the tortured mind of Jay Michaelson.

More of the “Dominionism” innuendo comes later in the body of the report, when Michaelson pointlessly discusses the obscure R.J. Rushdoony, insinuates that the Rutherford Institute’s John Whitehead is a Dominionist (see Whitehead’s reply long ago to this sort of thing here), and thereby seeks to taint everyone who defends religious liberty today.  But again comes the passive retreat from the aggressively sensational charge.  In a brief discussion of “Christian Reconstructionism” (another name for Dominionism), Michaelson concludes limply that “evidence has not shown that Reconstructionists are behind the current ‘religious liberty’ campaign.”  So what was all the Sturm und Drang about?

11.  Repeatedly throughout RRL, Michaelson charges advocates of religious liberty with employing the scare tactic of claiming that if same-sex marriage is established, clergy will be forced to solemnize such marriages in their houses of worship.  Only once does Michaelson give a source for anyone making such a claim: it turns out to be an obscure 2008 anti-Obama book by Brad O’Leary titled Audacity of Deceit (Amazon sales ranks 752,212).  If he were to read, say, What Is Marriage? Man and Woman: A Defense by Sherif Girgis, Ryan T. Anderson, and Robert P. George (Amazon sales rank 2,512), he would find no sign of this argument.  And the Becket Fund, in its amicus brief in the Windsor case concerning the Defense of Marriage Act, specifically disavows any such argument.

Whatever may be said in the heat of political battle by people in the trenches, the claim that clergy will be forced to celebrate same-sex weddings is not at all prominent among the leading defenders of marriage or of religious liberty.  It is however, a common red herring among the advocates of same-sex marriage, who often claim that their adversaries talk about this alleged danger a lot.  This permits them to focus on this alone, as the one and only serious religious-freedom concern that people have about the establishment of same-sex marriage.  Then the advocates of revolutionizing marriage law say either that the Constitution already takes care of this problem, or that they will offer superfluous assurances about it in same-sex marriage legislation.  And presto! all religious freedom problems have been dealt with, and the problem has been solved!  But of course there are manifold serious invasions of religious freedom that await us if and when same-sex marriage arrives, as we have already seen where it has arrived.

To be continued . . .


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