Bench Memos

Jay Michaelson’s “Report” on Religious Freedom: Part 3

Continuing with consecutive numbering from my previous post . . .

12.  What then are the real issues involving religious freedom today?  RRL rightly identifies two main controversies: the claims of employers that it violates their religious freedom to be subjected to the HHS mandate, and the fear that same-sex marriage will lead to the contraction of religious freedom for people of faith who believe that marriage can only be between a man and a woman.  But Michaelson appears quite unable to discuss these controversies without begging the key questions—i.e., he assumes, without establishing through argument, that justice is on the side of “access” to “reproductive health services” at the expense of every employer, and that all refusals to treat same-sex couples as “married” are a form of invidious “discrimination” that cannot be tolerated even in the name of religious liberty.  But it is not established—not yet, and we pray never—that there is a universal “civil right” of same-sex couples to be legally married, much less that they have a right to compel the services of, say, photographers, bakers, caterers, etc. to facilitate their “marriage” ceremonies.  Nor is there, under any reasonable reading of existing law, a “civil duty” of employers to pay for their employees’ contraception coverage, just because Kathleen Sebelius has said so.

13.  In his relentless question-begging, then, Michaelson regularly mocks claims he considers outlandish, after describing them in the most distorted way.  Thus he writes, for instance, of the case of a New Mexico wedding photographer fined for refusing to photograph a same-sex “commitment ceremony”:

[C]onservative arguments generally invent religious practices where none had existed before.  There is no Christian teaching forbidding one from photographing something they may find objectionable.

Michaelson ignores the established norm in religious-freedom law, that the claims of believers that their faith compels them to do some things and refrain from others are not to be second-guessed by judges unless they are evidently insincere.  More importantly, his mocking misdescription of a nonexistent “Christian teaching” misses the true character of the photographer’s claim altogether: she got into business to photograph weddings, and considers her work to be more than a business, but also a part of her Christian witness to the sacred character of marriage (and not just Christian marriages, but all true marriages).  Therefore she cannot in good conscience lend her services to a ceremony she considers a travesty of true marriage.  And since the couple she refused to serve can readily find another photographer to do the work happily (and therefore do it well), the claim that they were “harmed” by her “discrimination” rings hollow.

14.  In the same way, RRL mischaracterizes the employer-paid coverage of contraception under the HHS mandate.  Michaelson writes that Hobby Lobby, the plaintiff in a suit currently being litigated,

is not paying directly for contraception.  The company does not choose, the employee does, and the company has no moral agency in that individual’s choice.  Similarly, Hobby Lobby doesn’t control how employees spend their salary.

But if employees of Hobby Lobby want to use their undifferentiated salary income for contraception, the company neither knows nor cares.  What it objects to is providing no-deductible, no-co-pay coverage of contraception, including abortion-inducing drugs.  And it is “paying directly” for those, as even the Obama administration admits in its legal arguments in the Hobby Lobby case, although it ludicrously claims that such payment involves no “moral agency.”

15.  Michaelson also argues that “religious liberty . . . does not allow a boss to tell an employee what health care they can obtain.”  This is the usual confusion of “employer-purchased contraception” with “access to contraception,” and is absurd on its face.  And he largely gives away his real hostility to religious freedom in full when he argues, echoing the Obama administration, that “distinguishing between commercial and religious acts” is the key to suppressing the claims he dislikes.  Readers should see the splendid March 19 article by the Becket Fund’s Mark Rienzi at Public Discourse, disposing of the Obama administration’s new dictum, parroted by Michaelson, that if you’re in business, you have no religious freedom.

Typically for someone who argues so disingenuously, Michaelson says of the legal campaign against the HHS mandate that it is “finding mixed results.”  Sort of true, mostly false: so far the campaign is winning in the courts, in the majority of cases involving for-profit employers.  And Michaelson never reports the grounds on which courts have been granting preliminary injunctions, while litigation continues—namely, that the employers’ prospects of winning are very good, and that their religious-freedom claims are very strong indeed.

16.  Finally, Michaelson and his colleagues Malika Redmond and Francis deBernardo (who wrote a preface and a foreword, respectively) somehow think it makes sense to say that there is no religious freedom at issue in controversies such as same-sex marriage and the HHS mandate, because there are religious people who don’t feel their freedom threatened by these “progressive” policies, and in fact are in favor of them in part because of their religious beliefs.  I guess it really does need to be explained to them that various religions take various views of what is directly an impingement of their own freedom, but that all friends of religious freedom should be concerned when anyone else’s religious conscience is traduced.  “I’m a liberal Episcopalian and I’m not threatened” is hardly an argument that no religious freedom issue is at stake.  But these “progressives” who claim to care about real religious freedom evidently think it is.

The suppression of key facts.  The “reporting” of “facts” that aren’t facts.  The misrepresentation of his adversaries’ arguments.  The muttering of dark conspiracy theories complete with anti-Catholic innuendo.  The paranoid bleating about “theocracy” regarding a mass movement involving evangelicals, Jews, Catholics, Mormons, and Muslims.  Yep, that’s some “report” you’ve got there, Mr. Michaelson.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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