The other day I wrote here about New York’s new law that prohibits an employer from punishing an employee for any reproductive health-care medical decision they make. I brought the statute up because it contains no exemption for religious organizations, thereby materially impacting the right of churches and faith-based institutions to the free exercise of religion guaranteed by the Constitution. As I wrote:
This would seem to literally mean that, say, the Catholic Archdiocese of New York is legally required to inform employees they have the right to act as they choose with regard to issues such as birth control, abortion, or sterilization surgery — and moreover, tell such employees that they can so act openly even though contrary to the faith without fear of subsequent job consequence. Or, as another example, a visibly pregnant teacher at a Catholic school could obtain an abortion, and the school would be prevented from taking any remedial action regarding her employment under threat of litigation.
Writing at Wonkette, Robyn Pennacchia had a fit. Yet, when you penetrate beneath all the anger, she actually agrees with my analysis! After quoting the above passage in full, she writes:
Yes. It would mean those things. People, regardless of who their employer is, have a right to make their own reproductive choices. Giving someone a paycheck every week does not mean you get final say in their personal medical decisions.
She also agrees with something else I wrote:
This much is clear: Progressives intend to shatter religious liberty as it applies in the public square, shriveling the First Amendment’s guarantee to a mere freedom of worship.
Absolutely, she writes:
If your practice of your religion extends to other people in the public square who have their own freedoms, then yes, you will just have to stick to worshiping. I don’t know what else to tell you. You can’t have a religion where you get to bar the people who work for you from taking birth control, just like you don’t get to have a religion where you get to open up a restaurant that does not serve black people, or a religion that says you get to murder anyone.
So, Pennacchia is really furious because I object to the state legally interfering with the Catholic Church’s (in my example) free exercise of the Catholic faith in its employment practices, when she thinks that is exactly what the law should do.
Here’s another caveat I issued with which Pennacchia seems to agree:
Laws such as this are not going to be limited to reproductive issues but eventually will also be passed regarding other individual behaviors as they may conflict with the moral teaching and dogmas of religious employers.
Precisely right, she admits.
Your religion is your religion and you can practice it, but it can’t be part of your religion for other people to practice it as well. No one gets to have that religion, regardless of how much they would enjoy it.
But that’s all wrong. If a Muslim school has a policy based on the faith that forbids its teachers from (as a hypothetical) presenting to their students as other than their biological sex, and a male teacher who identifies as a woman comes to school in a skirt and blouse, firing the teacher does not somehow “force” the transgender employee to follow Islam. Rather, forbidding the religious school from following its faith precepts in employment would be the true imposition, corroding its religious identity. Enforcing Islamic rules in employment policy thus permits the school to express faith through action — the very right that the First Amendment’s free exercise clause protects against state infringement.
The only real difference between Pennacchia and I is that I believe in the entirety of the First Amendment and she does not.