Free?

by David Link on February 5, 2012

Stephen Miller makes a good enough point, as far as it goes.  But it doesn’t go very far.

He’s one of the last people I’d expect to use squishy liberal rhetoric, but there’s just no kinder way to describe that “free.”  Only Pelosi-philes really think that insurance benefits are free just because you don’t pay for them at the point of service.  Insurance is a product, and people buy it.  The question is what and how much you’re paying for.

And that gets me to the main point.  Steve is willing to accept the church’s position that any corporate structure they choose to devise is religion if they say so.

The government not only has no business interfering with the exercise of religion, I think that’s one of the most consequential and revolutionary aspects of our constitution.  And that fully includes religious discrimination against lesbians and gay men.

But is the government required to be a sap about it?  Like all other bureaucratic organizations, churches have been known to abuse power and privilege — and laws.  And that is nowhere more true than when it comes to rules about sex.  Catholics are free to accept their church leadership’s hypocrisy and cluelessness about sexual matters.  But when the church selectively wishes to exempt itself from some laws (about contraception, say) while following others (about tax advantages) in its business operations in the private — not religious — sector, then I think it’s fair to question their lawfulness, and even their seriousness.

Their non-Catholic employees need health insurance as much as anyone else does.  And those insurance policies are government regulated, whether any of us around here like it or not.  Within the limits of its authority over actual believers, the church is free to be as extravagant in its hypocrisy as it wishes.  But when it operates a business that is not limited to believers (and doesn’t even pretend to be), something different is at stake — the rule of law.  This is a case where the Catholic hierarchy is simply using its power over its own believers (which they freely ignore) to make life more complicated for non-believers who work for them.  And that is not any matter of conscience, it is a matter of naked power.

If any significant number of believing Catholics actually followed the church’s rules against contraception, this would be a somewhat harder case, I suppose.  But it would still come down to the fact that the church has chosen to establish a secular corporation in the private sector to provide an inarguably valuable public good.  Having chosen to do so, it is not free to pick and choose the laws that apply to it based on some flexible corporate notion of “conscience.”  If churches have the power to make even non-believers subject to their rules, in ways that are entirely convenient to the church, then we have recreated the problem of religious establishment under an infinitely expandable version of religious exercise.

That cannot be right.  It certainly isn’t what any of the founders would have imagined.   This is not just the religious exemption that Steve has in mind.  Church rules are appropriate for believers of that religion.  But there is and should be no constitutional right for religions to bully nonbelievers.  That principle is at the heart of this nation’s DNA, and it looks like the bishops want us to live through that battle again.

{ 7 comments }

Tom Scharbach February 5, 2012 at 3:59 pm

I think that it is important to keep in mind that at the heart of this fracas is a definition, specifically the definition of what constitutes a “religious employer”.

The proposed regulation defines a “religious employer” as one that: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under Internal Revenue Code section 6033(a)(1) and section 6033(a)(3)(A)(i) ["churches, their integrated auxiliaries, and conventions or associations of churches"] or (iii) ["the exclusively religious activities of any religious order"]. 45 C.F.R. §147.130(a)(1)(iv)(B).

The definition is consistent with federal and state laws and regulations with respect to religious organizations. The definition itself is not controversial; the definition is within the definitional boundaries used for income tax exemptions, sales tax exemptions, real property tax exemptions, differential taxation of employees, exemptions from social security laws and many other federal, state and local purposes in support of religion and religious freedom and exercise.

The question at hand is when, whether and to what extent the definitional boundary should be expanded to cover religiously-affiliated organizations that are not primarily religious in nature — universities, hospitals and charitable organizations that serve non-religious purposes.

My view is that because we subsidize religious organizations through exemptions, it makes sense to keep the definition of a “religious organization” reasonably narrow, so that the exemptions can be as broad as possible.

I don’t think that the Catholic Church is doing itself a favor in this case, trying to broaden the definition to include what are essentially non-religious organizations and purposes into the definition of “religious organization”. It seems to me that the broader the definition of “religious organization”, the narrower the scope of acceptable exemptions that can be permitted if we are to function as a secular society.

The law of religious exemption is complicated, reflecting a tension between religious freedom and the common good as understood in secular terms. The best work in the field, in my opinion, is being done by Doug Laycock of the University of Virginia Law School. He’s done a lot of writing and thinking in this area. In particular, it might be worth a few minutes to review the article.

North Dallas Thirty February 5, 2012 at 6:10 pm

Actually, the problem is simply this.

David Link and Tom Scharbach would not be saying that a private employer who chose not to pay for chiropractic care, acupuncture, or reparative therapy was infringing on its employees’ “rights” or accuse it of “bullying”. They might even come to the obvious conclusion: since you choose where you work, if it’s that important to have your employer offer and pay for these things, go work for someone who does instead.

But in this case, since it’s Catholics, who they loathe, and abortion, which they are required to support as good Obama Party staffers and leftists, out comes the rhetoric.

You are making obvious, Link and Scharbach, that this is about punishing and attacking Catholics. This is not a matter of principle on your part; it is a matter of attempting to pink wash naked hatred of and bigotry against Catholics.

North Dallas Thirty February 5, 2012 at 8:17 pm

Meanwhile, I wonder if David Link and Tom Scharbach, given this, would be willing to make this statement:

The Amish are free to accept their church leadership’s hypocrisy and cluelessness about sexual matters. But when the church selectively wishes to exempt itself from some laws (about contraception, say) while following others (about tax advantages) in its business operations in the private — not religious — sector, then I think it’s fair to question their lawfulness, and even their seriousness.

Their non-Amish employees need health insurance as much as anyone else does. And those insurance policies are government regulated, whether any of us around here like it or not. Within the limits of its authority over actual believers, the church is free to be as extravagant in its hypocrisy as it wishes. But when it operates a business that is not limited to believers (and doesn’t even pretend to be), something different is at stake — the rule of law. This is a case where the Amish hierarchy is simply using its power over its own believers (which they freely ignore) to make life more complicated for non-believers who work for them. And that is not any matter of conscience, it is a matter of naked power.

Also, entertainingly enough, given the prohibitions in Islam against ambiguity, gambling, and usury, all of which have been applied to insurance, the likelihood is high that Islamic-owned businesses will qualify for the exemption as well. Think David Link and Tom Scharbach will be willing to attack Islamic leaders the same way that they do Catholics?

BobN February 6, 2012 at 2:24 pm

Uh… where do you find an exemption for a business in that case? The exemption is at the level of the individual and the family.

Which is fine.

Jorge February 5, 2012 at 10:58 pm

I don’t like that definition. First, there needs to be an “or” instead of an “and” linking the different statements.

Steve is willing to accept the church’s position that any corporate structure they choose to devise is religion if they say so.

David Link is saying that if a church creates something, it’s not religion?

I might agree with that if the church cuts off any connection or affiliation with the business. Not if it remains its primary funder or shareholder. So, secondly I would say it’s a matter of the power or association that the religion has with the “employer”. A matter of function, not of form.

But I have a question. Does this law only apply to religious institutions that receive government funding, or does it apply to all religious institutions the government chooses to apply it to. If the latter, then really, it’s a major First Amendment issue. A church has a right to say our businesses shall not fund abortions.

Tom Scharbach February 6, 2012 at 8:52 am

I don’t like that definition. First, there needs to be an “or” instead of an “and” linking the different statements.

Be careful about broadening the definition of religious organization too far, Jorge. If the definition were “or” (applied as the standard across the board for legal purposes as is the definition, more or less) then a church could open up a car dealership that met one of the tests (say, employed only members of the church) and the business would be exempt from many of the taxes, laws and regulations applicable to car dealerships in general. Is that a result we want?

The law has been struggling with the interplay of the societal need for civil law that applies equally to all and the society’s interest in facilitating the free exercise of religion for a long time.

Religious exemption cases are always hard because two competing goods — equal application of the law, on the one hand, and free exercise, on the other.

The balance drawn over the years is complicated, but I think, having had some experience with this area of law representing religious organizations, that there is an interplay between the narrowness of the definition and the width of the exemptions that can be granted to religious organizations. The narrower the definition, the broader the exemptions can be, and vice a versus.

Jorge February 6, 2012 at 9:14 pm

So be it.

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