No. Again, making sure there’s an orderly flow of traffic is definitely a compelling government interest.
There is a bias towards established religions, but courts do try to determine if religious beliefs are sincerely held or whether someone is just trying to get out of something. If beliefs are sincerely held, and no compelling government interest is at stake, then not only should the courts allow them an exemption, but there’s no harm in it either.
You phrase it as a public safety matter, though. Not administrative ordering. The government has compelling interest in regulating traffic flow as a public safety matter and traffic lights are a good way to do it (and, like the social security case, individual exemptions would be a disaster). Yesterday there was a Fourth Circuit case invalidating a liability release on public policy grounds because safe driving was a matter of public interest (more or less). You’d just adopt those arguments.
(You’re right about the state government and RFRA issue, of course, but what about traffic lights on a federal installation? Or a national park? That’s the fun of hypotheticals).
Whether health care is or isn’t is a tough one. The Amish got an exemption tough, so maybe Obama just doesn’t care if Amish people die because they don’t have access to 21st century medical care.
But we don’t have to answer that question, because the President already wisely avoided that fight by granting exemptions to groups that genuinely are opposed to health insurance.
The question we have to answer is whether access to free contraception, paid for by an employer, is a compelling government interest. It’s hard to argue that it is, given that it’s not a life and death issue(well, maybe life, but you get my meaning.), and there is no access problem that requires a government solution. Reproductive medicine is mostly dirt cheap as far as medicine goes, with the exception of some exotic procedures like embryo implantation.
So the government doesn’t have a compelling interest in contraception itself, and even if it did, access to contraception is already near-universal.
It is a simple policy preference, and religious freedom trumps simple policy preferences.
You could equally pose contraception as a public health matter, though.
One might point out that SCOTUS receded from Yoder and Sherbert because the standard they established was unworkable.
Okay. Assume that there is a compelling government interest in making sure that (certain) people get contraceptive services at no expense to them. Is this the least restrictive way to do it? Does an individualized exemption destroy the system?
I think that they got abandoned because some justices had a fundamentally different viewpoint about the baseline of the religion clauses.
Well, then, that would mean not all laws must yield to religious freedom - even if they are “neutral.”
I’m not challenging the strict scrutiny standard, I’m just shining a light on it.
Except the nuns aren’t being forced to get insured, so that’s a little different issue.
Did it grant religious exemptions to groups required to provide insurance as employers though?
But you could break out other types of coverage one at a time like that and dispense with them all, one by one, until you had no insurance. Is access to free flu shots a compelling government interest, when they are pretty cheap too? No? Next item.
Yes. The problem is that the law cited, as described, didn’t really leave room for strict scrutiny.
I can’t tell if you don’t understand the way strict scrutiny works or if you’re bravely taking on some strawman argument that “all laws must yield to religious freedom.”
Leaving aside the exception issue for a moment, I can’t think of a less restrictive way. Can you?
When did anyone say they did?
I was just noting that the law cited, as described, didn’t allow for the strict scrutiny test (or at least didn’t mention it).
Well, if you don’t know, we could ask them. In fact, to apply the test you just described, a court would have to explore this. But my point is that I think we can assume that nuns would not object to such ridiculous scenarios (I meant simply handing someone a box of condoms they were buying or already owned, not handing them out in the street).
There’s a huge difference between using contraception and providing the means for others to use it. A someone already mentioned, insurance is compensation - like salary, it is the worker’s to do what she wants with it. Nuns couldn’t tell workers they can’t spend their salary on birth control either.
No. Blood transfusions are life and death, so I doubt Jehovahs Witnesses would get anywhere if they took the requirement to court.
That of course assumes that blood transfusions are required by ACA, which is not clear at all to me. Maybe someone can enlighten me on that one.
Easily. The government can pay for contraceptive services itself through general tax revenue. How do you think schools get all those condoms to hand out? Employer donations?
The reason for doing an employer mandate is political. To get a government contraception program in place would require a Congressional debate, which would be contentious even if Democrats still controlled Congress, and the public might not warm to the idea. There is risk. The employer mandate makes it someone else’s problem.
Political preferences deserve even less consideration from the courts than policy preferences.
Or that they receded from Yoder and Sherbert because they were making a public policy choice, and Congress passed the RFRA to restore the Yoder/Sherbert test as an overriding policy choice.
The point I was suggesting to lance strongarm, though, was that the questions he raise already had a framework with which to evaluate them.
In general, whether a specific procedure is covered remains up to insurers and state governments. The PPACA itself only mandates that certain categories of medical care be covered (such as maternity/newborn care, substance dependency screening, and ambulatory patient care.) Normally a medically necessary blood transfusion would be covered under a health plan, though not necessarily at 100%.
How is that less restrictive? Bear in mind that the nuns’ objection here wouldn’t be resolved at all under your alternative plan.
I would think the easiest answer would be to fashion a way in which the government pays for it directly (place the burden on the pharmacy to apply for reimbusement?). Or some sort of refundable tax credit for contraceptive services.
I don’t know what this means.
There is obviously a difference between using it and providing it. But the nuns find both objectionable, so so what? Could the nuns object to employing someone who engages in sinful off-duty behavior? Maybe, maybe not (probably depends on the employment laws of the state), but they could certainly object to it. I would agree that once the insurance coverage is provided to the employee it’s the employee’s business how (or if) they use it; but the objection isn’t to the use of the insurance, it’s to the requirement that the “compensation” take a particular form.
I suppose the answer is that we’ve already dealt with that type of complaint (e.g., tax dollars paying for war) or that the money surrendered to the government is the equivalent of money paid in direct compensation being used for sinful products (which the nuns are not objecting to).
The nuns object to paying for the services or ordering someone else to pay for the services. (leave aside whether they’re right that that’s what they’re doing). Paying for something out of the general revenues strikes me as several steps beyond that. You have to draw the line somewhere; that seems logical. I certainly don’t feel as morally responsible for the behaviors of the government as I do for my personal moral failings.
I don’t understand this response.
I wasn’t clear - I was pointing out there are limits to the protection of religious freedom when it conflicts with the law, that’s all.
But they could find anything objectionable, but that doesn’t make it religious.
They could say they object to being in the same room with non-Catholics, but that wouldn’t be a tenet of their faith, nor would a law requiring them to be in the same room as non-Catholics be said to be a burden on their religious freedom. They can’t just go making up any objection they want and hang religion on it.
But you agree that they couldn’t sue for an exemption to the employment laws of the state, right?
And I’m saying that’s not a legitimate objection. The law doesn’t burden the nuns or their religious beliefs enough to justify an exemption.
Again: the caselaw that dealt with religious exceptions to laws had to confront this kind of thing. Don’t you think there’s already a method in place for evaluating the validity of a claim?