Your basic problem is that you feel competent to declare yourself the arbiter of what religious beliefs are “legitimate” and then deny exemptions based on the legitimacy of the belief (as opposed to the government interest). That’s a ridiculous position.
Although, the applicability of employment laws to religious employers had been the subject of discussion recently. The nuns certainly could object to a state law forbidding them from terminating an employee engaged in sinful behavior; I don’t know if they would.
In this post, you pose a set of questions that is somewhat trivially answered under the existing analytical framework, and you pose them in a tone that suggests they are not trivial.
I was noting that a) the post I originally responded to didn’t consider that framework and b) the framework is far from simple and involves new challenges all the time, such as the one we’re discussing. No big deal.
Broadly speaking, the First Amendment exempts religious organization from labor laws with respect to employees in religious capacities. It’s often thought of in the context of religious leaders (hence “ministerial exception”), but it’s been applied to people engaged in religious job functions.
The Supreme Court decision on it is discussed here.
Okay. We all know that. But we have to move past “broadly speaking” and dig into the details, such as those presented inthis case. That was my point before.
The ACA already includes the equivalent of a ministerial exemption. The nuns don’t qualify for that, under the law at least.
The nuns aren’t even being asked to provide birth control coverage. They’re being asked to sign an objection so that they can get out of it. They refuse even to do that. It’s pretty silly.
We haven’t dealt with that type of complaint, though. We’ve avoided dealing with it by deciding the issue on standing grounds, rather than on the merits (see Flast et al.)
The standing cases are about challenging the expenditure as impermissible. In our hypothetical, the nuns aren’t objecting to the government paying for the contraceptives; they’re objecting to paying the taxes that are used to pay for it (or objecting that their taxes are being used, etc.). Courts have heard this sort of claim numerous time. Lee was that sort of case. There are a bunch at the circuit level. Jenkins v. Commissioner in the Second Circuit is pretty well known. They almost always involve pacifists that object to taxes that are used for war purposes. But the objector never wins; but I don’t think there’s typically a standing problem (in fact, the nuns in our general revenue scenario are exactly in the position of a pacifist who does not want to pay the portion of his taxes that go to the Defense Department).
Ok, I see. Still, the idea that paying from general revenues is less restrictive does not depend on whether that course would be legally objectionable. It depends on whether the nuns would find it less objectionable. I see no reason to believe they would rather give contraceptive money to the federal government than to an insurer.
On the contrary, judges will sometimes buck existing case law. Bowers v. Hardwick was controlling precedent for the proposition that a state had the power to criminalize sodomy between consenting adults. Any new case that turned on that issue was a slam dunk – and yet a mere seventeen years later, the Court said in deciding Lawrence v. Texas: “Bowers was not correct when it was decided, and it is not correct today.”
It’s even more of a likelihood here, where the analytical framework is well-established but the particular fact pattern is one of first impression.
Yep, and thank God for that. Some decisions are just wrong. Another was Austin, which Citizens United rejected (though there was a conflicting precedent to follow).
The nuns may not dictate policy based on what they find personally objectionable. All personal objections, religious or not, are not automatically respected.
The nuns aren’t dictating policy. However, their views are relevant to whether the measure in question is as narrowly tailored as possible to meet strict scrutiny.
I don’t agree. The law should be considered objectively, not just based on how strongly some nuns feel about it. They are objecting to signing a document that says they want to be exempt from the law in the first place! It’s absurd to say that a law that allows someone to be exempt from it based on religious belief infringes on religion. Catholics can argue that they shouldn’t be forced to use or directly provide birth control. They might argue that they shouldn’t have to provide coverage for it. Saying they shouldn’t have to sign a simple document saying they claim an exemption from that law because of their religion is out there.
And this is the part where religious freedom starts to look like it makes every man a law unto himself.
I think he’s saying that because there is no extra cost to the employer for providing a policy that doesn’t include birth control, what is the burden other than moral outrage that someone is having non-procreative sex?
Law unto himself?
But at this point aren’t you butting into other people’s business rather than trying to keep the government out of yours?
These nuns sound like the nuns from Philomena.
Does it have to be the same insurance company the nuns use?
I’m pretty sure that would be unenforceable in most states.
Religious folks wheedle out of religious requirements all the time, the older the religion, the more work arounds people have come up with.
Don’t you think they are going to talk more broadly about the integrity of a comprehensive health insurance scheme that requires a comprehensive basket of health benefits to citizens?