Saturday, February 18, 2012

Ham Sandwiches for Jews and Religious Liberty

Unless you've lived under a rock the last couple of weeks, you've heard about President Obama's latest maneuver in his "War on Religion." In case you missed it, here are the particulars:
Obamacare includes a mandate that all employers provide health insurance. Part of this is a provision that the health insurance provide free access to contraception. Certain religious organizations, most notably the Catholic Church, objected to this. Churches that morally object to contraception were given a specific exemption, but organizations related to those organizations - hospitals, schools, and other institutions - were not included in this exemption. Many within these religions, on both the right and left, thought this violated their religious rights of conscience, because they were now forced to provide to their employees the means of acquiring free birth control.
In response, Obama announced that they would revise the rule. Religious-affiliated institutions would have to supply healthcare, but they would be offered special plans which do not explicitly include contraceptive coverage. Instead, the insurance company would independently approach the employees, offering them free coverage, with none of the cost passed on to the religious institution. The religious are rightly skeptical of this solution, because the fact is that the cost for this will ultimately be passed on to someone, and very likely it'll be in the premiums paid by the religious-affiliated institution (if not spread out over all premiums). Still, some are appeased by this decision and some are not. 
The libertarian magazine Reason contains a very well-reasoned argument (appropriately enough, given the magazine's name) that contraception is not a fundamental right, but I don't for the moment want to get into debating Obamacare ... I want to discuss what I'm beginning to see as a fundamentally flawed interpretation of religious freedom. It was inherent in my earlier discussion of a recent Supreme Court case that left ministers unprotected from job discrimination and I see it now front and center in this new argument.

The problem is that we're fundamentally misplacing where religious freedom is supposed to reside: with the individual or with the institution.

The Jewish Ham Sandwich

First, a thought experiment:

The Jewish and Muslim religions oppose the eating of pork on religious grounds. It is taught in these religions that they have received a divine command from the Lord God to avoid eating this unclean animal.

Now, let us assume that a law passed which set the price of ham sandwiches for everyone. It got through the process and was passed. If you live in America, you can buy a ham sandwich for $1.00, let's say. Americans as a whole subsidize these discounted sandwiches with their tax dollars. (The usefulness of such a law is, for the moment, beside the point. Apparently the pork lobby went whole hog on this one, if you'll excuse the pun.)

Jewish institutions (as well as Muslim ones) complain about this, because their religion doesn't permit the consumption of ham sandwiches. They do not want their employees to be able to get cheap ham sandwiches, so there is a special exemption. People who work for Jewish institutions - even secular employees who are not themselves Jewish - must pay the full price for ham sandwiches.

What is the consequence of this? The consequence is simply this:
Employees of Jewish institutions who choose to eat a ham sandwich have to pay more than anyone else.
The Contraceptive Ham Sandwich

No, it's not a new special at Subway.

There are certainly differences between the ham sandwich situation and the contraceptive one - most notably that there is a mandate for the Catholic institutions to pay for healthcare while there's no similar imperative on my hypothetical Jewish organization (since religions and religious-affiliated institutions are, typically, tax exempt). But the end result of both of these is the same:
These religious institutions want to create a situation where if an individual (secular) employee chooses to act in a way that is contrary to their religious doctrine, it will be more financially costly for them to do so.
In other words, those who argue for this broader exemption are implying something significant:
The rights of the religious institution to enforce their religious doctrine on employees takes precedence over the rights of the religious individual (religious or not) to choose how to live their life.
This, to me, seems like the specific oppression of religious individuals, not their liberation.

Frankly, my employer - even if it's a religious employer - does not have the right to decide for me which legal rights apply to me. (They really don't even get to decide which moral rights apply to me. If I'm a Catholic and I disagree with their mandate and want to have birth control, I am perfectly free to do so, and it's none of the Catholic Church's business unless I choose to make it their business and tell them.)

This would be like the Christian Scientists (who do not believe in medical treatment) being able to exempt themselves from paying into Medicare, thus denying all of their employees the rights to a health insurance safety net! The employer just doesn't get to make that choice.

The goal of the Obamacare legislation is purportedly to place all healthcare rights in the hands of the individual, making it so that they can make the best choices for them and have healthcare that will make those choices more accessible. You cannot invoke rules which remove that access from certain people based upon the religious institution that they work for!

The Religious Charade

It's of course perfectly legitimate to think that Obamacare is bad law. The Reason article I cited earlier, for example, is really making this argument. The flaw in the article, and in this entire line of attack, is that it's not about religion, it's about contraception and healthcare. The conservatives who are attacking it over and over as a "War on Religion" are just grabbing any opportunity to attack legislation they don't like.

They might be right to oppose the legislation, but they aren't right to manipulate religious sentiment to do it.

I genuinely think that President Obama gave very little thought to religious institutions when he crafted the law. I think he felt that contraception was an important public health issue and invoked that rule, without any consideration that it would offend certain religions. And then, when those religions were offended, he made a reasonable stab at amending the legislation to address their concerns. And when they continued to complain, he once again amended it.

If that's a "War on Religion," it's the wussiest war I've ever heard of.

Follow-Up Notes

Since posting this, I've found the following two interesting online posts which have a direct bearing on the themes based in my post. I guess great minds think alike:

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