The following is a reprint of an OpEd piece I submitted to the Los Angeles Daily Journal.  The Article was published in the “Perspective” Section on 3/20/2012:  

Constitutional rights can collide, and when they do, of course courts must reconcile contending interests.  But in the case of contraceptive coverage, the collision is not between constitutional “equals.”  The tension is between the political agenda of the Obama administration to cater to the liberal female vote, and the First Amendment right of freedom of religion.

The U.S. Dept of Health & Human Services has mandated that a religious organization provide its employees with coverage for contraception even when that religious organization finds contraception fundamentally inconsistent with its religious tenets.  Even if a carrier provides the contraceptive coverage without cost to the religious employer, that does not address the essential question of whether the coverage can be forced upon an employer for a purpose it finds morally unacceptable.

It is not clear to me what constitutional right the employee beneficiaries of such medical plans actually assert against the contending religious freedom of the organizations that employ them.  The argument seems to be one addressed to the rights of women per se to have insurance pay for their contraception.  However that “right” is framed, it is not a constitutional right.  The government may be restrained from interfering with the use of contraception, but it is not empowered by the Constitution to make it more readily available.

The Catholic Church has long concluded in its teachings that human conception is a sacred event, and humans are to accord life at conception the greatest dignity and protection because such human life bears the very image of God.  This is a critical position for the church as it struggles to assert a “culture of life” in opposition to practices that it views to be part of a “culture of death.”  This point is not trivial. 

The fact is that most of the social functions a church performs are not in the nature of liturgical ritual.  Much of the social good of churches over the decades in American society do not appear “religious.”  For example, soup kitchens, schools, hospitals, care for the elderly, orphanages, half-way houses, and care for the oppressed or homeless, appear secular in action rather than the exercise of religion.   If a religion also conducts a business that is formed essentially as part of a religious mission, but also requires the use of non-religious employees as part of its operations, it is no less religious.  Its essential religious mission confers its status as a religious rather than secular operation.

Any established major religion in the United States will have a substantial charitable component driven by its religious beliefs. The execution of this religious mandate by the faithful includes the necessity of hiring non-believers to perform administrative and operational functions in fulfillment of the mission.  The issue is which religious dictates can a church follow without violating basic individual rights of its employees?

The payment of minimum wage, the following of workplace safety regulations and the avoidance of criminal actions against an employee, are examples of the correct imposition of secular law to church businesses for the protection of employees. 

But the HHS requirement for contraception coverage is of a different kind:  It mandates a benefit that in its very nature violates a core religious position, while at the same time is not an essential right driven by a minimum decency for the good of workers. Rather, it is an insurance benefit covering an often optional, non-life threatening
condition: fertility. 

In the balance, the First Amendment constitutional protection is not to be so easily trumped.



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