The audacious complaint in this case is against the requirement that such groups sign a short form certifying that they have religious objections to providing coverage for contraceptive services, a copy of which would go to their third-party insurance administrator....That is, the burden upon which the nuns base their claim for religious accommodation was itself a religious accommodation.
The certification requirement, an accommodation fashioned by the Obama administration to bolster the protection of religious exercise without depriving women of an important benefit, does not rise to a substantial burden.
Why didn't Congress simply write an exception to the Religious Freedom Restoration Act into the Affordable Care Act? The government would be home free. It wouldn't even have had to provide the certification work-around to accommodate the conscience of the nuns. The Free Exercise Clause of the Constitution doesn't require relief from burdens imposed by generally applicable laws that were not designed to target religion. The answer to the question is obvious: Congress scarcely squeezed the ACA through and couldn't bear any additional friction in the legislative process. RFRA was left as a source of future litigation, even as Congress made a show of catering to the young women who feel cared for when contraception is an entitlement.
Congress failed to deactivate RFRA, and the Democratic Party shored up power with its "war on women" rhetoric, and the result of those thoroughly political, tactical choices is that these nuns have a little legal ground to stand on.
I'm not perplexed at all.
Posts
86 comments:
Funny how the NYT can't see that the "compromise" offered to religious institutions was that they get to pretend not to be paying for abortions and birth control.
This is a tough one, especially if one focuses on contraception prevention, rather than, say, abortion.
Religious objections to mandates are subject to 'reasonableness' tests. How 'reasonable' is the objection?
Forcing coverage of procedures that end post-conception life, is fundamentally different than preventing conception in the first place. The Rubicon has been crossed, in the one case.
Ceremonial peyote is illegal. No religious grounds are allowed there. Claimed spiritual necessity of peyote ingestion is deemed 'not reasonable'.
I place contraception in the same category. Not reasonable.
Sorry, Sisters. It's a bridge too far.
Really? It is a bridge too far to ask not to pay some portion of their insurance premiums for a service they will never use and find abhor ant? It is not like they are trying to deny the coverage to those who want it. Does it somehow place a huge burden on others? I don't think so. I think you are engaging in motivated reasoning.
Do you have to sign a form saying you have religious objections to signing up for the draft?
[I don't know, because I had no objections, so I just filled out the regular draft paperwork.]
In the case of peyote ingestion, a behavior is denied, in the case of the ACA, a behavior is being compelled.
In signing the form you admit the state reigns supreme.
I don't understand the distinction your are making between Congress exempting the law from FRRA and the process of using the Act itself to provide this method of opt-out. The Catholic Church organizations and other religious groups would have objected either way, wouldn't they have?
Is it just that the legislative way of providing the exemption would carry more legitimacy?
If only, if only, Barry & Harry had been a little more legally competent when they set out to overrule moral objections of the American people
I'm surprised Ann doesn't see that requiring someone to fill out a form expressing their religious beliefs is unconstitutional as well. And when you're done filling out your form, we'll give you a nice yellow star to put on your letterhead too. And your sleeves.
"I'm surprised Ann doesn't see that requiring someone to fill out a form expressing their religious beliefs is unconstitutional as well."
-- Is it though? How do you conscientiously object to the draft? Do you just not sign up?
Perhaps the perplexedNYT editors would do well to "commune with [their] own heart upon [their] bed, and be still" (Psalm 4:4 KJV)
When you try and declare a church tax exempt, do you have to declare it is a religious institution, or do you go through a normal 501Whatever?
Why didn't Congress simply write an exception to the Religious Freedom Restoration Act into the Affordable Care Act?
Hah, I am getting good at 'anticipating' Althouse. As I read that question, I said, 'why? can't wage a War on women with that..' and then read on.
Obamacare is a political clusterfuck. It was not meant to help people without insurance.
Skyler, on initial read I thought the closing "I'm not perplexed" comment was irony.
SomeOneHastoSayit, The Catholic Church has a rather long history of religious objection to birth control; your Bridge Too Far is a historic and well established religious principle.
-- Is it though? How do you conscientiously object to the draft? Do you just not sign up?
Correct.
"How do you conscientiously object to the draft? Do you just not sign up?"
That's how I did it. Soon after, Nixon fixed my wagon when ended the Draft.
Is Obama willing to put nuns in prison?
"Why didn't Congress simply write an exception to the Religious Freedom Restoration Act into the Affordable Care Act?"
If you recall, they were lying about it at the time to force it through.
Apparently, now there IS a form for objecting though. Not sure how long that's been the case, but I figure the government has a form for everything.
I still think it is weird to force people to affirm beliefs like this in public, but I feel like there's at least a basis so the law isn't just on its face wrong to do so.
It probably STILL is wrong to do so, but not as open and shut as it may seem.
"The only kind of paperwork they could fill out was... NUN!"
Is Obama willing to put nuns in prison?
He won't say it, but he is.
But getting photo ID...THAT is an inconvenience too far!
I propose that any discussion of what "Congress" did or didn't do in the PPACA be changed to "the Democrats." I do acknowledge that you point out it was them, but while it is technically correct to say that Congress did this, it is also factually correct to note that the only people responsible for this idiocy are the Democrats. And this point cannot be stressed enough. It was not the Congress responsible for the PPACA, it was the Democrats.
It's like saying the U.S. government decided to use the atomic bombs against Japan. Technically true, but the "more true" view is that HST decided to.
Or am I way off here?
I'm against all religious exceptions. It's actually a good test: if you think a religious exemption is reasonable, then the law isn't. If you won't compel people with religious beliefs to act in a certain way, then you shouldn't compel anyone.
Can't They Just Check "Nun of the Above"?
See What I Did There? The General Phrase is "None of the Above" But "None" Sounds Like "Nun" and This is About Nuns and Paperwork That No Doubt Has Tiny Boxes to Check. That is an Important Part of Official Paperwork: Tiny Boxes to Check. Indeed, if The Nuns were of Czech Ancestry it Could Be "Czech None of the Above" But I Don't Know Their Heritage Although it Would Be Really Good if it Were True. You Could Even Read "Nun of the Above" with "Above" Standing in for the Heavens on High, So "Nuns of the Above" Would be a Great Biker gang Name for Them. They Would Still Need Licenses to Ride Their Motorcycles, However, and That Would Include the Checking of Tiny Boxes for Sure.
"Someone has to say it" is absolutely wrong that a religious objection to a government mandate is subject to a reasonableness analysis. That's the "rational basis" test, which is the lowest level of constitutional analysis and doesn't apply to laws that interfere with fundamental rights.
That ought to be obvious. To allow the government to decide whether somebody's religious beliefs are "reasonable" is the antithesis of religious freedom. Can ANY religious belief be objectively described as "reasonable," and why should anyone but the believing individual get to decide that question?
The standard used to evaluate a law that burdens religious freedom is strict scrutiny, under which the government must show that the the burden is required by a compelling governmental interest, that the restriction is narrowly tailored to serve that interest and nothing more, and that the law in question is the least restrictive means for accomplishing the goal. That's been the law for a long time. Somebody ought to tell the New York Times.
Isn't it more than just signing the paperwork, though? Isn't it signing the paperwork then creates (basically) a contract for their employees to get the contraceptive coverage?
In other words, signing the paper doesn't actually relieve them of responsibility for the act they are against.
It would be like filling out the form to be a conscientious objector for religious reasons, and the government saying, "ok, you are absolved of joining the army. Now you must go work for Blackwater instead"
"Vee haff vays of making you sign ze papers, old woman!"
Just like "free speech", to the left "free exercise" means free exercise of their values, not yours.
Mrs Whatsit said...
"Someone has to say it" is absolutely wrong that a religious objection to a government mandate is subject to a reasonableness analysis. That's the "rational basis" test, which is the lowest level of constitutional analysis and doesn't apply to laws that interfere with fundamental rights.
That ought to be obvious.
Here is what is obvious to me. If ingesting peyote is illegal, then you cannot make it legal by declaring that it is part of your religion.
The other end of that stick would then be, if something is perfectly legal, e.g. prophylactics, you can't claim that it is part of your religion to prevent others from partaking of the legal right.
For example, Muslim grocery workers cannot refuse to bag ham, nor Muslim cabbies to refuse rides to people carrying booze.
Hence, a 'reasonableness' test would seem to be in order.
Althouse. I want to take a moment to say that I appreciate your higher level thinking. I just came off an mind-numbingly stupid article on this topic at the Daily Beast (linked by Cooke at NRO) and the idiocy of both the writer and the commenters-it burns, IT BURNS. It's a soothing balm to come here and be able to read a conversation full of bright people making insightful points. Thank you for that.
But a Muslim grocery store owner can refuse to sell booze or ham.
For example, Muslim grocery workers cannot refuse to bag ham, nor Muslim cabbies to refuse rides to people carrying booze.
Why not?
For example, Muslim grocery workers cannot refuse to bag ham, nor Muslim cabbies to refuse rides to people carrying booze.
Of course they can. Their employer (assuming they have one) may decide that that's a function of their job and terminate the employment, and they'll almost certainly lose customers and money, but the government doesn't get a say.
How is the objection preventing others from receiving prophylactics?
"You can't claim that it is part of your religion to prevent others from partaking of the legal right."
-- Are the nuns stopping people from using contraception?
Would the NY Times Editorial Board feel perplexed if they had to fill out some forms to be granted Freedom of the Press?
I wonder.
"Would the NY Times Editorial Board feel perplexed if they had to fill out some forms to be granted Freedom of the Press?"
-- They probably would. Journalism has always been more guild than profession.
Gee, what's the harm in the government defining religious certification?
Gee, what's the harm in requiring Jews to wear a yellow Star of David on their coats? They should be proud of their religion!
Here is what is obvious to me. If ingesting peyote is illegal, then you cannot make it legal by declaring that it is part of your religion.
But it is legal if you are a native american practicing your religion.
The mere act of signing a paper admits that you are subject to the state rule and not the rule of your god. By not signing you go against the state, but remain true to your god.
"Hence, a 'reasonableness' test would seem to be in order." Well, you may see it that way, but the Supreme Court doesn't -- and neither did the Founders, for whom religious liberty was a slightly more important principle than it apparently is for you.
To restrict peyote use, the government had to show that it had a compelling interest in preventing drug abuse -- which wasn't hard to do. Here, by contrast, the government is going to have to show that it has a compelling interest in forcing some people to pay for other people's contraception OR to declare their religious beliefs to the gov't in writing to obtain permission not to do so. It strikes me that the government may find this slightly more difficult than showing a compelling interest in preventing drug abuse or conducting a draft in wartime. But we'll find out whether the Supreme Court sees it differently in time.
In any case, you're dead wrong on this reasonableness thing (not to mention about the Muslim grocers) as five minutes reading Wikipedia would show you.
CStanley said...
I don't understand the distinction your are making between Congress exempting the law from FRRA and the process of using the Act itself to provide this method of opt-out. The Catholic Church organizations and other religious groups would have objected either way, wouldn't they have?
Is it just that the legislative way of providing the exemption would carry more legitimacy?
It is not about legitimacy, but legality. The contraception mandate is not a law, it is a regulation written by HHS based on the ACA which granted HHS the authority to define the minimum coverage for insurance plans.
But you cannot overrule a law with a regulation, so any regulations must comply with all existing laws, including the FRRA.
You can, however, overrule a law with a newer law. So the ACA could have exempted its regulations from the FRRA. But it didn't.
And yes, people with religious objections would have objected either way. But they would not have grounds to sue based on the FRRA.
depriving women of an important benefit
Women need to get their shit together.
By filling out the paperwork, the nuns effectively ask permission to practice a certain part of their religion. By filling out the paperwork, the nuns effectively acknowledge that Big Govt, not God, have control over their body.
NYT editors are perplexed because their faith in Big Govt. effectively trumps all other faiths. NYT editors never understood why Sir Thomas More would rather give up his head than sign a piece of paper effectively acknowledging the king's supremacy over his God.
Are there grounds for human beings to oppose state-sponsored murder through lethal injection or dismemberment of over one million wholly innocent boys and girls annually? It seems kind of ghoulish that "decent" people would demand that normal people fund their population control protocol. It seems selfish to choose state-sponsored murder for reason of sex, money, ego, or convenience.
The socialists are far too insular to ever change. And the "good" Germans will go along to get along.
If you like your unalienable rights, you can keep them - period.
Yours truly,
The Government
"Would the NY Times Editorial Board feel perplexed if they had to fill out some forms to be granted Freedom of the Press?"
NYT's Freedom of the Press is the freedom to lie, freedom to report and create innuendoes against their political enemies, freedom to lie to cover for their Dear Leader.
The other end of that stick would then be, if something is perfectly legal, e.g. prophylactics, you can't claim that it is part of your religion to prevent others from partaking of the legal right.
Wow. Where/when did the nuns attempt to prevent anyone from obtaining contraception?
James:
Contraception is a basic need. When people refuse to fund other people's pleasure (i.e. "reproductive health"), it is a violation of human rights, or something. Well, that, and it's part of the population control protocol, which includes state-sponsored murder through lethal injection or dismemberment.
The nobility of unqualified progress will be recorded in the annals of the Dodo Dynasty. Until now, I never understood why people would voluntarily choose their end. Promises of sex, money, and ego without accountability are powerful inducements.
LOL. Thanks n.n.
Ace's Gabriel Malor has it right on Twitter:
Thus, filling out the accommodation form facilitates precisely the objectionable coverage LS want to avoid.
3:34pm - 3 Jan 14
The Obama Administration does not like freedom. It's just so messy and hard and, like, inconvenient.
Why didn't Congress simply write an exception to the Religious Freedom Restoration Act into the Affordable Care Act? The government would be home free. It wouldn't even have had to provide the certification work-around to accommodate the conscience of the nuns.
First, because if there had been such an exemption in the legislation, it might have been noticed, and if it had been, it is likely the legislation wouldn't have snuck through. Secondly, the contraception mandate, etc was done by executive branch regulation. While a lot of progressives probably thought that this was the way that things would go, plenty of religiously observant Dems never really anticipated this when voting for the legislation (which may be why many of them are no longer in Congress).
Gee, what's the harm in the government defining religious certification?
The underlying assumption is the Liberal notion that there is no freedom until everything is free. No one is prevented from using contraception, what is involved here is coercing other people to pay for it. The corollary to this is the Liberal notion that unless you are willing to pay for my desires, you are suppressing my freedom.
Or this.
http://proteinwisdom.com/?p=52349#respond
James:
Please tell me that I am wrong. The burden of fantasy weighs heavily on reality, causing distortion of perception and observation.
> For example, Muslim grocery workers cannot refuse to bag ham, nor Muslim cabbies to refuse rides to people carrying booze.
Can govt force a muslim owned grocery store to sell ham?
I ask because grocery stores are typically licensed and many think "its licensed" means that pharmacies can be forced to carry and dispense plan b.
Andy Freeman asked, "Can govt force a muslim owned grocery store to sell ham?"
I don't know, but they can make them buy broccoli, or ham, or pay a tax.
As for the frequent reference to conscientious objections to registering for selective service, I don't think there should be an objection for registering. Selective service is for our survival as a society. I don't agree with the draft and I think any society that needs a draft to protect itself is probably not worth protecting.
However, if there is registration, then one must register. Getting drafted is another matter entirely.
Mrs Whatsit said...
To restrict peyote use, the government had to show that it had a compelling interest in preventing drug abuse -- which wasn't hard to do. Here, by contrast, the government is going to have to show that it has a compelling interest in forcing some people to pay for other people's contraception . . .
You have framed it incorrectly.
The issue at hand is instead:
"the government is going to have to show that it has a compelling interest in forcing some people[, while not forcing some other people] to pay for other people's contraception . . ."
A much more sticky thing to defend.
I propose a 'reasonableness' test.
It is 'reasonable' to force coverage of contraception, but not abortion.
Just because something is on a continuum, it does not follow that one cannot still draw lines.
Ask a man over 50 years old, whether there is a difference among the magazines "Playboy", "Penthouse", and "Screw".
When dealing with bureaucrats, there's no such thing as "just a little paperwork."
It's an inalienable right. I don't have to fill out your stupid form.
Furthermore, I believe it is a sin, and the constitution protects my right to see it that way.
Stick with it Sisters. You are 100% right here.
NYT editors have a lack of understanding concerning nuns...and most of the USA outside the big cities.
It is 'reasonable' to force coverage of contraception, but not abortion.
Lovely. You're not explaining how it is reasonable outside of you think it is.
The editors of the NY Times, being typical narrow minded, smug, insular, close minded and bigoted people, are incapable of understanding how anyone could possibly think differently than they do.
Poor dears, we shouldn't mock them for their limited mental capabilities.
But it's just so much fun to mock them. :-)
Note to all the ignorant leftists who can't understand what's going on:
The Sister's object to being forced by the US Government to pay for a plan that violates their religious beliefs. The point of forcing them to sign that form is signing that form will lead to the insurance that they pay for acting in ways they don't approve of.
If this were simply a private commercial transaction, that would be no big deal. Since it's the thugs in the Obama Administration using the power of the Federal Government to bully those who disagree with them, it IS a big deal.
The more I think about it, the more I see that the crux of the issue is the concept of positive rights. It is simply impossible to reconcile a free society with one in which positive rights are enforced. Full stop.
Bob R said...
I'm against all religious exceptions.
Courts require people to take their hats off as a (minor) sign of respect. There are various religions where taking the headgear off in public would be a major issue. Those people generally are not required to take off their head gear when everyone else is. It strikes me as a reasonable compromise.
@Ignorance is Bliss re: your comment at 9:41-
Assuming you are correct about Prof Althouse's assertion of how the exemption should have been handled, but I still don't see how or why it would be legitimate for Congress to carve out this exemption, either.
CStanley said...
I don't understand the distinction your are making between Congress exempting the law from FRRA and the process of using the Act itself to provide this method of opt-out.
The RFRA says that Congress can explicitly say in a law "the RFRA does not apply to this law", and then people can not sue using the RFRA to block the application of a law to themselves. The Democrats could have done that, but doing so would have required them to admit they were lying about what ObamaCare would do.
Lying being a fundamental trait of "Progressives", the Democrats chose the lie. Now they're paying for it.
The Catholics would have objected, regardless. But the RFRA exclusion would have denied them legal grounds for objecting.
SomeoneHasToSayIt said...
I place contraception in the same category [as peyote]. Not reasonable.
And you are the one true authority on all things religious? How did you achieve that?
Obviously, SomeoneHasToSay it is God. That's got to be the explanation, as he or she obviously isn't a Constitutional scholar.
CStanley-
When you use the term legitimate what do you mean?
Are you discussing what the government should or should not do? Or are you discussing what it does or does not have the legal authority to do?
Bruce Hayden said...
Secondly, the contraception mandate, etc was done by executive branch regulation. While a lot of progressives probably thought that this was the way that things would go, plenty of religiously observant Dems never really anticipated this when voting for the legislation
The "religiously observant Dems" voted for the Stupak Amendment when the House pass ObamaCare the first time. Senate Dems removed the Stupak protections from the version of ObamaCare they passed. When Scott Brown was elected, "religiously observant Dems" had decide between their professed religion, and the religion of the State. ObamaCare passed because they valued the State more.
So, yes, they most certainly DID understand what they were passing. At most, they just hoped they could lie to their constituents about what they'd voted for. In the event, they failed, and just about all got voted out of office (or quit rather than standing for election).
damikesc said...
It is 'reasonable' to force coverage of contraception, but not abortion.
Lovely. You're not explaining how it is reasonable outside of you think it is.
Well, I am the world's foremost authority on my own opinion, as you are on yours. I was giving mine, not yours. Not sure why you have a problem with that.
Anyway, if you don't see the HUGE difference between contraception and abortion, I can't do much for you.
The Catholic-approved "rhythm method" is contraception, being the having of sex when it is unlikely to result in a pregnancy. As is the wearing of a prophylactic.
So it is my opinion that if the rhythm method is reasonable, so is using a Trojan.
Feel free to disagree, and good luck splitting hairs.
gregq said...
And you are the one true authority on all things religious?
Nope. Just a guy who knows foolishness and hypocrisy when he sees it. And who has, and expresses, opinions. Would you be in favor of shutting me down? If not, what is your exact problem?
Mrs Whatsit said...
Obviously, SomeoneHasToSay it is God. That's got to be the explanation, as he or she obviously isn't a Constitutional scholar.
Obvious to whom? Not to me. Feel free to believe in god if it makes you happy. Lucky for you, it is an unfalsifiable assertion, and so safely beyond science and refutation - though not ridicule. It does have its uses though, I will grant.
And, I think we have an actual "Constitutional scholar" in the White House. If so, I'm not particularly impressed with the credential. How about you?
Why are you discussing whether contraception is reasonable? Nobody is suggesting that contraception be required ( or banned ).
If reasonableness is the standard ( I'm not saying it is ) then the question should be is it reasonable to object to paying for something that is against your religion.
@IIB-
I guess I'm trying to figure out if the legal legitimacy is the only point that Prof Althouse is addressing. When she points out that Congress should have written the exemption into the law, is that because it would have given legal legitimacy, or because it would have put the legitimacy of the democratic process behind it? The argument for the latter being that the law may not have passed is the legislators had known that there would be a significant amount of objection to the mandate applied without exception for religious groups. And if they had crossed that hurdle and passed it, then it would in some sense represent the will of the people.
SomeoneHasToSayIt said...
gregq said...
And you are the one true authority on all things religious?
Nope. Just a guy who knows foolishness and hypocrisy when he sees it.
Oh? Are you looking in the mirror as you say that?
Here's the deal: the RFRA does not grant you the right to decide what someone else's religion requires of them. It doesn't grant the Executive Branch of the Federal Government that right, either. It grants that right to the people who actually hold the religious belief.
It grants Congress the power to say "we don't care what you believe, we're going to require this of you, anyway." The Democrats who forced ObamaCare on the American people chose not to use that power.
So yes, the Nuns have the right to say "this violates our religion, and our religious beliefs." In order for the Obama Administration to win, they must prove that
1: It is a compelling interest of the Federal Government to make sure every woman in America any "contraceptive" she wants, for "free", and
2: That the Obama HHS regulations that force every insurance plan in America to provide all those "contraceptives" (and abortificants) are the "least disruptive" way to achieve that compelling interest.
Whether or not you agree with the Nuns is irrelevant, unless you're the Supreme Being and the one true Authority on legitimate religious beliefs. Are you that being? No?
Then under the law your old valid grounds for argumentation is about the Federal Government's "compelling interest", and why it is one, rather than about the validity of the Nuns' religious beliefs.
CStanley:
So far as I can tell, Prof Althouse is not saying that the Democrats "should" have added an RFRA exclusion to ObamaCare, what she's saying is that if they wanted to avoid this fight, then they should have included that exclusion. And that since they didn't, now they're paying for it.
"When she points out that Congress should have written the exemption into the law..."
What I said was Congress had the power to make RFRA inapplicable to the ACA and did not and that's why the nuns have an argument to make. Nothing more than that. The Dems played a political game, with a narrow margin of votes, so they left this problem to be resolved later. The whole grandiose project is in need of tweaking as it goes.
Thanks for the clarification.
Are there precedents for Congress "deactivating" RFRA as it applies to other laws? Do they have to meet a burden of proof that doing so is necessary because of some compelling societal interest?
Thanks, gregq. I was writing my last comment before I saw yours.
Thanks to all who keep this on track with RFRA, another piece of congressional handiwork. These are not your "inalienable rights," and the nuns don't have to say they are.
"Feel free to believe in god if it makes you happy."
Why thank you. So VERY kind of you to allow me that small freedom. Not that I said anything remotely pertinent to whether or not I believe in God.
Now you might want to consider whether nuns are entitled to the same freedom to decide their own religious beliefs -- and where in the Constitution it says that you get to decide whether or not their beliefs are reasonable.
For those who want to know more about RFRA and this case, Eugene Volokh did a series of posts on RFRA in December on his website http://www.volokh.com. 99% of the questions you have about the law will be answered in them. http://www.ask.com/web?q=www.volokh.com+RFRA&search=&qsrc=0&o=0&l=dir&ad=dirN&ap=ask.com
Thanks, Gregg....I will check it out.
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