Religious Freedom and the Affordable Care Act

Discussion in 'Archive: The Senate Floor' started by Obi-Wan McCartney, Jan 31, 2012.

  1. Obi-Wan McCartney Jedi Grand Master

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    Aug 17, 1999
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    The Obama Administration has decreed that religious institutions must provide it's employees with healthcare that covers birth control.

    I wasn't sure how I felt about it, at first blush I didn't like the idea because I felt it may have some real 1st amendment implications. However, I think this is a pretty good argument:

    Given that this law wasn't intended to infringe on religious freedom, and that there is a valid state interest in the rule, is there really any valid constitutional concern with this decision? If the Catholic Church cannot control what their employees spend their money on, why do they get to control how they use their healthcare?
  2. anakinfansince1983 Nightsister of CT, SW Saga and Lucasfilm Ltd

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    I'd say the Catholic Church would have a case if its health care mandated that employees buy birth control.

    But it doesn't, and as you pointed out, many non-Catholics work for the Catholic Church. Additionally, not all Catholics adhere to the mandate against birth control.

    Seems it would be more of a violation of religious freedom to not cover birth control, as the lack of coverage takes away choice far more than coverage does. People without coverage might not be able to afford birth control, whereas people with coverage, can still opt not to use it.

  3. Mr44 VIP

    Member Since:
    May 21, 2002
    star 6
    It's a political announcement made in an election year. It's not a coincidence that there is a delay until Aug, 2013 built into the announcement. This ensures that no action will be taken until the election is decided, and either Obama will be elected, and it will continue, or he won't, and it will be nixed. So for the near future, this is meaningless. For the administration, I think the term is called "hedging your bets."

    At any rate, just 2 weeks ago, the Supreme Court unanimously sided with the Lutheran Church, when it upheld the Church's right to fire an employee under the religious exemption in employment laws. (Hosanna-Tabor v. EEOC) It would be strange...er..legally inconsistent... if the SC unanimously ruled that a religious organization is exempt from labor laws, but not employment health insurance rules. I suspect the administration knows this, but also realizes it wouldn't be ruled on until after the election.
  4. KnightWriter Administrator Emeritus

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    Nov 6, 2001
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    They should be forced to cover contraception. End of story.
  5. anakinfansince1983 Nightsister of CT, SW Saga and Lucasfilm Ltd

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    I agree. I also want to know if they cover Viagra. I bring that up because there have been insurance companies in the past, and such companies may still exist, which cover Viagra but not birth control pills. Sexism at its finest.

    I also wonder if insurance companies will be forced to cover circumcision. Many don't now, as it is considered a cosmetic procedure, but Judaism mandates circumcision. Is it also considered a violation of religious freedom to not cover a procedure?

    As far as the Lutheran Church-Missouri Synod case, I did read through it quickly but that was confusing, as narcolepsy has nothing to do whatsoever with religion. The church was exempted from following the ADA?
  6. Kimball_Kinnison Jedi Grand Master

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    Oct 28, 2001
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    Once again, you are making a declarative statement without any substance to back it up. Why should they be forces to cover contraception? Why isn't a compromise solution acceptable?

    For example, if they were to offer plans that don't cover contraception, but offer the option for employees to pay a small fee extra to add contraception coverage, why wouldn't that be acceptable? It would, in effect, be no different than how I have to pay different amounts for my insurance depending on which plan I choose. (For example, my employer offers both a PPO and HMO plan, and each has different prescription drug benefits. The HMO plan costs me an extra $13 each pay period, but my wife and I decided that it was the better choice for us, so we pay it.)

    You constantly take an absolutist position on issues, but you never seem to explain why no compromise is ever acceptable. You don't have an absolute majority in this country on every issue, and you never will. If you aren't willing to compromise in anything, you are nothing more than an extremist who will be marginalized from the political discussion over time.

    You are assuming that Smith was rightly decided, and that the Religious Freedom Restoration Act doesn't apply. Remember, the criteria in the RFRA isn't just that there be a compelling government interest, but that the mechanism used to advance that interest be the least restrictive way to implement it.

    You might argue that mandating contraceptive coverage advances a compelling government interest, but that doesn't mean it's the least restrictive way to do so. There is a less restrictive way in the form of the Hawaii compromise.

    Kimball Kinnison
  7. DeathStar1977 Jedi Padawan

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    Jan 31, 2003
    star 4
    KK

    if they were to offer plans that don't cover contraception, but offer the option for employees to pay a small fee extra to add contraception coverage, why wouldn't that be acceptable? It would, in effect, be no different than how I have to pay different amounts for my insurance depending on which plan I choose.

    Agreed.

    IMO what should be required for coverage would be yearly check-ups, doctor's visits (with co-pay), hospitalization. Most everything else would be optional.

    anakinfan

    I also wonder if insurance companies will be forced to cover circumcision. Many don't now, as it is considered a cosmetic procedure, but Judaism mandates circumcision. Is it also considered a violation of religious freedom to not cover a procedure?

    I don't think so. And speaking as a Jew, I don't think they should be required to be covered either.
  8. KnightWriter Administrator Emeritus

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    Nov 6, 2001
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    Once again, you are making a declarative statement without any substance to back it up. Why should they be forces to cover contraception? Why isn't a compromise solution acceptable?


    Because there's nothing to compromise over. I'm an absolutist about this, and I certainly don't make any apologies for it. I don't need any substance-- either you agree with me or you don't.

    I won't tolerate people (and by people I mean "old men") trying to force women to give up any of their rights.
  9. DarthIktomi Jedi Padawan

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    May 11, 2009
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    anakinfan:
    Many healthcare companies do cover Viagra.

    You can have fun with this. Circumcision is covered by many companies (albeit a dwindling number) but not breast augmentation, never mind that the former is basically doing the latter to an infant.
  10. Vaderize03 Manager Emeritus

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    Oct 25, 1999
    star 5
    KK, I get where you're coming from, but in reality, you can't come down on KW for basically refusing to compromise on his beliefs in the same fashion as someone like Rick Santorum (please don't take offense at the comparison, KW :)).

    When Rick Santorum has been criticized for believing that birth control should be outlawed, a position he has defended with absolutist fervor, evangelicals have jumped to his defense, demonizing those critical as "anti-Christian", amongst other things. Mr. Santorum does not explain his position other than to reference the Bible, which, in his mind, makes his argument non-negotiable and final.

    When it comes to Christian-based viewpoints, such behavior by our politicians is not only "ok", but condoned by many. Yet when those who hold the opposite viewpoints take a stand against such opinions, especially if done so in a manner that is equally absolutist, then they are castigated by the Right.

    Sounds like a double-standard to me.

    When I was a resident, I got into a debate with a pulmonary doctor who is an Evangelical Christian about abortion. He is a kind, caring physician with whom I have to disagree, and we had a respectful debate. But his argument basically boiled down to one point:

    "My position is based in the Bible, therefore it is non-negotiable".

    To which I replied:

    "My position is not grounded in anything other than my intellect, but why should it be any less non-negotiable?"

    He didn't have answer to that, and he went on to admit, when I challenged him, that if his viewpoint were always legally controlling, then the US government could pass no laws which conflicted with the dictates of the Bible, yet clearly, we do not have Biblical law in America. As an aside, he couldn't reconcile supporting the death penalty with being pro-life, but that's an argument for another time :).

    Yes, for the purposes of debate in the Senate, one should back up their positions, but KW's, which is that there is a tremendous double-standard on many levels where abortion rights are concerned, can be defended just as "absolutely" as the opposing viewpoint, without explanation, because that's what the other side tends to do.

    I would like to hear a republican candidate make a public argument against abortion that does not cite the Bible or involve religion in any way. On the national stage, I don't think it's ever been done, out of fear of offending people. That is intellectual cowardice. Individuals in this country are free to practice it, but not to impose it on others.

    As far as religious freedom and the ACA goes, I will say that we already have too many religious exemptions for healthcare workers. As a physician, I am obligated to provide, safe, evidence-based, timely, ethical care to my patients, regardless of my beliefs. In other words, patient first. Allowing a pharmacist to refuse to dispense a medication is unconscionable, and the existence of such "sanctuary laws" is, IMHO, embarrassing and intrusive into the physician/patient relationship. If you can't put your patient first, get out of healthcare.

    Unfair, you say? That's tough. I need glasses to drive because I am nearsighted, and no matter how badly I might want it, I cannot join the Air Force and fly a jet, because you need perfect vision. I have no grounds to sue the US government to demand they train me as a fighter pilot, and I accept that. Conversely, an individual has absolutely no right to insist that the standards of evidence-based medicine, or the doctor-patient relationship, be subject to the religious whims of ancillary personnel in the health care market. OBM's example of not being able to be told how to spend your paycheck is perfectly valid.

    Can this same organization prevent you from paying to go see a porno flick with your hard-earned dollars? No, they can't.

    So.....KK, your solution, allowing choices of health plans with different tiers of coverage, is definitely a good compromise. I agree with you that making the decision now was playing
  11. Mr44 VIP

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    May 21, 2002
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    As a physician, I am obligated to provide, safe, evidence-based, timely, ethical care to my patients, regardless of my beliefs. In other words, patient first. Allowing a pharmacist to refuse to dispense a medication is unconscionable, and the existence of such "sanctuary laws" is, IMHO, embarrassing and intrusive into the physician/patient relationship. If you can't put your patient first, get out of healthcare.

    Unfair, you say? That's tough. I need glasses to drive because I am nearsighted, and no matter how badly I might want it, I cannot join the Air Force and fly a jet, because you need perfect vision. I have no grounds to sue the US government to demand they train me as a fighter pilot, and I accept that. Conversely, an individual has absolutely no right to insist that the standards of evidence-based medicine, or the doctor-patient relationship, be subject to the religious whims of ancillary personnel in the health care market. OBM's example of not being able to be told how to spend your paycheck is perfectly valid.


    Except, V, I don't think the first part applies to this at all, and the second part is exactly the same point used by the non-profits against this announcement. Did you read the actual announcement?

    This order doesn't cover health care providers, it covers institutions that provide health insurance to their employees. Religious institutions that want to cover medical costs may have an objection to covering birth control. Catholic hospitals offer some of the best hospitals in the world. The church itself just won't cover birth control in the benefit package it offers employees. To take the flip side of your own argument, you could say that everyone knows what they are getting into when they take a job. If you want birth control covered, don't take a job with the Catholic Church. Unfair you say? That's tough. But those are your words, not mine.

    I have no interest in the moral issues surrounding this announcement. But I would still suggest everyone read the Supreme Court decision that I mentioned above, because the legal principles also directly apply. Again, the SC unanimously decided (that's both the liberal and conservative sides coming together) that Federal Labor protections didn't apply to those institutions that had church exemption, because it was an internal matter. In essence, it's the "separation of church and state argument" worked from the opposite direction. If the SC specifically said that the Equal Employment Opportunity Commission didn't have jurisdiction over the Lutheran Church, I seriously doubt that legally, the authority to be required to provide health insurance would be any different.

    KW-They should be forced to cover contraception. End of story.

    Then you should be forced to join the military ala conscription. End of Story. No debate. Since I take your total obsession with such statements at face value, even though technically, there is no draft, I expect that you'll be down at the recruiting office tomorrow to join in a show of moral support for your total comment to be drafted. Please post which branch of the military you ended up in by 1700hrs tomorrow. Oh yeah, since the US Constitution has the 2nd Amendment, on your way home, you are required to buy no less than 2 different firearms and keep them in your house. End of Story. When you post which military branch you joined, please list which guns you bought.

    Of course, such absolute statements don't make it any more likely that either will actually occur, and they don't even cover the issues themselves...But who is counting, eh?
  12. Jabba-wocky Force Ghost

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    May 4, 2003
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    It wasn't a magical blanket exception. That ruling was in regards to a member of the clergy, and line with a lower court ruling recognizing the special status of employees hired for a religious function. I see no reason why we would expect that logic to extend to the janitor, cafeteria lady, or football coach at a Catholic institution.
  13. Obi-Wan McCartney Jedi Grand Master

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    Aug 17, 1999
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    KK or Mr. 44, can you explain exactly whose religous freedom is being SUBSTANTIALLY burdened upon by this law? I mean, I get the whole "we don't want to support this" and all, but is it really a SUBSTANTIAL burden? And what if Church decides that it doesn't want to pay for healthcare services involved in hospice care because it sees it as a form of euthanasia? Or they won't cover abortions even where the mother's life is in imminent danger?

    This is really about healthcare, not the free exercise of religion. Any individual Catholic is free to practice their religion.

    Kimball, I think the Hawaii compromise is fine, but even then, is the burden of having to facilitate the employee finding coverage any different then just providng a plan that covers birth control? If you ask me, the latter could be even MORE burdensome!

    Again, what is the big deal here? Where is the substantial burden?

    (P.S. Doesn't matter if I think Smith was rightly decided or wrongly decided, if the Supreme Court says it's still good law it is. Although I probably wouldn't have decided the case that way, but I think the Roberts Court did issue a ruling in a case that afforded more protection to native american religious free exercise of religion.)
  14. Mr44 VIP

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    May 21, 2002
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    I don't know. You'd have to ask someone who has a religious knowledge background, which I don't. From a legal standpoint, who is being burdened? All of us? None of us? It's no different than any other case. Back in 1968, Ernesto Miranda was arrested on kidnapping and rape. The burden that was applied to, by all other accounts, a guilty man, now gives us all the famous Miranda warnings.

    OWM, when did you start to believe that individual protections only apply to those who are involved in the actual case? That doesn't sound like why you got involved with the law in the first place in the slightest.

    JW, I think you're missing the controlling idea though. Of course the Supreme Court didn't issue a blanket ruling, but it was more than an "employee hired for a religious function." You have to read the case. The standard issue was that religious institutions can't be compelled to go against tenets held by their own religion. That issue would seem to apply to this case. The Catholic Church couldn't hire people and promise them birth control coverage, for example, and then at some point arbitrarily refuse that coverage. But if the church hired people, and from the beginning, was upfront with the fact that birth control conflicts with a Catholic belief, so it won't be provided, I'm not sure the employees would have any remedy.

    But the SC didn't even really address that issue, and found that the church couldn't be sued for violating secular labor policies in the first place. As soon as the denomination makes its point that it counts an employee as a religious member, within its own internal definition, that is probably the end of the case. And the employee could be anyone from the head of the individual church building, on down to any worker considered to be "advancing the religious mission." You are correct that a cafeteria worker, for example, might not qualify, but all that would have to happen is that the same worker be classified as a religious employee, which is easy to accomplish at the time of hire. Remember, this was a 9-0 ruling, which applied a religious exception to federal, state, and local laws against nearly all forms of discrimination on the job, as long as the terms were outlined up front. The SC hardly ever decides cases on a 9-0 basis.

    Here's an excerpt from the analysis:

    In this particular case, involving a parochial school teacher who spent most of her work time on non-religious duties, the Court found these to be decisive factors: that she was formally commissioned in the Lutheran denomination?s internal practices, and that her non-religious duties, however extensive, did not make a difference. The Court was unsure whether any church employee would ever do exclusively religious chores.


  15. Obi-Wan McCartney Jedi Grand Master

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    I don't get your point. This isn't even a lawsuit yet, so how am I saying protections are about an individual case? I never said or implied that. And as far as Miranda, that was about ensuring that all defendants receive minimal 5th amendment admonishments and protection, doesn't really have anything to do with religion I don't think...

    My question is legitimate, how does this rule substantively and substantially burden the free exercise of religion? Is there really a SUBSTANTIAL burden here on anyone at all? I don't doubt the Catholic Church finds it substantial, I'm just wondering why. How is any individual Catholic's exercise of religion burdened?
  16. Mr44 VIP

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    OWM, My point is that even as you mention the 5th Amendment and remedy for "minimal protections" for violations against it, the 1st Amendment is just as important. I could simply use your own statement against you and ask "how does the basic memorization of the famous "You have the right to remain silent.." speech substantially uphold the 5th Amendment? It's kind of silly now, as everyone who has ever watched TV can probably recite it. But that's not the point. The aforementioned Miranda decision doesn't just cover Ernesto's individual protection of the 5th, it covers all of us.

    You're the one who just created the concept of "substantive and substantial" legal bright line out of thin air for some reason. It certainly wasn't taught in law school. This potential case isn't just limited to anyone's practice of religion, it covers everyone's practice of religion. You can't have it both ways.
  17. EMPEROR_WINDU Jedi Master

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    Nov 23, 2002
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    This was an obvious misstep by the administration to not allow for a religious exemption. I fail to see how forcing Catholic hospitals to offer insurance plans that include contraceptives (and from what I've heard and read abortifacients) is a good political move. Catholics are more and more lax in regards to contraceptives there's no denying that, but as a Catholic myself and knowing a lot of Catholics who supported the President one of the things that could change their mind in a hurry is for the government to force the Church to offer something that obviously goes against it's moral teachings.

    In my opinion it's an abuse of the first amendment's freedom of religion, but I'm not a constitutional lawyer either.
  18. Obi-Wan McCartney Jedi Grand Master

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    I didn't pull it out of thin air! That's the legal standard under the Religious Freedom Restoration Act cited by Kimball. You have a problem with that, go to Congress, not me.

    I also don't get your point about distinguishing "everyone" and "anyone." Everyone includes anyone. This is not some kind of trick question, this is a legitimate question that anyone looking to attack this law will have to answer.

    So again, not really sure what Miranda has to do with anything. Miranda had a specific 5th amendment right against self incrimination, it was determined by the high court that failing to make him aware of that right before a custodial interrogation was a violation of his 5th amendment rights. However, the 5th amendment right isn't absolute. If you aren't in a custodial situation, you don't have a right to Miranda warnings.

    What person's 1st amendment right is violated by this new law? The 1st amendment rights are also not absolute, and religious freedom has its limits as well. Polygamy is illegal, so is peyote, as was purchasing wine in the 1920's. So again I put it to anyone and everyone to answer, how does this law substantially burden the exercise of anyone's (or everyone's) religion?

    P.S. For the record, I'm not even definitively saying it doesn't, as I said before at first blush I did feel this law was misguided. However, thinking about it further I'm having a hard time finding a substantial burden, so I'm asking others to help me understand the argument from the Catholic perspective.
  19. Kimball_Kinnison Jedi Grand Master

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    How do you decide what is a substantial burden? According to the Catholic Church, it is. They are best suited to judge their own doctrines and teachings. Not you, and not the government.

    Are you talking about a substantial burden on the organization, or on the individuals? If the organization, then why does the organization get protection not offered to individuals? If it is the individuals, then why is it a substantial burden when they work directly for the Church, but not when they work for an organization operated by the Church?

    And non-Catholics who work at Catholic institutions would still be able to buy contraceptives if they weren't offered as part of their health benefits.

    And yet, the Catholic Church disagrees with you. Their expressed concern is that they should not be required to pay for someone else to violate their beliefs. They are not saying that non-Catholic employees are prohibited from using contraceptives, only that they find it morally and religiously unacceptable to be required to pay for it.

    Except that Smith has been overruled on the Federal level through the Religious Freedom Restoration Act of 1993. While it was overturned as applied to states in Boerne v. Flores, it was specifically upheld as applicable to the Feds in Gonzales v. Centro Espirita.

    It's clear that the government does consider that it would be a substantial burden as applied to churches directly (else they wouldn't have exempted them). According to Catholic doctrine, it does impose a substantial moral burden on individuals. That doesn't change because that individual works for a Catholic-operated school or hospital rather than being directly employed by the Catholic Church.

    Kimball Kinnison
  20. Mr44 VIP

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    May 21, 2002
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    OWM, my answer to you is that you're asking the wrong question. Again, I don't think you're correctly framing the debate. Remember, this entire exception was made because of "Obamacare" which the administration was the author of. The administration can't create a program, allow a compromise in order to get it passed, and then not even half way through, arbitrarily decide to take away the exception because it's an election year... So, you shouldn't be asking the question of "what burden is on the individual to practice their right?" The question you should be asking is "what interest does the government have to become involved in the 1st Amendment?" That's why I first brought up the Miranda example, because Ernesto Miranda didn't have to justify his 5th Amendment protection. It was already there. The government had to prove that it was not improperly encroaching on it.

    I guess this is an area where my more libertarian leaning side comes out. In a lot of ways, we've become a world of whiners and complainers. If someone wants a job where birth control is covered under health insurance, don't go out and apply at a Catholic Church because it won't pay for it. If you go work for an Islamic mosque, be aware that the salat will be practiced 5 times a day during breaks. And so on...It's kind of a basic idea. It's also what is so ironic about the "it's not fair" argument that was brought up above. My problem is with how the administration handled it from the beginning. If the administration was upfront about not allowing the religious exemption, it would have come out during the debate to get it passed. However, the administration put the exemption in, and then just took it upon itself to "decree" it away. The entire health care reform program is turning out to be one giant game of Calvinball. I think that's where your initial feeling of unease about it also came from.

    That's also why I said it's not anyone's right, it's everyone's right. You shouldn't need just a Catholic perspective. What if under his next stimulus proposal, Obama issued an executive order that disallowed the Jewish practice of not working on the Sabbath because it wasn't efficient? (Sabbath starts Fri and goes to Sat) The tradition is strongly rooted in the Jewish faith. Would such order only apply to the Jewish community, where they would have to defend the practice, or does the 1st Amendment apply equally across all religions?



  21. Obi-Wan McCartney Jedi Grand Master

    Member Since:
    Aug 17, 1999
    star 5

    Here is the heart of the matter that i think deserves more analysis. Is any individual's free exercise of religion SUBSTANTIALLY infringed upon because a corporation run by the Catholic Church is required to provide health insurance that covers birth control? Seriously. I mean, how would anyone even know if any of the employees actually ever used birth control? It's not as if an individual person is being forced to use birth control.

    KK, Mr. 44, if the federal government offers beef in its cafeteria paid for by taxpayer money, does it substantially infringe upon a taxpaying and practicing Hindu's free exercise of religion? On the other end of things, are laws prohibiting polygamy unconstitutional against certain segments of the mormon religion? Are drug laws totaly invalid against native americans? If you ask me, those restrictions pose a far more substantial burden on an actual person's free exercise of religion than this law. (As far as Smith, I don't think it was overruled at all becaue I think Smith dealt with state unemployment benefits, but that's not really relevant either way.)

    I think that here you could show a substantial burden and a lack of a compelling state interest. But something else to consider, what if a Jewish person claimed they shouldn't have to work at a private corporation on Friday because of their religion, could they then sue the corporation and claim that they are being unfairly discriminated against? Of course not. Now, as far as the government, they are telling a specific individual they cannot follow their religious tenant, and again, there is hardly a valid compelling interest here.



    That is a pretty weak argument. Why do we even need courts then? Let's just let each religion decide what the law should be, that won't cause any problems at all!
  22. Kimball_Kinnison Jedi Grand Master

    Member Since:
    Oct 28, 2001
    star 6
    In a way, this really relates back to the same issue in Citizens United.

    At their core, corporations are really nothing more than a collection of people. If those people individually have a First Amendment right to free speech, then do they lose that right when they join together into a group (corporation)? If the government doesn't have the authority to restrict one person's speech, then why should it have the authority to restrict a group's speech, when that group is made up of individuals?

    Similarly, if people have an individual right to free exercise of religion that would prevent them from having to pay for someone else's birth control, then why should they lose that right when they join together in a group?

    Moreover, if you think that they should lose that right when joined together, then what is the difference if they join together in a group called a church, or a group called a church-owned school or hospital? Why should one group lose that right while another doesn't?

    The First Amendment doesn't protect an institutional right of churches. All of the rights it protects are individual rights. They shouldn't be able to be taken away just because two (or more) individuals join together.

    Kimball Kinnison
  23. Jedi Merkurian ST Thread Reaper and Rumor Naysayer

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    May 25, 2000
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    The concern I have with the compromise being proposed by KK is this: If an optional birth control rider is added to policies for employees, wouldn?t the organizations then in effect have a roster of employees who weren?t following one of the dictates of Catholicism? And given the verdict that the SC just rendered on Hosanna-Tabor v. EEOC, wouldn?t said organizations be within their rights to fire said employees?

    Better then to have it available to everyone, so that there would be a blanket of anonymity.
  24. Kimball_Kinnison Jedi Grand Master

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    Oct 28, 2001
    star 6
    Why would the employer need to get a list? At that point, the purchasing of any additional insurance would be a private transaction between the individual and the insurance company. It would only need to involve the employer if you want the employer to automatically withhold the additional premiums from the employee's paycheck.

    The employer wouldn't need to know about whether someone purchased the rider any more than they need to know if they've purchased Cable TV, or some other private service.

    Kimball Kinnison
  25. Jedi Merkurian ST Thread Reaper and Rumor Naysayer

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    ?Why would the employer need to get a list??

    As I said, the employer wouldn?t need to procure a list if birth control is an optional rider to an employer-provided (and thus payroll deducted) policy. They?d already have a roster.