From the December 6 edition of Fox News' America's Newsroom courtesy of Media Matters:
By Sheila Kennedy
[Originally published at SheilaKennedy.net on December 9, 2013]
[Originally published at SheilaKennedy.net on December 9, 2013]
|Photo: RH Reality Check|
In a recent column in the Pittsburgh Post-Dispatch, Duquesne Law professor Bruce Ledewitz makes an important point about the Affordable Care Act and contraceptive coverage –a point that has gotten lost in all the language of victimization and self-righteousness: religious institutions are not required to provide contraception and other objected-to medical coverage under the Affordable Care Act. Instead, the religious institution is required only to forward a list of its employees to its insurance carrier, which must then provide the coverage itself if the employees want it, without cost to the employer.
That, boys and girls, is what has given rise to the assertion that the employers’ religious liberty is being violated–or “burdened” excessively, to use the terminology of the Religious Freedom Restoration Act (RFRA). RFRA was passed in response to a series of Supreme Court decisions rejecting claims that obedience to laws of general application–laws against drug use, zoning and historic preservation laws and the like– shouldn’t apply in situations where they prevented people from acting on their religious beliefs. (For example, the Court held that Native Americans could believe in smoking peyote as part of a religious ritual, but they couldn’t act on that belief.)
As Ledewitz notes, the claim that having to send a list to your insurance carrier “burdens” your religious exercise strains credulity.
To see how extreme this position is, imagine that the Obama administration had offered yet another compromise: that the religious institution need only offer a list of its employees to the government and the government would provide health insurance ecoverage. If religious employers had really wanted to compromise, they could have lobbied for this option. But, undoubtedly, they would have objected even to this requirement…
Even closely held for-profit corporations have claimed exemption under RFRA, as if these corporations had religious consciences. The owners of these corporations assert that their corporations are alter egos of their human shareholders, when, in fact, the whole point of the corporate form is to shield the shareholders from the debts of the businesses. When it comes to money, the corporations and the owners are quite separate.
RFRA was never intended to operate in this maximalist fashion. Under the free-exercise-religion claims that RFRA replaced, religious plaintiffs usually lost their cases against the obligations of generally applicable laws. And even today most religious believers find ways to compromise with government programs and requirements with which they disagree. Catholic judges, for example, for years have granted divorces, even to Catholic couples. These judges have not asked for exemptions in these cases.
But instead of compromise and goodwill, the Affordable Care Act has provoked overheated rhetoric and over-the-top objections on the part of religious institutions and individuals, many of whom opposed the act from the beginning and are now continuing their political campaign in the courts.
Commentators have noted the hypocrisy of Hobby Lobby’s assertion of religious objections–it happily does business in China despite that country’s one child policy and forced abortions. Given the tenuous connection of employers to contraceptive coverage availability under the Obama administration compromise, it’s abundantly clear that the objections are motivated by politics, not religion.
But even if the objections were sincere, where would it stop? If your religion teaches that women are to be submissive, can you be exempted from compliance with EEO regulations? If your theology holds that blacks are inferior (as Mormon teachings did until the late 1970s), can you ignore civil rights laws? As Ledewitz warns,
If RFRA really means what the plaintiffs in the Affordable Care Act litigation claim that it means — that religious believers are free to invoke the protections of the act no matter how minuscule their legal obligations appear to be and despite a commercial and even profit-making context — then RFRA is unworkable and will inevitably be repealed. If that occurs, religious believers will have inadvertently undermined the very religious liberty that they now invoke and that America rightly prizes.
American law has made numerous concessions to religious belief, but this is a bridge too far. As the old saying goes, pigs get fed–but hogs get slaughtered.
About Sheila Kennedy:
Sheila Kennedy is a former high school English teacher, former lawyer, former Republican, former Executive Director of Indiana's ACLU, former columnist for the Indianapolis Star, and former young person. She is currently an (increasingly cranky) old person, a Professor of Law and Public Policy at Indiana University Purdue University in Indianapolis, and Director of IUPUI's Center for Civic Literacy. She writes for the Indianapolis Business Journal, PA Times, and the Indiana Word, and blogs at www.sheilakennedy.net. For those who are interested in more detail, links to an abbreviated CV and academic publications can be found on her blog, along with links to her books..
Have you ever seen someone online take themselves (and others) so seriously you had to make light of the situation? That happened to me earlier tonight when someone commented on one of The Daily Edge's sarcastic-yet-true tweets about Bristol Palin presenting herself as an abstinence-only advocate (after getting drunk and having sex in a tent). For the uninitiated, the Daily Edge is a comically-sarcastic online purveyor of liberal-leaning tweets that offers a fantastic spin on current events and politics. (I have it on my daily read Twitter feed in fact.)
Enter Deo Volente - otherwise known as the guy who can't take a joke. (Cue hilarity.)
Have you happened upon a hapless soul who could use a humor enema? Leave a comment below and let us know how you handled it.
Michael Griffin & his former employer
On the heels of New Jersey's decision to legalize same sex marriage, Pennsylvania high school teacher Michael Griffin decided to marry his partner of 12 years. Unfortunately for Griffin, his employer - Holy Ghost Preparatory School in Bensalem, PA - disagreed with his decision and terminated his employment on Friday. Citing his employment contract, the school stated that his decision to obtain a marriage license to marry someone of the same sex "contradicts the terms of his teaching contract."
Griffin announced the termination on his Facebook page yesterday saying:
"Today I applied for a marriage license since NJ now has marriage equality. After 12 years together I was excited to finally be able to marry my partner. Because of that, I was fired from Holy Ghost Preparatory School today. I am an alumnus of the school and have taught there for 12 years. I feel hurt, saddened, betrayed and except for this post, am at a loss for words. If you'd like to share your words with my principal or headmaster, please do. email@example.com or firstname.lastname@example.org"
In a written statement to the press Fr. James McCloskey, he school’s headmaster, said:
"At a meeting in my office yesterday, teacher Michael Griffin made clear that he obtained a license to marry his same sex partner. Unfortunately, this decision contradicts the terms of his teaching contract at our school, which requires all faculty and staff to follow the teachings of the Church as a condition of their employment. In discussion with Mr. Griffin, he acknowledged that he was aware of this provision, yet he said that he intended to go ahead with the ceremony. Regretfully, we informed Mr. Griffin that we have no choice but to terminate his contract effective immediately."
The section of the school's code McCloskey claimed Griffin violated states:
"That, although, the School welcomes teachers from other denominations and recognizes their rights to religious freedom, as employees of a Catholic institution, all teachers are expected to uphold lifestyles compatible with the moral teaching of the Roman Catholic Church."
In a follow-up statement to his Facebook page after the news of his termination made local news, Griffin said:
"Thank you to everyone for all of your messages of love and support since yesterday. It is so overwhelming and my heart aches over everything that has happened. Holy Ghost helped form me to be the person that I am today. Even though I am no longer employed there, I wanted to share their mission and philosophy, because I feel like I have tried to make it my life's philosophy as best I can, even now. I am trying to move forward with a peaceful heart and wish nothing but the best to my colleagues and students who mean the world to me."
Griffin's termination follows several other high profile educational firings nationwide over stances on LGBT rights including Carla Hale in Ohio and Mike Moroski (also in Ohio). The key component in each of these terminations is the church's insistence that their religion explicitly contains codified beliefs that LGBT rights (especially marriage) are wrong (despite the fact that many LGBT-positive churches exist across the religious spectrum that say otherwise). While the legalities of terminations vary widely nationwide (as most cities and states lack ENDA-level protections against terminations for LGBT status), legal experts say deeper constitutional issues exist in these situations.
Mark Brown, a professor at Capital University Law School, spoke on the subject earlier this year when Carla Hale was terminated from her teaching position. "All she’s got in terms of government protection is that Columbus ordinance," he said. Marc Spindelman, a professor at Ohio State University’s Moritz College of Law added to that. "It sits on important and deeper sets of not just city-ordinance rules but deeper constitutional rules," he said. "Those clashes of deep principle, which often get worked out as constitutional decisions, are what’s underlying here."
In the mean time, based on his second statement, it looks as if Griffin will not be pursuing legal action against the school as he wished them well as he moves forward. Perhaps schools like Holy Ghost could take a lesson in Christian behavior from Griffin.