In June 2012, the Orthodox Union brought a dozen Orthodox lay and rabbinical leaders to the White House to meet with President Obama. We knew our time with the president would be limited, so we planned carefully which issues we would raise for discussion. Of course, we spoke to the president about the security of Israel. We spoke to him about the critical role Jewish day schools play in our community and the need to provide appropriate government support for them. Any good staffer briefing President Obama for the meeting would have predicted we would broach exactly those issues.
But then we took the conversation down a less predictable path: we raised our concern over the Administration’s effort, under the Affordable Care Act, to mandate employers to provide widespread access to contraceptives and other women’s health services through their employer-sponsored health insurance plans. We stressed to President Obama that Orthodox Judaism does not share the Catholic Church’s view of the absolute impermissibility of contraception. But we also stressed that we do share a deep concern for religious liberty and oppose government policies, even in the service of commendable ends, which would force religious Americans to violate the tenets of their faith, especially when the government can achieve its goals in other ways.
In responding to us, President Obama was thoughtful and nuanced in laying out his policy rationale. And he subsequently put in place some protections for some employers with religious objections—a total exemption for houses of worship and a clever workaround for religiously run schools and charities. But a universal exemption for conscientious objection to this policy is not in place, and the first pair of a plethora of lawsuits challenging this aspect of “Obamacare” has made it to the U.S. Supreme Court.
Today, the Orthodox Union joined with other religious groups and filed a legal brief essentially siding with the religious objectors. We did not do so to undermine the health care reform law in general nor women’s access to health services they may uniquely need.
We did so because in the cases in question, forcing business owners to subsidize activity that violates their religious beliefs is unnecessary. There are many other means by which the government could ensure women’s access to contraceptives and related care without involving their employers at all, which the OU may support. (Imagine that a woman could take her prescription to CVS, have it filled, and the government would reimburse CVS directly.)
We take this stance because we, particularly as a religious minority in the United States, must stand in solidarity with people of all faiths in demanding the broadest protections for rights of conscience in the face of government (and socio-cultural) coercion to the contrary.
To understand our position, it’s important to understand the legislation at issue. In addition to the First Amendment’s guarantee of the “free exercise” of religion, the litigants challenging the contraceptive mandate are relying upon a statute known as the Religious Freedom Restoration Act (“RFRA”). This statute was passed in 1993 in reaction to a Supreme Court decision (Employment Division v. Smith) that severely curtailed the expansive protection for religious liberty understood to prevail until that ruling. The high court’s decision was seen as so radical that the coalition supporting RFRA stretched across the full breadth of the political and religious spectrum (every Jewish organization and stream was on board). In the Senate, the bill’s proponents were Ted Kennedy and Orrin Hatch; the Act passed by overwhelming margins and President Clinton proudly signed it into law.
This political and legislative reaction—embodied in RFRA—was fueled by a particularly worrisome aspect of the majority opinion in the Smith case. In writing for the majority, Justice Scalia held that the First Amendment does not protect a person’s religious liberty from restrictions that flow from an otherwise religion-neutral law. (So, for example, if Prohibition was reinstated without an exemption for the sacramental use of wine in church or for Kiddush, that’s too bad.) Since the First Amendment doesn’t demand these protections, according to Scalia, the place to obtain protection for religious liberty is not the courts, but the legislatures—through the political process.
Now, most people, even if they are not Supreme Court justices or constitutional law professors, realize that the liberties protected in the Bill of Rights were put there precisely to insulate them from the vagaries of the political process—especially for the sake of protecting politically unpopular views, speech, or religious beliefs.
Therefore, when RFRA was challenged as unconstitutional several years later, the broad coalition of groups supporting it filed a legal brief that stated:
RFRA requires religious accommodation wholesale. It allows any faith, no matter how small, unpopular or politically ineffectual, to press its claims before a neutral arbiter under an objective and religiously neutral standard. The consideration and adjudication of RFRA claims facilitates judicial review for fairness and minimizes favoritism to the vanishing point.
All people of faith should understand and actively support the right of religious (and other forms of conscientious) dissent from the popular and majority view. Today, in America, Catholic objections to women’s use of contraceptives may be broadly unpopular; tomorrow, it may be circumcision or kosher slaughter that are looked at askance in America, as they are today in Europe.
But this argument is not solely about where a slippery slope may lead; it involves a fundamental question about America’s civic-constitutional view of religious faith. In Europe today, religion has been relegated to something only to be exercised in private. What you do in your home and in your church is your business, but society expects you to leave your religion behind when you come into the public sphere—be it the workplace, school, or house of government. Thus, a believer is not entitled to an accommodation or an exemption from any demands society at large wishes to make, like banning public wearing of headscarves or kippot. This has not been the American view.
While our First Amendment’s establishment clause demands no legal endorsement of religion, there is a longstanding tradition of welcoming faith into the public arena and—most relevant here—including exemptions and accommodations for religious dissent in a wide array of laws so that, as much as possible, people of faith are not forced to choose between their conscience and compliance with other laws. To do otherwise is to relegate religious belief and action to second class status among our civil rights—something Jews, and all people of faith and conscience, must resist.
After our 2012 conversation with President Obama concluded, the assembled Orthodox Jewish leaders presented him with a memento of our appreciation—a framed reproduction of George Washington’s famous letter to the Jews of Newport, Rhode Island, in which the first president wrote:
The citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy … All possess alike liberty of conscience and immunities of citizenship.
It falls to us, Americans of 2014, to maintain the principle in which Washington took pride—and defend religious liberty for all.
Nathan J. Diament is Executive Director for Public Policy of the Orthodox Union.