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Why Protecting the Contraception Mandate Protects Religious Freedom

The best way to erode religious liberty is to make it a partisan issue

Yishai Schwartz
December 24, 2013

It is all too tempting for American Jews to join movements that purport to protect religious freedom. But there is one such undertaking today that the Jewish community should stay far away from: the conservative crusade to overturn the Affordable Care Act’s contraception mandate. This is not because Judaism takes a particularly strong stance in favor of contraception—it does not. And it’s not because the religious freedom case against the mandate is legally dubious—it is not. Rather, Jews—especially of the conservative persuasion—should not should not join forces with their Christian counterparts on this issue because doing so would be a short-sighted strategic mistake that would undermine—rather than preserve—religious liberty in America.

What’s at stake

The current legal debate centers on the ACA’s requirement that employers provide insurance that covers all FDA-approved forms of contraception and sterilization procedures. Conservative Christian employers across the country have objected that paying for such coverage violates their sincerely-held religious beliefs and demanded exemptions under the federal Religious Freedom Restoration Act (RFRA). This 1993 law guarantees religious exemptions to federal laws that do not meet a highly scrutinized “compelling state interest” standard; Christian employers have argued that the state’s desire that they provide specific services does not meet this high burden.

In recent weeks, lower courts have delivered verdicts all over the map. A few days ago, a federal District Court rejected a suit from the Archbishop of Washington. The week before, another court in New York ruled in precisely the opposite direction. Just last month, the US Court of Appeals for the District of Columbia issued a temporary reprieve from the mandate to Evangelical businessmen, and a few weeks later, the Supreme Court agreed to hear arguments in two related cases, Sebelius v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. v. Sebelius.

Which side should we take?

As members of a religious minority—one historically subject to persecution by the state—we might be inclined to join this charge for an expansive view of religious freedom. But although the rhetoric of freedom is seductive, using the Religious Freedom Restoration Act to strike down the contraception mandate would not serve that cause, but discredit it. This is because the RFRA’s power is not primarily legal. Rather, it is grounded in the national consensus around the principle that real religious freedom ought to be protected—that such liberty is not a partisan issue. But using the RFRA to constrict a politically polarizing law would shatter that consensus, and thus erode religious freedom in the long-term—for Jews, in particular.

To understand why this is the case, one must understand where the RFRA comes from. The law was born out of the widespread horror at the Supreme Court’s 1990 ruling in Employment Division v. Smith. In that case, Justice Scalia wrote for the Courtthat Native American religious practices enjoyed no constitutional protections from general laws that incidentally restricted their religious rights. In response, the RFRA was passed with overwhelming support from across the political spectrum. Gaining the backing of the ACLU and the Traditional Values Coalition, and winning 97 votes in the Senate and unanimity in the House, the RFRA represented a powerful moment of social agreement. A vast consensus affirmed that free religious action was important enough to grant religious people privileged treatment when deemed absolutely necessary. It is this vast consensus that has led to wall-to-wall condemnations of recent attempts to ban circumcision and allowed overwhelming approval of special Congressional allowances for kosher slaughter, even as such practices come under attack around the world. And it is this consensus that must be preserved.

But implicit in this social consensus was the assumption that religious communities would claim special privileges only when truly critical. In the debate over contraception, religious groups have made a mockery of this assumption. These religious individuals are not being forced to perform or receive medical procedures to which they object. Rather, their businesses must pay for a general policy through which a second party will offer services to a third. In protesting the mandate, religious groups are not asking for special permission to continue performing deeply important religious acts; they claim an infinite and automatic right not to contribute to a general pot that indirectly pays for services to which they object. By crying religious freedom in an attempt to exempt themselves from fees that everyone else must pay, religious communities are shattering our fragile and deeply beneficial consensus in favor of a robust view of religious freedom. They are confirming the RFRA’s opponents’ most dire predictions.

Indeed, secular opponents of the RFRA have long argued that a blanket exemption for religious activity is an open invitation to abuse and a slippery slope to anarchy. After all, if anyone can claim religious exemptions based on sincerely-held beliefs, does this not mean that every citizen carries a personal veto over general legislation?

In some sense, these opponents have always been right. A personal religious veto is precisely what the RFRA means, and we should be awed and humbled that a vast American consensus trusted its religious citizens to use this veto sparingly and wisely. The RFRA’s viability thus relies on religious communities acting responsibly, adopting whatever reasonable burden they may, and using every available tool of interpretation and doctrinal flexibility at their disposal to reconcile their religious practice with the general legislation. Indeed, when push comes to shove, many religious groups have found means of doing precisely this by contraception.

But if the Supreme Court accepts a blanket exemption for religious communities not to pay for things of which they disapprove, the consensus around the RFRA will be broken. If religious communities adopt the position that religious freedom means “the religious will do and not do, will pay and will not pay, for whatever they choose,” then the widespread support for religious freedom will evaporate. Religious communities will have argued that exemptions are an absolute game in which the rules are dictated by the religious. Faced with this all or nothing choice, the secular community will opt for “nothing.” Opponents of the contraception mandate will have won the battle, but lost the war.

The absolutist temptation

And yet, with the Affordable Care Act, this is precisely the path some Jewish thinkers would have us take. Amicus briefs for the Supreme Court cases on the mandate are not due until January 28th, so we do not yet know precisely where Jewish groups will align themselves. Nevertheless, there are strong indications that some segments of the Orthodox community are poised to adopt some profoundly myopic stances.

As the insurance guidelines were first finalized in 2012, the GOP’s favorite rabbi, Meir Soloveitchik, denounced the mandate in the pages of the Wall Street Journal and before the House Oversight Committee. Of course, one Republican rabbi’s misguided message is not itself cause for concern. But there are indications that Soloveitchik is part of a broader movement. During the same period, the Orthodox Union publicly urged the Obama administration to widen its existing religious exemptions. Nathan Diament, the OU’s Executive Director for Public Policy, issued a statement lambasting the Obama administration for stripping non-insular religious institutions of their “‘religious’ character and liberties.” Now, some elements within the OU’s leadership structure seem poised to make take this argument to the courts. A recently circulated (and deservedly unsuccessful) internet campaign by a small group of OU-affiliated rabbis seeks to raise funds for an amicus brief in support of the Hobby Lobby Christian employers.

Such an unbounded view of religious freedom is an admittedly alluring proposition, and one grounded in good intentions and deep-rooted Jewish experience. But it will ultimately be self-defeating—a pyrrhic victory for religious liberty that erodes support for the value it seeks to defend. In the end, when it comes to our fragile but essential national consensus on religion and state, the Jewish community would be better off letting sleeping dogs lie.


Yishai Schwartz is a fellow at the Tikvah Fund in New York. He graduated this past May from Yale University with a B.A. in philosophy and religious studies.

Yishai Schwartz is a student at Yale Law School. Previously, he was an associate editor for Lawfare and a reporter-researcher for The New Republic. Follow him on Twitter at @YishaiSchwartz.