Constitutional Delimma on Birth Control

Invoking George Washington’s famous letter to the Jews of Newport, R.I., Rabbi Meir Soloveichik of New York’s Congregation Kehilath Jeshurun, one of the foremost Orthodox rabbis of his generation, told a congressional committee on February 16 that requiring health insurance plans to cover contraception threatened “the liberties of conscience” of fellow Americans and “redefined by bureaucratic fiat” the definition of religion itself. He found it appalling that any religious organization — Catholic or not — should be “obligated to provide employees with an insurance policy that facilitates acts violating the organization’s religious tenets.”

In many ways, it is heartwarming to see an Orthodox rabbi standing up for the religious liberties of his Catholic cousins. Many of us felt ashamed when so many rabbis failed to do this in 2010, when the religious liberty of Muslim Americans was challenged during the controversy over building a mosque near Ground Zero. As a minority group that has fought hard for religious equality, and one that rightly takes pride in having received from Washington himself the assurance that religious liberty is an ”inherent natural right“ that cannot be abridged, we should all feel obliged to testify whenever religious liberties are challenged.

Yet for all that one may sympathize with Catholic institutions coerced into promoting contraceptive services that they consider sinful, Soloveichik’s congressional testimony greatly oversimplifies the religious liberty conundrum confronted by those who oversee national health insurance. The guarantee of religious liberty, after all, applies not only to religious organizations, but also to individual citizens. However much Catholic institutions may invoke religious liberty when they deny those they employ access to contraception, it is critical to remember that from the perspective of those employees, the denial reeks of religious coercion.

The analogy to “forcing kosher delis to sell ham,” put forward by Bishop William Lori, exemplifies the way the problem is misunderstood. In America (unlike in Israel), people have the right to choose whether they want to sell ham and whether they want to consume it; neither option is proscribed. We all might agree that kosher delis should not be coerced into selling ham, but hopefully we would also all agree that a deli’s employees and customers should not be penalized for choosing to consume it.

Similarly, a kosher deli routinely gives its employees a day off on Yom Kippur, a fast day. But the deli would not be within its rights if it provided that benefit to only those employees who fast on Yom Kippur; that would be coercive. Denying insurance claims for contraceptive services represents the same kind of coercion. In First Amendment terms, the contraception issue represents a classic tension between the “no establishment”and “free exercise” clauses of the First Amendment. What Soloveichik understandably sees as a limit upon Catholic institutions’ free exercise of their religion, employees of Catholic institutions see, no less understandably, as an attempt to ”establish“ Catholic doctrine coercively. The Supreme Court generally privileges the ”no establishment“ clause over the ”free exercise“ clause in such cases. It certainly does not ignore ”no establishment“ claims, as Soloveichik does.

Soloveichik, in his testimony, takes particular exception to a distinction that the government has drawn between religious employers who hire only members of their own faith and are permitted to conduct their affairs according to church tenets and religious employers who hire members of multiple faiths and are obligated by the government to accommodate them.

“The administration implicitly assumes,” he charges, “that those who employ or help others of a different religion are no longer acting in a religious capacity and as such are not entitled to the protection of the First Amendment.”

In fact, the government makes no such assumption at all. Instead, it reasonably assumes that employers and employees both have First Amendment rights, including the “no establishment” right not to be religiously coerced. Precisely for this reason, chaplains in the military who certainly act in a religious capacity are prohibited from evangelizing those of other faiths, even when their religion otherwise requires them to do so. Where members of different religions dwell together (even when they do so under religious auspices), securing them all the right to the “free exercise” of their faith is much more conducive to social harmony than allowing employers to impose their faith requirements on their employees coercively.

Is there any way of satisfying both the religious strictures of the church and the religious predilections of its employees? If, as in most western countries, the burden of acquiring health care were placed upon individuals rather than employers being required to provide it, then everyone could choose for himself or herself whether to have a plan with contraceptive benefits. Those with other strong beliefs about health care (such as Christian Scientists) could similarly select plans that accord with their faith. Nobody would be coerced, and everybody could purchase the plan that he or she wants.

Meanwhile, one hopes that Congress will ignore the testimony of Soloveichik. To focus on the religious liberties of employers while overlooking those of their employees, and to focus on only the free exercise clause of the First Amendment while ignoring the dangers of coercive religious establishments, is to pervert what Washington meant when he spoke of “liberty of conscience” and to set back the cause of liberty and justice for all.

Jonathan D. Sarna is the Joseph H. & Belle R. Braun professor of American Jewish history at Brandeis University, and chief historian of the National Museum of American Jewish History. His newest book, “When General Grant Expelled the Jews,” will be published this month by Schocken/Nextbook.