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Contraception and the Use and Abuse of Religious Liberty

The Huffington Post The Huffington Post 17/11/2015 Noah Baron
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The religious right has lost the culture wars (the results of this past election notwithstanding). Though still seeking to defend prior victories, cultural conservatives now focus on claims of religious liberty to establish enclaves of control within the (small-l) liberal state. Progressives must recognize these claims as the illiberal demands that they are -- demands for tolerance of group values at the expense of individual freedom. Liberal tolerance does not require that we abandon whole swaths of our citizenry to the particular dictates of the faith of others.
The latest challenges to the Affordable Care Act exemplify the religious right's effort to leverage the language of tolerance to carve out arenas in which its value-set is as good as law.
The Act requires the government to provide "preventive care" for women, which it has done through employer mandates. The Obama administration allows "religious" employers to be exempt from the mandate, requiring only that they notify the government of their objection. The government then works with the organization's employer to provide the women with access to contraception and other services, without any participation of the exempt organization.
Despite this generous exemption, various religious organizations object to the federal government's provision of contraception insurance coverage to their female employees. Specifically, they argue that, by requiring them to return a form to the government indicating their religious objection to providing contraception, the government is requiring them to participate in a practice they consider to be immoral -- the use of contraception. This is because, they claim, in returning the form to the government, they are "triggering" the government's assistance in providing contraception.
This six-degrees-from-Kevin-Bacon interpretation of "participation" is at best implausible and at worst disingenuous. Once we adopt the notion that our religious exercise is "significantly burdened" through tangential complicity in government policy -- in this case, participation in the religious exemption itself -- any and every program is ripe for challenge on religious grounds: Christian evangelicals are "complicit" in abortions through payment of local taxes that fund police protection of clinics; Catholic hospitals are "complicit" in same-sex relationships by treating gay men or the children of same-sex couples. The incredible breadth of this definition of "participation" may very well be the point: The broader the reach of religious liberty claims, the greater the ability to exert control over the lives of employees and members, even as social conservatives lose ground in legislatures and public opinion.
More important, this appeal to tolerance misunderstands what tolerance and meaningful freedom of association requires: It asks for tolerance of group beliefs at the expense of the individuals who comprise that group. This is fundamentally at odds with the liberal understanding of tolerance, which demands that we respect the choices of persons, not groups. To allow anything other--to allow tolerance of group values to obscure the individual rights of group members--is to effectively concede that we do not actually believe in individual rights at all.
The challengers seek to reframe their theory so as to resemble liberal notions of tolerance--they assert, essentially, an "individual" right to have cultural values trump the individual choices of group members. On the theory of the challengers, employers have the right to impose whatever requirements they wish upon their workers; if their members or employees wish to do or have access to something to which their employers object, they should simply leave. Thus, the argument goes, gay men who wish to marry, single individuals who wish to have sex, or women who wish to have access to contraception, should, simply, not do so--or not work for these organizations in the first place.
But, as a nation, we have already heard and rejected such an argument as unpersuasive. When the Civil Rights Act of 1964 was proposed, opponents raised the same objections: Prohibiting employers from discriminating on the basis of race, or sex, or other bases, violated their right to associate as they wish. In passing the Civil Rights Act, Congress recognized the significant power that employers have over employees -- that finding a new job is a significant burden itself, far more so than not firing an employee for making decisions with which one disagrees. Liberty is not meaningfully expanded by allowing employers arbitrary power to control the lives of their employees; rather, it is diminished, as employees are forced to sacrifice parts of themselves, including their own autonomy, when they cannot afford the cost of leaving.
The late political philosopher Brian Barry once explained that "public tolerance is a formula for creating a lot of private hells." The sort of public tolerance he feared was not one which allowed individuals to worship as they wish, but one which compels the government to allow group norms to obscure the individual rights supposedly guaranteed by our Constitution. Allowing religious organizations to claim, under the guise of tolerance, nearly anything to be a burden upon the exercise of their beliefs would be a substantial step toward the creation of the private hells Barry warned against. Liberals should not fall for this Trojan horse merely because it comes adorned with a pretty bow.

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