Earlier this week, the Supreme Court of the United States heard arguments in a case about (depending on how you look at it) religious liberty, reproductive rights, corporate personhood or the Affordable Care Act. In short, two corporations—the craft supply store chain Hobby Lobby and furniture manufacturer Conestoga–are suing the government to be exempt from the requirement that they pay for their employee’s health care coverage of certain contraception. Their argument is that the law should not compel employers and business owners to violate their religious liberty by forcing them to pay for medical coverage that they deem to be a violation of their beliefs.
Earlier this year, this issue came up in our state when the Legislature was considering for the second time the Reproductive Parity Act. This piece of legislation would require health plans offered in our state to cover termination of pregnancy, and while it advanced in the House, it died in the Senate. The argument of the opponents of the RPA is again religious liberty and the rights of employers—employers should not be compelled to pay for something that violates their religious beliefs.
A variation of this argument was also advanced in Arizona, in which the Legislature passed a law that would protect businesses that refuse services to gay couples based on a religious opposition to same-sex marriage. The bill was vetoed by the Governor after a public outcry.
What is troubling about these religious liberty arguments is twofold. One, while seemingly instituted to protect religious minorities, the concept of religious liberty is being invoked by the religious majority, sometimes at the expense of minorities. While I do not deny that everyone is entitled to the same rights—including those in the Christian majority—we must be careful when it is the case of a majority vs. a minority. We Jews have benefited greatly from guarantees of religious liberty because of the fact we are a religious minority in a place where Christianity and Christian culture is the norm.
The second troubling aspect is that in these cases, the concept is being invoked in a way that will cause harm to others, either through decreased access to health care (and the financial burden that comes with it) or outright discrimination. Religious liberty is being used as a sword, not a shield.
The fact that the Supreme Court case (and the RPA) is about reproductive rights makes it a good test of these principles. Support it or not, abortion is a legal right in this country. And as with any right, whether or not one chooses to exercise that right is up to each individual’s conscience. But that does not give license to restrict another whether or not another he or she can exercise that right. (The other complicating factor is that the heart of the argument in Hobby Lobby is not abortion per se but rather emergency contraception which opponents claim is the same as abortion and proponents claim otherwise.)
While not condoning the practice as routine, Judaism does take a more permissive approach to the termination of a pregnancy. A fetus holds the potential for life, but according to Jewish tradition does not hold the same status as a person. Based in a verse in Torah (Exodus 21:22ff), in which a woman who miscarries after accidentally being struck is compensated financially (and no murder charge is levied), a fetus is seen as part of the mother and may be aborted if the mother’s life is in jeopardy. For another variant of this principle—according to Jewish law if a pregnant woman converts to Judaism, then her child is born Jewish. In other words, the mother’s conversion affects the unborn child as well. If that fetus was seen as a separate person, then one would assume he or she would not be born Jewish but would have be converted once born.
A Jewish employee of Hobby Lobby, therefore, may have a different approach to birth control and termination of pregnancy that the company has. And should Hobby Lobby prevail in its lawsuit, then that employee’s free exercise of her legal rights and religious conscience would be curtailed because of her company’s legal rights and religious conscience. This is troubling.
[Maybe the fight for marriage equality is partly to blame for the direction of these arguments. In many of the marriage equality legislations moving across the country, including in Washington, proponents have compromised in writing in religious exemption language that states a religious leader will not be compelled to officiate at a wedding if it violates the tenets of his or her faith. The problem with this language is that it was completely unnecessary. As a member of the clergy, I am not compelled to officiate at any marriage. I have colleagues who will not officiate if one of the parties is not Jewish. We are not even compelled to officiate if both parties are Jewish if we find a reason not to. Just because the state allows two people to be married, doesn’t mean a member of the clergy must officiate. So the language was extraneous. However, it gave a foot in the door for religious exemptions in neutral law that is now being exploited. That’s my two-bit non-lawyer legal analysis.]
Meanwhile, a bill in our state that does much to promote true religious liberty is languishing, waiting to be signed by Governor Inslee. The bill, SB 5173, would create “holidays of faith and conscience” for public employees and school children. Anyone, regardless of faith tradition, would be allowed to take two unpaid days off in observance of religious holidays without being penalized by the employer or school.
For Jews, this is huge. With our holiday cycle based on a lunar calendar, our festivals and celebrations shift from year to year and do not always fall on weekends or even the same date each year. The same is true for our Muslim brothers and sisters, who did much to push this bill in the legislature. (I had the honor of testifying on behalf of the Jewish community. You can hear it here starting at 3:04) If signed into law, our Jewish kids and public employees will be allowed to take time of for the High Holidays, for example, without impunity.
Aside from the practical nature of having leverage in taking time off and (hopefully) not having to negotiate, plead and argue with recalcitrant supervisors and teachers, this bill makes the statement that we live in a religiously diverse environment, and we want to extend the same rights and privileges to all. As I said in my testimony, the First Amendment guarantee to free exercise of religion means the right to worship and celebrate as one sees fit. However, this free exercise sometimes runs up against practical difficulties. This bill is a step at alleviating those obstacles. (If you want to help this bill along, I urge you to send a note to Governor Inslee asking him to sign it.)
While it passed unanimously in the Senate, the bill did meet some opposition in the House. First, an amendment was introduced and approved that would allow an employer to deny the request for time off if it created an “undue burden.” Then, some Representatives voted against it because how to determine that undue burden was not, they believe, made explicit enough in the bill.
Some of the same Representatives who voted against this bill, which explicitly guarantees religious liberty, also voted against the Reproductive Parity Act in the name of religious liberty. While on its face it may seem to be, it is not a contradiction—its just that the consistency lay elsewhere. The consistency is supporting the employer over the employee. It is not in religious liberty per se but in who exercises it. In other words, the message is religious liberty is worth guaranteeing if you are an employer, but not if you are an employee.
And herein lies the irony, and the danger. The guarantee of religious liberty is meant to protect the weak from the strong. Recently, however, it is being invoked to strengthen the strong against the weak. The passage of the holiday bill is a victory for the former. The fear comes with the potential victory of the latter.