Saturday, December 14, 2013

Why Decriminalizing Polygamy Will Hurt the Affordable Care Act (or Possibly Help It, if Someone Plays Their Cards Right)

I'm not lawyer, so feel free to dismiss the following speculations as completely groundless. But they seems at least plausible to me, nonetheless.

First, the federal district court of Utah has ruled, in Brown v. Buhman, a case that arose from the attempt to prosecute the polygamous Brown family (of TLC's "Sister Wives") under Utah's very strict anti-bigamy and anti-cohabitation statute, a law's whose convoluted history dates directly back to the Utah Territory's early attempt to prove to Congress that it was serious about the Mormon church's historical practice of plural marriage, is unconstitutional. So polygamous cohabitation is now decriminalized in the state of Utah, and given the precedent of Lawrence v. Texas, it seems likely that such decriminalization is likely to spread. Chris Henrichsen has a good rundown of the discussion which this decision has sparked, but let's focus on just one part of it.

Second, the part that makes me curious is that a key component Judge Clark Waddoups decision is that Reynolds v. United States, the famous decision which rejected the Mormon church's attempt to defend itself constitutionally, under the Free Exercise Clause, against the federal government's efforts to destroy its practice of plural marriage, is a reflection of "Orientalist" assumptions rather than a thoughtful consideration of the problems of religious pluralism, and should, therefore, "no longer be considered good law," and ought to recognized "as binding [only] on the limited question of any potential free exercise right to the actual practice of polygamy."

Third, it so happens that Reynolds v. United States was prominently cited by Justice Scalia in one of my most disliked Supreme Court decisions of the modern era, Employment Division v. Smith, a case which, for all intents and purposes, undermined the Sherbert Test, a judicial principle which had developed over decades of decisions which held that, broadly speaking, any generally applicable government action which arguably infringed upon the religious practices had to demonstrate a "compelling state interest" for doing so. As has been widely noted in the scholarly literature, Scalia's opinion essentially read the First Amendment's Free Exercise Clause as a "Free Belief Clause"--that is, following Employment Division v. Smith, you had a constitutional right to believe whatever you wanted, but no constitutional guarantee whatsoever of ever being therefore allowed to do or not do something in accordance with that belief.

Fourth, Waddoups claims that, in attacking Reynolds as bad law, his opinion nonetheless does not have any negative implications for Employment Division's limiting of religious exceptions, because one can see in Scalia's use of the notion of "hybrid rights" sufficient cause to support his original opinion, completely aside from his use of Reynolds as a controlling precedent. Count me as dubious of that claim. Waddoups himself makes use of the Supreme Court's Church of Lukumi Babalu Aye v. City of Hialeah decision to get around Employment Division and emphasize the importance of demonstrating a "compelling state interest" if the criminalizing of cohabitation under Utah's particular statute was to be defended, and while he sees the plaintiffs in this case as being able to make use of the "hybrid rights" doctrine in making their argument (that is, they aren't just invoking the Free Exercise Clause, but multiple other constitutionally protected liberties as well), he admits that it's not a very useful or clear doctrine, requiring separate judgments about what liberties, beyond the free exercise of one's religious beliefs, constitute a "colorable claim." I suspect that there is at least a moderately good case that this decision will give opponents of Employment Division the leeway to push back in the direction of the Sherbert Test when it comes to religious exercises which run counter to generally applicable laws. And good for them!

But what does that have to do the Affordable Care Act? Only that, fifth, there is--I think, anyway--a better than even chance that, should the above reading of Judge Waddoups's decision be taken seriously, if could have significant consequences for the legal arguments likely to come before the Supreme Court when it hears Sebelius v. Hobby Lobby Stores next year. That case is entirely tied up with the Religious Freedom Restoration Act, a piece of legislation designed explicitly to re-instate the religious privileges which Employment Division, following Reynolds, put a big question mark beside. I've no sympathy whatsoever for the idea that for-profit corporations should be able to collectively claim the same sort of First Amendment religious freedoms and rights which individual citizens can, but unfortunately, for reasons I've explained before, I continue to believe (like dozens of decidedly non-paranoid religious organizations and universities across the country) that the contraception mandate needs some further qualifying and pushing back. For all the arguments, in the name of equal coverage, which can be made in its defense, the arguments for preserving the power of religious bodies, however constituted, to be able to fully define themselves, up to the limit of "compelling state interests" to the contrary, are in my view stronger. I'm fully aware that, in light of the near unanimity of the practices in question, and in light of the large number already existing state laws which mandate the same thing of insurance providers which operate in their borders, this debate can seem terribly narrow-minded, to say nothing of misogynist. But so long as we have--stupidly!--employer-provided medical insurance, the standardization of insurance policies will entangle those employers, even if only symbolically, with agendas not necessarily of their own choosing--and I tend to feel that doing damage to a religious organization's ability to define itself, in the name of something relatively non-compelling (given the affordability and accessibility of means of contraception) just isn't worth it.

And so, sixth, this makes for situation that provides some potentially dramatic outcomes for the Affordable Care Act, one way or another. Should the Supreme Court be persuaded even marginally by post-Brown v. Buhman arguments of the sort that I mention above (which can't be guaranteed, since Scalia, as an obvious and unapologetic opponent of the law, would find himself in a position of being able to attack the ACA only by agreeing with an attack upon an opinion which he wrote!), the result could be spun politically as a major defeat for the law as a whole. But an equally plausible possible outcome, and one I would greatly prefer, would be the administration to recognize the changing legal landscape regarding religious exceptions, spin their battle before the Supreme Court as a necessary step to get some "clarity" in the law, and then promptly--with a show of politically well-timed back-handed gratitude--recognize that the mandate would have to be significantly altered if it is to be made compatible with what some shadowy return to Sherbert Test standards would necessitate for insurance-providers with some religious entanglement, thus significantly minimizing certain (particularly Catholic) organizations' frustration with the law. This would allow its defenders to go into the election season of 2014 talking about the law's actual progress and genuine complications, and not about a bitter fight which the administration should have never opened the door to in the first place.

 Likely? Probably not--I mean, like I really know anything about the law at all. But still, I can see this decision coming out of Utah upsetting the chess board a little bit--and who knows where other players, given the already ongoing high-stakes game over religious exemptions, will move their pieces now?

45 comments:

Cynthia L. said...

RAF, that's cold to call somebody else's health an "albatross." How can you be so dismissive?

As you know, I simply disagree that it makes sense to throw half the population's basic, standard, normal health care under the bus because a few crazies are calling for it. And further I don't think the notion would have received even a minute's entertaining from anyone if it were anything to do with men's health rather than women's health. Would we be having this conversation if some group of crazies had a religion that tells them that men shouldn't get blood transfusions? *Demonstrably*, no, we wouldn't. It is deplorable that women are still so politically expendable in our society, and that so many don't see that fact for what it is.

Russell Arben Fox said...

Cynthia, you're correct; in the light of this morning, I recognize that to have been a sloppy and dismissive way of making my point, and I've made a change accordingly.

That having been done, though, you do acknowledge the difficulty here, don't you? Do we need to identify contraception coverage with "half the population's basic, standard, normal health care"? Is there really no other conclusion besides to label the University of Notre Dame, among many others, "a few crazies." I didn't design the idiotic system whereby heath care insurance for millions of people is provided by private employers, but as we have such a system, and as the ACA, for better or worse, chose to make use of it, we cannot get around the fact that this involves the federal government laying down standard for care which entangles them in the self-definition of religiously oriented institutions. And so, lines must be drawn. I don't deny that, to use your example, the fact that this argument is taking place around contraception coverage and not blood transfusions--that, in other words, providing birth control services strikes some non-insignificant portion of insurance providers as non-compelling, whereas requiring even Jehovah's Witnesses to allow for such does so appear--reveals a judgment call which clearly (if, I think, slightly) disfavors women. But the Free Exercise Clause, I think, doesn't, and probably shouldn't, give us much wiggle room here.

Cynthia L. said...

Russell, if your interpretation of the Free Exercise clause is that it prohibits paying into a giant pot of fungible money that may be paid out to others for activities in which the paying party would, on the basis of their beliefs, not personally participate, then you cannot expect any religious person to pay taxes.

But along comes politically expendable women and you think aha, here is a significant sacrifice to put on the altar of the Free Exercise Clause, so we can all move along happy that we as a society have done that, but largely symbolically, because of course we won't ever take that same exact logic and apply it to anything that ACTUALLY matters, like blood transfusions for men or our basic taxation system.

Cynthia L. said...

And YES we need to "identify" women's health as basic, standard normal health care! Good grief! How can you even ask that? You are aware that birth control pills are used to treat a huge variety of serious health problems that don't even have to do with conception? Endometriosis, menorrhagia, certain mental illnesses. Protecting women who could die if they became pregnant. But no, I guess if you can find some people who say so, then we can just have the federal government declare that grass is blue and the sky is green and none of those things I listed are "identified" with "basic, standard, normal health care."

Cynthia L. said...

There's a lot of useful discussion of how we define and perceive "normal" in this piece, RAF. It's well written, you should check it out: http://finallyfeminism101.wordpress.com/2007/03/11/faq-what-is-male-privilege/

Russell Arben Fox said...

We're coming at this from very different perspectives, Cynthia--which perhaps simply underscores the point you're making with your "male privilege" link. That the dominant Christian institutions and organizations in the U.S. perpetuate such privilege is probably undeniable. But I value the institutional ability of churches and their subsidiaries to define themselves highly enough that it is hard to for me to see respecting an organization's theologically and ecclesiastically grounded concern with contraception as the equivalent to "declaring grass is blue and the sky is green." I just don't see it that way, perhaps because I do not, as you plainly do, acknowledge the procreation-related teachings as gendered in an especially harmful way. (That they are gendered is obviously also undeniable.) Also, it may worth mentioning that the Obama administration, in defending the mandate, hasn't--to my knowledge, anyway; if I'm wrong, please send some links to correct my incorrect information--made arguments in conjunction with the "huge variety of serious health problems" which you mention, presumably because it is understood that there are numerous other routes by which those conditions can be addressed besides contraception; on the contrary, from what I have seen they have defended quite explicitly in terms of protecting and equalizing women's access to birth control services--which is directly countered by the religious beliefs in question.

Cynthia L. said...

Russell, you didn't quite represent my point corrrectly. I said that declaring that treating health concerns like endometriosis is not a normal health concern is declaring the grass is blue.

And yes, short of hysterectomy, birth control pills are the only treatment for endometriosis. If you'd trust women who are begging you not to throw us under the bus, or doctors and science, instead of crazies, you might know that already. For example, that was the subject of now-famous Sandra Fluke's comments before congress.

The reason that the Obama administration hasn't made that argument is for the same reason that I hesitated to make it that way, which is that it carves out and privileges non-contraceptive uses of birth control pills, and that framing implicitly leaves contraceptive uses hung out to dry. Refusing that adopt that framing even when potentially advantageous is a way of firmly rejecting that framing, which is a framing that was created by and serves the sexist side.

Cynthia L. said...

And again, it is no more "directly countered" by the religious beliefs than taxes and blood transfusions. But notice an interesting thing---how you keep avoiding that part of the rhetorical playing field, and instead consistently drag us back to playing on this contraception part of it. Maybe because, in our society, this part of it is tilted in favor of your position and against women. That's the whole point I'm trying to make is that this is what our deplorably sexist society is doing. You don't need to accept our society and its framing of this. You can and should hold yourself to a higher standard of treating the whole playing field equally. If you're going to make a religious stand, go for it, but take that stand on the WHOLE field. Otherwise you're (perhaps) not being personally sexist, but very surely opportunistically taking advantage of the fact that the sexist society has done some prep work for you that tilts the field to your argument. You're better than this, RAF. That's why I don't just give up on you. :-)

Cynthia L. said...

Shorter version: if I were you, I wouldn't be pleased with myself for winning an argument only with an assist from deplorable sexism in society. I'd want to win fair and square or concede the argument.

Russell Arben Fox said...

Cynthia,

But notice an interesting thing---how you keep avoiding that part of the rhetorical playing field, and instead consistently drag us back to playing on this contraception part of it.

I suppose I would have to respond as follows: In democratic societies, people organize themselves around interests that they can collectively articulate and press forward, and while there has been such an organization around the contraception mandate, there hasn't been any such organization around the blood transfusion mandate. Presumably this is because, for reasons that many would see as indefensibly sexist and others see grounded in our divinely sanctioned natural telos, the question of blood transfusion matters, theologically and ecclesiastically, to almost no one, whereas the question of birth control matters, theologically and ecclesiastically, to a large (though certainly not controlling) number of people. So the argument which, for me, is grounded over the exercise of religious privilege in the United States comes forward in the latter case--because such debates are actually happening--but not in the former case--because those debates simply aren't out there.

In short, in a pluralist society, where there an endless supply of rival and compelling goods, you build your defense of principle on the ground which is politically afforded to you. There are limits to this, of course--I don't at all support those who defend the principle of federalism and states' rights by appealing to the Confederacy, for example (though, to be honest, I do understand where such people are coming from). There is allowing the devil to stand alongside you (Holly Welker in Ordain Women, perhaps?), and perhaps even shaking her hand, and then there is getting in bed alongside them. The fact that I see the current situation as still one of shaking hands, rather than sleeping with, gendered practices that I personally oppose probably just brings us back to your point about "male privilege," which I admittedly can't entirely defend myself against, because I can't see outside myself to imagine how I would adjudicate these rival goods as someone other than who I am.

I wouldn't be pleased with myself for winning an argument only with an assist from deplorable sexism in society.

But until you can convince me that the theological and ecclesiastical privilege I am defending is nothing but sexist--that it instrumentally has consequences which treat the sexes differently is, of course, obvious, but that doesn't mean that the principle of religious exercise behind it wholly misogynistic--then I'm not yet ready to agree that the principle in question has been irredeemably tainted by associating with the arguably troglodyte likes of the University of Notre Dame (or the LDS Church, for that matter).

Cynthia L. said...

"but not in the former case--because those debates simply aren't out there."

They ARE out there but they evaporate quickly in the arid desert of nobody cares because it affects men. On the other hand, our society is fertile soil for sexism, so those arguments are allowed to flourish. You could have 10 crazies arguing for no blood transfusions and it would amount to nothing, you could have 10 crazies arguing for no contraception and suddenly there are millions of people ready to hear that argument--even if they wouldn't actively be a proponent of it themselves (a number that includes YOU)--because of sexism that is pervasive in our society.

This above is precisely what the link I posted was explaining. You have twice mischaracterized/misunderstood my purpose in posting the link. I probably didn't explain it well enough. It wasn't about you and/or your gender. It was about society, and what society considers default or normal. If male health care is normal health care and women's health care is on some kind of "nice to have" list, then it might make sense to compromise it away to please some crazies. But that is a profoundly male-privilege framing (again, see link). If you don't refuse to accept that framing, and instead insist on seeing women's health as "normal" health, then you are basing your argument on male privilege. It's not a framing that you made, or that you are responsible for. But you are responsible for whether you choose to let it be the invisible assumption on which your argument rests.

Cynthia L. said...

"But until you can convince me that the theological and ecclesiastical privilege I am defending is nothing but sexist"

The privilege isn't sexist, but defending it only when those being thrown under the bus are under-represented in power in the decision-making bodies doing the throwing is certainly not making a courageous stance against sexism.

"likes of the University of Notre Dame"

That's twice you've invoked ND as a way of making the position seem less marginal. Look! An institution comprised of about 20,000 individuals! See, not marginal! How man of those individuals do you think use contraceptives or have sex with someone who does? Again, you are basing your argument on pillars that were built by someone else but are made of profoundly sexist bricks. Unequal distribution of power in the institution means that somehow it officially stands against contraception even though of its faculty, staff and students, surely and overwhelming overwhelming number disagree with that stance.

Cynthia L. said...

"How man" -> "How many"

Lol, Freudian slip.


Also PS: I exaggerated a bit when I said that hysterectomy and birth control pills are the only ways of treating endometriosis. There's also cauterizing the harmful tissue via laproscopic surgery, a process that has to be repeated periodically as the tissue grows back. Birth control pills can contain the systems and prevent or postpone the need for surgeries, or prolong the time between them. Overuse of the procedure can cause harmful build up of scar tissue, and of course there are risks inherent in surgery. But hey, if a womamn's employer feels uncomfortable with some tiny fraction of the money he pays into a fungible health insurance pot going to the medicine that would control her symptoms and minimize need for surgery, she's just going to have to suck it up, right.

Russell Arben Fox said...

You have twice mischaracterized/misunderstood my purpose in posting the link. I probably didn't explain it well enough. It wasn't about you and/or your gender. It was about society, and what society considers default or normal. If male health care is normal health care and women's health care is on some kind of "nice to have" list, then it might make sense to compromise it away to please some crazies. But that is a profoundly male-privilege framing (again, see link).

My apologies for speaking about the link in such a way as to mischaracterize it, or mischaracterize your employ of it. However, I don't think I'm fundamentally missing the point. The claim is that there is a structure to society (which, I would assume, includes the theological and ecclesiastical constructs which inform the current debate over the contraception mandate) that normalizes male needs and makes female health needs particular; to not see the disequilibrium there is to be a participant in male-privilege. And I cop to that! But, as I see things, it doesn't appear to me obvious that I can, in good intellecutal faith, wholly question the legitmacy or morality of that disequilibrium in the name of my own likely undeniable male-privileging gaze when, it so happens, there are long and (I think at least partly) persuasive theological and ecclesiastical traditions which insist that, in light of God's will or the nature of natality or something else, that disquilibrium is only apparent, rather than real. And since my overriding concern here is protecting the integrity of individuals and organizations that wish to live, without encumbrance, according to their religious traditions, that means I'm willing to make--and legally want to be able to make--a judgment call as to where "compelling interests" really lie.

If a politically potent argument about a religious exemption to blood-transfusing technologies emerged, I would have to look at the traditions in question, consider if I think they have some sense to them or if I think are as crazy as neo-Confederate states' righters, and make a judgment call. At present, I think the anti-contraception tradition has at least a limited persuasiveness to it, even though I don't accept it myself, and so I find supporting the anti-birth control mandate cause an acceptable one to push in the name defending the rights of church's to self-definition. Am I locked into that position? Probably not; I changed my mind about same-sex marriage eventually, and maybe I'll change my mind about this too (assuming the Hobby Lobby idiots don't throw the whole thing off course in the name of furthering the corporate personhood crusade).

Russell Arben Fox said...

Cynthia,

I'm retying here a post which Blogspot ate:

You could have 10 crazies arguing for no blood transfusions and it would amount to nothing, you could have 10 crazies arguing for no contraception and suddenly there are millions of people ready to hear that argument--even if they wouldn't actively be a proponent of it themselves (a number that includes YOU)--because of sexism that is pervasive in our society.

I'd like to think that I can fully understand this argument: that there is a structural sexism to American society which normalizes the marginal treatmnt of women, and that in defending the rights of churches I am committing myself to that structural. It's a good argument, and you may be right! But, can you, perhaps, understand the opposing argument: that the people and organizations who have joined with the anti-contraception campaign are doing so not solely because of structural sexism, but also because they hold to well-developed theological and ecclesiastical positions which don't see the difference in treatment between men's health and women's health as reflecting anything other that moral concerns bound up with the nature of sexuality and natality? I don't want to turn this into an argument about numbers and voters, but yes, I do keep bringing up established institutions like Notre Dame because the democratic side of my character is has a hard time not attempt to grant much non-compelling space as possible to sincerely and widely held beliefs. The Catholic church may be wrong, but I don't find it easy to not want to fully respect their wrongness, in contrast to the wrongness of the anti-blood transfusion people, because not all wrongnesses are equal, and one of the ways you can tell, I think, is the reach and persuasiveness of such positions over time.

Cynthia L. said...

" But, can you, perhaps, understand the opposing argument: that the people and organizations who have joined with the anti-contraception campaign are doing so not solely because of structural sexism, but also because they hold to well-developed theological and ecclesiastical positions which don't see the difference in treatment"

Russell, I'm not sure how the sincerity of the backers figures into it. Nobody doubts the sincerity of those who oppose transfusions (if anything, they have much more demonstrated sincerity because it's their own skin on the line), but that doesn't and hasn't and shouldn't translate into a societal mandate that we set aside the principle that an employer has no right to impose their religion on an employee.

No, my quarrel isn't with people who sincerely hold to wacky beliefs. My quarrel is with people who aid and abet those people in their quest to impose their religious beliefs on employees (or customers, in the case of businesses refusing to serve blacks).

" I do keep bringing up established institutions like Notre Dame because the democratic side of my character is has a hard time not attempt to grant much non-compelling space as possible to sincerely and widely held beliefs. The Catholic church may be wrong, but I don't find it easy to not want to fully respect their wrongness, in contrast to the wrongness of the anti-blood transfusion people, because not all wrongnesses are equal, and one of the ways you can tell, I think, is the reach and persuasiveness of such positions over time."

This is bizzare coming from the agrarian communist. :-) But if you really want to set up camp on this rhetorical ground, you're going to be on my side in no time. That contraceptive use is normal is one of the most agreed-upon subjects in American life. http://www.gallup.com/poll/154799/americans-including-catholics-say-birth-control-morally.aspx

Cynthia L. said...

And again, if you're going to point to Notre Dame, I'll ask you to be more specific. Who, precisely, at Notre Dame? Who, precisely, in the Catholic church? Are women represented in that more precise group? The example has cache, imho, only insofar as you can point to them as a large institution that represents many (you yourself refer to them in the context of your "democratic" approach that looks at the width of "widely held" beliefs, which implies numbers, to a certain extent).

I urge you to carefully consider whether you will actively uphold, by your favorable citation, the policy tyranny of a tiny minority rule over the institution that goes against the wishes of probably 80% of the people there. Would you point to some undemocratic nation's official policies as being representative of the population when they are clearly not? This is why I think it is necessary to be more precise, especially in cases where the demographic of the minority is particularly salient, as it is in this case.

Russell Arben Fox said...

Cynthia,

Nobody doubts the sincerity of those who oppose transfusions (if anything, they have much more demonstrated sincerity because it's their own skin on the line), but that doesn't and hasn't and shouldn't translate into a societal mandate that we set aside the principle that an employer has no right to impose their religion on an employee.

I'm not saying--and if I have, I've spoken incorrectly--that "sincerity" alone translates into sufficient cause for the creation of a social or legal mandate (or, more specifically to this case, the rejecting of such). What I am saying is that I feel an obligation to take seriously certain groups which advance claims which touch upon what I personally consider to be a centrally important First Amendment principle--namely, protecting the privilege religious organizations have to not have their self-definition and self-governance entangled in arguably non-compelling government mandates--while feeling no such obligation towards other such claims. Why the difference? Because of sincerity, yes, but also because of history, popularity, intellectual breadth, and much more. As your own arguments about male privilege acknowledge, the notion of a "compelling interest" is itself, like all rhetorical positions, is arguably a constructed one. What is it constructed out of--some purely objective and non-culturally informed metric? I doubt that very much, and I assume you would too. Instead, it appears to me to be constructed out of judgment calls. And, for the third or however many times, I'm willing to acknowledge that there is male (and probably a hetero-normative too) privileging operating in my own particular judgment calls. But so is--or so I would insist--a consciousness of a long-standing theology, of the vetted intellectual views of a significant body of thought, of the similar judgment calls made by millions of people (note the polls here which show the unpopularity of the contraception mandate), etc. You seem to want me to accept that my defense of this particular push-back against the HHS ruling is inconsistent, and thus oblige me to see my own arguments about religious self-definition hoisted upon a blood-transfusion petard of my own making. But I'm not the one making that distinction. Yes, probably sexism made it; might you also agree that, just possibly, the sincerely held and intellectually rigorous and broadly (though obviously not majority) accepted understandings of the beginnings of life and the gendered nature of procreation that are at the center of this challenge also made it? You and Kristine (on Facebook) both argued, in this context, against the law being seen as some kind of neutral, non-cultural, purely logical operation, and I agree with you both. So why do you insist, on the other hand, that the problem with my position is that I'm not willing to recognize the supposed "logical inconsistencies" in taking one set of organized, democratically articulated--and, yes "sincere"-- challenges to the mandate seriously as a foundation for defending what I hold to be an important First Amendment principle, and not taking another (democratically unorganized and therefore politically all but non-existent) set of challenges similarly? That, as I see it, is what has been going on in this thread. Please let me know where I've gone wrong here, or else we will be fated to continue to talk past each other, I'm afraid.

Russell Arben Fox said...

Cynthia,

A couple of other random points:

If you really want to set up camp on this rhetorical ground, you're going to be on my side in no time. That contraceptive use is normal is one of the most agreed-upon subjects in American life.

But this whole argument was never about contraception use; it was about the legality of entangling religiously affiliated insurance providers with enabling contraception use. If we're not going to respect the self-articulated understandings of actually existing religious bodies and traditions, and instead are going to come up with some metric to assess the legitimacy or hypocrisy of said articulation on basis of what happens in the pews, I suppose I can go along a certain ways with that--sometimes I think plain old democratic plebiscitarianism is appropriate too!--but let's acknowledge the costs involved in such a move: a cost to our respect for collective action, historical tradition, and more. As I think such considerations are a necessary part of making popular sovereignty (including popular sovereignty as it gets expressed--in admittedly usually rather elite ways--by and through the establishment of churches and their teachings) philosophically defensible, I would be very careful about throwing the baby out with the bathwater here.

I'll ask you to be more specific. Who, precisely, at Notre Dame? Who, precisely, in the Catholic church? Are women represented in that more precise group? The example has cache, imho, only insofar as you can point to them as a large institution that represents many (you yourself refer to them in the context of your "democratic" approach that looks at the width of "widely held" beliefs, which implies numbers, to a certain extent).

Now this I do agree is a strong challenge. And, fundamentally, I think it is where the argument against the push-back on the contraception mandate ought to be: not in disputes about constitutional provisions (because, frankly, I feel that the decisions in Employment Division and others have already long since wrongly weighted the legal balance against the sort of important collective religious expressions I mentioned above), but in the political character of those bodies articulating the claim in the first place. I don't think taking up such an investigation automatically invalidates the claims made by mostly male hierarchies, but if churches which make obviously gendered distinctions in a pluralistic society committed to legal equality ask for certain legal privileges (as I think they ought to be able to, because of the collective and historic role which such expressions play in enriching American democracy), then they ought to be under pressure to demonstrate that they are playing by societies rules. If, over the course of time and the usual democratic compromises, they can't, then those legal privileges ought to be taken away. (The relevant example here the push-and-pull that has taken place within and without various organizations over degrees of gender exclusion--the Boy Scouts, St. Patrick's Day parades, chambers of commerce, etc.)

Law Talk said...

FWIW, I think that providing women with access to contraception should be an important government policy. I don't think that the HHS mandate substantially -- or perhaps even meaningfully -- expands access to contraception. First, the insurance provided is a form of compensation. We say that it is paid for by the employer but this is misleading in an economic sense. It is something that the employer buys and gives to the employee. From an economic point of view it is just part of wages. There is a modest cross subsidy within the insurance pool -- i.e. within the pool of employees of the firm -- but it's not large and from an equity point of view its value is questionable. It's not a cross subsidy from from rich to poor but from people in about the same income bracket to other people in about the same income bracket. There is some cross subsidy from men to women, but there is also a cross subsidy between women and given that many men have spouses etc. that benefit, they get the benefit as well. (This is why the cross subsidy is likely pretty de minims.) There might be some modest price gains from collective bargaining with pharmacies, etc. but to the extent that there is medical price discrimination it tends to charge insurance companies a higher price than individuals so it's by no means obvious that there is a price saving by buying contraception through an insurance carrier. For those who face a problem getting access to contraception because of income the mandate will do nothing. If they are unemployed it does nothing. If they have low wages, it will likely slightly depress their nominal cash wages over the long-term, i.e. you may not see an immediate drop in wages but you will see smaller wage increases over time. FWIW, I think that most of the intensity over this is symbolic rather than substantive in the sense that the those supporting the policy do so on the basis of a visceral reaction to the importance of contraception for women's health rather than because the policy itself will have a huge impact on access. Given, however, the poor design of the policy and the very, very limited impact it will have on access to contraception one way or the other, I am inclined to treat the objections of religious employers with respect. I would have no sympathy with those that thought their religious practice would be burdened by providing contraception through taxes. FWIW, I don't know of any serious lawyer involved in religious liberty issues who thinks that one has a free exercise or other basis for refusing payment of taxes and to my knowledge no one has ever successfully argued anywhere that there is a free exercise claim to not pay taxes. That may be a slippery conceptional slope for some but it really isn't a very slippery legal slope. Collecting revenue is always a compelling state interest. (I think that Old Order Amish don't pay payroll taxes but they also don't get social security benefits. Also, IIRC, this is because of the way that wage taxes are collected rather than because of a religious exemption per se.)

Law Talk said...

Conceptual not conceptional

David Watkins said...

Do we need to identify contraception coverage with "half the population's basic, standard, normal health care"?

I'm legitimately curious about what you think an argument that hormonal contraception isn't part of "basic, standard, normal health care" would look like:

1) Obviously, controlling the number and timing of pregnancies has all manner of extremely significant health implications for women, and

2) even if you find some reason to reject (1) hormonal birth control is frequently used for a raft of other quite basic and normal health care goals: reducing menstrual pains and cramps, controlling endrometriosis, etc. (...and now reading your later comment, I'm not at all sure why we, in trying to figure out if the contraception mandate serves the interests of justice, should care much whether the Obama administration has explicitly made this argument: the simple fact is that it's simply true. Why should the consideration of the all-things-considered value of the rule be limited by the rhetorical choices of politicians? That's an awfully strange limit on how to consider the justice of a public policy.)

Also, this:

made arguments in conjunction with the "huge variety of serious health problems" which you mention, presumably because it is understood that there are numerous other routes by which those conditions can be addressed besides contraception

Would apply to the vast majority of medical treatments available today. I not an expert on these medical issues and I don't know what all the other ways to control severe menstrual bleeding, endometriosis, and the like actually are. But I do know that while most normal medical problems have multiple possible courses of treatment, each of these courses comes with a variety of trade-offs, side-effects, and so on. The standard you've invented here seems like hand-waving to me; weighing which treatment option is the best for a particular patient's medical situation and pursuing it is central to modern medicine.

Although I ultimately think it fails any kind of reasonable balancing test, I'm of the view that the case against the contraception mandate on religious liberty grounds isn't farcical and raises a real and serious concern (I'm also quite a bit less comfortable with Smith than Scott and others I usually agree with, and the polygamy ruling seems obviously right to me on first read). But if the case is going to be made seriously, it needs to be made with open eyes about what's actually going on here; what we're trading off: that this little piece of religious liberty is more valuable as a positive than allowing a from of gender discrimination in employment, by straightforwardly reducing the effective value of employment compensation for women relative to me, is harmful to liberty as a negative. The first half of this case, I cheerfully concede; that it outweighs the harm of the second is the case that needs to be made. Imagining contraceptive care isn't health care makes that appear to be a much easier task, but not honestly so.

I take some of your comments in this thread to be trying to explain to Cynthia why you don't see this as a question of a trade-off between values; why religious freedom is lexically prior to women's equality. You say there's an important first amendment principle at issue here, and I agree, but there's another important principle here too, a 14th amendment/civil rights principle (I'm speaking morally here, not constitutionally). Am I correct in reading you as saying that, because the former trumps the latter on some abstract philosophical grounds, we don't need to do the work of showing the former is more important to enhancing freedom than that latter is detrimental to freedom on practical grounds?

David Watkins said...


"women relative to me" technically works but obviously should be "women relative to men"

Cynthia L. said...

"Am I correct in reading you as saying that, because the former trumps the latter on some abstract philosophical grounds, we don't need to do the work of showing the former is more important to enhancing freedom than that latter is detrimental to freedom on practical grounds?"

Yes, this. RAF, you see "talking past each other," I see you not ever engaging beyond just restating your thesis that this is a religious freedom issue. Yes, but WHY is it ok to allow employers to treat women badly on those grounds in this case?

Cynthia L. said...

RAF: "Also, it may worth mentioning that the Obama administration, in defending the mandate, hasn't--to my knowledge, anyway; if I'm wrong, please send some links to correct my incorrect information--made arguments in conjunction with the "huge variety of serious health problems" which you mention, presumably because it is understood that there are numerous other routes by which those conditions can be addressed besides contraception"

David: " (...and now reading your later comment, I'm not at all sure why we, in trying to figure out if the contraception mandate serves the interests of justice, should care much whether the Obama administration has explicitly made this argument: the simple fact is that it's simply true. Why should the consideration of the all-things-considered value of the rule be limited by the rhetorical choices of politicians? That's an awfully strange limit on how to consider the justice of a public policy.)"

Your reading of this as RAF asserting that consideration of politicans' rhetorical choices as good evidence in an argument is too charitable, David. I read it as RAF putting mocking/scare quotes around my attempt to educate him about medical facts, and then for effect condescendingly dropping a "presumably" on his announcement that he hasn't and won't even attempt to apprise himself of the basic facts of the oppression he supports visiting on women before deciding to support visiting it. Because a real life woman scientist with a PhD who has extensive personal experience with fertility and gynecological issues telling him that there are many serious medical issues for which hormonal contraception is often the best treatment option is trumped by some manifestly anti-science religious guys saying t'ain't so. Sure, there is a request for information in there--but it is information about Obama's arguments (going back to David's reading--why does that even matter?), not for information about women's health.

Russell Arben Fox said...

David,

Good questions (which isn't unexpected)!

I'm legitimately curious about what you think an argument that hormonal contraception isn't part of "basic, standard, normal health care" would look like

My understanding of the religious tradition which gives rise to the particular concern over state entanglement at issue here would suggests, I would think, that hormonal contraception is 1) an interference with natural bodily functions following intercourse, and 2) potentially involves the existence (or the termination of such) of another living being, and thus really can't be accurately labeled as part of the "basic, standard, normal health care [of the female individual in question]." I acknowledged, in response to Cynthia's first comment, as well as A.J. Foreit's on Facebook, that my original phrasing of that point was both dismissive and inaccurate; hopefully my restatement of my concern makes clearer what she and I have subsequently batted back and forth--namely, whether a definition of the basic health needs of women which doesn't include contraception is not inconceivable or not, depending on one's premises (which is why I concluded my restatement by suggesting that Cynthia's argument leaves one with no other options but to conclude that those who hold to such a religiously informed definition are simply crazy or, possibly, motivated entirely by misogyny, and presumably therefore in either case deserve no legal respect).

Cynthia L. said...

"But this whole argument was never about contraception use; it was about the legality of entangling religiously affiliated insurance providers with enabling contraception use."

Objection, your honor! Counsel is begging the question.

Your argument is that the only really interesting or controlling issue here is the religious freedom angle. My argument has been: hey you're forgetting about the women getting trampled by this! To assert that it was never about women and contraception and only about religious men's desire not to provide it is begging the question.

But let's go back to what you think the issue is: insurance and theology of not participating in sin even in-in-in-in-directly, and so on, and I will show you why my poll is WAY more relevant than yours. Can we agree that it is not possible under any plausible thelogoical understanding of sin that attenuation of the directness of action AMPLIFIES the sin involved? Then my citation of that link (which you should really click because they break out Catholics as a crosstab) shows that 82% of Catholics do not think that contraception use in itself is morally wrong. So basically, Catholics do not think that contraception is wrong. If Catholics do not think contraception is wrong, then surely they do not think that it is morally wrong to pay for somebody's health insurance premium, and then that health insurance company to which you paid the premium may or may not reimburse some contraception costs, which may or may not even be being used for contraception (!).

Again, this goes to the need to look at who precisely you are listening to at Notre Dame, or in the Catholic church. It's bad enough that a tiny minority group of men is imposing their policy positions on their own flock when the flock disagrees. What you are doing is plucking that minority position within one segment of the population (at most the 18% of Catholics who do not affirm that contraception is morally right, Catholics being 23% of the population) and then saying that that tiny group of men in leadership can have their way vs every woman in the United States who wants to be employed and may be subject to those men's whims. This is crazy.

David Watkins said...

My understanding of the religious tradition which gives rise to the particular concern over state entanglement at issue here would suggests, I would think, that hormonal contraception is 1) an interference with natural bodily functions following intercourse, and 2) potentially involves the existence (or the termination of such) of another living being, and thus really can't be accurately labeled as part of the "basic, standard, normal health care [of the female individual in question]."

OK, trying again:

I'm going to assume that gender equality and religious freedom are both necessary and proper goals for any society that purports to be a free and just society, and that we all share those goals. I'm going to also assume that these goals are going to often be in conflict with each other, and that balancing them is a necessary part of these two shared commitments. I'm also assuming that neither of these is lexically prior to the other, making no assumption about one being more important or central to freedom than the other.

(I assume all this is non-controversial?)

If these premises are excepted it seems to me we need to do our weighting with a non-theological definition of what women's equality entails, and this is important for more or less the same reason it's important to not decline to protect a religion because it happens to contain all manner of patriarchial teachings and structural features that might subtly undermine society's quest for gender equality: we can't properly weigh these goals against each other if we're allowing one to define the other.

To engage in a reductio: one could take religously inspired complementarian theories of gender, and explain why (sincere, non-misogynist on it's own terms) these lead to an objection to providing girls with the level of access to education boys receive. I'm reasonably certain you'd reject this, and I expect you'd reject this on the grounds of applying a balancing test and coming to the obviously correct conclusion that gender equality must clearly win out over religious freedom on these grounds. This is a much more obvious and clear win for gender equality than the contraception mandate, but if you use the (sincere, non-crazy) religious framing of gender complementarianism and it's consequences, you don't even get to the balancing test, because the religious logic has defined away the need to balance in this particular case. But that can't possibly be a legitimate way to think about the issue.

David Watkins said...

argh. "premises are accepted not excepted." All these student essays are rubbing off on me apparently.

Russell Arben Fox said...

David (and Cynthia),

I'm of the view that the case against the contraception mandate on religious liberty grounds isn't farcical and raises a real and serious concern....But if the case is going to be made seriously, it needs to be made with open eyes about what's actually going on here; what we're trading off: that this little piece of religious liberty is more valuable as a positive than allowing a form of gender discrimination in employment....Am I correct in reading you as saying that, because the former [First Amendment protections] trumps the latter [Fourteenth Amendment guarantees of equal treatment] on some abstract philosophical grounds, we don't need to do the work of showing the former is more important to enhancing freedom than that latter is detrimental to freedom on practical grounds?

This obviously goes to Cynthia's entirely legitimate challenge: "[Y]ou see 'talking past each other,' I see you not ever engaging beyond just restating your thesis that this is a religious freedom issue. Yes, but WHY is it ok to allow employers to treat women badly on those grounds in this case?" In reading back over this thread, you're both right that most of my comments have been a matter of trying to clarify what I think I am and what I think I am not claiming--that is, not a defense of the moral arguments against the mandate, but a defense of the importance of the legal point upon which those who make arguments against the mandate are standing (and distinguishing that stand from a hypothetical blood-transfusion stand at the same time). Assuming we can ever get clear on this, there still remains the fact that I am making a trade-off here. I don't think I've ever denied that, David; previous comments of mine have mentioned the "rival goods" which we face in a pluralistic society, etc. (I am unsure if Cynthia similarly thinks a trade-off in being made, but that's neither here nor there.) If I have, in effect, denied that I'm countenancing a trade-off, then I wrote poorly, and I'm sorry for that. I do, in fact, recognize that the First Amendment position I'm taking does involve (at the very least, but hopefully not more than) shaking hands with people that believe things about procreation which I think are substantively incorrect (but not, at the same time, utterly implausible) and which therefore involve a compromise of the requirements of the Fourteenth Amendment.

So why is that acceptable to me? [I've run out of space; see the next comment.]

Russell Arben Fox said...

[Continued.] So why is that acceptable to me? Why do I think that this trade-off is "more important to enhancing freedom," as you put it? Well, David, you know me well enough to know that maximizing freedom isn't my sole, or even my primary, concern when it comes to defending arrangements in a free society. I'm concerned also with civic virtues, many of which are obviously enabled or strengthened through a strong defense of equality--but not, I think, when said equality is read solely in terms of individual rights. I think a free and pluralistic society which can fully enjoy the benefits of said freedom needs to allow for pockets of collective expression which, as history may have it, develop in ways that are not rigorously liberal all the way down. (This is just democratic communitarianism 101 here, obviously, but I'm thinking in this case particularly of the ideas discussed in Stephen Carter's book The Dissent of the Governed.) The civic benefits which flow from allowing for such illiberal articulations--non-homogenization, the institutionalization and thus likely preservation of less empirical or "rational" values such as honor or Christian morality, etc.--are well understood when it comes to churches themselves, which is why they are granted a religious exemption from the contraception mandate. So the argument about the value of this trade-off thus becomes: is the position of actual or self-described faith-based organizations in the U.S. threatened enough as to make the civic gains which could be seen as flowing from a pushing back against this particular entanglement greater than the costs to the equal treatment of female employees in said organizations? For me--approaching this question about the health of our democracy with primarily a set of civic and communitarian, rather than liberal individualist, concerns, and with a (admittedly arguably sexist--I do recognize that criticism!) view of the substantive matter which finds the position taken by those challenging the mandate as at least plausible, if not persuasive to me--the answer is, for now, yes. (Now just wait for Hobby Lobby to completely corrupt the whole argument and obliged the socialist part of me to eat this whole rationalization.)

Russell Arben Fox said...

Cynthia,

Your argument is that the only really interesting or controlling issue here is the religious freedom angle. My argument has been: hey you're forgetting about the women getting trampled by this! To assert that it was never about women and contraception and only about religious men's desire not to provide it is begging the question.

No, it's not, unless I don't understand what "begging the question" means; it means, rather, exactly what I said a couple of comments ago: that we're coming at this from very different premises, and thus it is difficult for us to fully acknowledge the significance of the case the other is presenting. (In my defense, I'd like to think I have at least tried to present myself acknowledging that disconnect, hence my multiple acknowledgments of the fact that my position cannot simply shake off the accusations of sexism, though it would appear that my attempts to do so have been condescending, for which I apologize.) I am not sure I could respond to you the same way you do to me here--that is, by saying to you: "hey you're forgetting about the self-definition of religious organizations getting trampled by this!"--but since you would, I assume, argue (not, I think, incorrectly) that from an individualist perspective it is the women, and not the church organizations, who are in positions of power here, such a statement just wouldn't appear as equivalent.

Okay, I'm reading your comment about sin now....

Russell Arben Fox said...

Cynthia,

Can we agree that it is not possible under any plausible thelogoical understanding of sin that attenuation of the directness of action AMPLIFIES the sin involved?

That attenuation of directness "amplifies" the sin in question, yes, I agree with you, I'm not familiar with any theological understanding of the Christian definition of sin where that would be true. Though, it should be noted, I'm not convinced of the reverse: that the attenuation of directness "minimizes" the sin in question. For example, it is not obvious to me that the people who pay for someone else to commit a murder, or who provide arms and training to those who go on to commit a murder, aren't just as culpable, or maybe even more culpable, than the person who pulled the trigger.

82% of Catholics do not think that contraception use in itself is morally wrong. So basically, Catholics do not think that contraception is wrong.

No doubt. I've actually seen polls that put that number at over 90% (though that may have just been American Catholics).

If Catholics do not think contraception is wrong, then surely they do not think that it is morally wrong to pay for somebody's health insurance premium, and then that health insurance company to which you paid the premium may or may not reimburse some contraception costs, which may or may not even be being used for contraception (!).

Unless their opinion about contraception is tied up with an individualism wherein they justify their own actions, but reject firmly any entanglement of the Mother Church in something which the institutional faith tradition they identify with (for any number of different family or faith or heritage reasons) has institutionally rejected. (Though of course, even within Catholicism there are rival voices; Notre Dame may have filed suit, but the the Catholic Health Association has said they're fine with the compromise which the Obama administration has worked out. Which just makes the debate harder for people like me, I know.)

David Watkins said...

The last few comments are helpful in explaining your position; thanks. (You're still wrong, of course!)

I think your treatment of individual and collective rights is way too schematic, by excessively downplaying the collective dimension of the women's rights in question and the individualized dimensions of religious liberty, but that will have to wait until tomorrow if I have any hope of making my grading deadline!

Russell Arben Fox said...

Cynthia,

[I had to break apart my comment again; sorry.]

[T]his goes to the need to look at who precisely you are listening to at Notre Dame, or in the Catholic church. It's bad enough that a tiny minority group of men is imposing their policy positions on their own flock when the flock disagrees. What you are doing is plucking that minority position within one segment of the population (at most the 18% of Catholics who do not affirm that contraception is morally right, Catholics being 23% of the population) and then saying that that tiny group of men in leadership can have their way vs. every woman in the United States who wants to be employed and may be subject to those men's whims. This is crazy.

And I said explicitly that I completely agree that this is a strong challenge to the position in question, one which forces people like me--or those of us who respect the civic requirements of democratic government, anyway--to think hard about the sort of compromises which different groups that associate together in unequal and/or non-liberal have been expected to accept if they want to continue to have legal privileges in our society. As I said in my reply to you and then later to David--though perhaps I didn't express myself especially well--there are, in my view, other valuable constituents to a free society besides rights-bearing individuals; there are also, for example, stability- and virtue-providing institutions which reflect historical traditions and the collective expressions of groups of people...which, I think, even includes their hierarchical elites. I hope I have not come off as automatically defaulting to any such institutional tradition or expression; if I have, then I've expressed myself poorly, because I really do believe that pure democratic plebiscitarianism has its place (indeed, when it comes to our governing institutions like the Senate or the Electoral College, I think we need more of such!). I am just not, at this time, convinced that the best thing which can be done for American democracy is to completely reject the Free Exercise Clause challenges which some of these--admittedly undemocratic!--organizations have brought against the mandate in the name of an absolute individual rights imperative. No, I don't see that as crazy. Possibly wrong? Yes! But not obviously irrational.

One more point--I realize that often tend to come off like an asshole in these debates, and for whatever it's worth, I really do genuinely wish I didn't, and I'm very sorry that I tend to fail at my efforts not to do so. I want to believe that I really am trying to contextualize and appropriately qualify and limit my remarks, and correcting myself when I don't. Having said that, I don't know how to respond to some of your claims here. Taking seriously the legal position of, for example, certain Catholic challengers of the contraception mandate for purposes of articulating an, I think, important civic democratic value means that I am affirming that "a tiny group of men in leadership can have their way vs. every woman in the United States"? I'm willing to cop to a lot of things--my own unexamined male privileging and probably frequent jerkitude more prominently--but I don't think I can cop to that. Are you really certain that there aren't many intelligent, competent, working, independent Catholic women out there who support the church's position here? Maybe enough to, I don't know, fill the city of Wichita? I'm not certain of that myself (but then, I live here, and the local--working, intelligent--female Catholics I know tend to be pretty conservative).

Russell Arben Fox said...

David,

I think your treatment of individual and collective rights is way too schematic, by excessively downplaying the collective dimension of the women's rights in question and the individualized dimensions of religious liberty...

That's a good challenge, as strong of Cynthia's popular democratic one: what about the collective rights of women workers as a group? Doesn't unequal contraception coverage have civic consequences beyond individual rights violations then as well? I don't have a response off the top of my head, but you may be right. Let me think about this some more, and maybe we can both meet back here tomorrow!

David Watkins said...

(Last procrastination comment)

The case Cynthia is making is one I've been thinking about a lot since the contraception mandate was announced, and I'm honestly flummoxed by what to do with it. Consider two statements, where Z is anti-contraception theology:

The Catholic Church is an religious organization that holds (Z) to be spiritual and theological truth.

The Catholic Church is an organization that, for reasons of tradition, allows members of its formal hierarchy to espouse a number of strange, obviously irrelevant in the modern world theological views (including Z), while ignoring them in the actual practice of their religion.

These are obviously both true statements. Why should religious freedom mean only treating the first and not the second as an accurate description of Catholicism? Religions are defined by their beliefs and their practices, why ignore one at the expense of the other?

I feel like there must be a better answer to these questions than the ones I've come up with so far.

Cynthia L. said...

"excessively downplaying the collective dimension of the women's rights in question"

Yes, this. There is a collective cost to women to even the fact of the existence of this debate regardless of outcome.

Cynthia L. said...

David, I think it's fine to give some consideration to what the formal hierarchy says, regardless of anything else. But I think in the balancing the more nuanced view needs to also be taken into account.

Saying "Catholics just use contraception anyway!" doesn't automatically invalidate any religious freedom argument. But in weighing how much this damages women's standing as full citizens vs how much this damages freedom of religion, this kind of thing matters. And it especially matters if you are taking RAF's position, which is, crudely: "I have a principled way of distinguishing between trampling on anti-transfusion folks' religious liberty, which I have no problem doing, and anti-contraception folks' religious liberty, which I firmly stand against, and it doesn't involve sexism, because the principle I base my distinction on the degree to which the view is 'widely held' and the prominence and size of the organizations hold it." While, again, a formal hierarchy's views can be given some consideration, even in the context of examining "widely held," I think this approach does necessarily back one into a corner of also needing to care about the extent to which the view is actually held, and by whom, precisely. And, again, this is especially salient in cases like this where it's a women's issue and women are systematically excluded from the hierarchy in question.

Cynthia L. said...

RAF, I'm in a really cantankerous mood the last couple days, and it's not (entirely :-) ) your fault. Apology accepted and I apologize for my own slash and burn flourishes here and there.

Russell Arben Fox said...

David,

These are obviously both true statements. Why should religious freedom mean only treating the first [elite/institutional account] and not the second [informal/popular account] as an accurate description of Catholicism? Religions are defined by their beliefs and their practices, why ignore one at the expense of the other?

An excellent and hard question. I don't have a good answer either. Plainly you can't entirely throw out the collective expression of the claim made through institutionalized historical practices and governing bodies; to do so would mean you'd be in a position of having to maintain a bunch of things that would be highly unhelpful in understanding how the world actually functions (for example, very likely if you just went off surveys of individual opinion, you'd probably find that, broadly speaking, Republican party voters are as supportive of racial justice and civil rights as any other set of Americans--and yet, you'd be crazy to change your voting habits, as a supporter of civil rights legislation, on the basis of such information!). But at the same time, the actual popular practices matter greatly, particularly when you are trying to balance goods that similarly involve actual practical questions (like access to insurance coverage) as well. I don't have any easy solution how to work out the rival significancies of teachings vs. practices. It does occur to me, though, that perhaps we are dealing with another legacy of the Reynolds and Employment Division decisions here (just to bring us full circle!). Might it be the case that, under a robust Sherbert Test regime, neither the fear of religious entanglement nor the demand for the government to satisfy the compelling interest standard were so sharply expressed in terms of belief/action? Because that is surely part of the problem here today; someone like me who is disposed to protect religious privileges is confronted with those he sympathizes with building dramatic claims about "religious liberty" on the basis of substantively unexamined beliefs. It would be interest to imagine how this whole process would have gone forward under a different legal regime. I suggested (clumsily, I know, but I think not without at least some plausibility) in my original post that, under different constitutional terms, the Obama administration would have had to be much more circumspect at how they achieved equal coverage through the insurance plans offered to women and men at employers with a religious orientation; it occurs to me that, by the same token, that Catholic church or other employers (to say nothing of all the hysterical hanger-ons, like Cynthia's and my own church) might have had to much more explicit about what the substantive burden to their own business would be, rather than simply talking about how their "belief" was being affected. Something to think about, anyway.

Cynthia L. said...

I'm glad that we all agree that the real solution to this problem is ditching employer-based insurance entirely and switching to single-payer system!

Cynthia L. said...

"I'm legitimately curious about what you think an argument that hormonal contraception isn't part of "basic, standard, normal health care" would look like

My understanding of the religious tradition which gives rise to the particular concern over state entanglement at issue here would suggests, I would think, that hormonal contraception is 1) an interference with natural bodily functions following intercourse, and 2) potentially involves the existence (or the termination of such) of another living being, and thus really can't be accurately labeled as part of the "basic, standard, normal health care [of the female individual in question]." "

First a scientific point of order: #2 is false. Contraception does not affect embryos. This is a myth promoted by anti-contraception folks. It was previously merely not supported by science, and has recently been fairly conclusively disproved by science. http://www.npr.org/blogs/health/2013/02/22/172595689/morning-after-pills-dont-cause-abortion-studies-say

Anyway, your whole whole thing doesn't answer the question at all. You've explained why a group might want an exemption from a requirement that they provide all basic, standard, normal healthcare. But I don't think it makes any sense as an argument that the definition of basic, standard, normal healthcare does not include contraception. My reading of David is that he has a similar objection. We can talk about why groups might wish to decline to provide women healthcare, but the definition of "providing women healthcare" absolutely includes contraception. You haven't addressed any of the scientific points--do you want to comment (as RAF, not as "speaking for Catholics") on the woman who has to undergo cauterizing surgeries for endometriosis if hormonal treatment is not an option? Does that seem like "basic, normal" healthcare to you (again, you = RAF, not you = speaking for somebody else)? In light of David's arguments, do you now think that contraception is part of what healthcare means? Because you have in your own voice, not speaking for other groups' POV, said that contraception is not part of basic, normal healthcare. Now it is unclear, and I'd be interested in hearing if you have changed your mind on that point or not.

Russell Arben Fox said...

Cynthia,

I'm glad that we all agree that the real solution to this problem is ditching employer-based insurance entirely and switching to single-payer system!

Very true! (And actually, this connects to something that Nate Oman has claimed multiple times on FB and other places over the past couple of years. He's claimed that, at a particular point in the negotiations with the Obama administration, a more direct, single-payer type arrangement could have been on the table--something along the lines of, given an understanding that women's health care can cost more than men's health care, whether that's in terms of birth control or maternity check-ups or anything in between, additional costs would be assessed upon religious employers whose female employees didn't receive the same insurance package as male employees, and those costs would be given to the female employees in the form of a direct cash payout, to do with what they will. Nate insists that this could have gone over far better than the contraception mandate has. His grasp of the politics of Obama opponents strikes me as naive on that point, but I actually want to really believe he's correct, if only because that would provide one more bit of additional intellectual evidence that, all things being equal, simple redistribution is better than the neoliberal enlisting, incentivizing, and mandating!)

Because you have in your own voice, not speaking for other groups' POV, said that contraception is not part of basic, normal healthcare. Now it is unclear, and I'd be interested in hearing if you have changed your mind on that point or not.

I thought my correction way back at the beginning of the thread made it clear that that it wasn't own voice saying that I believed "contraception is not part of basic, normal healthcare" for women, but rather offering a degree of respect for the religious traditions which make that argument. Now yes, for me that respect doesn't only emerge from the strong civic and democratic goods I see associated with guaranteeing to churches and religiously self-defined organizations firm Free Exercise Clause protections; it would be unlikely, obviously, that I would go so far in defending them as I have if I found their views prima facie crazy. I am, as you know, when push comes to shove, basically a "pro-life" person (though I strongly dislike that term), and I really do think that the long and complicated line of socially conservative teachings on natality and procreation affirmed by Catholic and some other religious organizations has some truth to them. And so, for those reasons, as well as all the First Amendment ones, I find myself unwilling do label the argument in question here as simply sexist or crazy. But, for the record: I do think that opposing hormonal contraception as part of the basic health care package for women is wrong, that it is a substantively incorrect position to take.

Russell Arben Fox said...

(But wait! Because I seem to like getting myself in trouble this way, an addition question. Do I believe it is as substantively incorrect as a position which would deny blood transfusions as part of a basic health care package? No, I admit I don't: I think that position is more wrong than the anti-hormonal contraception position. Why? I mean, I don't agree with either of them, so why distinguish between them, and grant some legitimate ground for arguing about religious entanglement to one but not the other? Again, I suppose for many reasons which have already come up in the thread: because I don't find the theories of sexuality and procreation which animate the latter position, even though I disagree with them, as entirely unpersuasive as I do the ones which animate the blood-transfusion position, and because I have greater democratic respect for the historical and cultural weight which adheres to the institutional expression of the anti-contraception opinion, etc. Do I think both positions are wrong? Yes. Do I think one can and should command sufficient civic respect as to justify, at the least, some First Amendment push-back, while the other probably cannot? Yes, I do. And, yes, that means I can imagine it as possible that in some hypothetical--perhaps much more egalitarian, but probably also much less healthy--society where the Jehovah Witnesses had played a major cultural and historical role in the shaping of public culture over centuries of time, I could very plausibly, as a product of that society, think otherwise.)