Other arguments can defend the contraceptive mandate — but a full separation of God and profit would be a cultural mistake.
Next week, the Supreme Court will hear arguments on whether the Affordable Care Act’s contraception mandate — the requirement that employers provide employee health insurance that covers contraception — impermissibly infringes on the religious liberty of religiously motivated corporations. The legal battles over the mandate have been legion; more than 300 plaintiffs have field more than 90 cases across the country, all contending that providing health coverage for contraception would require them to violate their faith.
For its part, the Obama administration has recognized the imposition such a law poses on many religious — and, in particular, Christian — believers. So it crafted a religious employer exception aimed at exempting churches and religious schools from complying with the mandate. However, the exception does not apply to religiously motivated employers if they operate for a profit, such as the three employers in the cases before the high court
In defending the for-profit limitation on the exception, the government has advanced a troubling argument — tantamount to a theological claim — about what types of entities practice religion. Indeed, on a number of occasions, the government has claimed that a for-profit enterprise or employer cannot be granted religious liberties because it “by definition does not exercise religion.” (Those exact words are in a lower-court motion related to Hobby Lobby v. Sebelius, now before the high court.)
This opposition of profit and religion — the claim, essentially, that religion ends where business begins — is deeply misguided. It may trace to a particular brand of Christian theology — a dogmatic view of what it means to “render unto Caesar what is Caesar’s” — that relegates religion to the narrow confines of the church and the inner life of the mind. Religion, on this account, simply does not apply in the marketplace or the boardroom.
Such a worldview is completely foreign to other faith traditions, notably the Jewish legal tradition. From the perspective of Jewish law, Judaism’s requirements apply equally in all spheres of human endeavor — from the synagogue to the workplace and everywhere in between. And so the idea that entering the for-profit sphere means, by definition, that religion is being left behind seems bizarre if not downright offensive.
Indeed, it is far from surprising that the U.S. 10th Circuit of Appeals decision now on appeal before the Supreme Court, which granted an injunction against implementing the contraception mandate, highlighted the hypothetical case of a kosher butcher. As the court queried: “Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?” The idea that kosher practices wouldn’t apply in the for-profit sector is as bewildering as it is incoherent.
Now there are other reasons — reasons that don’t make claims about the nature of religion — that could justify enforcing the contraception mandate in the cases before the court. For example, the Supreme Court might conclude that the government has a compelling interest — protecting women’s health — that can only be achieved by implementing the contraception mandate. The Supreme Court might also conclude that the relevant constitutional and statutory rules about religious liberty were not meant to cover corporations, as opposed to individuals, at all.
On some occasions, the government has emphasized these parts of its argument. But such arguments also have potential problems. If the mandate and the compelling interest is so important, why exempt anybody? And why not allow corporations to exercise religious rights if we allow them to exercise other constitutional rights? But at least those lines of reasoning do not brazenly declare how people do, and do not, practice religion.
At bottom, the government is neither equipped nor should it be allowed to determine by definition that religion stops at commerce’s door. There are many grounds upon which to decide the deeply divisive questions raised by the contraception mandate. The government’s theology should not be one of them.
Michael A. Helfand is an associate professor at the Pepperdine University School of Law and associate director of the Diane and Guilford Glazer Institute for Jewish Studies.
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