The editorial by the Los
Angeles Times (bottom, below), my response (directly below) and the response of an attorney for
atheists outline some of the arguments being made for and against the
application of the Religious Freedom Restoration Act to the HHS contraceptives
and sterilization mandate.
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Re: "The rights of the religious," Editorial, Feb. 4
The Times rightly defends but wrongly interprets a federal law
that forbids the government from imposing "substantial burdens" on
the exercise of religious convictions and requires federal officials to pursue
the "least restrictive means" of achieving any "compelling
interest."
The Times neglects 1st Amendment principles in defending the
administration's attempts to force employers with conscientious objections to
bow to the government's edict to provide controversial contraceptives and
sterilization surgeries.
The government easily could avoid restricting religious freedom
by directly supplying poor women with contraceptives, just as it does
worldwide.
Just as the 1st Amendment protects the free speech of citizens and
corporations such as The Times, it also protects the free exercise of religion
by citizens and employers. When the administration attempts to force even
elderly nuns to violate their religious convictions, clearly the government has
trampled on sacred 1st Amendment ground.
--Jonathan Imbody
Washington
The writer is vice president for government relations at the
Christian Medical Assn.
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Re: "The rights of the religious," Editorial, Feb. 4
I am counsel of record on a Supreme Court brief representing
atheist and secular organizations in the contraceptive mandate case. We argue that religious employers should have to obey laws
that apply to everyone else, such as the requirement that all for-profit
employers provide their workers with access to health insurance that permits
employees to make their own decisions regarding contraception. I appreciate that The Times does not want these employers to
prevail. However, in still defending the Religious Freedom Restoration Act, you
fail to recognize the harm done to the quest for full equality, for everyone,
if only religious believers are allowed to avoid complying with otherwise
universally enforceable laws. In 1997, then-Supreme Court Justice Paul Stevens correctly
saw that this law was unconstitutional because it allows religious adherents to
challenge compliance with generally applicable laws in ways that are not
equally available to agnostics and atheists.
--Edward Tabash, Beverly Hills
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Defining the rights of the religious in America
Critics want to overturn the Religious Freedom Restoration Act,
but that's going too far.
By The Los Angeles Times editorial board
February 4, 2014
Two decades ago, Congress overwhelmingly approved and President
Clinton enthusiastically signed the Religious Freedom Restoration Act. But now
that the 1993 law is being used to challenge the Obama administration's
requirement that employer health plans include contraceptive services, some
supporters of the law are having second thoughts, and several organizations
want the Supreme Court to declare it unconstitutional. That would be a mistake.
The law was a response to a 1990 Supreme Court decision involving
two Oregon men who had been denied unemployment benefits after they were fired
for using the hallucinogenic drug peyote during a Native American religious
rite. In his decision for the majority, Justice Antonin Scalia upheld the
government's right to deny the benefits on the grounds that a religious
motivation doesn't entitle a believer to disobey a generally applicable
criminal law. Congress, in turn, passed the Religious Freedom Restoration Act, which
says the government may "substantially burden a person's exercise of
religion" only if necessary to further a "compelling government
interest" and only if the law in question is the "least restrictive
means" of achieving that interest.
Next month the Supreme Court will hear arguments in two cases in
which owners of for-profit businesses argue that the law allows them to
disregard the contraceptive mandate because of their religious objections. We
hope and expect that the court will reject their claim. The law refers to
burdens on "a person's exercise of religion," not a corporation's,
and the burden must be substantial. Providing insurance coverage for a woman
who uses it to obtain contraceptives no more implicates an employer in her
decision than does the payment of her salary, which can also be spent on birth
control. Finally, ensuring that women have access to preventive healthcare is
clearly a compelling interest.
But we don't think the law should be declared unconstitutional,
as several organizations — including the Freedom From Religion Foundation —
have argued. They claim that it is a "takeover of [the Supreme] Court's
power to interpret the Constitution" and amounts to an
"establishment" of religion in violation of the 1st Amendment.
This goes too far. Congress is free to protect rights more
comprehensively than the 1st Amendment does, whether it is religious freedom or
the right of reporters to protect their confidential sources (the aim of a
proposed federal shield law). The Religious Freedom Restoration Act is a
balanced effort to protect religious liberty. Properly interpreted, it doesn't
require the court to weaken the contraceptive mandate.
Copyright © 2014, Los Angeles Times
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