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Katie Ryder: The Truth About Religious Freedom and the ACA

February 8, 2013

Your right to swing your fist in religious practice ends when your fist reaches my nose, or uterus.

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Image from Flickr via Steve Rhodes

By Katie Ryder

The phrase “religious freedom” pulsed through the 2012 election cycle like a car alarm that everyone decided was just going to go off all day, and it hasn’t faded out since. The term is used almost exclusively in reference to policy or legislation related to contraception; abortion; more rarely, gay rights; and, infrequently (amazingly) bullying. Right now, conservatives speak of religious freedom primarily to assert that the Affordable Care Act—which requires employers to provide insurance coverage for contraception—infringes on constitutionally guaranteed religious liberties.

Since the passing of the bill, right-wing publications like The Weekly Standard, National Review, and The Washington Times have all claimed the act mandates that citizens ignore their individual religious compass and involve themselves in the availability of contraceptives. This is not untrue. In fact, it is true. And exactly as it should be in a democracy predicated upon citizens’ equality before the law: rights to personal safety, health, and liberty must supersede the religious beliefs of individuals. Classically, this is bread-and-butter territory for the public left. Currently, they’re unwilling to say it.

What the left has been too timid to say is this: it is obvious that we do (and must) make laws that conflict with religious views, endlessly variant as they are.

Two weeks ago the New York Times reported that dozens of lawsuits have been filed in the past few months by Catholics, Evangelicals, and Mennonites who claim that their religious freedom has been violated by the ACA. This week the Obama administration bowed to complaints, offering an adjustment that would exempt churches and nonprofit religious organizations from paying for birth control coverage. This move refuses to acknowledge a driving principle of the original legislation. That is: your right to swing your fist in religious practice ends when your fist reaches my nose. And/or uterus.

In an October 26 op-ed for the New York Times, Peter Manseau pointed out that both the left and right now commonly refer to “religious freedom” as our “primary” freedom, and it’s become nearly a requirement for presidents and presidential candidates to kowtow in the direction of this idea. While Obama delivered an address in support of the freedom of speech this fall at the United Nations General Assembly, he also called “religious freedom” our “foremost” liberty at a Ramadan celebration at the White House in August.

Manseau clarified in the Times that religious liberty has not long been considered preeminent. At other moments in history, including the first half of the 20th century, freedom of the press or freedom of speech were considered primary, in both senses of the word. Most importantly, we are reminded: “The First Amendment…does protect ‘the free exercise’ of religion—but only after barring government from ‘establishing’ religion. Viewed strictly in terms of sequence, the First Amendment’s ‘first freedom’ might be seen as freedom from rather than freedom of religion.” Therein lies the position of the left, and certainly what I believe to be true: It is my right to be protected from whatever it is you may think Jesus, God, or The Great Swampus wants from me.

The spinal column of our national beliefs is not that religious practice must be unbounded, but that we are all equal: that is what is “primary.”

The ACA does impede the free practice of religion, where “free practice of religion” means doing everything you believe required by your faith, including actions that interfere with the rights of others.

But the left has not engaged the logic of this conversation honestly. In response to conservatives’ accurate claims that the ACA demands that anti-contraception citizens sully their hands—at a distant reach—in the distribution of birth control, writers for the New York Times, The Atlantic, and other liberal or non-right publications have consistently ignored the question of what “religious freedom” really means. They have instead argued that religion is not really what’s at stake here, stunting the political discussion in a school-yard tournament of “Yes it is,” “No it isn’t.” Writers on the left—such as Garance Franke-Ruta for The Atlantic in October—have used the term almost exclusively in scare quotes, asserting that it’s been incorrectly or disingenuously appropriated by conservatives. Like others, Franke-Ruta also called the right’s use of religious liberty a political “wedge to attack Obamacare.”

It’s a fair assessment (and patently true) that not all who invoke “religious freedom” in combat against contraception and abortion are sincere. But it isn’t actually useful to argue a policy question by simply claiming that your opponent’s qualms are unreal.

At its basest level, our equality under the law means that we have equal rights to self-preservation. If this is a “political” stance, it is the political stance of our constitution.

Brian Walsh, writing in the National Review in October, said, like many others, that he sees “hostility” toward religion manifest in laws like the Affordable Care Act. He wrote that this hostility was also evident “at the state level when governors in Illinois and Washington issued regulations mandating that pharmacists in their two states dispense controversial abortifacient drugs—even if doing so would violate the pharmacists’ religious beliefs.” When this complaint is addressed honestly, it’s clear that of course such a pharmacist would be mandated by law to move against his faith—in part because of the responsibilities of his profession, into which he entered freely.

What the left has been too timid to say is this: it is obvious that we do (and must) make laws that conflict with religious views, endlessly variant as they are. The spinal column of our national beliefs is not that religious practice must be unbounded, but that we are all equal: that is what is “primary.” Is it still necessary to remind each other that there are cultures and religious sects in which rape is an acceptable practice, in which stoning a human for adultery is required, in which grown men marry children? In the United States, this can’t happen because rights to bodily integrity trump religious mandates. At its basest level, our equality under the law means that we have equal rights to self-preservation. If this is a “political” stance, it is the political stance of our constitution.

In a New York Times editorial on October 12, the editors expressed their strong agreement with Judge Carol Jackson of the Federal District Court in her assessment that, in the words of the Times, “Any imposition on religion [due to the ACA] is trivial and remote.” This is what the public left has really been saying: the imposition on religious liberty caused by the legislation is “trivial.” But the magnitude of infringement—so obviously problematic to measure and define—is not where this dispute hinges. It’s much more simple: religious freedom is not “foremost.”

This particular conversation is indicative of a broader unwillingness on the left—inspired in part by Obama’s efforts toward a declawed, pan-American progressivism—to acknowledge publicly that there are true value differences across the same aisle that the President so loves to straddle. In a gut-check reflex, we all agree that religious freedom is constitutionally guaranteed. But we don’t actually agree on what that means. While unwilling to say clearly that there are basic rights—such as access to healthcare—that override religious beliefs by definition, the left will continue to sound, as the right so often does, as if it’s playing dumb.

Katie Ryder is the Associate Editor of the Guernica Daily and a freelance writer. On Twitter @katiehryder.

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