Jonathan Waits unfairly criticizes me and the Baptist Joint Committee for not vigorously opposing what he considers to be religious liberty violations in connection with the implementation of the new health care law. Let me set the record straight.
The BJC was quick to criticize the Obama administration’s initial exemption for churches and church equivalents because we thought it pursued a too-narrow definition of religious employer and because it failed to include religiously-affiliated bodies such as hospitals, colleges and social service agencies.
Brent Walker
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The administration later extended, as we had urged, the accommodation to these religious affiliates. Without requiring the objecting employer to approve of or pay for the employee’s desire for contraception coverage, it required insurance companies to make that coverage available to all women whose religious employer refused to provide it on religious grounds. It also established a one-year safe harbor period exempting religiously-affiliated employers altogether until August of 2013 to afford more time to fine-tune the plan.
Last month, the administration announced more guidance expanding the definition of religious employer and clarifying the process by which self-insured employers would be required to allow third party administrators to work with health insurers to extend that coverage. It also allowed religious affiliates to self-certify their eligibility for an exemption.
Yes, we applauded these additional accommodations. They were reasonable efforts, in our opinion, to seek to balance the rights of employees who desire coverage while respecting the religiously-based objections of employers. Inevitably, when a governmental accommodation of a religious practice has the effect of prejudicing the rights or well being of third parties, some balancing of interests has to be done. That is what the administration is trying to do here.
Mr. Waits accuses the administration — and by implication the BJC— of seeing religion as simply a private affair that should be kept out of the public square. I do not think the administration believes that and certainly the BJC does not. Religious values should and do influence our world view and positions on public policy. But here the question is not whether religion can be publicly expressed; it is whether an employer’s religious conviction can be forced upon employees who do not share them and who have been hired for of their expertise in doing a job, not because of their religious beliefs.
Finally, Mr. Waits objects that the exemption does not extend beyond the churches and nonprofit religious affiliates to include for-profit, commercial businesses. No, people should not have to choose between their conscience and their chosen profession or business activities whether or not the employer is religious or religiously affiliated. However, the argument against extending accommodation to for-profit, commercial enterprises has some merit. It is this: any burden visited on the conscience of owners of such enterprises is at best remote and tenuous, and not “substantial” as required for an exemption under the Constitution and federal law. Having to pay money to an insurance company for a whole range of medical services (not just contraception), with the employee (who, under Federal law, was hired without regard to her religion) making up her own mind about whether to use contraception is arguably too attenuated a connection to “substantially burden” the owner’s exercise of religion. This is all the more true when the commercial enterprise is a corporation and the “owners” are simply shareholders. The courts, no doubt, will decide this question.
In sum, religion should be accommodated by government where necessary to lift substantial burden on the exercise of religion. But when the accommodation of one group adversely affects another group of American citizens, the government must tread carefully and balance the competing rights involved. That requires some line drawing that not everyone is going to like, but which is necessary to negotiate and honor the various rights involved. We need a both/and solution that both protects religious liberty and provides for women’s healthcare needs.
J. Brent Walker ([email protected]) is executive director of the Baptist Joint Committee for Religious Liberty in Washington, D.C.