Common Arguments, Part 1

I would like to go into detail about some common arguments supporting the HHS contraception mandate and condemning opposition to the mandate:

1. Separation of Church and State
I found it interesting that "separation of church and state" is not a phrase found anywhere in the Constitution or it's amendments, the Bill of Rights.  Rather, the first amendment reads

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

In context, we see that Congress cannot make laws restricting this group of rights.  The question is, which right is violated?  Would a religious exemption to the HHS mandate be a law 'respecting an establishment of religion,' or does a law requiring an employer to provide a service against their conscience and religious beliefs "a law prohibiting the free exercise thereof."

Well, what does it mean for a law to respect an establishment of religion?  As I understand it, this law would have to apply to one establishment, one religion, one denomination.  The Catholic Church has made the loudest objections to the mandate, but they are not alone.

In fact, USA today has an article outlining Protestant leaders' petition for a broader exemption to the birth control mandate.  Signers of the petition include Evangelicals, Baptists, and other Christians.

Clearly, allowing for a broader exemption (that would exempt anyone who objected to the mandate on religious grounds) is something that would benefit many different religions.  But are Christians the only ones objecting?  If so, couldn't it be argued that a broader exemption would be a law respecting Christianity, as a religion, and no one else?

Let's see..  (Google searching..)

Ah yes.  The Jewish Daily Forward has a call-to-arms to its readers to defend this injustice.  This narrow exemption (that only includes churches, really) is a re-definition of a religious institution written by a department whose chairperson was appointed by our president.  Catholicism, like Judaism, focuses on inward and outward service.  This was mentioned in both the Protestant petition and the Jewish Daily Forward articles.  Because of their outward service to the poor, hungry, young, old, students, homeless, sick, dying, or despairing people, they are labeled 'non-religious' by the current exemption.

I would like to make a quick point on 'religious exemptions' :  There has always been a "conscience clause" for situations such as these.  However, the department of Health and Human Services wrote an overriding, new exemption that only includes institutions that employ and serve people primarily of their own faith, "have the inculcation of religious values as its purpose," and is non-profit under the IRC.  This can be found on the HHS website - let me know if you want a search.

This is why schools, hospitals, and charities are not included.  Even if they are non-profit, they still cannot satisfy the three other requirements:  they employ teachers, doctors, social workers based on merit and character and not on religion; they enroll students, treat sick, and help poor people regardless of religion; and they, by mere definition, cannot declare their purpose to be the inculcation of religious values.  They are schools, hospitals, and charities.

But wait!  These are all religious groups.  Changing the mandate would still be respecting a religion, right?  No non-religious object to this ruling, right?  Wrong.  No one should be forced to pay for and provide a service that they morally oppose.

(Edit: I can't find a strictly atheist group against the mandate.  I did find 'atheists against abortion,' and 'secular pro-life.'  I also found an article on the first secular business to file a lawsuit against the department of Health and Human Services.)


I seem to have digressed from the question at hand.  Would a broader exemption be a violation of separation of church and state?  How could it be, when it has been in place for decades?  The first conscience clause was established the same year that Roe v. Wade was settled.

One more question: why do we keep saying 'separation of church and state" when it isn't even in the Constitution?  Good ol' Thomas Jefferson wrote a letter to a committee of the Danbury Baptist association in Connecticut, in 1802.  Was he writing them to tell them 'sorry, but we can't write any laws protecting your special rights' ?  No - exactly the opposite.  The Danbury Baptists were afraid that they're religious practices might be regulated or controlled by the state.  To quote,

"Believing with you that religion is a matter which lies solely between Man & his God, that he owes
account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties."

Sure it's open to interpretation, but within the context of the Baptists' concerns, I think it's clear that Jefferson would not be happy with the current state of affairs.