“The right to swing my fist ends where the other man’s nose begins.”- Zechariah Chafee, “Freedom of Speech in Wartime,” 32 Harvard Law Review 932, 957 (1919).

This popular saying in constitutional law (often misattributed to Justice Oliver Wendell Holmes, Jr.) keeps popping into mind as I see the latest permutations of social conservative outrage over President Obama’s compromise position that all health insurers will have to include coverage for contraception and sterilization in their health plans.  Recently, the Obama Administration announced as a compromise that not only are churches exempted (they already were under the original proposal), but religion-based non-profit employers (such as Catholic hospitals who tend to care and employ non-adherents) are also exempted so long as the insurer provides coverage at no expense to the insured.  The compromise already allows church-based employers to apply their beliefs to non-practitioners of their faith.

That’s still  not acceptable to the Catholic bishops who now say that even secular, for-profit employers should have the right to refuse to provide that coverage if it offends the religious sensibilities of the ownership of that company.  That’s constitutionally offensive.

The First Amendment of the Constitution provides the individual freedom of worship, but it also has an equal clause that prohibits the government from recognizing a state religion upon which policy flows.   In other words, no sharia law, or Catholic law, either.  We are required to be respective of citizen’s religious believes, but that doesn’t require the rest of us to adhere to them.

Although the employer provides health insurance for its employees (which gives the employer a tax benefit), the policy is strictly between the employee and the insurer.  The Obama compromise takes away any legitimate question about religious liberty.  What the Catholic bishops now want (and Republicans in Congress have indicated they are willing to give) is secular employers to have the legal right to impose their moral and religious values on their employees.  That is not a right the U.S. Constitution provides.

A secular, for-profit employer controlled by a person of faith does not have a constitutional right to impose its religious values on employees who do not practice that faith.  That’s employment-based religious discrimination.  It’s illegal under Title VII of the Civil Rights Act of 1964.  After all, no court has ever recognized that Catholics, who oppose the death penalty, have standing to object that their tax dollars are used to purchase chemicals to execute inmates or for death row.

There is no legitimate constitutional religious freedom question about Obama’s modified contraceptive coverage rule.  This is about denying other people’s freedom by allowing the employer veto power over choices an employee wishes to make after confidentially consulting with their doctor.  It’s about giving employers more power over your personal life.  This is worse than the conservative boogeyman about “government” getting in between a citizen and their doctor.

Furthermore, there’s another question whether there’s a gender-based discrimination claim involved in the Catholic bishop/GOP’s position.  Yes, it’s true, most Catholic faith-based institutions don’t cover vasectomies.   But what’s the most common method of birth control for men?  Condoms, which require no prescription.  Do Catholic employers take any steps to prevent employees from using their salary to purchase methods of contraception that do not require prescriptions?  If not, then their claim of right that religious liberty mandates that they be able to block their employees from getting health insurance coverage for prescribed methods of contraception is incredibly weak, especially when the employer is not asked to incur any expense in providing that coverage.  The Catholic faith does not distinguish between prescription and non-prescription methods of contraception.  

So, why should a Catholic employer be empowered only to certain forms?  In short, the employers’ lack of ability to control non-prescribed contraception by their employee calls into question their ability to use religion as a basis to prevent prescribed methods by their employees.  Plus, it’s clear that the Administration has narrowly tailored the proposal to take into consideration the religious liberty issues.

Like all questions dealing with freedoms, all parties must be taken into account.  As much as the GOP and the Catholic bishops wish to focus on the right of the devout business owner who opposes all forms of contraception and sterilization, there is another party involved here: the employee.  The employee has a competing constitutional right to practice their faith, or non-faith, as they see fit.  Then, yes, there’s the issue that it is the employee’s health and life at issue, not the employer’s.

Let’s say the nation elected someone who is a Jehovah’s Witness (Prince runs for President and wins on platform of apologizing for “BatDance”), a faith that is against blood transfusions.  Does that mean that if he, as President, could forbid the giving of blood transfusions to any federal employee, soldiers in combat, or the VA?  Catholic bishops would say yes, as an employer President Prince could, but the United States Constitution says no.

Obama’s revised policy draws a constitutionally permitted line that delineates where the Catholic employer’s fist ends and the employee’s body begins.  To say that this is a legitimate question of religious freedom is offensive and untrue.

Before the Obama compromise, you could somewhat argue that there was a religious freedom at stake.  Not anymore.  Fist meet nose.

(Image Source: Jared Thomas Meyer)