Religious freedom and contraception

[tourmaline]

Religious freedom and contraception

I am trying to make sense of the idea that requiring employers to provide contraception violates the first amendment. Does the reasoning go something like this:


The employers money might support an action the employer finds morally objectionable on religious grounds. Since SCOUTS has ruled that money equals speech, then withholding money is also a form of speech or expression. In this case religious expression. The employer is denied freedom to express themselves by non-contribution.


Please tell me this is inaccurate.

 

[Puppycow]

The Amish are pacifists who do not believe in war. This is a religious belief. They do however pay income taxes, and some of the income taxes they pay go to support the wars fought by the US military. Are their First Amendment rights violated by this?

 

[ponderingturtle]

I am not sure many are claiming it is unconstitutional to have such a law, but not all bad laws are unconstitutional. Its opponents could view this as such a case.

 

[leftysergeant]

First of all, only the ignorant think that the idea that corporations are peole and that money is free speech. The SCOTUS has repeatedly ruled that corporate personhood is stare decisus on the basis of a horrendous fraud committed by a corporate whore lawyer.

Mundane law must take precedence over religious law when cults engage in business in such a manner as to require that they hire persons other than cult members. The cult has the right not to engage in a commercial operation or to hire only cult members. When they step across that line, they leave the protection of their cult.

Too bad.

 

[Bikewer]

I was going to say something naughty about Muslims and rocks.... But I can't quite put it together. It would have had something to do with Sharia law.

 

[Magyar]

Religious freedom and contraception

I am trying to make sense of the idea that requiring employers to provide contraception violates the first amendment. Does the reasoning go something like this:


The employers money might support an action the employer finds morally objectionable on religious grounds. Since SCOUTS has ruled that money equals speech, then withholding money is also a form of speech or expression. In this case religious expression. The employer is denied freedom to express themselves by non-contribution.


Please tell me this is inaccurate.

The bolded part is where it all falls apart. You see it NOT the employers money. It's the employees money.

This bs is coming up only because the right wing anti women, anti sex looneys have ZERO legitimate arguement so they are trying to back door their agenda.

Health insurance is paid for or is part of the compensation negotiations for the job, by the employee - yes it is managed by the employer, but that ONLY because the healthcare comapnies have forced them to - and there is no difference between these employers trying to tell people how they can spend their money then in the good old days when companies forced their employees to buy groceries at the company store.

 

[Bri]

I am trying to make sense of the idea that requiring employers to provide contraception violates the first amendment.

The First Amendment:

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.​

The argument is that the highlighted part (known as the Free Exercise Clause) prevents the government from prohibiting the free exercise of religion. If the government forces someone to violate their religion (the argument goes) they are prohibiting the person from free exercise of their religion.

The counter-argument is that the Establishment Clause of the First Amendment also prohibits the government from giving preferential treatment to one religion over other religions. The Free Exercise and Establishment clauses of the First Amendment are often in opposition, and the Supreme Court has historically gone back and forth over what is the right balance between not prohibiting the free exercise of religion and not favoring one religion over another (i.e. offering exemptions to certain religions but not others).

Current precedent is set by a 1990 decision in a case called Employment Division v. Smith, in which the Supreme Court found that if a law is “neutral and generally applicable” (meaning that it is not specifically targeted against any religious group) individuals must comply with it even when doing so imposes a burden on their free exercise of religion. So those who oppose the mandate for employer-provided contraception coverage on strictly constitutional grounds are probably on shaky ground.

However, a 1993 law called The Religious Freedom Restoration Act was adopted by Congress in response to the Supreme Court’s Smith decision and signed into law by President Bill Clinton. It essentially replaces the “neutral and generally applicable” standard set by Smith with one that is far more stringent. It states that even a generally applicable federal law cannot “substantially burden” a person’s exercise of religion unless the law furthers a “compelling government interest” and does so by the “least restrictive means.”

So it's actually not so much a constitutional issue as one of congressional law. Opponents of the mandate requiring employer-provided contraception argue that it either doesn't meet the "compelling government interest" standard or that there are less restrictive means of achieving the same thing (for example, by the government directly covering contraception).

It will be interesting to see what happens here since current lawsuits might backfire on those who oppose Obamacare, since they were the same ones who generally opposed a single-payer system, and it's possible that the government may end up having to provide contraceptive coverage directly which would be closer to a single-payer system than the employer-provided mandate is.

The Washington Post has a decent article concerning the legalities of the issue.

-Bri

 

[cwalner]

Religious freedom and contraception

I am trying to make sense of the idea that requiring employers to provide contraception violates the first amendment. Does the reasoning go something like this:


The employers money might support an action the employer finds morally objectionable on religious grounds. Since SCOUTS has ruled that money equals speech, then withholding money is also a form of speech or expression. In this case religious expression. The employer is denied freedom to express themselves by non-contribution.


Please tell me this is inaccurate.

It is not accurate. Opponents are not claiming 1st amendment rights due to freedom of speech, but due to freedom of religion. They are claiming that being required to purchase a service for their employees that violates their religious precepts is a violation of their religious liberty.

Please note that there is already an exception (for this very reason) for ecclesiastical employees. However, the RCC is attempting to extend such an exception to all of its employees, including their hospitals and charities where the employees are not even all members of the Church.

Also note, that it has been pointed out in several other threads already that about 18 states have a similar requirements to provide contraceptive coverage as part of basic health care already on the books. Catholic hospitals and charities that operate in those states already comply and have done so for some time without objection.

 

[Spindrift]

The bolded part is where it all falls apart. You see it NOT the employers money. It's the employees money.

This bs is coming up only because the right wing anti women, anti sex looneys have ZERO legitimate arguement so they are trying to back door their agenda.

Health insurance is paid for or is part of the compensation negotiations for the job, by the employee - yes it is managed by the employer, but that ONLY because the healthcare comapnies have forced them to - and there is no difference between these employers trying to tell people how they can spend their money then in the good old days when companies forced their employees to buy groceries at the company store.

Just so you know I'm in favor of requiring health plans to cover items regardless of religious beliefs of the employer.

However, you argument is weak. I've never negotiated health care with an employer and can't say I've ever heard of that. If it's a common practice then I stand corrected. And while I do pay a large portion (55%) of my health care premium, what my employer pays is not insubstantial. And there are still a few companies where the employer pays the vast majority if not all the premium. Not many but they still exist. So your comparison to buying groceries just doesn't hold water.

 

[Bri]

Health insurance is paid for or is part of the compensation negotiations for the job, by the employee - yes it is managed by the employer, but that ONLY because the healthcare comapnies have forced them to - and there is no difference between these employers trying to tell people how they can spend their money then in the good old days when companies forced their employees to buy groceries at the company store.

Not if/when the mandate goes into effect. Health care reform includes a government mandate that employers will soon have to provide minimum health insurance coverage. So it will no longer be part of compensation negotiations for the job -- it will be mandated by the federal government. That's what the argument is all about.

I've never negotiated health care with an employer and can't say I've ever heard of that. If it's a common practice then I stand corrected.

Until/unless the mandate goes into effect, health insurance isn't required by employers and is considered part of the overall compensation package that could potentially be negotiated along with things like salary, retirement plans, etc. Most companies do offer health insurance but they aren't required to (and some don't). The mandate would change that, however.

Also note, that it has been pointed out in several other threads already that about 18 states have a similar requirements to provide contraceptive coverage as part of basic health care already on the books. Catholic hospitals and charities that operate in those states already comply and have done so for some time without objection.

Sort of. The state requirements (I believe without exception) have a gaping loophole that some organizations exploit. The state laws say that IF an employer offers coverage for prescription medication, they cannot discriminate against women by not offering contraception. Religious organizations that don't want to offer contraception simply don't offer prescription drug coverage at all. This will change if/when the mandate goes into effect.

-Bri

 

[Tony]

Just so you know I'm in favor of requiring health plans to cover items regardless of religious beliefs of the employer.

However, you argument is weak. I've never negotiated health care with an employer and can't say I've ever heard of that. If it's a common practice then I stand corrected. And while I do pay a large portion (55%) of my health care premium, what my employer pays is not insubstantial. And there are still a few companies where the employer pays the vast majority if not all the premium. Not many but they still exist. So your comparison to buying groceries just doesn't hold water.

I don't think that was his point. His point was that health insurance is payment/compensation for the job the same exact way a salary is. That being the case, it is wrong for the employer to control what you do with you one part of your payment (health insurance/contraception) that same way it is wrong for them to control what you do with the other part (regular salary/which grocery store to shop at).

 

[cwalner]

Sort of. The state requirements (I believe without exception) have a gaping loophole that some organizations exploit. The state laws say that IF an employer offers coverage for prescription medication, they cannot discriminate against women by not offering contraception. Religious organizations that don't want to offer contraception simply don't offer prescription drug coverage at all. This will change if/when the mandate goes into effect.

-Bri

Thanks for the clarification.

 

[Magyar]

Just so you know I'm in favor of requiring health plans to cover items regardless of religious beliefs of the employer.

However, you argument is weak. I've never negotiated health care with an employer and can't say I've ever heard of that. If it's a common practice then I stand corrected. And while I do pay a large portion (55%) of my health care premium, what my employer pays is not insubstantial. And there are still a few companies where the employer pays the vast majority if not all the premium. Not many but they still exist. So your comparison to buying groceries just doesn't hold water.

Well, just because you've never heard of it or done it doesn't mean that it is not done.
I did it for my last job and am doing it now with a current position I am interviewing for.
I also negotiate time off. I consider BOTH of these as part and parical of MY compensation package. Further, this isn't something I made up - go to monster and look at naegotiating salary. Open the news and look at any neogotiations going on between union employees (whether you agree or not is a different topic) Unions have in the past have passed up hourly wage raises in lue of keeping their health care coverage and contributions the same as an overall package.

I find it weird that people don't see this. I had this discussion with a co worker who JUST didn't get it that he/we've been takinga paycut for the last 3 years because we were not receiving cola or a rais but every year our healthcare coverage went down and cost more. If you work as a w2 then health care is part of your compensation, this is why a company will/can pay someone on a 1099 basis more hourly rate. They don't have the expense of health care and ssi to cover.

Since YOU get healthcare as part of your salary, and inmy state it is mandatory, it is MY money. The anti birth control folks argue that YOU can just go out and buy it, but than THAT is precisely what I said, THEY are controling how you spend your income for something that is legal and you already paid for. So tomorrow, if your new boss is a teetotteler and finds out that you like good quality scotch he should be able to doc your pay so that he can live with his concsience of avoiding the evils of alcohol.

 

[RandFan]

I also negotiate time off. I consider BOTH of these as part and parical of MY compensation package.

Oh yeah, you tell your prospective manager at McDonalds that you won't work Sundays. See how that works out.

That being said, I'll back you up. I've negotiated for benefits before but that is applicable only to some percentage of jobs. I don't know if those jobs are the majority but I seriously doubt it. Most job positions have dozens of qualified applicants. If you want more time off than the business offers then it is very likely that there is another applicant who doesn't, "thank you, don't call us we'll... just don't call us". Many people are happy to just be offered a job.

 

[Minoosh]

As I understand it the whole employer-purchased insurance model was a way around WWII-era restrictions on wage increases. The benefits were a way to make companies more competitive in hiring. At near-full employment (and with COBRA laws) this potentially covers more people than periods of low employment where someone might be out of work for > 18 months.

It's part of compensation, but not necessarily individually negotiated. But birth control coverage apparently pays for itself and more.

Wouldn't a lot of ecclesiastical RC employees be priests or nuns?

If we are all sinners seems the church should cover our sins. It's not like we have a choice whether to be sinners.

 

[Cleon]

I find the "religious freedom" angle to be rather funny, in a black humor sort of way. The Republicans are basically admitting that they find the religious freedom of employers to be more important than religious freedom for employees.

 

[Cleon]

Oh yeah, you tell your prospective manager at McDonalds that you won't work Sundays. See how that works out.

Probably not too badly, actually. Jews run into this fairly often, and I have yet to hear of an employer firing an Orthodox Jew because he wouldn't work on Shabbos. IANAL, but I suspect the EEOC would come down on such an employer like a ton of bricks.

That said, Christians don't have the same prohibition against working on the Sabbath that Jews do, so an employee would have to convince the boss (and possibly the EEOC or a court) that his religious beliefs mandate a no-work day.

 

[cwalner]

Oh yeah, you tell your prospective manager at McDonalds that you won't work Sundays. See how that works out.

That being said, I'll back you up. I've negotiated for benefits before but that is applicable only to some percentage of jobs. I don't know if those jobs are the majority but I seriously doubt it. Most job positions have dozens of qualified applicants. If you want more time off than the business offers then it is very likely that there is another applicant who doesn't, "thank you, don't call us we'll... just don't call us". Many people are happy to just be offered a job.

Even if it is not negotiated, I think Magyar's point that healthcare is part of the overall compensation package still holds. My company does not have the right to dictate to me how I spend my salary. It should not have any say in how I utilize my health care.

I think I am beginning to agree with a comment that this whole debate shows why relying on employer based health insurance is such a monumentally bad system.

 

[RandFan]

Even if it is not negotiated, I think Magyar's point that healthcare is part of the overall compensation package still holds. My company does not have the right to dictate to me how I spend my salary. It should not have any say in how I utilize my health care.

I think I am beginning to agree with a comment that this whole debate shows why relying on employer based health insurance is such a monumentally bad system.

I don't ultimately care about the how. I've no investment in the status quo. If we find a solution that removes the employer from the equation that's fine by me.

In any event, your prospective employer can give you an offer that you can reject and find work elsewhere (unless they will negotiate). If their health care plan dictates that you will contribute and how you will contribute then I'm not sure what else there is to say or do about that. If the US then dictates that an employer must cover co pays for coverage that benefits you and you don't want it, then I respect your principle but I don't share it.

 

[RandFan]

Probably not too badly, actually. Jews run into this fairly often, and I have yet to hear of an employer firing an Orthodox Jew because he wouldn't work on Shabbos. IANAL, but I suspect the EEOC would come down on such an employer like a ton of bricks.

That said, Christians don't have the same prohibition against working on the Sabbath that Jews do, so an employee would have to convince the boss (and possibly the EEOC or a court) that his religious beliefs mandate a no-work day.

Yeah, and I don't doubt that there are many exceptions. But by and large many if not most people simply are not in a position to negotiate.