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Administration Unresponsive to Furor About Contraceptives Mandate
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Protests are expanding and heating up against the administration's requirement that virtually all employers, except churches, must include in the health insurance they offer their employees free access to sterilization, to contraceptives, and to emergency contraceptives that many consider to be abortifacients.  The administration's response?  To reiterate the defenses that have already been rejected by organizations and faith leaders that have deep concerns about the morality of the required services and drugs, deep concerns about the imposition of the requirement on organizations with moral objections, and deep concerns about the administration's implicit definition of public-serving faith-based organizations to be not religious at all.  

See, for instance, the op-ed by HHS Secretary Kathleen Sebelius, in USA Today.  She acknowledges that "many religious organizations have deeply held beliefs opposing the use of birth control."  For that reason, the policy includes an exemption:  "we specifically carved out from the policy religious organizations that primarily employ people of their own faith."  The logic of this?  Well, if the employees are of the same faith, then they should find it acceptable that their health insurance does not cover the disputed drugs and services, just as the employer is glad not to have to pay for those disputed items.  

Set aside the question whether individual rights should necessarily trump the religious freedom rights of employers where morally controversial employee benefits are concerned, so that if some or many employees are of a different faith, then the employer must be required to do what the employees find acceptable.  Just note this:  to qualify for the Secretary's narrow exemption to the contraceptive mandate, a faith-based organization must not only employ mainly people of the same faith, but ALSO serve mainly people of the same faith, AND its purpose must be the "inculcation of religious values," AND it must fall into a classification the IRS reserves for churches.   In short, the nano-exemption only exempts churches.  

Even if a charity or school or college only employs co-religionists, if it serves people outside of that faith (as Jesus requires of charities!) and provides more than prayer and religious instruction, then it does not qualify for the exemption.  

The exemption is not narrow simply to screen out every religious organization that has many employees of other faiths, in order to protect their own rights--rather, it is drawn so that it screens out every public-serving faith-based organization (even some churches, which have flourishing community-serving ministries, might not fit into the nano-exemption).  

Cecilia Nunoz, the new Director of the White house Domestic Policy Council, did no better (neither did presidential press secretary Jay Carney at his Feb. 2 press briefing).  She offered these justifications:

* "Churches are exempt from the new rules":  important, but the exemption does not protect the hundreds of thousands of parachurch organizations.

* "No individual health care provider will be forced to prescribe contraception":  that is, a Catholic doctor won't be forced to actually prescribe contraceptives, but his or her employer nevertheless will have to pay for those contraceptives in its health insurance plan.

* "No individual will be forced to buy or use contraception":  not forced to use birth control?  but that's taking credit for something no US government would even consider requiring (at least not since those old days of forced sterilizations).  And the mandate forces the employer to pay for contraceptive drugs and procedures, despite moral objections.

* "Drugs that cause abortion are not covered by this policy":  so says the federal government.  But the US Conference of Catholic Bishops and the Christian Medical and Dental Associations, among others, disagree.  

* "Over half of Americans already live in the 26 States that require insurance companies cover contraception":  but most of those states have better exemptions; in any case, the fact that some or many states have adopted a morally troubling policy is no justification for the federal government to impose the same morally troubling policy on the entire nation!

* "Contraception is used by most women":  but that is not a justification for refusing to honor the conscience claims of many faith-based service organizations.

* "Contraception coverage reduces costs"--in short, it is cheaper for employers to pay to prevent or abort pregnancies than for their health insurance to pay for pregnancies carried to term.  Apparently, if the cost savings are large enough, any employer simply should swallow its moral concerns about any mandate.  Outrageous.

Arguments like these are unavailing and disrespectful.

Here's one useful analogy for what the administration is requiring:  "[I]t would be like the government mandating that all delis, even Kosher delis, serve pork products and then justifying it by saying that protein is healthy, and many Jews who don't follow Kosher laws and many non-Jews go to those delis. The law wouldn't technically ban Jews from owning delis, but it would effectively ban their ability to run them according to their conscience."

Check these notable stories on the health insurance religious freedom fight:

Ross Douthat, "Government and Its Rivals," New York Times, Jan. 28.

Yuval Levin, "Religious Liberty and Civil Society," National Review Online, Jan. 30. 

Michael Sean Winters, "J'Accuse!  Why Obama is wrong on the HHS conscience regulations," National Catholic Reporter, Jan. 21.

Ed Whelan, five posts at Bench Memos, National Review Online, Jan. 26-30.

Terry Mattingly, "Pod people:  Birth control or religious liberty," Get Religion, Feb. 3.

David Savage, "Contraceptive mandate could face tough sledding in Supreme Court," latimes.com, Jan. 30.

Napp Nazworth, "Faith Leaders to Obama: Non-Catholics Also Troubled by Contraception Mandate," ChristianPost.com, Dec. 22.

Emily Belz, "No Change," Worldmag.com, Jan. 20. 

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It's only a stage in the long fight to protect the freedom of faith-based professionals to maintain their convictions, but it is an important victory.  On January 27th, the Sixth Circuit issued its decision overturning a federal district court's ruling upholding Eastern Michigan University's expulsion of counseling student Julea Ward.

Ward was expelled because, rather than counsel a gay student about his gay relationship, she asked that he be referred to another counselor.  She was willing to counsel him on other topics, but said it conflicted with her convictions to counsel anyone on how to make a sexual relationship outside of marriage flourish.  The University said that it simply was upholding the ethical standards of the American Counseling Association, and that if it did not do so, its counseling program would lose its accreditation.

But Ward and her Alliance Defense Fund and Becket Fund lawyers pointed out that the ACA's standards and the textbooks for her counseling classes recommend that a counselor should refer a client to another counselor if counseling the person would pose a conflict of conscience.  

The Sixth Circuit decision credits her argument, not the position of the University, and sends the case back to the lower court for a full trial.  Judge Sutton, his opinion for the Sixth Circuit, says there is ample evidence that could lead a jury to decide that the University had not dealt honestly with Ward.  He noted that the counseling program and profession regard referrals for many secular reasons to be acceptable--and just balked because Ward gave a religious reason for her referral request.  That's an arbitrary and unconstitutional difference of treatment.

The lower court will have to look into the matter in detail. Hopefully, the jury will understand the facts and the constitutional considerations just the same as Judge Sutton did.

The American Association of Christian Counselors said this about the decision: 

"Counseling, by its very nature, is value laden and includes both the therapist's and the client's worldview and value system. One critical question that must be addressed is what to do when there appears to be a conflict of values related to the therapeutic process? How should a treatment provider respond if he/she becomes aware that deeply held spiritual or religious values are relevant to professional care? Whose set of values are more valid? Should both the counselor and the client be involved in that decision? The ethical answer to this question is, "Yes." There is an inherent ethical responsibility to treat clients within their relevant culture and value system, but also to make an appropriate referral whenever there is a lack of competence (based on education, training, and experience), expertise, or the inability to facilitate a productive therapeutic process."

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Legislation has been passed in the Virginia House and by a Senate committee to protect the freedom of private adoption and foster care agencies to make placement decisions consistent with their religious or moral convictions.  The legislation is intended to make permanent last December's decision along the same lines by the Virginia State Board of Social Services.  

House Bill 189 and Senate Bill 349 would add to the Code of Virginia this new section:

� 63.2-1709.3. Child-placing agencies; conscience clause.
A. To the extent allowed by federal law, no private child-placing agency shall be required to perform, assist, counsel, recommend, consent to, refer, or participate in any placement of a child for foster care or adoption when the proposed placement would violate the agency's written religious or moral convictions or policies.
B. The Commissioner shall not deny an application for an initial license or renewal of a license or revoke the license of a private child-placing agency because of the agency's objection to performing, assisting, counseling, recommending, consenting to, referring, or participating in a placement that violates the agency's written religious or moral convictions or policies.
C. A state or local government entity may not deny a private child-placing agency any grant, contract, or participation in a government program because of the agency's objection to performing, assisting, counseling, recommending, consenting to, referring, or participating in a placement that violates the agency's written religious or moral convictions or policies.
D. Refusal of a private child-placing agency to perform, assist, counsel, recommend, consent to, refer, or participate in a placement that violates the agency's written religious or moral convictions or policies shall not form the basis of any claim for damages.

The State Board of Social Services vote in December (which repeated a vote in April) rejected the proposal from the previous administration to change the licensing requirements for private adoption and foster care agencies to include a prohibition of discrimination based on a wide range of characteristics, including religion, gender, sexual orientation, and family status.  Agencies already were prohibited from discrimination based on race, color, and national origin.  

Advocates of the change were aiming, in their words, to ban discrimination against gay individuals and couples in the adoption and foster care process.  In fact, Virginia law already permits both married couples and single individuals (whether gay or not) to adopt and foster.  Virginia does not recognize same-sex marriages.  The aim, in fact, was to require all private agencies, whatever their convictions about marriage, sexual conduct, religion, and the best interests of children, to ignore those convictions if a gay individual or couple sought to adopt or to foster a child.  

Keeping the existing regulations, as the Board decided, leaves it up to the best judgment of the various private agencies how best to serve children and adoptive/foster families.  That would be the effect, as well, of the legislation.  The legislature can open up adoption and foster care to gay couples, if it sees fit.  But it doesn't need to, and shouldn't, then force all private agencies to treat those couples as being the same as married man-woman couples. 

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What?  Religion Has No Place in Civil Rights Issues?
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Katie O'Malley, Maryland's First Lady and a judge in Baltimore District Court, made two big gaffes when she addressed a gay rights group about the push by Governor O'Malley and others to redefine marriage in Maryland.

All the attention has gone to her explanation for why the House of Delegates last year failed to adopt the same-sex marriage bill:  ". . . there were some cowards that prevented it from passing."

Her other comment should have gotten at least as much attention:  "We're all very diverse, and that's what makes us so strong, but religion should never play a part in what the laws of our state are, and that's what we're trying to convey to religious leaders who are opponents of the bill that believe that for some reason--for some reason--religion has some role to play in this, and quite frankly we believe that it doesn't.  We believe that this is a civil rights issue--very, very much strongly believe in that."

Her warning that religious voices should shut up in public policy debates is most unfortunate, given the strong convictions that religions have about the institution of marriage, and given that redefining marriage will put the state on a collision course with many faith-based institutions.  

And it is bizarre to say that, if an issue is a "civil rights issue," then religion can have no role to play in the matter.  Not that long ago, the civil rights movement was fueled by religion . . .

For evidence, see, for example,

David Chappell, A Stone of Hope:  Prophetic Religion and the Death of Jim Crow (2004)

Mark Noll, God and Race in American Policies (2008)

The Rev. Dr. Martin Luther King, Jr., "Letter from a Birmingham Jail."

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