President Barack Obama's proposal to end the controversy over his health care mandate for contraceptive coverage falls short on one important point: It misunderstands the meaning of religious liberty.
That liberty, enshrined in the Constitution's First Amendment, protects an individual's right to freely exercise his or her most deeply held convictions.
So when the president attempts to compromise with churches and their affiliated organizations by offering to cover their employees' contraceptive needs without cost to those organizations, it should be small wonder that many of them remain upset.
Cost is not the biggest of their worries. To many people of faith, procreative powers are not on equal footing with other physical conditions or maladies. When Health and Human Services Secretary Kathleen Sebelius refers to contraceptive use as "preventive care," as she did in a statement last week, many people recoil.
Vaccines, inoculations and regular checkups are preventive care. They guard against germs and viruses, or provide early warnings against cancers and other diseases that strike unawares. But for many religious people, the procreative powers are to be used under defined moral guidelines. They are a divine gift. Such powers hold the key to the creation of family units and are exercised, for the most part, through free will.
Some religions teach that contraceptive use is sinful.
Regardless how one feels about such moral standards, it should be easy to understand that people who hold such beliefs should not be forced to provide a workplace in which employees are freely provided with contraceptives.
It's small wonder, then, that people such as Kyle Duncan, general counsel at the Becket Fund, would say the latest Obama proposal "does nothing to protect the religious liberty of millions of Americans."
Under the administration's proposed compromise, a separate insurance plan covering contraceptives would be provided to employees of religious organizations, in addition to their employee-provided health insurance. This extra insurance would be provided free of cost to both the employee and the religious organization.
If the organization is self-insured, it can use a third-party administrator to provide the contraceptive coverage.
Of course, nothing of value truly is free. The proposal would discount the price these extra insurers would have to pay to participate in the health insurance exchanges the Affordable Care Act mandates be established in each state. Ultimately, of course, the costs are borne by taxpayers.
The Becket Fund also represents the owners of Hobby Lobby, who find the contraceptive mandate repulsive but who do not qualify under the compromise because their business, while owned by religious people, is not itself a religion or a religiously affiliated organization.66 comments on this story
To make all this work, the administration has had to define which employers can qualify for this exemption. The proposal would use the IRS definition, which specifies houses of worship and affiliated organization such as schools and hospitals.
The president may have hoped his compromise would end the lawsuits that have been filed to challenge the contraceptive mandate. In reality, he is trying to bridge two positions that are much further apart than he may realize. The Supreme Court ultimately may be the last hope for this bit of religious freedom.