Via ThinkProgress, 170 law professors have written a letter to the Obama Administration explaining that “religious freedom” is not a catch-all for whoever most vocally claims it, but instead is an actual thing that requires consideration and balancing and thought.
It’s almost as if the Constitution wasn’t just a document set up to be thrust in people’s faces to get what you want.
There are two interesting things about the contraception mandate. One happened on Twitter yesterday: I asked, rhetorically, where conservatives thought the guarantee of religious freedom that prevented enforcement of the mandate for employers with religious objections comes from. The arguably correct answer is the Religious Freedom Restoration Act; the incorrect but somewhat understandable answer is the Constitution (the First Amendment generally doesn’t protect against the enforcement generally applicable and neutral laws that incidentally burden religion).
The answer I got over and over and over again? The Declaration of Independence. The document that predates the Constitution, has no force of law, and is a justification for revolution instead of anything approaching a statement of legal rights. Dozens upon dozens of tweets, simply telling me over and over again that Declaration of Independence, because it mentions God, lets you avoid laws that offend your faith.
This is the crux of the problem with the “religious freedom” argument – it’s not based on rights that anyone actually has, whether arguably or not; it’s based on a series of “rights” a subset of conservative Christians have made up based on a half-correct interpretation of a junior high civics class. Obama cannot make you provide health insurance for pills that don’t actually provide abortions because of rights that don’t actually exist, and don’t you say otherwise.
The second interesting thing about the mandate is what’s in that letter above. There is a point at which religious employers may require employees who serve religious functions to behave in certain ways. The version of “religious freedom” that opponents of the mandate want would allow an employer whose business serves no religious function at all, but has personal religious beliefs, to determine the legal rights and privileges of his or her employees because a law personally offends him or her.
That’s less freedom than it is fundamentalist Randian chaos. Because I’m an employer, and employers are creators, and employees are leeches, law should not be able to tell me what I do with them. I will tell them what they may or may not do, and if they don’t like it, they can take their “skills” and go leech off of someone else. Except, hey, I like tax breaks, those are great laws. More of those, please.
If this version of religious freedom somehow wins out, then the First Amendment becomes an incoherent enshrinement of politically convenient exceptions to the law for whatever religious groups have the most political power. But at least we’ll have chicken sandwiches with pickles on them.