Notre Dame law professor Richard Garnett explains in the USA Today that the Department of Health and Human Service's proposed rule requiring all new insurance plans to include coverage for contraceptives would damage religious liberty:
Of course, it is not always clear how a diverse political community should respect and protect religious liberty, our "first freedom." We Americans have long agreed that religious freedom matters, but we don't always agree about what it means.
Even so, some things are clear: Governments should neither require nor penalize religious belief, and they should not meddle in religious disputes or presume to resolve religious questions. Such matters are outside the competence and authority of secular officials.
In addition, governments hoping to make good on Madison's promise will sometimes accommodate religious believers and groups by exempting them from rules and requirements. This sounds like special treatment for religion, and indeed it is. Our country's founders believed that such compromises are sometimes necessary and justified, even when the rules in question are popular or seem sensible, because religious freedom is both fundamental and vulnerable.
It is true that the administration's proposed mandate includes an exemption for some religious employers, but it is so stingy as to be nearly meaningless. It does nothing for individuals or insurers, and it applies only to employers whose purpose is "the inculcation of religious values" and that hire and serve primarily those of the same religious faith. The vast majority of religious educational, social-welfare and health care organizations -- not to mention the ministry of Jesus on earth -- do not fit this crabbed definition.
The proposed exemption covers only inward-looking, members-only, religious-instruction organizations while excluding those that respond to the call to feed the hungry, care for the sick, house the homeless and share the good news with strangers. Religiously affiliated hospitals, charities and universities that serve people of other religions would be vulnerable. The exemption assumes that religion is only about belief and values, not service, sacrifice and engagement. It purports to accommodate religious believers, but it actually would confine their belief.
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