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Eric Cantor’s First Amendment arguments against contraception mandate

at 10:00 AM ET, 03/09/2012


(Mark Wilson — Getty Images)

“What we have here is a rule by this president and this administration that goes really after our First Amendment rights to the practice of our religion. As a member of minority faith in this country, obviously the ability to practice my religion is very important to me as it is for everyone in this country.”

— House Majority Leader Eric Cantor during an interview on Fox News, Feb. 10, 2012

“It is about the administration and the president saying to the Catholic Church that we know what your faith holds, and you have to abide by that. It would be like saying to the — those of us in the Jewish faith that we know what the laws of kashrut, being kosher, means, and we’re going to tell you what that means. That’s not who we are in this country. That’s what the rule is about, and that’s why it has no place in American politics.”

— Cantor during an interview on NBC’s “Meet the Press,” March 4, 2012

Members of both political parties are trying to convince voters that their rights are at stake with the federal contraceptive mandate, which requires employers or their insurance companies to cover birth control costs with no out-of-pocket charges for the insured.

Last week, we addressed some over-the-top rhetoric from Sen. Charles Schumer (D-N.Y.), who said the GOP has tried to turn back the clock on women’s rights by opposing the new health regulation. Now we’ll examine recent comments by House Majority Leader Eric Cantor (R-Va.), who claims the mandate represents a government incursion into the free exercise of religion, and that it amounts to meddling in religious doctrine.

We originally thought Cantor’s remarks could be put to the Pinocchio test. After much consulting with experts, however, we determined that the congressman stated opinion rather than asserting fact. As such, we can’t apply our standard rating scale to his remarks. Instead, we’ll use this opportunity to provide readers with more insight into this complex issue.

We realize some readers might say that we should have treated Schumer’s observations the same way, but Cantor’s remarks are different. His logic could be used as the basis for a legal argument against the contraception mandate, whereas Schumer’s comments represented severe exaggerations.

The Facts

Religious institutions are exclusively and fully exempt from the contraception mandate. The Obama administration last month amended the policy so that church-affiliated groups — Catholic hospitals and schools, for instance — won’t have to contribute toward birth control coverage. Instead, their insurers have to foot the bill on their own.

Administration officials have said they will come up with an accommodation for employers that self-insure. Some religious groups say this is a good compromise that addresses their concerns about paying for birth control. Others say it amounts to nothing more than an accounting gimmick, and that faith-based institutions will still effectively have to pay for health plans that violate their beliefs.

Those who still oppose the policy say that all employers with moral objections should be allowed to opt out, regardless of their status as religious or secular organizations. The argument from one official of the U.S. Conference of Catholic Bishops was that even a Catholic owner of a sporting goods store should be able to decide whether to pay for birth control.

A Republican proposal known as the Blunt Amendment would have addressed this issue, but the measure died in the Senate.

While opponents of the mandate say it violates religious liberty, the Obama administration counters that the rule prevents church-affiliated employers from trampling on the rights of workers who don’t share their religious beliefs.

Cantor raises two complaints. First, he says that the mandate interferes with the free exercise of religion, which is a First Amendment right. This is the same type of argument taking place in at least eight legal challenges to the federal policy.

A recent article by Washington Post reporter N.C. Aizenman helped us understand how Congress and the courts have dealt with this issue and how it might play out in the judiciary. We’ll summarize the parts of that article that relate to our analysis.

The U.S. Supreme Court determined in Employment Division vs. Smith that individuals must comply with laws that burden their free exercise of religion, so long as the law is generally applicable and not specifically designed to affect religious practice.

That decision outraged advocacy groups of all stripes, from the American Civil Liberties Union to the National Association of Evangelicals, prompting Congress in 1993 to pass the Religious Freedom Restoration Act that then President Bill Clinton signed into law. That measure reinstated the “Sherbert Test,” which provides a standard that the government has to meet to prove it has a compelling reason to override the interest of free exercise.

The bottom line is that Cantor’s argument is still a matter of opinion, and the courts will determine whether he and all the objecting religious groups are right.

Cantor’s other argument is that the Obama administration shouldn’t be defining “religious employer,” because doing so violates the establishment clause of the First Amendment, which forbids government from meddling with religious doctrine -- this explains the congressman’s kashrut reference, which was puzzling to us at first.

The mandate allows employers to qualify for religious exemptions under four criteria: 1.) their purpose has to be to inculcate religious values 2.) they have to primarily employ people who share their faith 3.) they have to primarily serve people who share their faith 4.) they must be nonprofit organizations. (See footnote near bottom of this Web page).

Catholics maintain that the church must serve people of other faiths in order to be Catholic. Cantor argues that the Obama administration is telling them otherwise, and he compared that with instructing rabbis on the rules of being kosher.

Plaintiffs raised similar arguments in challenging contraception mandates in New York and California, but the courts ruled against them. They cited legal precedents that allow legislatures to define who is religious and who is secular for the purpose of exempting faith-based groups from specific laws.

It’s worth noting the government has defined “religious organization” for purposes outside of health-care policy. For instance, the IRS has a list of criteria to determine whether faith-based groups qualify for tax-exempt status. One of the rules is that “the organization must be organized and operated exclusively for religious, educational, scientific, or other charitable purposes.” (See the bullet points on page 3 of the IRS’s Tax Guide for Churches and Religious Organizations).

Still, the plaintiffs in pending lawsuits will mount various legal arguments to prove that the federal mandate indeed violates the establishment clause. Once again, it will be up to the courts to rule on the matter.

The Bottom Line

Cantor essentially says that the the contraception mandate will keep religious groups from practicing their faith, and that the government has no right to enforce such a policy. Legal precedent suggests that he’s wrong, but federal statutes — as in the Religious Freedom Restoration Act — indicate he might have a case. He may also have a point that the government can’t decide what entities qualify as religious organizations, due to the establishment clause.

As such, we can’t say that the congressman’s remarks are false or inaccurate. After all, there’s nothing factually incorrect about disagreeing with legal precedent; it’s just a matter of opinion.

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    About the Blogger

    Glenn Kessler has covered foreign policy, economic policy, the White House, Congress, politics, airline safety and Wall Street.

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