BYU Law Prof. Answers Criticisms of Paper Detailing Weaknesses of Legal Challenges to Contraception Coverage

Titus is correct. Sometimes History repeats itself, and sometimes it is like nothing we have seen before. Since it is true that one cannot separate the contraception mentality from a rise in promiscuity, and thus the sexual objectification of the human person, for the first time in the History of this Nation, in direct violation of our inherent Right to Liberty that has been endowed to us from God, the purpose of which is what God intended, The State has become a peddler of promiscuity.

I find Prof. Geddicks' reference to Estate of Thornton v. Caldor decidedly unpersuasive. Thornton involved a state law that granted unique legal privilege to one class of religious believers, those who found it morally objectionable (or, given the actual facts of the case, perhaps simply inconvenient) to work on Sunday.

If giving a unique legal privilege to a distinct class of religious believers violates the establishment clause, then so be it. Mr. Justice Burger's statement about the burden that privilege places on other persons, while it may have helped rationalize the outcome, cannot logically necessitate it. It's the privilege, not the burden, that the law creates, and if the privilege be unconstitutional, it would be so even if it were socially cost free. (See, e.g., every Christmas-display case ever decided.) Burger's statement about burdens is a dictum.

But even if Mr. Justice Burger's odd statement about burdens were necessary for the outcome in Thornton, it bears no relationship to the HHS mandate at all. What Prof. Geddicks proposes is that the religiously motivated actions of a private individual can impose a constitutionally significant burden on the personal (not religious, perhaps commercial) conduct of another private individual.

This is horse feathers. I know Prof. Geddicks has expressed elsewhere dissatisfaction with Cruikshank, but the rule that non-government actions do not impose Constitutional burdens is not going away (and even if it were, Prof. Geddicks prefers that we discuss the issue under present doctrines). The idea that there is a Constitutionally protected liberty interest in being free from burdens imposed by the religiously motivated actions of other individuals, without the intervention of any privilege, compulsion, or intervention by the law on the part of the religiously motivated actor, is simply absurd. It might be the most absurd and barbaric assertion made by any defender of the Mandate to date.

Let us be clear about what Prof. Geddicks claims here. He cannot be claiming, as he might insist, that it is merely a Constitutional exemption that would be an imposition. That at least would have a flavor of legal compulsion. No, the Professor is saying that the religiously motivated actor's choice to do or not do a Thing (in this case, subsidize contraception) itself imposes a burden on third parties. This has to be the case, because Prof. Geddicks wants us to balance the burden against the claimed liberty interest of the religiously motivated actor in determining whether the Constitutional exemption should exist. Clearly, the Constitutional exemption cannot be used as a justification for its own existence.

In the end, Prof. Geddicks' argument in this regard is either a call for a shockingly tyrannical reduction in the meaning of religious liberty or a specious display of circular reasoning. In fact, it bears many indicia of being both. It is the sort of argument that makes one wish that Rule 11 applied to academic papers.

This response from Mr. Gedicks is not particularly compelling because it mischaracterizes what is going on: it is not employers that are infringing on the religious liberties of their employees, it is the government that is imposing a burden on the religious liberty of religious employers and institutions. What Mr. Gedicks seems to forget is that employees were free and still are free to buy contraception or get sterilized with the money paid to them by their employers. Employers are not trying to interfere with the existing rights of their employees to make those decisions, and employers are not asking for the right to violate the religious freedom of their employees. Employers are simply asking to be free from government coercion that requires them to facilitate the supply and delivery of products and services they deem to be immoral.

As Mr. Gedicks suggests, employers should be free to pay cash to employees and let employees buy contraception, or guns, or pornography, or other items that the employer finds morally objectionable. But the HHS mandate and Obamacare now prevents employers from exercising that right and letting employees make their own moral decisions - that's the problem. If an employer compensates an employee in the form of cash (without providing health insurance), the employer (in many cases) is now subject to a government-imposed penalty. If the employer chooses to compensate employees through health insurance coverage, the government now mandates that the employer pay for contraception, abortifacients, sterilization, etc., which the employer finds morally repugnant. It is the government that has taken away the freedom of employers to choose the form (and content) of the compensation they pay to their employees, and it is the government acting with coercive force to undermine the religious liberty of the employer.

If Mr. Gedicks is really concerned about the religious freedom of employees, he should oppose the mandate and Obamacare. Without Obamacare, employers could pay all employees in cash and let them decide how to use the money without interference from the government or their employer (something Mr. Gedicks seems to think is morally acceptable for all parties, and infringes no one's religious liberty). Under Obamacare, this option is no longer available. Moreover, Obamacare and the mandate will force many employees to participate in and pay their own money into plans that include products and services they find morally objectionable. If employees who want contraception have a right to "access" contraception through their employer plans, why don't employees who think contraception is immoral have a right to "access" employer plans that do not provide it and do not require them to fund its use by others? If Mr. Gedicks really wants employees to protect the religious liberty of employees, let's protect it for all of them. To do so, Mr. Gedicks will have to admit that it is government interference in the marketplace that is burdening religious liberty, not employers who are just trying to pay compensation in a way they find just and fair.

I used to feel kind of bad about the decline of our country. Now I actually think that its decline can't come fast enough. None of these crazy arguments - putting good for evil and evil for good - shocks me anymore. Protecting religious liberty means forcing people to violate their religion's teachings. Ok. Makes about as much sense as anything else I've heard defending this law.

At least under the classical Muslim model, Christians had the possibility of living as dhimmis. They paid the "security" money and were left alone to run their lives, businesses and organizations in conformity with their religion. That system seems more protective of religious liberty than this one. No one was forced to participate in sinful conduct as the "cost" of having the temerity of running a religious charitable organization, or even worse, running a business that actually employs people. I'd take that system over this one.

The USSC [wrongly] held that the law as applied to individuals didn't fall w/i the Commerce Clause. It did not so hold that as applied to businesses in interstate commerce, which are required to do any number of things, including to "act" instead of inaction, while doing its business.

The "Life-affirming or Life-sustaining" part is wrong too though why that is necessary for congressional power purposes is unclear anyways. The requirement was put in as a preventive health -- life affirming and life sustaining -- purpose pursuant to an independent medical study that set forth eight preventive health measures, which included this one. One doesn't need that to note the "life affirming" nature of contraceptives, however, including for a couple who wishes to have normal sexual relations while a pregnancy would cause health problems to the woman.

As to the first comment, I think it was in answer to a specific argument, not a necessary component to a legal argument to save the measure in question.

Since it is true that the individual mandate did not fall within Congress' Commerce, Necessary and Proper Clause, mandating that every Insurance Company must be a contraception provider, when contraception is not Life-affirming or Life-sustaining, and thus not a necessary part of a Health Care Plan to begin with, would also not fall within Congress' Commerce, Necessary and Proper Clause. Since it is true that contraception is not a necessary part of a Health Care Plan, it is unjust to penalize those employers who for Religious or moral reasons, do not want to be coerced into being contraception providers.