TDOM is a good guy even if he is a damned crotchety old man who leans heavily toward the liberal side of the aisle. His post on the HHS mandate and Catholic employers is an example of that lean.
One reason we like TDOM is that even with said lean, he is intellectually honest. He does not claim the wall of separation between church and state, one of the most cherished facets of liberal canon, is found in the Constitution; he rightly attributes it to the letter Thomas Jefferson sent to a Baptist group that had requested a day of fasting be made law.
Thus [Jefferson] not only established a “wall of separation,” but also (because he was denying a request from a religious institution) he established a “freedom from religion.”
This is an important point. The Catholic Church’s stance is that the government’s mandate to provide contraception to its employees is a violation of the “wall of separation.” However, the Church employs many non-members in its organizations. By refusing to provide contraception, it is imposing its own religious practices upon those employees who are non-members. Its demand for an exemption to a policy applied to the rest of the population would be a violation of the freedom from religion established by Jefferson in 1802 in the same statement that established the “wall of separation” on which the Church is now relying.
Notice that TDOM does not offer his own opinion of the mandate. His point is that it is being unevenly applied. But is this accurate?
Further, the issue raises questions as whom the First Amendment actually applies. Does the Church, a non-human entity, hold the same rights as the people who would be affected? If so, how much sway should the rights of a single institution hold? In other words, does the Church get more than one vote? If the exemption is granted, the rights of this one institution could be said to outweigh the rights of tens of thousands of its employees.Jeffersonruled in favor of the people by denying the Church’s request in 1802.
This presents an interesting dilemma. If Congress grants the Church’s request, precedent will be set for the rights of a single institution to take precedence over the rights of thousands of individuals. In effect, it would abolish the idea of government by the people, for the people, and of the people. What the Catholic Church is (perhaps unwittingly) demanding is an end to religious freedom and an establishment of government by Church and/or corporate dictate.
The entity vs. individuals argument avoids the salient point – those who must comply with the mandate are individuals. Government cannot compel them to violate their beliefs. It’s part of the free exercise clause. This undercuts the final paragraph. If individuals are forced to buy birth control, they are not being denied the right to use birth control. If those morally opposed to birth control are compelled to pay for it, their rights are being curtailed.
If a wall is to exist, it must provide a barrier between both sides. If the liberals don’t want to ascribe to Catholic canon, they cannot turn around and demand Catholics ascribe to liberal canon.