Michael Stokes Paulsen, reported in Ben Domenech’s Transom, attempts to draw a shaky parallel between a campaign of oppression carried out by the Hellenistic king Antiochus IV Ephiphanes on his Jewish subject, and the Obama administration’s mandate that church-affiliated organizations cover contraceptives as part of their employees’ health plans:
The story does not have an especially happy ending (at least from a human, secular standpoint). Eleazar is tortured to death, then an entire family of brothers after him. But the story of Antiochus IV Epiphanes, and Eleazar, remains a remarkable two-thousand-year-old parable about tyranny and conscience, about cram-downs, accommodations, deception, and adherence to principle.
There are relatively few instances in recorded modern western history when government has insisted on vindicating its authority and overriding religious conscience for its own sake—purely for the symbolism of power prevailing over conscience.
Indeed. Per Paulsen, forcing an employer to subsidize their employees’ contraception violates religious conscience as surely as commanding a Jew to eat pork. It’s this kind of tortured logic, and apparent conviction that a democratically-elected leader is out to “get” the faithful as surely as an ancient despot, that together signal a religious lobby that’s overplayed its hand. Paulsen’s legal argument is worse, still:
The legal case against the Obama HHS policy was (and remains) shooting-fish-in-a-barrel easy. The policy violates the First Amendment’s Free Exercise of Religion clause, under any interpretation. It is not neutral toward religion, exempts some religious employers and not others, and vests government bureaucrats with broad discretion as to who will be exempted. Even more clearly, the policy violates the “Religious Freedom Restoration Act” of 1993, a federal super-statute that protects religious liberty and applies to the operation of all other federal laws unless a new law explicitly removes itself from RFRA’s requirements. Under RFRA, any federal law or regulation that burdens the exercise of religious convictions must give way to such beliefs, unless justified by a “compelling” interest that can be achieved in no other way. The contraception cram-down cannot possibly pass such a stringent legal test: what makes compulsory contraception, paid for by religious groups, “compelling”? How can it be so important, given other exemptions from the requirement?
The critical legal error duplicates the flaw in the historical analogy: the parallel isn’t to a king commanding his Jewish subjects to eat pork. It’s to a king commanding all of his subjects to provide their household servants with a living wage suitable to buy — if the servants so choose — pork, and preserving the new rule of general application over isolated Jewish objections. HHS’ expanded coverage allows American women to take home more of their paycheck, and spend less on drugs that are either an incident of modern life, part of modern reproductive medicine, or now-standard treatment for regular gynecological conditions (“the Pill” is more than prophylaxis — it’s regularly used as medicine for hormonal imbalances). “Discrimination” against the faithful occurs only insofar as they’re asked to contribute, with the rest of society, to expanding this new coverage to a majority of the workforce. Viewed from this perspective, the burden on religious expression occurs only through the attenuated connection between employer and employee, and only as an incident to otherwise valid and rational regulation, falling squarely into the rule of Employment Division v. Smith, 494 U.S. 872 (1990) (holding that religious belief — here, in the transcendental qualities of peyote — cannot defeat a general rule barring drug use by state employees).
HHS’ expanded coverage requires employers to take no immoral act, other than forfeiting their right manipulate the scope of insurance coverage to control the private moral choices of their non-clerical employees. It makes a full 50% of the population freer, happier, and healthier — but cuts one of the few remaining tethers the religious elites use to control the rest of us. That’s what this fight is really about.