In yesterday’s article I presented two costs of religious liberty litigation against the HHS mandate—the probability that not all religious objectors to the mandate will be exempted from it even if its current legal challengers win their cases, and the overreach of judicial authority that these lawsuits involve. Today I will discuss how litigation tends to undermine the strongest arguments against the HHS mandate, which appeal to the reason of all Americans, religious or non-religious. I’ll conclude by explaining how the potential costs of religious liberty litigation could be avoided by refocusing the debate on those arguments.

Cost #3: Pursuing Exemptions Tends to Short-Circuit the Arguments Needed to Sustain Religious Freedom in the Long Run

The lack of universality of exemptions, and the extension of governmental authority over religion that lawsuits invite, stand as principled reservations about pursuing religious freedom through exemption litigation. One pragmatic concern also deserves particular consideration. The pursuit of judicial exemptions has the tendency to transform subtly but profoundly the debate about religious freedom in a manner that may not be healthy for religious liberty in the long run.

This can be seen in a little-noticed change that has occurred in the public arguments made by Catholic officials. Before the orchestrated filings of religious liberty lawsuits in May, the United States Conference of Catholic Bishops had called for the outright repeal of the HHS mandate. In a widely circulated statement titled “Our Most Cherished Liberty,” the bishops’ Ad Hoc Committee for Religious Liberty suggested that the mandate amounted to an “unjust law”; and an unjust law, they said, “cannot be obeyed.”

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At the same time, others sought to explain how the HHS mandate threatened the liberty of all. The mandate, they pointed out, treats the natural and biological processes of conception and pregnancy as diseases that require “preventive services.” Not only does it construct a non-natural definition of health, it coerces individuals to support and pay for medical interventions in accordance with that definition. The HHS mandate is unjust, it was argued, because the government was unreasonably redefining the meaning of health and forcing individuals to act in accordance with this newly constructed artificial conception. When the government inverts the natural given order by defining health as disease and then coerces people to pay for “treatments,” no individual’s liberty (or health) remains secure.

It was also pointed out that Secretary Sebelius’s willingness to impose such regulations, despite deep opposition to them, indicated a contemptuous attitude toward traditional religious believers. Furthermore, given the relatively small cost of generic forms of birth control—and hence, the relatively minor benefit actually conferred—some speculated whether the administration picked this fight to score ideological points or, worse yet, to deliberately cause hardship for traditional religious believers. Both these points, it was suggested, revealed a dangerous and hostile indifference to the interests and liberties of those who do not share the administration’s ideological understanding of human sexuality. They revealed, in short, a disposition toward partisan extremism unbecoming of a holder of high office.

Others focused on the HHS mandate’s improper intrusion into employer-employee relations. Regardless of what one thinks of contraception, it was argued that it seems to violate a proper sense of privacy (not to mention decency) to demand that an employer pay for his employees’ birth control or sterilization. If anything should be a private matter, it is birth control. Moreover, the HHS mandate requires coverage of abortifacients. It is one thing for abortion to be legal, but it’s something else to require others to pay for it. If employers want to pay for such things, they can, but to mandate that, if someone employs more than fifty individuals, he has to provide free birth control, abortifacients, and sterilizations seems to be the very definition of abusive overregulation.

Such arguments were designed to appeal to the moral reasoning of all, Catholics and non-Catholics, religious and non-religious. Not everyone would agree with them, of course, but opposition to the HHS mandate was presented in terms accessible to all. This sort of argumentation allowed the bishops, in their March statement, to conclude: “This is not a Catholic issue. This is not a Jewish issue. This is not an Orthodox, Mormon, or Muslim issue. It is an American issue.” It was understood to be “an American issue” because arguments against the HHS mandate were about the degree to which the government may properly regulate the private affairs of all Americans.

Since May, when the exemption lawsuits were filed, religious leaders have employed more sectarian rhetoric. Instead of emphasizing how the HHS mandate and the ideology behind it threaten the liberty of all, the lawsuits have focused attention on the special burdens placed on Catholics and other religions that retain a belief in traditional sexual morality. The terms of debate have shifted to the needs of this narrow group, not unreasonable governmental regulation more generally.

This shift has occurred, in part, because of the logic of exemptions. The availability of exemptions encourages religious individuals and institutions to act, think, and conceive their interests in terms of a sectarian minority that has special, particular needs, because it is only on account of their particular situation that exemptions can be won. Pursuing exemptions leads religious believers to abandon their leadership against overreaching state power, in exchange for the role of a special-interest minority that alone has access to special legal privileges.

In assuming this position, exemption advocates also encourage the broader public to view traditional religion as a quixotic special-interest minority. The appeal for an exemption does not say, “This law is unjust”; rather it says, “This law is unjust when applied against us because we have peculiar notions about human sexuality.” In failing to offer categorical resistance to the HHS mandate, the exemption response implicitly concedes the legitimacy of legislating contraceptive care in general.

That concession could prove harmful to religious liberty. The nature of law is to specify what is right and what is wrong and, thereby, to teach what is good and what is bad. Exemptions place traditional religious believers on the wrong side of the law’s general precepts and teachings. That might be tenable for a time, but given democracy’s commitments to equality and the rule of law, the position is far less certain in the long run.

Consider the reasoning of the Obama administration. The Department of Heath and Human Services judged that increasing the availability of free contraception was more important than respecting the consciences of traditional religious believers. It reached this judgment, no doubt, because its leaders think access to contraception furthers the general welfare of the American people and view opposition to contraception as irrational. Traditional views might be indulged as a kind of courtesy when the cost is minimal or the burdens on them are excessive, but given that contraception furthers the reasonable understanding of the common good, justice does not demand that anachronistic views be respected or indulged. Given its assumption of the goodness of contraception, HHS extended an exemption to a narrow class of religious institutions and imposed the mandate on everyone else.

Now consider how the demand for exemptions responds to this reasoning. Secretary Sebelius, it is said, did not adequately account for how oppressive the mandate would be or sufficiently understand how opposition to contraception is constitutive of traditional believers’ exercise of religion. Since the grounds of opposition to contraception lie in conscientious religious belief, which is protected by federal law and the First Amendment, religious individuals deserve a more robust exemption.

Note that this response does not challenge the underlying logic, assumptions, or presumptions of Secretary Sebelius. It only challenges the application of that reasoning and finds fault for not giving the beliefs of traditional religious individuals sufficient weight. The exemption response rests on an appeal to authority (federal law and the First Amendment), not on a reasoned argument. In doing so, it implicitly concedes the irrationality of religious opposition to contraception and the legitimacy of requiring its coverage by those who lack a conscientious religious objection to it. The operative moral rationale employed by HHS—that opposition to contraception is irrational—remains uncontested.

Focusing on exemptions thus runs the risk of traditional religious belief being identified as the idiosyncratic commitments of a particular minority that finds it oppressive to follow a law that most other Americans must obey. Having been so classified, a majority of Americans—or, perhaps, a majority of the Supreme Court—are more likely to come to the same conclusion that Sebelius originally reached: the common good requires increased access to contraception and, therefore, it is not in the national interest to continue to indulge the beliefs of traditional religious believers. Even if exemptions are won now, sooner or later judges may start to say what Secretary Sebelius already thinks: it is time for traditional religious believers to come into the twenty-first century and be subject to the same laws and regulations under which all other Americans live.

What Should Be Done?

The attractiveness of lawsuits to pursue exemptions from the HHS mandate is obvious. The government has adopted an overbearing regulation that forces many religious individuals and institutions to violate their conscientious convictions. Justice demands relief from the law, and exemptions would help bring that relief.

Moreover, federal law and, perhaps, the First Amendment offer strong legal grounds on which to obtain exemptions, which might be difficult to obtain through the democratic political process. The costs of litigating for exemptions are less obvious: litigation is unlikely to bring relief to all who deserve it, lawsuits invite improper governmental decision-making about religion, and legal strategies may preempt or make more difficult needed political action. But these costs, even if only potential, need to be accounted for when devising strategies of how best to protect religious liberty.

Given that exemption litigation has already commenced, a necessary course of action is to minimize its downside costs. The logic for exemptions, as discussed above, has a tendency to crowd out more broad-based arguments. The first step toward a more robust protection of religious liberty, then, is to return to the types of arguments made before the lawsuits were filed.

Traditional religious believers need to make the case that, in the words of the Catholic bishops’ March statement, the HHS mandate is an “unjust” law. It has to be explained why it is unjust to force anyone—religious or nonreligious—to provide someone else’s contraception. Doing so will require traditional religious believers to make arguments that appeal beyond religious conviction and, instead, focus on the proper (and limited) role of government. Ironically, protection of religious liberty may require less emphasis on how the HHS mandate burdens traditional religious believers and more emphasis on how it interferes with the freedom of all Americans.

This change in argumentation needs to be accompanied by a refocused effort to repeal or revoke the HHS mandate. The primary defense of religious liberty needs to lie in the realm of electoral politics, not in the courts, because only through a legislative or executive repeal of the rule can everyone’s religious liberty be protected. This should not be a partisan issue. In fact, the key to repealing the HHS mandate will probably lie in persuading some Democrats of the injustice of the measure.

The protection of religious liberty cannot rely on litigation alone. Even if the courts are generous with exemptions, some religious objectors will be coerced to compromise their consciences. Half a loaf may be better than no bread, but Jefferson’s quip presumes that full protection of our rights is not available. That is not our situation regarding religious freedom. All Americans deserve the full and free exercise of religious liberty. We should pursue the protection of that right accordingly.