Finally, an Anti-Contraception Ruling I (Sort of) Support

I support a woman's right to an abortion at any time for any reason. I think government healthcare should cover abortions and offer free contraception for women, no exceptions. And I'm probably in the minority of pro-choice activists who think Peter Singer, Professor of Bioethics at Princeton University, makes a reasonable case for infanticide under certain circumstances.

I can't understand why so many people who oppose abortion also oppose making contraceptives available to reduce the number of abortions. So why am I cautiously optimistic about the recent ruling by Federal Judge Richard J. Leon in favor of the anti-choice organization, March for Life, saying that it does not have to abide by Obamacare's birth control mandate?

Here's an analogy to explain why. When years ago some considered it "unladylike" for a woman to smoke, I had conversations with female smoking friends that went something like this:

Me: I don't think women should smoke.
She: That's ridiculous! Why is it OK for men to smoke, but not women?
Me: I don't think men should smoke, either.

Just as I don't think men should be privileged over women, I also don't think religion should be privileged over conscience. That was the essence of Judge Leon's ruling that if the Obamacare regulation of employer health insurance plans covering contraceptives could be exempt for religious beliefs, then a secular organization like March for Life could also be exempt for "moral" beliefs.

But here's my conflict: I agree with Judge Leon that religion should not be privileged over conscience in this case, but I also think everyone should be afforded the right to contraceptives regardless of the views of their employer. This leads to three questions:

1. How is religion privileged?
Religious entities don't have to pay taxes on their income, and people receive tax breaks for donations to them. Religious entities don't pay property tax or state income tax, substantially increasing the tax burden on the rest of us. Our politicians and courts have also approved laws that give preferential treatment to religious institutions over secular nonprofit organizations. Such special accommodations for religion include taxpayer-funded school vouchers for religious institutions that need not comply with the same standards as secular schools, faith-based initiatives that allow hiring discrimination, and denial of certain types of health care because of the religious beliefs of a provider.

2. What constitutes a religion?
Religion scholars can't agree on what is a religion, but religious privileging has forced the IRS to make such determinations. I find all attempts to define religion problematic. Is religion a sincerely held non-rational (faith based) belief? If so, why should our government privilege irrational beliefs over rational beliefs? Of course there are both theistic and nontheistic religions, the latter placing more emphasis on what adherents view as rational beliefs. The First Amendment prohibits the government from privileging one religion over another, however preposterous a religion might appear. Some secular groups have formed religions primarily to draw attention to unfair advantages afforded religion, thus becoming eligible for religious privileges. Examples include the Church of the Flying Spaghetti Monster and the Satanic Temple. My favorite new religion, created by satirist John Oliver, is aptly named for its tax benefits: Our Lady of Perpetual Exemption. Oliver showed how easy it is to establish a tax free "church."

3. Should religion be privileged?
No. Our secular U.S. Constitution makes no mention of gods or religions. The only references to religion are in Article VI (no religious test shall ever be required as a qualification to any office), and in the First Amendment (barring Congress from making any law respecting an establishment of religion, or prohibiting the free exercise thereof). Our founders supported freedom of religion because they understood that religious diversity would help our new country avoid the kinds of religious wars that had plagued Europe for centuries. Freedom of religion must include freedom from religion, which means our First Amendment guarantees freedom of religion and conscience.

I hope we are moving closer to not privileging religion over conscience, as Judge Leon ruled in the March for Life case. If the government agrees to an exemption from a law because of religious belief, that same exemption should be available for conscientious belief, as in the 1965 case where the Supreme Court ruled in favor of an atheist conscientious objector to war.

Mark Oppenheimer recently offered an interesting and thoughtful suggestion in Time Magazine, proposing that we end tax exemptions for all nonprofit organizations, including religious institutions. Though politically difficult to overcome special interest opposition, if this passed it would eliminate many of the concerns in the three questions above.

We might even honor the godless Constitution established by our founders, who had no "under God" pledge of allegiance and no "In God We Trust" motto. We the (E Pluribus Unum) people of the United States of America should be free to trust in gods or reason, without government promotion of religion.