By Claire Guthrie Gastañaga, ACLU of Virginia Executive Director
(as originally published in the Richmond Times-Dispatch on May 30, 2013)
Religious liberty is among our most precious constitutional rights. In this country, the government may not tell private individuals or institutions what to believe, how to worship or how to express their beliefs. For this reason, the ACLU of Virginia has defended the right of a Jehovah’s Witness employed by the federal government to refuse to sign a loyalty oath, the right of a minister to use a river in a public park to perform baptisms, and the right of public school students to wear rosaries to school and post the Ten Commandments on their lockers. In each of those cases, the government’s actions went to the core of religious belief and expression.
But while precious and fundamental, the right to religious exercise is not absolute, and does not automatically grant blanket exemptions from laws that advance the general welfare and protect individual rights. For example, a parent may not abuse his child, even if he is sincerely motivated by the biblical admonition that “he that spareth his rod hateth his son: but he that loveth him chasteneth him betimes.” Similarly, a person with strong religious objections to war is still required to pay taxes that support the Department of Defense. And, Bob Jones University was not allowed, in the name of religious liberty, to maintain its tax exemption and discriminate intentionally against some applicants and students based on their race.
Large corporations and institutions with numerous employees, particularly those that engage actively in offering or selling their services to the public and accept federal and state funds in payment for some of those services, have the ability to affect many lives through their conduct. The extraordinary control employers have over their employees is why we have federal and state laws that require employers to provide safe workplaces and to refrain from discrimination. These goals would be undermined if every employer were entitled to choose which laws to comply with based on the religious or moral beliefs of the employer.
In one case, for example, a religiously affiliated school provided a “head-of-household salary supplement” to all married men, but not to married women, in violation of the federal Equal Pay Act. According to the school, the distinction was based on biblical teachings that the husband is the head of the family. Federal courts rejected this argument, finding that it would not severely burden the school’s religious exercise to pay men and women equally, and that the government had a compelling interest in ensuring that men and women are treated equally in the workplace.
Similar logic applies to recent claims by Liberty University and other employers that their religious liberty is violated by a requirement under the Affordable Care Act to provide a comprehensive employee health care plan that includes coverage of prescription contraceptives. The government’s interest in promoting women’s health and equal treatment is particularly strong. Women’s ability to time their pregnancies is critical to preventing a range of medical complications for both mothers and children. Unplanned pregnancies can affect women’s ability to participate equally in the workforce. And the denial of contraceptive coverage causes women to shoulder an unequal share of health care costs.
The contraception rule already includes various religious exceptions and accommodations for nonprofit employers. Liberty University’s complaint is that it cannot take full advantage of these exceptions because it is self-insured. But even for nonexempt employers, none is required by the Affordable Health Care Act to provide contraception directly to any person, or to endorse or promote its use. Each is merely required to offer a comprehensive health care plan for its employees. In the same way that some employees may use their pay to buy prescriptive contraceptives, or may use the vacation or sick time to schedule an abortion, they may also use their health care plan to obtain contraception.
An employer’s refusal to offer comprehensive health care coverage effectively imposes the beliefs of that employer on its employees. In Virginia and throughout the nation, we are all entitled to our religious faith, but that does not give us license to break the law and discriminate against others in the name of that faith.
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