As the White House continues dealing with well-publicized problems with the HealthCare.gov website, there’s at least one big question related to the Affordable Care Act that’s outside the president’s control: Can employers with religious objections be compelled to provide access to contraception coverage for their workers?
Supreme Court Justice Sonia Sotomayor has granted a temporary injunction while she considers a challenge to the contraception requirement by a group of nuns called the Little Sisters of the Poor. The Catholic organization serves the poor elderly.
But the case raises questions that reverberate beyond health coverage: How do you protect religious freedom when the beliefs of individuals come into conflict with those of churches or businesses?
The Issue Of A Signature
The Justice Department has argued that the nuns’ group is already exempt from providing birth control under the ACA, as long as it certifies its standing as a religious nonprofit. But the Little Sisters of the Poor, represented by the Becket Fund for Religious Liberty, argues that documentation simply condones employees getting the coverage elsewhere.
“The sisters, under the new Health and Human Services mandate, are being forced by the government to either sign a form allowing a third party to provide contraceptives and abortion-causing drugs to their employees, or they’re being threatened with fines,” says Becket Fund director Kristina Arriaga.
Critics are asking, what’s the big deal about signing a form? The form is there expressly for church-affiliated groups like that of the nuns, so they can register that they’re opting out of contraception coverage. But Arriaga tells NPR’s Arun Rath the provision doesn’t do enough to protect religious liberty.
“Little Sisters of the Poor feel that whether they provide the [coverage] to their employees or they make someone else do it, it’s the same thing. It’s a sin,” she says. “They cannot in good conscience sign that form, and their conscientious objection should absolutely be respected by the government.”
This gets us to the core questions: Who has the right to religious liberty? And what does it mean to exercise that right?
Refusing To Make A Cake
Jay Michaelson, a fellow at the liberal Political Research Associates, wrote a report on “redefining religious liberty.”
“I think we’d all agree that a church shouldn’t be compelled to perform a ceremony that it doesn’t want to perform,” he says. “Then the next level up is religious organizations. So Catholic hospitals, Catholic charities — do they have to obey the same laws as everyone else, or do they have a separate set of laws that applies only to them?”
And what about religious liberty for people who bring their religious beliefs outside of the church and into their businesses?
Jack Phillips’ Masterpiece Cakeshop in Lakewood, Colo., makes specialty cakes, cookies and brownies. He’s owned the shop for 20 years.
“I’m a follower of Jesus Christ, and so I try in every aspect of my life to reflect that,” he says. “In every way I want to have integrity in my life and honesty and love for my fellow man and do everything to the best of my ability to honor Him.”
Phillips says his faith affects everything he does, including how he runs his business. Last September, that became a problem. Two men came to the shop and asked for a cake for their wedding.
Phillips told them he would make cakes for their birthdays and sell them cookies or brownies, but that he wouldn’t make a cake for a same-sex wedding.
“At which point they both stormed out of the shop,” he says. “I just didn’t feel that as a Christian that I would want to participate in a same-sex wedding by providing the cake and my talents and my business for that event.”
A few weeks later, Phillips got a notice from the state. The American Civil Liberties Union had filed a lawsuit on behalf of the two men, alleging Phillips’ refusal is illegal discrimination. Phillips says he is protected by his First Amendment right to live according to his religious beliefs.
In December, a judge sided with the ACLU and ordered Phillips to provide the cakes for same-sex ceremonies. Phillips has appealed.
His case is just one of many like it. In Washington, another baker and a florist were sued, and an Oregon bakery is under investigation for refusing to bake a cake for a gay couple. Arriaga of the Becket Fund says devout business owners have a right to refuse.
“Many of these bakers and service-providers for weddings feel that by participating in the wedding ceremony itself, they’re acknowledging in some way that these are valid marriages and their religion tells them otherwise,” she says.
As for the rights of those who want to wed, Arriaga says the Becket Fund believes they have a right to do so in states that allow it. “However, they should not be forcing individuals who do not agree with their marriage to participate in this ceremony,” she says. “They should seek out parties that share their religious beliefs.”
Michaelson believes that the legal battles reflect a cultural shift in America.
“There are a number of people who really believe that we’ve lost our moral center when it comes to matters of sexuality and gender,” he says. “And they have pretty good reasons for that — I just think the cure is not abridging people’s freedom, but coming to a more expansive understanding of what being in a civil democracy is about.”
At Masterpiece Cakeshop, the fight continues. Phillips has appealed his case on religious-liberty grounds. But what if he loses and the courts say he must provide cakes for same-sex ceremonies?
“I won’t provide the service. It goes against my core beliefs, and I can’t be forced to do something against my will, regardless of what the law says,” Phillips says.
He knows he could face fines or even lose his business license, but he says, “That’s a small price to pay for my faith and for my citizenship.”