Once again, a state court is chipping away at religious liberty. And once again, the Church is the law’s target.
In 2002, the New York Legislature
passed the Women’s Health and Wellness Act. It requires all hospitals,
including religious ones, to provide contraceptive coverage as part of its
health plan. The law applies to all religious institutions, even those, such as
Catholic hospitals, which believe contraception is immoral and assisting others
to obtain it also wrong. The only exception the law allows is one almost
impossible to meet: The institution can be considered a “religious employer”
and thus exempt only is if it is composed of, and provides services to, people
who are primarily of the same religion. A similar statute was upheld in
Catholic Charities of Albany has
sued the state of
In October, the Court of Appeals issued its decision upholding the statute. The court found that the Women’s Health and Wellness Act did not violate the federal constitution because the burden on religious groups’ practice of their faith is an “incidental result” of the law, in that the law itself does not explicitly target religious institutions or believers. The court also found that the legislation did not violate the state constitution.
The theory behind both the
First, they assume that religious
liberty is but one interest among many, and that the
legislature can trample upon long-established religious freedoms if it finds
some other interest — however defined — to be worth promoting. In
The danger in this understanding of religious freedom should be obvious: There is no limit to what “interests” may be used to trump religious freedom. The pressures to pass laws supportive of specific interest groups at the expense of less-defined notions such as “religious liberty” can be enormous.
The New York Constitution recognizes this: It states that “the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all mankind.” Former Supreme Court Justice Sandra Day O’Connor declared that such language “makes sense only if the right to free exercise was viewed as generally superior to general legislation.”
In other words, in
The laws contain a second false assumption: They seriously misunderstand the importance of religious practice to religious liberty. Religious freedom is not only freedom to believe; it is also a freedom to act on that belief. Religious institutions, such as Catholic hospitals, see their work as in part motivated by bringing charity to all, including people not of their own faith. Such an understanding, which can be traced to the Church’s earliest days, is simply inseparable from the faith.
That is why the law’s “exemption”
is ludicrous. Permitting
Laws like this force all institutions into a strait jacket of uniformity, and deny particular groups their own particular ways of practicing their faith. In particular, the Court of Appeals found that the rights of employees — who presumably know they are being hired by a religious institution — trump the rights of their employers to set the tone for their institutions. This is a recipe for either increased separation between religious communities, or will force religious institutions to close their doors for fear of being party to actions they consider immoral.
Gerald J. Russello is a
Fellow of the Chesterton Institute