Religious Liberty & Proposition 8 Once Again
This past week saw a pair of significant developments in the news that are pertinent to the Christian faith, both encouraging and discouraging.
The first concerned what I shared last week about the threat to religious liberty on the part of the current administration in requiring religious organizations to provide insurance coverage for services that they regard as immoral such as the Catholic Church’s having to provide insurance for contraception, sterilization procedures, and even abortion-inducing drugs.
It is very important to keep in mind that this is not a controversy over the morality of contraception or whether contraception ought to be included in health insurance coverage. Rather, this is a First Amendment case about religious liberty and about the attempt on the part of the state to break down the wall of separation between church and state by mandating that religious organizations do things that are in violation of those groups’ religious beliefs. Now, the media unfortunately is notorious for not understanding subtleties and nuances and therefore you often see reported in the news this past week that the majority of American Catholics think that the Catholic Church ought to provide insurance coverage for contraception, as though that were relevant to the issue. But I think you can see that is not at all the issue. As Protestants, I think most of us would think that contraception is not immoral and therefore perhaps we might agree it ought to be included in insurance coverage. The question is whether or not the government has the right to mandate coverage of certain procedures on the part of religious organizations. That is an attempt to regulate religion in a way that goes against the First Amendment. That is the issue.
This week there was encouraging news because President Obama was ready to back away from the requirement that religious organizations provide such coverage. He proposed a compromise solution. I am reading from a news release on this:
President Barack Obama, struggling with a political storm that threatened to keep building, announced a birth control compromise Friday that he said would both protect religious liberties and ensure that the nation's women have access to free contraception.
After weeks of growing controversy, Obama backed off a recently announced requirement for religious-affiliated employers to provide free birth control coverage even if it runs counter to their beliefs. Instead, workers at such institutions will be able to get free contraception [and presumably abortion-inducing drugs and the rest] directly from health insurance companies.
“Religious liberty will be protected, and a law that requires free preventive care will not discriminate against women,” Obama said in an appearance in the White House briefing room.
. . .
Cardinal-designate Timothy Dolan, head of the nation's Roman Catholic bishops, said the changes were a “first step in the right direction.” But he also said there were too few details to know whether the changes addressed the church’s objections.
. . .
Women will still get guaranteed access to birth control without co-pays or premiums no matter where they work, a provision of Obama's health care law that he insisted must remain. But religious universities and hospitals that see contraception [and we might add abortivations] as an unconscionable violation of their faith can refuse to cover it, and insurance companies will then have to step in to do so.
So in this compromise solution, the president has backed away from requiring these religious organizations themselves to provide such insurance coverage. Instead he has mandated that this must be part of the coverage of health insurance companies to deal with.
Now, that removes it, initially it appears, from being a question of religious liberty to just being a political question – whether or not the government ought to be in the insurance business mandating to insurance companies what procedures and practices private insurance companies have to cover. And that is a political question on which it would be inappropriate for me to speak. The question remains, however, whether or not the religious freedom issue has truly been resolved. There are two reasons to think that we need more details on this.
First of all there are religious insurance companies like the Christian Brothers Insurance. Many Catholic institutions have Catholic insurance companies and for the government to mandate that these religious insurance companies provide such coverage would still be an abridgment of their religious liberty and conscience.
Secondly, many faith-based organizations self-insure. That is to say, they don’t have insurance with a separate company. Rather, the employees of the company pool their funds into a sort of self-insured fund from which then medical benefits are paid out. Campus Crusade for Christ used to do it this way. Every staff member would pay into this overall fund and then when you had health bills to be covered, it would be paid out of this fund. So it was effectively self-insurance. The compromise as it is now stated would still require these faith-based organizations then to cover things like abortivations and so forth. You can see where this is going. It is going toward making abortion itself covered.
So it would seem that the compromise solution still has not resolved the religious liberty issue. It still involves an intrusion of government into the rights of religious organizations. The Catholic League chief, Bill Donohue, told Newsmax that several Catholic insurance companies would still fall under the revised directive and he pointed out many faith-based organizations self-insure themselves which presumably means the members would still have to pay for the reproductive choices of others. “Quite frankly,” Donohue said, “he is adding insult to injury. He must think Catholics are stupid.”
So that is the first issue on which some progress has been made but as yet remains incomplete.
The second issue is a very discouraging development in California, namely, the California voter approved ban on same-sex marriage called Proposition 8 was declared unconstitutional by a federal appeals court on Tuesday which could result in this issue coming before the U.S. Supreme Court. According to the news release I read it says,
A three-judge panel of the 9th U.S. Circuit Court of Appeals . . . ruled 2-1 [it was a split decision] Tuesday that a lower court judge interpreted the U.S. Constitution correctly in 2010 when he declared . . . Proposition 8 . . . a violation of the civil rights of gays and lesbians.
So to have a voter approved constitutional amendment in California stating that marriage is between a man and a woman is now unconstitutional according to this three-judge panel.
In an op-ed piece in the Los Angeles Times, Erwin Chemerinsky says,
Tuesday's federal court ruling declaring Proposition 8 unconstitutional can be easily explained: There is no legitimate government interest in prohibiting same-sex marriages. . . .
In one sense, the 9th Circuit ruled narrowly, holding only that Proposition 8 was unconstitutional because it rescinded an existing right in the state. In another sense, though, the reasoning of the court stands for a broader proposition: The ban on marriage equality for gays and lesbians [notice the wording because I’m going to come back to that] serves no legitimate government interest. Under this reasoning — though it was not the holding of the case — any law denying marriage equality would be unconstitutional.
Laws that discriminate against individuals must, at the very least, serve a legitimate government purpose. The 9th Circuit found no such compelling purpose in a California ballot initiative that rescinded the right of gays and lesbians to marry. Instead, the court concluded, the reasoning behind the law could be explained only as impermissible animus.
The ruling states,
Although the Constitution permits communities to enact most laws they believe to be desirable it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted.
Now, notice what the judges ruled. They said that this law discriminates against equality for gays and lesbians. It rescinded the right of gays and lesbians to marry. Now, I want to suggest that this is a complete misreading of Proposition 8. Proposition 8 said nothing about gay and lesbian marriage. What did Proposition 8 actually state? Well, Proposition 8 added a new provision, section 7.5 of the Declaration of Rights to the California Constitution, and it states, “Only marriage between a man and a woman is valid or recognized in California.” That is all it said.
In other words, the measure didn’t say anything about gays and lesbians or homosexual activity. What it prohibited was two persons of the same sex marrying each other. Two men or two women. It mandates that marriage is heterosexual but it says nothing about gay or lesbians. Under same-sex marriage – which is really the way this should be described, same-sex marriage – two heterosexual men could marry each other or two heterosexual women could marry each other. There is nothing in this about gay and lesbian orientation or activity. So, if a couple of men, say, were friends and decided, “Look, if we get married then your employer will have to cover me on the health insurance policy. I’ll get spousal benefits.” These two heterosexual men could marry and cash in on the benefits and under same-sex marriage nobody could object. It would be absurd to say, “But they are not gay, they are not homosexuals, they can’t marry.” Now that sort of law would be discriminatory. You would be saying same-sex marriage is only allowed for gay people or lesbian people, but not for heterosexual people. That would be a discriminatory law. But this Prop 8 says nothing about that. It just says that marriage is heterosexual. It can’t be between two people of the same sex. So, under Prop 8 there isn’t any discrimination against gay or lesbians. They have exactly the same rights as heterosexual people, namely, you can marry a person of the other sex. It refuses to classify or discriminate against one group of people because of their sexual orientation. It leaves that completely out of the picture.
Therefore, the judges were completely wrong in comparing Prop 8 to the case in Colorado a few years ago of Amendment 2 which attempted to deny special civil liberties to gay and lesbian people. In that case, people were specifically singled out. But Prop 8 is quite in contrast to that. In fact, I think that the difference between Colorado and Prop 8 actually goes to support the constitutionality of Proposition 8. The comparison actually supports Proposition 8 because what it does is it simply restricts marriage to a man and a woman and it says nothing whatsoever about a person’s sexual preferences or orientation. It is complete equality before the law.
The reason for adopting this is this is what marriage means. This is what a marriage is. Marriage is an institution of a man and a woman – that is what it always has meant. As I’ve said in previous commentaries in this class, the attempt to deconstruct marriage is what really lies behind this whole episode. It is an attempt to say that marriage has no essence; that marriage is simply what ever any society or group of people decide it to be. There is no essence to marriage and therefore it is completely deconstructed. That opens the door then to, say, marriage between a man and a little girl, a man and a child, or between two men and a woman, or polygamy. So once you deconstruct marriage by saying it has no essence, it isn’t between a man and a woman, then the whole thing becomes completely relativistic and the Pandora’s box is opened.
So I think this is a very sad day for California as well as for the United States. These judges were very shrewd in what they did. As I read from the article, they crafted a very narrow ruling in California which makes it unlikely that this will get reviewed by the Supreme Court because of its narrowness, its restriction to just California. Therefore, it could serve simply to reinstate same-sex marriage in California and never have the danger of being overturned by the Supreme Court. This was a deliberate strategy by these two judges.
In closing, let me just say this underlines once again the importance of whom we vote for for presidency because he appoints these judges. We were in Florida this week and we were talking with an InterVarsity staff worker at the University of Central Florida, and I said to this fellow, “How do you think Florida will go in November?” And his response was, “Oh, I don’t really care. I don’t much know. I am part of that generation which is sort of cynical and it doesn’t make any difference who gets elected.” So he knew nothing about the presidential politics or the issues. I thought, “What naivete. What an ostrich with his head in the sand.” These two men that overturned this California law voted on by the majority of the California people were appointees of Carter and, was it Clinton? Carter and Clinton. The third judge who voted that Californians had the right to pass Prop 8 was a George Bush appointee. So it makes a huge difference who gets to be elected president because of these judicial appointments that really, really affect American society in its deepest way.
 Ben Feller, “Obama adjusts birth control policy after protests,” Associated Press, February 10, 2012. See http://www.dallasnews.com/news/politics/national-politics/20120210-obama-adjusts-birth-control-policy-after-protests.ece (accessed October 7, 2013).
 Lisa Leff, “Court Rules California’s Same-Sex Marriage Ban Unconstitutional,” Associated Press, February 7, 2012. See http://www.kpbs.org/news/2012/feb/06/ruling-near-california-same-sex-marriage-ban/ (accessed October 7, 2013).
 Erwin Chemerinsky, “Prop. 8 ruling: The legal path ahead,” Los Angeles Times, February 8, 2012. See http://articles.latimes.com/2012/feb/08/opinion/la-oe-chemerinsky-proposition-8-ruling-20120208 (accessed October 7, 2013).
 Total Running Time: 18:58 (Copyright © 2012 William Lane Craig)