There’s been quite a bit of discussion recently about the Obama Administration’s manner of implementing provisions of the Affordable Care Act by requiring that employer-funded healthcare plans include contraception. By now, every Reader here should be familiar with the objection: employers owned or controlled by the Roman Catholic Church and other religious entities object to the use of contraception on religious grounds, and they want an exemption to this provision of the ACA. The Administration has signalled that it is willing to allow these employers to not directly fund this, by way of instead having insurers provide the contraception, but this is obviously a tissue of cover which those religious employers see through and does not assuage their concerns.

Seems to me, though, that before we treat this as a cultural issue, we need to look at it as a legal one. If it turns out that the law, or the interpretation and implementation of that law, violates the Constitution, we need not consider further whether we think it is a good idea, a reasonable idea, or even a defensible one. Also, if we can see that the law does constitute a restriction on religion, that will educate a discussion about a purported “war on religion” advanced by the Obama Administration.

I don’t believe there is a “war on religion” underway, but at the same time, I have a strong constitutional concern about this law, so this particular issue is not strong evidence for my first thesis. More after the jump…

Here, religious employers have an objection to a particular rule and the question is whether the rule is enforceable against that objection. This, Ladies and Gentlemen, is what we call a “Constitutional challenge,” in this case based on the Free Exercise Clause. The Free Exercise Clause of the First Amendment reads as follows: “Congress shall make no law respecting an Establishment of religion, or prohibiting the free exercise thereof” (emphasis added).

The test for determining whether this provision of the Constitution has been violated has been the subject of some judicial and legislative wrangling over the last generation and is not exactly clear as applied to a state government. But we can be clear that at least as to the Federal government, is functionally the same now as it was 1963. Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006).* That test, confirmed in statute, was originally described in the case of Sherbert v. Verner, 374 U.S. 398 (1963), and has two two-part prongs. Note, though, that this is the result of legislative action, which I’ll address in a moment.

Under the Sherbert test, the challenger must meet an initial burden of proving two facts:  first, whether the plaintiff challenging the Federal law has a claim implicating a sincerly-held religious belief, and second, that a governmental action imposes a “substantial burden” on the exercise of that belief. If the plaintiff cannot make that showing, the plaintiff loses and the governmental practice is valid.

Upon making that proof, the plaintiff presumptively wins, and the burden then shifts to the government to justify its action by proving two additional things. First, the government must prove that it is acting in furtherance of a “compelling governmental interest,” and second, that its actions are narrowly-tailored to realize that interest in the fashion that is least restrictive on religious freedom possible. If the government can meet both tests, it has redeemed the law, and it prevails. Otherwise, the plaintiff wins the constitutional challenge.

Under the Sherbert test, I see very little problem with the challengers being able to meet their burden. There should be little doubt that the RCC has a sincere religious objection to the use of contraception. I need not normatively agree with that objection to acknowledge its sincerity, nor should anyone else. The question on this side of the test would be whether being required to pay for contraception in an employee health care plan, whether directly or indirectly through a private insurer, imposes a burden on that belief.

And of course it does. I’m an atheist and I object to my money being taken from me at the government’s behest and its then being used to pay for things that promote religion. For instance, this entity raises a big Establishment Clause problem for me no matter how noble and beneficial its activities are. (Note that the Supreme Court chose to duck the issue rather than address it on its merits, Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007)). It’s tax dollars being spent to subsidize religious activities. So I am similarly sensitive, on behalf of my religious counterparts, of their money being used to pay for things to which they have specific religious objections. It does no good to use the two-step method proposed by the Administration to filter the funding through a private insurance company, because at the end of the day, it’s still the government telling the RCC to use its money to buy The Pill.

Think of it this way — could Congress compel the RCC to pay for an abortion? Never mind that it would never do such a thing, the question is could it? And the answer to that should be in the negative, because to the RCC, abortion is murder and no reasonable observer could doubt the truth and sincerity of that statement. The RCC holds that abortion and contraception are both serious moral matters implicating human life.

The burden then shifts to the government to justify itself. What “compelling governmental interest” is advanced by requiring employers to provide The Pill to its employees in its health insurance plans?

I can think of scads of legitimate governmental interests that this practice might meet, if we were dealing with something to which we could properly apply the rational basis test. But it’s not — freedom of religion is a fundamental, enumerated, individual Constitutional right, which means we need to use a strict scrutiny standard as articulated in Sherbert. Providing good, comprehensive health care to all Americans is not a matter of national survival. It is not something against which the very fundament of the Republic, of our culture, of national security, must be balanced.

Health care is a good, but not a compelling one. Indeed, there are very substantial arguments that health care is not the business of the Federal government at all, and that it does not even survive a rational basis test when compared with Congress’ enumerated powers. I happen to disagree with that argument, but we need not dig into that matter here. Suffice to say that if that argument were ultimately to prevail, and even Medicare were to be repealed in full, the rule of law and orderly society in the United States would not break down.

This is also why I am largely unconcerned with whether Sherbert v. Verner is fully viable law after Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). Even if it isn’t, the First Amendment is still in effect and the First Amendment still demands application of strict scrutiny against the use of governmental power when that power implicates a fundamental right like religious belief. So I recognize a legal argument that maybe, by passing the ACA, Congress carved out (perhaps unintentionally) an exception to the Religious Freedom Restoration Act of 1993, which legislatively reinstituted the Sherbert test after the Smith case, and even if Gonzales v. O Centro Espírita Beneficente União do Vegetal did not make clear that Sherbert is the appropriate framework under RFRA for at least Federal-level Free Exercise claims, we’d still be in the world of needing to find both a compelling interest and narrow tailoring.

The pay-for-it-through-third-party-insurance option offered recently by the Administration looks aimed more at the fourth factual issue, narrow tailoring, than it is at identifying a compelling governmental interest. I can see that this proposal might make achieving the objective of providing contraception as part of a health care plan easier to implement for a religious institution that objects to contraception. I don’t think it gets there because an indirect compulsion to pay for something objectionable is still a compulsion to pay for something objectionable, but again, I don’t need to reach that issue.

The absence of a compelling governmental interest in a contraception mandate renders this portion of the Affordable Care Act, at least as implemented in this instance, an unconstitutional violation of the Free Exercise Clause. The principled thing for the Administration to do is set up a process by which religious institutions can apply for and reasonably obtain exemptions from being required to comply with this portion of the Act.

* This happens to be among my favorite case names in all of Supreme Court history.

In light of some of the responses to the League’s constitutional convention, I’ve been doing some thinking on the subject of so-called positive rights and want to take the pulse of readers here.  To those of you who believe there is or ought to be a constitutional right to health care, do you believe this right exists outside the context of the state? That is, if we suddenly found ourselves stranded on a desert island with no government or formal laws, do I nonetheless have a right to receive medical services from you similar to your right against my stealing your possessions or causing you physical harm? What if you need my shirt to strain your drinking water–part of your "rights" to basic food, water, and health care? Can negative and positive rights co-exist?

You can see where I’m going with this: some kind of things are appropriately called basic, or constitutional, rights, and others are something else. But I genuinely want to understand the case for putting positive rights in a constitution, and how they might interact with or impact negative rights.

After initially posting this on Dutch Courage, I came up with an alternative formulation of the question, which I posed to @kylecupp and @eliasisquith in our ongoing Twitter discussion:

Are positive rights PERSONAL?  Can I AS AN INDIVIDUAL (or a group or even a government agency on my behalf) enforce a “right” AGAINST YOU to provide certain things (health care, food, retirement,  education, etc.) TO ME?

Keep in mind that, as a conservative and more importantly as a Christian, I accept I have certain moral obligations to my fellow man.  But it is my belief that if I shirk in those duties, I account to God, not to any man.  Political obligations, on the other hand, do require us to account to man.  Are the positive rights mentioned above, in the world constitutions mentioned in the study about our unlovable constitution, or in the South African constitution TVD referenced, the sort we account to other men if we fail to provide?  Are they personal, or are they for us each to work out for ourselves in fear and trembling in our respective moral and/or spiritual beliefs?

Kyle’s comments also got me thinking about something else.  (Kyle, you really have been my muse this week!)  Most of the “rights” in our Bill of Rights really are structured as natural rights.  The right to free speech is only guaranteed as against Congress making any laws abridging it.  It was later extended to mean any act of any arm of government, federal or state.  But notice that it never mentions that we have a personal right of speech, i.e., as against other private citizens or entities.  Yet obviously it exists.  If there was not an implicit, natural right to freely speak, I would be permitted to use reasonable force to prevent you from speaking ill of me—even if true.  But the uncodified common law has never permitted this, having always recognized a basic negative right to speech.  Similarly, the right to private property is protected by the Fifth Amendment against taking by the government unless for a public use, and even then requires just compensation.  But surely the Constitution’s silence as to common private theft does not suggest neutrality on the matter. 

Implicit in our Constitution, then, are natural rights to speak freely on true matters and to own private property.  So fundamental are these negative rights as against our fellow citizens that they have existed in the common law throughout our nation’s history. 

Here’s the point:  The intellectual and legal history underlying our Constitution reveals its adoption of a political philosophy of negative rights.  I don’t think there are any implicit positive rights in the Constitution, other than procedural rights (habeas corpus, jury trial, confrontation of witnesses, etc.), but I’m open to correction.  So if we were going to craft a new constitution, then:

(a) Do negative rights conflict with the positive rights we might want to include in that constitution? 

(b) If so, do we need to disavow our long common law history to the extent it champions those negative rights? 

(c) Do we need to identify a new political philosophy that provides the intellectual basis for a constitution of positive rights (like the Framers did by invoking Locke’s phraseology in adopting a constitution of negative rights)? 

All This And More Awaits You at Leaguefest 2012!

And this is what my recent experience was, so you can get an taste of what you’re in for:

Bright Lights, Big City

I admit that I’ve been something of a Strip snob in the past. But the off-Strip location is actually good. Having wandered around the Strip last night, frankly, it was too much. Too many people distracted by too many bright lights and loud sudden noises and every concievable product or service being sold accompanied by images of functionally nude women. As a spectacle there is nothing like it anywhere else — but it would be entirely possible that the roughly twenty of us (including spouses) who, for the most part, have never met in real life, would miss one another in the crush.

The Las Vegas monorail favorably impressed me as a useful transportation vector. It’s pretty handy for getting to the Strip from the LVH if you’re of a mind to take your partying and gambling mobile for whatever reason. It’s faster and less costly than a taxi, with fewer pitches for girlie bars. I was favorably impressed with the utility of the monorail for taking your partying mobile, although there may be some walking through crowded casinos on the Strip to do if you have a particular destination in mind. If you’re going to be visiting the Strip during LeagueFest, don’t cheap out — buy the unlimited three-day pass right away, that’ll be good for basically the whole time you’ll be there. The only significant criticism I have of the monorail is that it doesn’t run to the airport, and I suspect that is by design to keep it from being crowded with arrivals and departures with baggage. The monorail station is right next to the SpaceQuest bar where we’re planning on meeting Friday night.

Speaking of which, the SpaceQuest bar is still recognizable as the old Star Trek Experience bar back from the days when the Hilton had the Star Trek Experience, although there is nothing definably “Star Trek” about it. It’s got a wooden parquet dance floor, which seems incongruous compared to rest of the decor. There are slot machines intruding into the area, and when we were there the bar was manned only intermittently for lack of interest. On the busier nights, though, this will not be a problem.

If you’re like me, it takes a jarring event to shake the cheap out of you. For me, it was when the casino bar demanded nine dollars for a G&T. Once I got over that and said, “Burt, you’re on vacation, just relax,” I was able to relax, drink, and have a good time. As a lover of obscure cocktails, I’m perenially disappointed, though — my favorite martini variation is virtually unknown in the entire city. Instead, each bar seems to have its own special drinks, the bulk of which are exceedingly sweet.

The steakhouse was excellent. I had a perfectly-made hunk of prime rib worthy of service at the White House — juicy, tasty, and beefy. A few words with the manager confirmed my suspicions — we need to secure a reservation right now for a group dinner on Memorial Day weekend. So I’m going ahead and setting up that group dinner there right now. That’s where dinner will be.

The LVH has also combined its wine and coffee bars. For those who choose not to partake of alcoholic beverages, this is a fine place to meet and relax, a variation on the ubiquitous Starbuck’s (and indeed, the coffee is Starbuck’s) which is now found de rigueur in every casino.

The 24-hour coffee shop in LVH is entirely adequate. I had the Eggs Benedict and I’m too much of a snob to have truly enjoyed them. If you don’t mind reconstituted-from-powder Hollandaise Sauce on your Benedicts, then you’d have been very happy with them.

The room is comfortable and quiet. This is the only hotel I’ve seen in Vegas with a thirteenth floor. Since I’m neither much of a gambler nor superstitious this does not bother me but I find it amusing nonetheless. On the down side, internet is $13.99 a day, which seems a bit high to me even at Vegas rates and even after overcoming my aversion to ten-dollar cocktails. The cable in the basic room is, well, basic. As with the classic Vegas hospitality mentality, the room is intended to be a place where you rest and relax, but not a destination. In the upgraded rooms, there is more luxury in which one can wallow.

The pool is good, there are tennis courts on-site, and the Las Vegas Country Club is right there and the Wynn Country Club is only a block away, if you like golf. Although these are private clubs, the concierge at the hotel can arrange a tee time if you’re interested in that sort of thing. Don’t forget to tip the concierge when she arranges something for you.

Same thing is true if you use a concierge to line up a show. The show that all the staff and a few of the guests were talking talking about is Absinthe at Caesar’s Palace. It’s part comedy, part magic, part burlesque and the people I spoke to and overheard all said they enjoyed it immensely. I’ve also seen Penn & Teller at the Rio, and that’s a very enjoyable show. Country-music fans will enjoy Garth Brooks at the Wynn Encore. The shows at the LVH were an Elvis impersonator tribute and a multiple-musician impersonator, neither of which particularly interested me. There are often reasonably big-name acts at various casinos; when we were there Mötley Crüe was doing a two-week gig at the Hard Rock, and judging from the pictures, those guys are looking a little weathered. By way of comparison, the LVH was promoting two days of shows by Chicago, who are about the same age but whose photographs show the benefits available from good grooming. There are six Cirque du Soleil shows at various locations on the Strip (they claim seven, but that’s counting the magic show at Luxor). Those are about the most expensive shows to see but you probably get the most entertainment bang for your buck there.

The whole Vegas experience is a bit surreal. There is no time — no clocks, climate control, lighting control — and a lot of environments are filled with bright lights, loud sudden noises, and the Brownian movement of throngs of distracted and mostly-aimless people. So it becomes difficult to gague how much time passes in any particular location or to maintain a mental focus on anything. But there are refuges available, in the quieter bars, near the nicer restaurants, on the south side of the hotel nearer the convention facilities.

For what we have in mind, we’ve happened across what ought to be a very good venue. We don’t want the sensory overstimulation of a Strip hotel, we want an opportunity to meet and mingle with one another. The LVH is filled with good places for that. And we are filled with good folks to meet up with. Give the LVH a call, book your room, get a flight, and we’ll see you Memorial Day weekend!

Headline of the Week

Everyone welcomed back Tom Van Dyke after he returned from what must have been the worst League hiatus ever. Ever.

New Bright Shiny Object of the Week

Unsurprisingly, the big “new” story was the same here as it was everywhere else on the internet: the Non-Profit Celebrity Death Match between Susan G. Komen for the Cure and Planned Parenthood.

Pat was thoroughly unimpressed with Komen’s weak-sauce apology, and I argued that Komen tripped up the moment they decided to deviate from their core mission.

Politics, Government & Elections

In Tom’s first “issues” post penned on one leg, he argued that Obama overreached by taking on the Catholic Church.

Ryan’s musings on that same contraception issue left him thinking that the employer paid mandate just isn’t the answer.

Jason, on the other hand, looked at the Contraceptive/Catholic polls and thought that we were all asking the wrong questions.  He also took a look at what due process is as opposed to should be, and looked once again at the travesty that is our prison system.

Christopher wasn’t so impressed with how the cops treat suspects before they even get to prison.

Burt took a first look at the court’s narrow ruling on Prop 8.

Erik marveled at the right’s eerie, awe-inspiring ability to always use the exact same words and phrases, and wished that they might use this power for good rather than evil.

Tim lamented that youthful countries today just don’t make constitutions like they used to back in the day.

I thought out loud about why it is we never do amendments all the time like we used to when we were young and in America’s honeymoon stage.  We were like amendment rabbits back then.  Figuring that maybe we just needed a little something exotic to put us back in the mood, I suggested we role play and make some of our own.

Mark argued that unions and libertarians need not be on opposite sides of the field.

Pat used kids in full color panels to illustrate regulatory capture.

Food & Drink

Mike thumbed his nose at New York, San Francisco, and food snobs everywhere as Kentucky cuisine became the new black…

… but you’re going to need something to wash that down with. Boegiboe suggests a glass of Arab Spring with rose syrup for Valentines Day.

Culture

Mark used his Friday Jukebox to show us that you can find good things even in Texas and Canada, and sometimes – rarely – even in a Superbowl halftime show.

I argued that not all artistic accomplishments are equal; neither, by the way, are NBA players.

Guest writer Sam, however, still does not agree with me on the whole art thing.

Real Life

David’s boat continues to go from a really cool idea to an amazing work of art.

Patrick passed along a call for help from a group of kids that will someday own all of us.

Christopher looked to play John Henry to Google’s steam engine in the growing world of patent translation.  If he beats Google but dies in the process, our next group assignment will be to write a folk song about him.

~ by Sam Wilkinson

1. I will happily argue with you about the best hot-dog in the world.  I’ll tell you that it is served at Gene’s in my hometown, and that the idea way to eat one is with chili, ketchup, and raw onion. If you want to argue about this – if you think you’ve got some superior hot dog that you can offer me that has a superior combination of preparation and toppings – you should know in advance that you are wrong.

You should also know in advance that I know that I am wrong.

Not about the relative quality of a Gene’s hot dog because seriously, they’re delicious, but about my entire argument. I know it to be wrong because I’m not making statements based upon factual truths. I’m making statements based upon a set of personal preferences (my own) that happen to align perfectly with a specific hot dog (a Gene’s hot dog). The same, incidentally, can be said of whatever hot dog you’d offer to me as better. You’re not telling me anything about the hot dog itself; you’re telling me about what you prefer.

2. One common mistake we make when encountering preference is to assume the reasoning behind it. I have written about that elsewhere. But another mistake is to conflate individual preferences for a thing (no matter what that thing is) with fact specific to it. For instance, when I describe a Gene’s hot dog with chili, ketchup, and raw onion as being the best hot dog in the world, I’m not telling you anything about the hot dog itself. I’m telling you about my preference for it and where I rank order it with all of the other hot dogs that I have ever consumed. But the hot-dog though? It is just a hot-dog, and although I can tell you facts about it – how it was cooked (steamed), what kind of bun it was served on (steamed), what kind of ketchup goes on it (Heinz) – my declarations about it have no, substantive meaning.

A conversation about hot-dogs though isn’t particularly compelling. Food, perhaps, is one of the easier topics to acknowledge preferential divergence; we can all agree that we’ll probably never know whose  mom’s meatloaf was the best. But what of other things, as we might collectively describe them? What of art? Or music? Or movies? Or thought?

3. I clench whenever I see mention of “High” or “Low” art, both because the concepts are almost always employed in conversations designed to make somebody feel badly about themselves and because they are wrong. There is no such thing as “High” or “Low” art. There is only art. And all of it, regardless of what we think of it, has a value of null.

This, make no mistake about it, is relativism. I am specifically arguing that all artistic production has no intrinsic, inherent value beyond an individual’s consideration of it. For the sake of conversation, please understand that my endorsement of this relativism comes before we even begin to reflect on the particular and inherent biases that exist within the promotion of particular canons, ones which are often comically imbalanced in favor of certain traditions, cultures, skin colors, gender, geographic region, etc. It also comes before we begin to consider what effect blind consumption of art would have versus influenced consumption of art, by which I mean: is there an example of what a person preferences if they’re dropped into a genre without preconceived notions of any kind?

There are, of course, factual realities about art: how much the piece sold for, how many people have viewed the piece, how many times it has been cited as an influence, how long it has survived, etc. These are tangible, reasonable measures that we can assign to artistic achievement that might have particular meaning. But we rarely reach for that information when we speak about art. Instead, we make declarative comments about the thing, spouting statements into the world that as if they are unassailable truths and not simply our own preferential understanding of the object.

For example: when somebody says that Citizen Kane is the greatest film of all time, they’re almost certainly reflecting their belief that Citizen Kane is the greatest film of all time as a result of the way in which it lined up with their own needs and wants of a movie. However, they are no more right than the person who says Adam Sandler’s latest is the peak of cinematic achievement, even if a thousand critics and a thousand scholars line up in opposition. That person prefers the one to the other. It is as simple as that.

What comes next is often worse, because it generally isn’t a tolerance for our differences, but rather, a lecture about the ignorance particular consumers. “Oh, if only the person listening would just watch Citizen Kane, they’d understand its transcendent achievement in the world of film…” as if the person who prefers watching Sandler’s latest is now not only wrong, but ignorant too. And here I should admit that while Sandler is not now nor never will be my preference, neither will I trend toward Citizen Kane.

Maybe this makes me a double-snob.

4. The thing we all try to do to take the subjective reality out of our analysis is construct frameworks – often elaborate, complicated ones – that allow us to claim that our preferences for things are in fact correct. (I am, for the record, just as guilty of this as the next person.)        We do this because we want to be right. That’s a fair thing. But the frameworks themselves represent nothing more than a collection of our preferences expressed through a particular collection of facts that we assemble in the attempt to buttress our own beliefs. So if, for instance, we believe that Citizen Kane is film’s highest achievement, we might look to RottenTomatoes for its aggregate scoring of the movie, IMDB’s overall rating of the movie, and the evaluations of several highly considered critics. But all we’re doing is selectively choosing the data that makes our point for us while intentionally ignoring all of the data that does nothing of the sort. We are not engaging in the pursuit of truth itself, but rather, truth that we prefer, one that reflects our own critical evaluation of whatever piece of art we want to discuss.

5. I have never found a better and more concise endorsement of this sort of relativism than Duke Ellington’s, “If it sounds good, it is good…” and I have yet to see a substantive rebuke of that argument, nor do I imagine that I ever will. Art of all kinds is in the senses of the beholder. In Ellington’s case, he was describing music – something so dominant, so prevalent, so necessary for our very existence. Without knowing any of you, I am certain that each of you has particular music of specific importance to your life. Who am I to tell you otherwise? Who am I to tell you that your preference for particular music – no matter what that music might be – is wrong? Yet that is the argument that the person arguing against relativism makes, implicitly or explicitly. It is a fool’s errand. Or, to put that another way, we can preference the things we preference for our own peculiar reasons without needing an objective scale to tell us our pleasure is justified.

The things that affect us are individual to us and often cannot be accounted for. In fact, the world would be a worse place if they could be. Can you imagine the boredom of knowing that there were right answers in music and literature and movies and performance and hot dogs? I can’t. Nor do I want to.

Tom quotes a Rasmussen poll:

39% of Likely U.S. Voters believe the government should require a church or religious organization to provide contraceptives for women even if it violates their deeply held beliefs. Fifty percent (50%) disagree and oppose such a requirement that runs contrary to strong beliefs, while 10% more are undecided.

Which — alas — means that 89% of Americans didn’t care enough to challenge the question. We don’t know how many of them hung up in disgust, so perhaps there’s still hope. But to me, the real question is very, very simple: Does the institution take state money?

If yes, then the state may withdraw that money at any time for failure to comply with clearly stated policies for how it’s to be used.

If no, then the state needs to back off and let the church run its own affairs without interference. It doesn’t get a choice. That’s what it has to do.

Religious freedom doesn’t mean that you get to spend the public’s money in whatever ways your conscience dictates. It means you get to spend your money in whatever ways your conscience dictates. So discriminate all you like — with your money. With the public’s money, our representatives decide.

Democracy is wonderful — when it’s making decisions for the public’s money. When it’s making decisions for the private sector, it’s an abomination. And vice versa. Private religion is great, when it’s only spending private money. When it thinks it can take taxpayers’ money and do whatever it pleases, it oversteps the line.

So. That poll question deliberately obscures the only important issue. It embroils all of us even further in a conflict that doesn’t have any satisfactory solution. Why did they ask it? That’s why. That’s the whole point of it.

According to Bloomberg, Catholics Joe Biden and ex-Chief of Staff Richard Daley tried to warn President Obama off this latest debacle, that

the [contraception] mandate would be seen as a government intrusion on religious institutions. Even moderate Catholic voters in battleground states might be alienated, they warned, according to the people familiar with the discussions.

So far, a Rasmussen poll of 1000 likely voters bears that out, that only

39% of Likely U.S. Voters believe the government should require a church or religious organization to provide contraceptives for women even if it violates their deeply held beliefs. Fifty percent (50%) disagree and oppose such a requirement that runs contrary to strong beliefs, while 10% more are undecided.

What Obama and his female advisors like ringleader HHS Secretary Kathleen Sebelius [also a Catholic] misunderestimated was that although most US voters—including Catholics—have no problem with contraceptives on any level, they still have an appreciation for religious liberty. They disagree with the Roman church’s position on contraception, but via American religious pluralism and the First Amendment, believe that the church has a right to its religious belief and that it should not be molested by the government.

The irony is that although most folks these days think of the “separation of church and state” as a defense against theocracy, for much of Christendom’s history in the past millennium, it was the state that tried to hijack the church at least as often.

Somehow, the American people, or at least a strong half of them, get this founding American principle, that the churches must be kept safe from the government as well. From the earliest days of the American republic, the Quakers and Anabaptists were granted immunity from the obligations of military service. Even from swearing oaths! In her best moments, America has been proud of her pluralism, her accommodations for our religious diversity. The Obama administration’s attempt to impose financing contraception on the Roman Catholic Church has been on the order of parking a howitzer in the middle of a Quaker Meeting House and setting up cots in the kitchen.

Why?

Why the Obama Administration has chosen the present moment for this is hard to say, especially after the Supreme Court unanimously [9-0!] laughed it out of court in the recent Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, where the D0J tried to apply secular employment laws to the Lutheran Church. The Bloomberg story speculates that

Health and Human Services Secretary Kathleen Sebelius, a Catholic and a two-term governor of Kansas, was joined by several female Obama advisers in urging against a broad exemption for religious organizations. To do so would leave too many women without coverage and sap the enthusiasm for Obama among women’s rights advocates, they said, according to the people, who spoke about the deliberations on condition of anonymity.

and this may be so, that BHO doubled down on the Hosanna-Tabor debacle for election reasons. It certainly made people forget Hosanna-Tabor, that’s fer sure, although I doubt there were very many who were aware of it to forget it in the first place.

Even The Economist is puzzled: Barack Obama has been accused—perhaps unfairly— of conducting a “war on religion.” But this latest chapter of Obama’s putative war could have been avoided. He sought this one out, not vice versa.