The assertion that the requirement that contraception be covered by health insurance plans violates RFRA and/or the 1st Amendment faces the problem that if a “burden” on religious freedom this trivial is sufficient to render a law inapplicable legislating would be essentially impossible. When the argument is advanced by a secular, for profit corporation, the argument faces the additional problem that the concept of such an entity “exercising” religion is nonsensical. Yesterday, the 6th Circuit did a terrific job of explaining why these arguments are terrible in ruling against the claim brought by Eden Foods:
When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from [statutory schemes] to an employer operates to impost the employer’s religious faith on the employees.
By incorporating his business, Potter voluntarily forfeited his rights to bring individual actions for alleged corporate injuries in exchange for the liability and financial protections otherwise afforded him by utilization of the corporate form. Adoption of Potter’s argument that he should not be liable individually for corporate debts and wrongs, but still should be allowed to challenge, as an individual, duties and restrictions placed upon the corporation would undermine completely the principles upon which our nation’s corporate laws and structures are based. We are not inclined to so ignore law, precedent, and reason.
Precisely correct. Individuals who form corporations can’t have it both ways, and in addition an exemption from the mandate would represent a net diminution of religious freedom.
As Pieklo also observes, in footnote 3 Judge Daughtrey astutely cites Irin Carmon’s interview with the chairman of Eden Foods, which gave away the show. The relevant passage:
“Because I’m a man, number one and it’s really none of my business what women do,” Potter said. So, then, why bother suing? “Because I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.” He added, “I’m not trying to get birth control out of Rite Aid or Wal-Mart, but don’t tell me I gotta pay for it.”
Just like the suits resolved by Sebelius were libertarian arguments cloaked as “federalism” arguments — “but they can make you buy broccoli!!!ONE!111!” applies equally to any level of government — these lawsuits aren’t really about religious freedom. They’re an argument that, at least when it comes to government policies conservatives don’t like, the Constitution enacted Mr. Robert Nozick’s Anarchy, State and Utopia. The argument hasn’t improved since 1905.