Remember the ham sandwich analogy? To refresh your memory, at Rep. Darrell Issa’s show trial about the Obama adminitration’s alleged war on religious freedom, the U.S. Conference of Catholic Bishops’ representative, Bishop William Lori, testified:
For my testimony today, I would like to tell a story. Let’s call it the Parable of the Kosher Deli. Once upon a time, a new law was proposed so that any business that serves food must serve pork. There is a narrow exception for kosher catering halls attached to synagogues since they serve mostly members of that synagogue, but kosher delicatessens are still subject to the mandate.
The Orthodox Jewish community, whose members run kosher delis and many other restaurants and groceries besides expresses its outrage at the new government mandate, and they are joined by others who have no problem with eating pork, not just the many Jews who eat pork, but people of all faiths because these others recognize the threat to the principles of religious liberty. They recognize, as well, the practical impact of the damage to that principle. They know that, if the mandate stands, they might be the next ones to be forced under the threat of government sanction to violate their most deeply held beliefs, especially their unpopular beliefs.
Meanwhile, those who support the mandate respond that pork is good for you. Other supporters add so many Jews eat pork, and those who don’t should just get with the times. Still others say those orthodox are just trying to impose their beliefs on everyone else.
But in our hypothetical, those arguments fail in the public debate because people widely recognize the following points. First, although people may reasonably debate whether pork is good for you, that’s not the question posed by the nationwide pork mandate. Instead, the mandate generates this question: Whether people who believe, even if they believe in error that pork is not good for you, should be forced by government to serve pork within their very own institutions. In a nation committed to religious liberty and diversity, the answer, of course, is no.
There must have been a memo about the ham sandwich, because this analogy has been deployed by many of the Bishops’ defenders, even before Lori’s testimony.
In the current issue of the Forward, Brandeis University historian and chief historian of the National Museum of American Jewish History Jonathan Sarna offers the best response to this ridiculous hypothetical and puts his finger on exactly how it distorts the interplay between the Free Exercise Clause and the Establishment Clause:
The analogy to “forcing kosher delis to sell ham,” put forward by Bishop William Lori, exemplifies the way the problem is misunderstood. In America (unlike in Israel), people have the right to choose whether they want to sell ham and whether they want to consume it; neither option is proscribed. We all might agree that kosher delis should not be coerced into selling ham, but hopefully we would also all agree that a deli’s employees and customers should not be penalized for choosing to consume it.
Rabbi Meir Soloveichik, the sole Jew to testify at the hearing, complained in his testimony that the Obama administration “implicitly assumed that those who employ or help others of a different religion are no longer acting in a religious capacity and as such are not entitled to the protection of the First Amendment.” In other words, Soloveichik charged the administration with trampling on the Free Exercise rights of employers while ignoring the wrong of religious coercion of their employees.
Sarna, who writes that he hopes Congress will ignore Soloveichik’s testimony, shines light on how Soloveichik and the other Issa witnesses ignored the Establishment Clause in favor of the Free Exercise Clause:
In fact, the government makes no such assumption at all. Instead, it reasonably assumes that employers and employees both have First Amendment rights, including the “no establishment” right not to be religiously coerced. Precisely for this reason, chaplains in the military who certainly act in a religious capacity are prohibited from evangelizing those of other faiths, even when their religion otherwise requires them to do so. Where members of different religions dwell together (even when they do so under religious auspices), securing them all the right to the “free exercise” of their faith is much more conducive to social harmony than allowing employers to impose their faith requirements on their employees coercively.
That’s exactly right. In its original rulemaking, the Obama administration already gave churches and houses of worship an exemption from the contraception coverage requirement. The Bishops and their allies complained first that other religious employers should also be entitled to such an exemption, and later argued, in what’s now known as the “Taco Bell” argument, that any religious executive at any type of employer should be permitted to object to any type of coverage they claim violates their conscience. Republicans attempted to codify this in the Blunt Amendment, defeated last week in the Senate. Had the Blunt Amendment or a similar bill become law, the government would essentially be putting its imprimatur on religious coercion, a no-no under the Establishment Clause. Contrary to the Republicans’ arguments, a government refusal to allow a business to compel its employees to adhere to its religious practices doesn’t violate the Free Exercise Clause. Taco Bell franchisees, take note.
The ardent wish of religious right legal groups and their anti-church-state-separation allies is the dismantling of Supreme Court jurisprudence on the Establishment Clause. Short of that, they’re waging that battle in the court of public opinion and in the legislature. And that’s as traif, constitutionally speaking, as a ham sandwich.