Bishops Have No Religious Freedom Claim

Wednesday night I appeared on Countdown with Keith Olbermann (with the guest host David Shuster) to discuss the birth control coverage issue. There is no video online, but the transcript is. The key point:

SHUSTER: When it comes down to it, though, how close does this mandate, in fact, violate — or get to violating — the First Amendment, as Speaker Boehner and Republicans are claiming?

POSNER: It does not violate the First Amendment. The bishops are misrepresenting a legal issue in order to create a political issue. There are 28 states, in addition to Massachusetts, in which these very similar requirements are in place. In New York and California, the Catholic Charities challenged these laws and lost.

The courts held that these laws did not violate the Catholics’ — or any religious group’s — free exercise of religion, that in order for a law to violate somebody’s free exercise, it has to impinge — substantially burden — their religious practice. And there is no substantial burden on Catholics’ religious practice by providing coverage — insurance coverage for contraception for other people.

No one is making Catholics who do not want contraception to take it. No one is making the bishops take it, and so it’s not really a First Amendment issue in the eyes of the courts. And the bishops have tried to turn it into a political issue, by elevating questions about LGBT rights and access to reproductive care as violations of their religious freedom, which — constitutionally — it is not.

Read the whole thing here.


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