Under the president’s health-care reform law, churches don’t have to provide free birth control to their employees, but all other employers do — including church-affiliated institutions such as hospitals and universities. The Roman Catholic Church and other religious organizations have been quick to reject this provision, arguing that it’s an attack on religious freedom. William S. Boyd Law School professor Leslie C. Griffin is a local figure on the frontlines of this national debate.
You wrote a letter that was entered into Congressional Record on Aug. 1, defending free contraception coverage under Obama’s health-care law. How did you become involved?
I had worked with the Center for Reproductive Rights for a while, so we decided to work together to draft this letter. The longer-term answer is that I’ve had a long interest in women’s rights and religion, and so I thought this was a particularly important issue to comment on, especially since the general press coverage had assumed that religious employers have an absolute constitutional right to do whatever they want.
Your letter contends that the law protects women’s rights and does not infringe on religious freedom. Can you explain?
The way I think of religious freedom is to say we have the free exercise clause, and although there are few cases that say the government has to keep complete hands off religious organizations, the dominant theme has been that religions need to follow the law, like everybody else. Otherwise every citizen would be a law unto himself. If the drastic end of my religion said “sacrifice human beings,” that shouldn’t entitle me to do it. And so if you move down from the very extreme to “well, if my religion says I can harm people, or if my religion says I can treat my employees any way I want,” we shouldn’t assume the Constitution protects that kind of freedom. What the Constitution protects is laws that aren’t based on religion and that let us all live together.
Of the 170 signatures on your letter, some of them came from professors at religious-affiliated schools. What does that say about what the American people think for themselves?
That goes back to the first question — how do we think about religious freedom? Religions are not only churches, but they’re running hospitals and they’re running universities. The model of Catholic organizations in particular has been that catholic means everyone is welcome. And so Catholic universities have traditionally had all faiths. Catholic hospitals have had doctors of all faiths and Catholic Charities has given services to people of all faiths. If you have an organization that gets government funding, that admits people of all faith, then you can’t use that as an excuse to impose your faith on them. And so part of the problem is, well, Notre Dame is a great Catholic institution, but why should it get to tell everyone who works there, “no contraceptive insurance for you?” That’s an extreme understanding of religious freedom. That would mean the religious organizations can use their power and wealth to take away women’s right and employees’ rights.
In your letter you quote the New York Court of Appeals as saying, “ … when a religious organization chooses to hire nonbelievers it must … be prepared to accept neutral regulations imposed to protect those employees’ legitimate interests in doing what their own beliefs permit.” The words “chooses to hire nonbelievers” implies that religious organizations could also choose not to hire nonbelievers. Is that correct?
What the laws have said is that everyone assumes churches only have their own members, and in fact, Title VII, the famous civil-rights law, prohibits religious discrimination. It prohibits racial discrimination and sex discrimination. What the statute said is, “We’re not going to apply that to religious employers because it makes sense for Baptists to want to hire Baptists, and Catholics to want to hire Catholics.” We’ve assumed in our jurisprudence that both organizations can pick employees who reflect their views.
If religious organizations don’t get the exemptions they want, will they change their hiring practices or fire people?
The case load right now gives them a lot of freedom to fire people because of the court’s recent decision in the Hosanna-Tabor case [an employment-discrimination exemption that says churches can choose their leaders without government interference]. I think it’s a possibility, but I don’t think they’ll stop providing insurance coverage. That’s always been one threat. Although, when gay adoption laws came about in some states, the Catholic groups said that they would no longer participate in adoption services because they didn’t want to provide children to gay families. So you do see religions opting out. It’s really important that we not bend our laws to the threats of religious organizations.
One of the reasons we have the establishment clause is to keep churches from having too much power in our government. The First Amendment is supposed to protect individuals. The individuals here are women of different faiths, or no faith, and of different conscience. They should be the ones who get to make decisions about their reproductive freedom, not their employers.