Is the Republican "moral conviction" clause Constitutional?
Background: Republicans in the Senate are pushing legislation that would allow any employer to opt out of any portion of provided employee health insurance if that portion is at oddsa with the emplyer’s religion or moral convictions.
Personally I have always thought the First Amendment needs to be changed to read “free exercise of religion or conscience” because the alternative privileges supernatural beliefs. I take the whole First Amendment as being about freedom of thought and freedom to manifest that free thought. If you don’t want to eat pork nobody should force you to eat pork. It shouldn’t matter whether you are Jewish, Muslim or “merely” a vegetarian. Being a vegetarian can be just as heartfelt, indentity-making, principled and morally informed as any religious dietary restriction.
In my view, every individual is a religion of one. If a bunch of individuals happen to share the same faith they can worship together. Cool. But just because you are the only person with your set of beliefs doesn’t make your beliefs less valid in terms of your rights.
And if I opposed the Iraq war as facially immoral by my own lights that should have the same weight as if I opposed it as a tenet of my faith.
And, bottom line, nobody’s opinions of laws should determine whether they have to adhere to them. I had to pay taxes to fund the Iraq war because everybody did. And if I practiced a human sacrifice religion I would be charged with murder.
Neutral laws of general application are not supposed to yield to religious beliefs (Ironically, as decided correctly by Justice Scalia.)
So I agree, in my weird way, with the Republican addition of “moral conviction” to their no-birth-control bill. What I disagree with is the starting point idea that any church (or person of 'moral conviction') could possibly be exempt from ANY neutral law of general application. Why should religious employers have special rights? If covering birth control is optional for anyone it should be optional for everyone.
Obviously it should not be optional for anyone, including religious employers. Period. We have already decided that Rastafararian faithful are not allowed to enjoy their reefer sacrament so why does a religious employer get to flout the law when it comes to health insurance?
But if they can then yes, anyone should be able to.
But though I have always considered conscience the equal of religion that does not mean the law thinks so. The law has long given organized religion special treatment not available to people who have secular moral convictions.
So this raises the question:
Using the state of constitutional law as it exists, is the Republican “moral conviction” clause constitutional? And if the mere words seem constitutional at first blush ask the further question, “what is the enforcement mechanism?” Can any method of enforcing a moral conviction clause be constitutional?
That’s the rub… assuming a law has real-world consequences (as opposed to one of those “year of the bible” type congressional proclamations) there is a defined class who gains a relative benefit so there must be a mechanism for limiting the conscience exclusion to only people who actually hold that moral conviction.
Can the government properly examine your personal moral convictions?
(I think it has done so, on an administrative level, with conscientious objectors to the military draft, but I am hard pressed to think of another example. They let crackpot parents keep kids out of school on sex education day, or when a black president speaks, but I don't know whether that's on-point because the parents do not need to demonstrate any viewpoint whatsoever... they are simply allowed to keep their kids home without being challenged as to why.)
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