The Rev. Al Sharpton has recently written a piece on the contraception issue that has garnered a great deal of attention lately, and argues that the issue has nothing at all to do with religious freedom, but with a woman’s right to free access to contraception. Here is a link to Sharpton’s piece.
Of course, President Obama has relieved religious organizations of the direct burden of providing birth control coverage to its employees as part of the Affordable Care Act (Obamacare), and shifted that burden over to insurance companies. But that act alone does not mean that the controversy is going away, nor does it cease to be an issue that potentially touches on religious liberty.
Rev. Sharpton has several reasons for concluding that the issue has nothing to do with religious freedom. Primary among them is that contraception is a fundamental right of women, and that organizations receiving federal money cannot refuse to live under the rules laid down by the federal government. He further asserts that most Catholic women use contraception for a range of purposes, and that these religious organizations are not churches, but hospitals, universities, etc. The bottom line for Sharpton is that a woman has a right to be left alone with her decisions regarding her own body.
It is ironic that a person who retains the title of “Reverend” should be making arguments that have the logical possibility of denying his own freedom to hold that title, to say nothing of holding to the dictates of his conscience. But I will not pursue that line of argument further, since it is irrelevant.
Rather, let’s start with his argument that any entity taking federal money is under the obligation to follow federal rules. Certainly, Sharpton has a good point. A religious organization that begins taking federal money does indeed surrender a dose of freedom as to how it will run itself. That’s the problem with accepting federal money, not only for religious organizations, but any entity. But the First Amendment guarantees citizens that the “free exercise” religion will not be prohibited. In this case, Catholic organizations objected to the federal rule obligating them to provide birth control to their employees because doing so would be an act of prohibiting them from freely exercising their religious convictions. The acceptance of federal money, while it does come with strings attached, does not obligate any entity from signing away their constitutional right to freedom of conscience–a right that is explicitly described in the Constitution, unlike a “woman’s right” to free access to birth control.
Second, Sharpton makes the fair point that churches are exempt from this rule. In fact, Sharpton notes that over 300,000 churches are explicitly made exempt. That’s another valid point, and one worth remembering. Still, the First Amendment guarantee of religious freedom does not apply solely to churches. The First Amendment prohibits the federal government from making any law establishing a particular religion, or denying the “free exercise thereof.” According to the Supreme Court decision Barron v. Baltimore in 1833, the first ten amendments only applied to the actions of the federal government, and not to the states. This required citizens to look to their state constitutions for the protection of their civil liberties. But with the passage of the Fourteenth Amendment in 1868, that situation changed. It made the first ten amendments applicable not only to the federal government, but also to the states. Now, the federal government has a duty to protect the rights of conscience of each individual citizen through due process. That duty includes everyone, not just churches. Thus, the first obligation of the federal government is to protect the religious organization’s right to deny access to contraception on religious grounds. Conversely, it is the right of the employee not to continue employment with that organization if that person’s needs are not being fully met.
I’ve said a lot, maybe too much. You can read the article for yourself. I won’t say anything about Sharpton’s point (and he’s not the only person I’ve heard make it) that most Catholic women freely take contraception, except this: that premise is completely irrelevant to the issue of the federal government’s duty to protect freedom of conscience in this land. The government is to recognize and protect our rights, not make them up as it sees fit.