In the continuing flap over the Obama administration’s decision to require Catholic institutions to provide birth control under the new health care law, both sides have failed to come to grips with the complexities of religious liberty.  

In the weeks since the mandate was announced in January, opponents have charged that President Obama is launching an “assault on religion” that will foist a secular ideology on America’s faithful.  They assert that requiring Catholic hospitals and universities to provide contraception in employee health plans is a gross infringement on the freedom of conscience.  Surprisingly, supporters of Obama, and even the president himself, implicitly grant the crux of this argument.  They put the question in terms of finding a “balance” between religious free exercise rights and public health needs.

Even after the administration’s latest accommodation of the Church announced on Friday — requiring that insurers, rather than the Catholic institutions themselves, cover the cost of birth control — few opponents have been assuaged.  Rep. Jim Jordan of Ohio called the move a “fig leaf, not a compromise.”  Under the new plan, he complained, Catholic institutions “will still be forced to pay an insurance company for coverage that includes abortion-inducing drugs.”  For Miami archibishop Thomas Wenski, Obama’s attempt to strike a balance is “too little, too late.” 

A foray into First Amendment law and the political philosophy of religious toleration reveals that in reality there are no tradeoffs here — there is no balance to be struck.  Political considerations fueled the administration’s policy pivot on Friday, but religious liberty, properly conceived, was never at stake.  

Universities and charitable organizations may be said to have an ethos, or a mission, but it contorts the concept to say that institutions – as opposed to individuals – have a “conscience.”  Even if we assume for the sake of argument that a university has a conscience that can be compromised, there is scant support in law or theory for the idea that paying for someone else’s purported sin, under the requirements of a law that applies equally to all, constitutes an abrogation of any right.

Although Rush Limbaugh joins the entire Republican presidential field and many American bishops in alleging a constitutional violation in the Obama administration’s decision, Limbaugh’s reverence for Justice Anontin Scalia (“one of my all-time favorite Supreme Court justices”) should give him a bad case of cognitive dissonance.  Scalia was the author of the 1990 decision in Employment Division v. Smith which denied that two Native Americans who had been fired for using peyote in their religious worship were entitled to unemployment benefits under the Free Exercise Clause of the First Amendment.  Since the men had violated a “neutral law of general applicability” criminalizing hallucinatory drugs — and were not singled out on the basis of their religion for discriminatory treatment — they had not suffered an unconstitutional deprivation of religious liberty.