JURIST Guest Columnist Chad Flanders of Saint Louis University School of Law says that we should seek a pragmatic solution to the controversy over requiring religious institutions to provide contraceptive coverage for employees, since a resolution of the philosophical issues underlying the controversy is unlikely…

The debates over the so-called contraception mandate show, if any demonstration were really needed, that we are a nation that has no clear conception of what religious liberty is. It is enough to drive one into despair. Lawsuits have been filed by both private groups and state attorneys general testing, at bottom, what it means for a state to be neutral toward religion. Does neutrality require that religiously affiliated institutions have to obey the same laws as everybody else? Or does neutrality mean recognizing that they should not force those institutions to subsidize, directly or indirectly, conduct that violates their religious beliefs? What is the fair thing to do?

With no clear agreement on what “neutrality” even means, the debate gets pushed over into politics: who can lobby public opinion more successfully toward their side of the debate? It is likely that we will have a political resolution before we have a legal one, which is not necessarily a bad thing (as I argue below). Politics may ultimately be the best way out of this mess, but it is important to realize just how deep the philosophical mess goes.

The lawsuits filed try to raise the level of the debate to constitutional principles, but even here the tone is acrimonious: pitting religious liberty against the rights of reproductive freedom. The sense on one side is that the mandate is insensitive to the rights of religious organizations; the sense on the other side is that failing to abide by the mandate represents insensitivity to the rights of women. One side asks: why are you singling out religious groups? The other side asks: why are you singling out women? (Interestingly, the debate has focused on birth control for women, rather than on vasectomies for men, which are presumably just as objectionable.)

The mess goes even deeper, to the question of whether the religious liberty rights of women who are employed by religious hospitals, or students who go to religious schools, are being violated. Don’t they, too, have a right of conscience? Yet the reply quickly comes that the religious groups involved also have a right of institutional conscience, a right to decide how they want to run their universities or hospitals. And then the debate takes another turn. Who is it that decides what the conscience of a religious institution is: the leaders of that institution, or their membership?

When both sides cannot even agree on the shape of the religious liberty right involved, we have a very deep conflict on our hands. This is shown in the shock that each side professes: shock that religious institutions would be compelled to violate their principles, and shock that the same religious institutions should consider themselves above the law. One side, it seems, will have to yield. Or will they?

As many commentators have noted, the legal debate in this instance will most likely not be decided under the Free Exercise Clause of the US Constitution. In the decision, Employment Division v. Smith, the Supreme Court held that religious believers have no right to be exempt from facially neutral, generally applicable laws. This looks like bad news for religiously affiliated hospitals and universities when it comes to the mandate.

The Court’s recent decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC suggests that religious institutions might have greater religious liberty than individuals. But Hosanna is distinguishable from the current controversy. In Hosanna, the Court held that the issue was the extent of the church’s freedom to decide who was going to lead it, not whether non-members had a right to a non-religious good from a religious institution.

Rather, this case will probably be decided (if it even gets to court) under the Religious Freedom Restoration Act (RFRA), which requires that laws that burden religious believers have to be narrowly tailored and support a compelling state interest. Is the burden here substantial? Is the law here narrowly tailored to achieve a compelling state interest? These are the questions that courts will have to wrestle with, at least if a political compromise isn’t reached before then.

What is important to note is that the RFRA is not part of the Bill of Rights; it is a statute, albeit one that reflects a certain understanding of religious liberty. If we don’t like the statute, or the results reached under the statute, then we can repeal the statute, and still be okay under the Constitution. If the proponents of the contraception mandate lose in court, as I suspect they might, then they have an option other than appealing the decision: they can look to change the law.

The only problem is the RFRA was (and probably remains) very popular, and popular among many different religious groups who probably disagree between themselves about the value of the contraception mandate. This leads me to suggest that there is a vision of religious accommodation that has been lost in this debate, and that is religious accommodation as a type of peace treaty, a way of avoiding the really deep and difficult philosophical questions about the nature of religious liberty.

If we think about religious liberty this way, we agree to let some groups avoid complying with certain laws not because they are right to do so, but because we simply don’t know what the right way to think about religious liberty is yet. We all need time to figure these things out, to kick the can down the road. This is what President Obama was originally doing when he gave religious groups a year to figure out how they were going to comply with the mandate.

The question is whether we should let them do so indefinitely, whether to keep on kicking that can, and putting off any sort of final resolution of the mandate controversy — one that decisively settles things either for or against any group.

This might not be a bad idea, and again not because religiously affiliated institutions are right to deny contraceptive services to women. I happen to think they are wrong on the substance of the issue. But we need to get away from the substance for a minute, and think more pragmatically about how we are going to live together, given that we disagree so deeply on a philosophical level about religion. This is not a theoretically elegant solution; it simply gives us a way to “muddle through.” But given the state of the debate now, “muddling through” might really be an accomplishment.

Chad Flanders is an Assistant Professor of Law at Saint Louis University School of Law. He teaches and writes in criminal law, election law and the First Amendment. He previously clerked for Judge Michael McConnell of the US Court of Appeals for the Tenth Circuit and Justice Warren Matthews of the Alaska Supreme Court.

Suggested citation: Chad Flanders, Religious Liberty and the Contraceptives Debate, JURIST – Forum, Mar. 19, 2012, http://jurist.org/forum/2012/03/chad-flanders-religious-liberty.php.