Michael Gerson: A mandate as shell game

It is a valid public health goal to promote the broad availability of contraception. But is a nearly universal mandate, imposed under threat of heavy fines, really the least restrictive method to achieve this objective? The administration has chosen to promote contraceptive access in the most heavy-handed way possible, then define the tightest exemptions it can get away with.

Now it is establishing a pattern of announcing revisions that include few substantive concessions. This strategy is clearly motivated by the courts, which have pressed for clarification on implementation of the mandate.

A deeper debate

The administration has never shown a particularly high regard for institutional religious liberty. Obama's Justice Department, in last year's Hosanna-Tabor case, argued that there should be no “ministerial exception” at all — a contention the Supreme Court labeled “amazing.” In this case, the administration views access to contraception as an individual right to be guaranteed by the government, and institutional religious rights as an obstacle and inconvenience. But the First Amendment, it is worth remembering, was designed as an obstacle and inconvenience to the government.

All this is evidence of a deeper debate. Liberalism, back to John Locke, has understood religion to be a fundamentally private matter. It has a difficult time understanding the existence of loyalties outside the law, and often views them as dangerous. But this is not the way many religious people understand religion. They view it as the grounding for a vision of justice, and the source of standards for a community of believers.

It has been part of the American miracle to balance individual rights with institutional religious freedom — a difficult task for which the Obama administration shows little appetite. So now it falls to the courts.