03/28/2012 11:02 am ET Updated May 28, 2012

Contraception Debate and Religion: Prohibiting the Free Exercise Thereof

Like many other religiously and socially driven discussions in the United States, I find the recent debates over contraception to be completely inundated with irony. After all, those decrying the recent HHS mandate, to be addressed shortly, fail to understand the irony of the Church's opposition to contraception via the stance that it inhibits the primary purpose of sexual intercourse -- procreation -- while simultaneously marrying countless couples in which one or both parties are infertile. Now, while the realm of religious social policy in the U.S. is ironic on its face and that irony certainly is not central to arguments against such legislation, it can be beneficial to consider the entire context of socially conservative argumentation. That being said, the true irony of the recent contraception debates in the U.S. centers on the clause to which many of its principal agitators refer -- the Establishment Clause. The First Amendment to the U.S. Constitution, of which the Establishment Clause is part, was until recently the sole province of bleeding-heart liberals, prominently touted by organizations such as the ACLU to -- among other things -- remove religious icons from public institutions. However, many of the same people who so ravenously fought against the ideals embodied by the First Amendment so few years ago now seek to champion its cause. Or so they believe because, over the development of this most recent debate, it has become increasingly clear that evocation of the Establishment Clause in support of limiting the recent U.S. Dept. of Health and Human Services (HHS) mandate regarding contraception ignores the main point of that clause, especially when considered in conjunction with the adjacent Free Exercise Clause.

To begin, for those who are unfamiliar with the HHS mandate, courtesy of the Affordable Care Act, it would require employers -- if they provide health insurance -- to supply their workers with contraceptive products and services without co-pay or cost-sharing systems. In other words, at no cost to the employee. This mandate would extend to religiously affiliated organizations such as hospitals, universities and charities, organizations that primarily employ and serve populations of a multi- or irreligious background. At the same time, churches, synagogues, mosques and other overtly religious institutions will remain exempt from the mandate, instead having the choice whether or not to supply contraceptives to employees. By the way, this is a policy that 28 states had already adopted before Obama's sweeping federal health care reform.

With that in mind, consider the legal justification social conservatives are claiming to bolster their opposition to the HHS mandate. The Establishment Clause -- "Congress shall make no law respecting an establishment of religion..."­ -- has been the crux of the religious right's argument and, in its light suggests that the HHS mandate "[represents] a grave intrusion on Catholic consciences and the freedom of our Catholic institutions" and "threatens the autonomy of all religions." The First Amendment of the U.S. Constitution, however, doesn't end with the Establishment Clause, but continues with what is known as the Free Exercise Clause, which states, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." To put it simply, religiously affiliated organizations -- by singling out contraceptive care for purely religious reasons -- violate the First Amendment. The fact of the matter is that, in the collective interest of the Establishment and Free Exercise Clauses, these religiously affiliated hospitals, universities and charities forfeit their right to legislate based on religious beliefs the second that they knowingly hire employees that do not share in their faith. Any attempts to do otherwise would be a clear violation of their employees' abilities to exercise their First Amendment rights. Contrary to what some may have you believe, the Establishment Clause does not cut one way in the favor of religiously affiliated organizations but is a double-edged sword and, while the government has no legal standing to inhibit religious activity, it cannot be usurped to legislate religion by omission. The U.S. Constitution, first and foremost, was created to protect the interests of individuals -- be they religious or otherwise -- from discrimination and, only afterwards, protect the religious institutions themselves. The HHS mandate takes religious organizations into full account by exempting those that do not serve a secular purpose. Organizations that are merely affiliated with one religion or another simply don't meet that standard.

Mike Huckabee says that "we're all Catholics now," illustrating to some extent that -- no matter our personal opinions of religion, be they good or bad -- any reasonable person must be willing to admit that the Western religious triad, and most religious institutions in general, seek homogeneity and conformity, ideals often euphemized as "community" and "fellowship." With all due respect, though, the overwhelming majority of us are not Catholics, neither in dogma nor a temporarily unifying ideology. Truthfully, we live in an increasing heterogeneous world, a world of differing ideals and belief systems and perhaps nowhere is this more evident than in the United States, a nation of secular Gentiles, immigrants. That is why we as a nation need to make a statement, to stand for our inherent heterogeneity and make it clear that religious institutions will not be given legal standing to legislate beyond the outreach of their pews, limiting the power of their opinions to the consciences of their parishioners.