Since my last post on the Obamacare mandate I have had many thoughts about the matter, mostly born of frustration. It seems likely to me that the notion of religious liberty will prevail in the end. However, the persons in control of the executive and legislative branches of the government will not back down from the mandate or revise the regulations in a way that restores respect for the freedom of religious groups in this country. The solution could be a legal one fought in court. To me, that means that there is going to be a great deal of constitutional hair-splitting. I wonder if the meaning of religious liberty that comes out the other end of this fight will look exactly like the one we have come to rely upon.
Church leaders are probably thinking more right now about the freedom to live the faith in the public arena and the best way to continue to operate their programs. The question on the minds of many Church leaders has to be, "What will I do if my ______________ is forced to provide this coverage?" Fill in the blank with diocese, hospital, school, university, etc. Some will pay the penalty or go to jail if it comes to that. I know that many bishops and religious superiors are willing to fight for the identity of these institutions. I have to ask, though, if the fight is really going to end on the issue of whether the offensive practices are covered under insurance plans.
On the judicial side, the sense of drama will peak when the concern for keeping the Church's institutions identity intact comes up against the tax exempt status enjoyed by the Church. Is this issue the crux of the underlying plan of the administration? Does the government want to force the Church, indeed all religious groups, to chose between tax exemption and public witness? The government's coffers would be greatly enhanced by taxation of religious bodies.
I know that there are those who would consider me ignorant and even foolish for suggesting that tax exemption and religious liberty do not go hand in glove. I would counter that the weight of authority is against that idea, though. I know Chief Justice John Marshall's 1819 dictum, "the power to tax involves the power to destroy." In days past that close connection could have been logically self-sustaining in any case, not only taxation of the federal government by the states involved in the McCulloch v. Maryland case. However, the weight of the arguments might go the opposite direction and support taxing religious organizations.
The tax exemption granted to religious institutions is based, in part, on the fact that these institutions serve a secular purpose. Will there be arguments now that the tax exemption will not be allowed if the requirements of the HHS mandate are not met by religious employers? In my estimation, the only way to stop this is to teach the demagogues a good lesson by a sound electoral trouncing, a position that tax-exempt organizations are not able to advocate.