Parliament of the World’s Religions: BYU faculty weigh in on contraceptive mandate debate

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BYU professor Frederick Gedicks participates in a legal debate about religious freedom, and the Supreme Court’s 2014 ruling on a federal contraceptive mandate, at the Parliament of the World’s Religions in Salt Lake City. (Jenna Barratt)

Two BYU professors joined other legal experts in discussing the pros and cons of government-mandated contraceptive coverage — and by extension, religious freedom — during a debate Saturday at the Parliament of the World’s Religions.

The federal contraceptive mandate imposed under the Affordable Care Act has posed conflicts of conscience for a wide range of non-profit and for-profit institutions. The landmark 2014 Supreme Court decision in Burwell vs. Hobby Lobby Stores raised questions about religious freedom for those whose beliefs prohibit or limit the use of contraceptives.

The court ruled that Hobby Lobby, as a closely-held corporation, has the right to be exempt from a law its owners religiously object to if there is a less restrictive means of furthering the law’s interest.

Cole Durham, director of the International Center for Law and Religion Studies at BYU, moderated the debate. Fredrick Gedicks, law professor at BYU, and Caroline Mala Corbin, a law professor at the University of Miami, argued in support of Burwell v. Hobby Lobby and Luke Goodrich, deputy general counsel at the Becket Fund for Religious Liberty, and Robin Wilson, director of the Family Law and Policy Program at the University of Illinois College of Law, argued against.

Wilson defended Hobby Lobby by arguing that a substantial burden is present due to the heavy fees that corporations have to pay if they do not comply with the Affordable Care Act. She said the decision appropriately interpreted the 1993 Religious Freedom Restoration Act that “ensures the interests in religious freedom are protected.”

Wilson finished by connecting Burwell v. Hobby Lobby with Obergefell v. Hodges, the Supreme Court’s ruling in June that legalized gay marriage. She cited dissenting justices’ opinions in that case, predicting there would be problems with religious freedom in the near future due as a result of the decision. Wilson said that these problems can find creative solutions that appease the majority, like the anti-discrimination bill passed recently in Utah.

“Because of that legislation, Utah gives more rights to the LGBT community than New York City,” Wilson said.

Gedicks spoke in opposition to the court’s ruling in Burwell v. Hobby Lobby. He concluded it was not right that the employers of Hobby Lobby could abstain from providing insurance coverage for certain aspects of healthcare for their employees just because of the employers’ beliefs.

“Consequences are not confined to the individuals that accept the religious beliefs, but are imposed on others who do not believe and practice the same,” Gedicks said. He refuted Wilson’s claims about increasing restrictions on religious rights because of court decisions.

According to Gedicks, the LDS Church and the Catholic Church have excluded women from top leadership spots since their inception. “Even with increasing women’s rights, the government does not force organized religions to give equal leadership roles to women,” Gedicks said.

Gedicks concluded that it is therefore unlikely that the government will force organized religions to mandate contraception or other things, like being forced to marry gay couples.

Goodrich argued that Gedicks “completely misstated,” the issue, Goodrich said. “The companies are not trying to keep their employees from getting contraceptives, but employers just want the right to not provide it. The employees can get it in other ways.”

Goodrich outlined exemptions to the Affordable Care Act, which are: companies do not need to comply if the company already has a health insurance plan for its employees, if it is a small business under 50 employees and if the organization is a house of worship.

Goodrich explained the exceptions do not go far enough to cover non-profit groups that are religiously-affiliated, like his client –the Little Sisters of the Poor — that provide care for the poor and elderly. The Catholic non-profit is strongly against contraception but does not meet the requirements to be exempt from the Affordable Care Act.

“These cases, at the end of the day, are not about contraception or Little Sisters. They are about how we should deal with religious freedoms in this country,” Goodrich said. Examples include a Muslim man being able to keep a short beard in prison or a Native American man being able to use eagle feather in his traditional religious garb, he said.

Corbin said there are means to file for an exemption to the contraception mandate in the Affordable Care Act. She said the reasons that people and companies do not qualify for this exemption is because they do not do the paperwork. They claim that the paperwork is a substantial burden. “This is wrong,” she said.

The real issue is that people have the wrong information and false interpretations, Corbin said.

“Courts should defer to religious beliefs, but the courts should not defer to the religious interpretations,” Corbin said. “The facts are different in every case, so we need to just judge them on the individual, but proven, facts. Everyone has a right to their own beliefs, but not to their own facts.”

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