Does it matter why you're pro-life?

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Judge's Moral Choice on Contraception Gets the Law Wrong

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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What’s so special about religion? When it comes to exemptions from general laws, whether regulating gay marriage or contraception, no question is more important -- or more complicated. The federal district court in Washington answered that question Monday by saying religion is nothing special. The court held that the Department of Health and Human Services is obligated to give the same exemption to a nonreligious group that has a principled reason to deny its employees contraceptive health-care coverage that the department already gave to religious groups with analogous views. This conclusion was almost certainly correct as a matter of moral logic. But it’s far from clear that it was correct as a matter of law.

The case involved an organization called March for Life, whose purpose is to oppose contraception and abortion -- for what the group considers secular reasons. HHS didn’t want to give the group the contraceptive-care exemption it gives to religious organizations, and the group sued.

Here’s where things get interesting. As a nonreligious organization, March for Life didn’t claim an exemption under the Religious Freedom Restoration Act. (Although the organization’s individual employees did, and prevailed on their claim). The group said that HHS was denying it the equal protection of the laws under the Fifth Amendment. In essence, the group was saying that it was being subjected to invidious, irrational discrimination because it wasn’t religious.

The government’s answer was simple enough. Because March for Life isn’t a specially protected group, the government’s differential treatment must only be rational. The rational reason, the Obama administration said, was that March for Life isn’t religious, and the administration’s exemption only applies to religious groups.

Judge Richard Leon, a George W. Bush appointee best known for his laudable role in pressing for the habeas corpus rights of Guantanamo detainees, rejected this argument and ruled in favor of March for Life. Leon said that, when it came to contraceptive care, March for Life was similarly situated to religious organizations. Both have a moral opposition to contraception. The only difference is the content of the reason. That made the government’s distinction irrational, he concluded.

Morally speaking -- if you leave the law out of it -- Leon’s decision is almost certainly correct. What sense could it possibly make to give religious groups special privileges just because their beliefs depend on God? If I care deeply about a moral principle, without believing that God taught it to me, then surely my interest is just as great as that of a religious person who holds a similar principle.

Notice that ordinarily, this moral argument against treating religion as special is disliked by religious groups, who are thrilled to have special privileges not available to morally principled secularists.

Typically, it’s liberal secularists who think that religion shouldn’t be treated differently from nonreligious morality. Thus, for example, liberals generally applauded Vietnam War-era judicial decisions that granted conscientious objector status to draftees who were committed to pacifism but weren’t conventionally religious.

This time, of course, the shoe will be on the other foot. Religious objectors to contraception will herald the judgment while liberals will object to it. This is another example of the changed political economy of religious exemptions. Before gay marriage and Obamacare, liberals liked exemptions. Now that they’ve won some big social battles, they don’t like exemptions so much anymore.

But judges are ordinarily expected to decide based on law, not morality. And legally speaking, Leon’s decision is almost certainly wrong.

After all, there’s a very good two-word legal answer to the question, “Why is religion special when it comes to exemptions?” The Constitution, that’s why. The First Amendment guarantees the free exercise of religion, not of principled morality generally. The Religious Freedom Restoration Act gives statutory life to the constitutional free-exercise principle.

In other words, there’s good legal reason to treat religion specially: because the Constitution and laws mandate special protection for religion. The government’s policy is perfectly rationally because it has a good reason to give special religious exemptions but not special secular exemptions.

Furthermore, the government has a rational interest in not extending exemptions too far -- because the government is free to favor a policy of contraceptive care.

It emerges that there may be no very good philosophical reason for the government to treat March for Life differently than the Catholic Church -- but there’s a rational legal reason, which is all the Fifth Amendment requires.

So was Judge Leon right to apply morality to his legal reading of to the equal protection question? There’s a strong case to be made that legal interpretation shouldn’t happen in a moral vacuum. But in this case, at least, the judge’s moral logic doesn’t outweigh the moral value of following the law as it’s ordinarily interpreted.

The case will now go the D.C. Circuit Court of Appeals, and then possibly to the Supreme Court. This struggle between morality and law isn’t over. 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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Noah Feldman at

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