Yesterday Rachel Evans opened up her comments to have a discussion on the HHS contraception mandate cases which the Supreme Court has decided to take two . It was good discussion though I wish more " negative " liberty people had showed up.
See 2 questions regarding the HHS mandate and religious liberty .
Two quick theological matters before getting to the legal which is the main purpose of this post.
From watching the comments there I think we are seeing a pattern
Among many progressive Christians there seems to little sense of or indeed any real curiosity why some Christians have an opposition to birth control.The early Church history on the topic , Humane Vitae , John Paul II 's Theology of the Body, and works that question the impact of contraception on marriage is not on their radar.
If it is it is perhaps viewed as some conservative Christians view some Islamic practices. That is with suspicion and viewed as having some sinister alternative political purpose. As we have seen this has not worked out well for Muslims and their religious liberty.
Second as we have seen before on some issues we have encountered recently there is no real in depth discussion as aspect of religious liberty as a human right and how it applies here.
NOW TO THE LEGAL which is much more immediate concern.
What at least I observed in the comments is something we are seeing playing out on the political scene more and more. That is we have a tension between the concepts of negative liberty ( The Govt Shall not ) and positive liberty which is more recent. Positive liberty believes rights are useless unless the Government helps affirm and enable those rights.
The birth control case is a prime example. The RIGHT to birth Control was born in the womb of the Government can't or negative liberty .. That is this is such an intimate choice that the Government has no competence. Hence the right to privacy.
In a few short decades we have gone from the Government can't ban birth control to the your right to it is useless unless we help you get it . Even if that involves making employers act against their beliefs. So much for Government staying out of intimate affairs which it has no competence !
In essence we have a group of many progressive Christians that are all for POSITIVE LIBERTY and a much more expanded role of Government in helping people in a variety of concerns.
THAT IS A LEGITIMATE POSITION.
However what is lacking is it seems the awareness that this will produce some serious conflict where some conscious exemptions are needed. Regimes that don't have conscience exemptions often don't fare well for liberty in the end. So far a good many progressive Christians seem not to be bothered by this at this point.
In this case we have Hobby Lobby that cover 16 of 20 FDA approved forms of contraception . However because they will not cover certain morning after pills that is even a bridge too far for the advocate of positive piberty. EVEN CHRISTIANS !
Christians that support positive liberty and expanded role for Government ( A LEGIT POSITION ) need I think to start thinking about the need for protections much more than than do for people of faith and various other objectors rights.
Moving on there seems to be a theme that in the EMPLOYER / EMPLOYEE relationship the employer has no or little religious liberty rights.
There is not really much scriptural or theological or legal thought given to why this is so but it is just is. There also seem to be little thought in encouraging the employer to so easily shed his moral scruples in the pursuit of business and how that will effect social justice as a whole.
From a legal perspective there is little attention among some progressive Christians how this will effect independent contractors with no employees or in the end the employee itself as positive liberty just keeps marching on without a check.
Of more immediate concern is that the Religious Freedom Restoration Act of 1993 is not on many people 's radar at all. Which is strange since this is the CAUSE OF ACTION and RIGHT that is partly at issue.
The RFRA was viewed as a major victory for religious believers rights and passed with great bipartisan support.
It basically says that the Government cannot impair your religious belief unless there is a is a compelling interest that the the policy must be narrowly tailored to meet that goal , and the government must show this is the least restrictive means possible in reaching that goal . This is called Strict Scrutiny is the hardest burden for the Government to prove.
From watching the conversations in the comments it seems everyone is pretty much adopting the old rational basis test. The rational basis test is pretty easy for the Government to win and it does ! . That is the governmental action must be "rationally related" to a "legitimate" government interest. In this case its hey birth control might be a pretty good idea and making the employer pay for it is " rationally related to that goal.
There is an opportunity for Christians to have this discussion among each other as to religious liberty. In fact it is a conversation we must have.
Still I get the feeling that what we are seeing here is just basically the positive vs negative liberty debate rolling on. This time with a somewhat Christian air to it.
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