(Bloomberg View) — 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 U.S. Department of Health and Human Services (HHS) 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 (RFRA). (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.