I know this point has been made literally dozens of times before, but I continue to be unable to ascertain the difference between “government-mandated funding of contraception” and government-mandated funding of brutal weapons of mass destruction or the training by the United States of personnel who are enabled to engage in the regular violation of at least that part of the United Nations Treaty, which we have ratified, that prohibits the infliction of “Degrading and Inhumane Acts” as well as “torture.” It is an (unfortunate) necessity of life in any government based on other than unanimous consents that losers will be upset by legislation endorsed by winners. Unlike Marci, I remain sympathetic to RFRA because I can understand claims that, for example, one should not be forced to work on one’s Sabbath as a condition to receive state benefits and the like.
Jean Bethke Elshtain, a wonderful scholar and a good friend, has just died. She had an essay in a book that I edited, Torture: A Collection, in which she cautioned against too quick to describe as “torture” all methods of interrogation that we find problematic. An obvious problem with such overreach is that it tends to discredit the general argument against “torture.” The obvious analogue, for me at least, is that claims that the Constitution, correctly understood, should protect the claim against paying for insurance that is broader than one would like. As a matter of fact, Marci speaks eloquently of the substantive issues that are raised, but that may simply be evidence that I agree with her. As suggested by my initial example, there are lots of features of contemporary US military policy that appall me, but I still can’t summon up an argument that I should be free from paying taxes, even if I’d be open to overturning the Court’s decision many years ago against allowing “selective conscientious objection.” That, after all, required quite literally conscripting the body. But conscripting one’s money is precisely what any and all governments do, without exception. Unless someone claims that it is unconstitutional for the state to require anyone to help finance contraception—in the way that I at least think it is unconstitutional to require anyone to pay religious ministers (save, of course, for chaplains, which illustrates how things get more complicated when we wrestle with the real world), then I remain (almost) totally unsympathetic. I apologize for the total unoriginality of these arguments, but, alas, we seem to return to the same issues over and over, with, quite obviously, no one convincing anyone on the “other side.” sandy
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