Some people argue that requiring employers to buy health insurance for their employees (or to pay a penalty if they don’t) is a violation of the employers’ religious liberty if the insurance is required to pay for contraception.
One currently prominent statement of that argument is found in a March 2013 legal complaint by Eden Foods to a U.S. District Court in Michigan.
You can read the complaint and decide for yourself what you think of it. In my opinion, it’s a good example of a bad argument. Bad, not because no good argument could be made, but because Erin Elizabeth Mersino and Richard Thompson, the attorneys who wrote it, simply did a bad job.
The crucial problem in this case is that the U.S. government is making some people pay penalties (or taxes, if you will) unless they make payments for particular (in this case, contraceptive) services. Eden Foods wants to argue that, if it has religious beliefs declaring immoral the consumption of such services, then the U.S. government infringes Eden Foods’ religious liberty by putting it under financial pressure to pay for the provision of those services.
Mersino and Thompson basically argue, as I interpret their brief, that compelling a conduct that a person’s religion deems immoral violates the person’s constitutional and statutory religious liberty. Does your religion condemn the payment of taxes, the wearing of clothing, and the feeding of vegetables to children? Then, Mersino and Thompson imply, no government may force you to do any of these things. Obviously, to make a good argument, they need to show that their position is something other than pure anarchism. They need to show that governments infringe on religious liberty not only when they compel persons to express religious beliefs, but also when they compel persons to engage in economic, medical, sanitary, educational, land-use, and other ordinary behaviors, and yet something is left that governments can regulate without violating religious liberty. Mersino and Thomas just don’t try to show this. They allege that the government could have accomplished its legitimate purposes by other means, but they don’t tell us what such means might be.
Personally, I like religious liberty, and I have been fighting for it since I was a teenager. I was willing to spend a few minutes reading this brief, to let Mersino and Thomas persuade me that contraception is a religious-liberty issue. I think I approached their brief with an open mind. They failed miserably, not even trying to make the best argument that might be made for their position. A waste.