Howard L. Simon: Contraceptives, religion and Florida's Constitution

Published: Thursday, March 1, 2012 at 10:58 a.m.
Last Modified: Thursday, March 1, 2012 at 10:58 a.m.

Recent tension between health care advocates and predominantly Catholic institutions about preventive health care measures that include insurance coverage for contraceptives has again highlighted conflicts involving religious freedom. It’s not a new debate.

Religious organizations have sought and occasionally received exemptions from rules that apply to others. Courts have examined religious exemption clashes case by case; for example, protecting the ability of churches to make core religious decisions, but denying broader claimed exemptions from health and safety regulations.

Lawyers, scholars and civil libertarians have differed on how to resolve conflicts between sometimes competing values: an individual’s right to exercise religious expression free of government regulation; the need to uniformly enforce neutral rules on important issues like rules barring employment discrimination, the obligation of government not to interfere in the core mission of religious institutions, and the need to safeguard the religious freedom of those of one religious faith (or no religious faith) from being subjected to the rules of others’ faith.

The government’s efforts to ensure that all women have access to contraceptives as part of the national health care law is creating conflict with the Catholic Church and some religiously-affiliated organizations. The government’s current plan is to require that insurance companies provide coverage for contraceptives for women not only to regulate fertility but that doctors also prescribe to treat a variety of medical conditions. (This includes women whose religious principles do not bar the use of contraceptives.)

But this most recent flare-up is especially troubling in Florida. Here, some of the same groups that are demanding exemption, based on religious freedom, from parts of the national health care plan are, at the same time, asking voters to give them long-forbidden access to tax dollars to help fund their religious activities.

This radical departure from Florida’s 125 year constitutional tradition of “no aid” to religious institutions will appear as proposed Amendment 8 on this November’s ballot, written by the Legislature in a cleverly deceptive way that is designed to seduce voters into supporting “religious freedom.” On closer inspection, “religious freedom” means the “freedom” to get access to tax dollars.

These Florida groups want to exempt themselves from some government laws if those laws conflict with their religious practices, while insisting that government fund those very religious practices. They want the money but not the rules.

That position seems a bit hypocritical. It is also short-sighted. Many defenders of religious liberty and far-sighted faith leaders oppose government funding of religion in part because government money comes with government strings. It’s na´ve to think that government will not require recipients of public funds, including religiously-affiliated institutions, to account for how those funds are spent.

By asking to be let out of rules that apply to everyone else, churches are also creating a slippery slope. If churches can opt out of policies that infringe on their beliefs, taxpayers might claim the right to opt out of paying taxes used for religious practices they don’t support. They may also want to opt out of having to pay taxes for even non-religious uses they disagree with or that violate their conscience, such as funding wars or providing foreign aid.

But we can’t. Taxes aren’t optional.

Understandably, churches, mosques and synagogues want to keep the government out of their business. A few weeks ago the controversy was over the effort of religious institutions to exempt their affiliated non-religious organizations and charitable institutions from rules that protect the religious freedom of their employees, including employees who come from a different faith tradition. Some have made the extreme claim that the owner of any business (whether or not a religiously-affiliated institution) should have a right to ignore the religious freedom of their employees, if that employer is religiously motivated.

And now comes Florida Attorney General Pam Bondi, who has joined six other states in an effort to prohibit health insurance companies from including coverage for contraception, claiming that a mandate to include coverage for contraceptives violates religious liberty. (The religious liberty of insurance companies?)

There’s a name for a system in which employers, including religiously-affiliated employers, aren’t permitted to opt out of laws that respect the religious freedom of their employees and a system in which churches, mosques and synagogues are financially supported by members of the religious institution, not tax-payers.

It’s called separation of church and state.

Howard Simon

Executive Director

American Civil Liberties Union of Florida |


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