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Cases Test The Limits Of Religion's Place In The Law


Two cases this past week highlight religion's special place in American law and the limits of that place. A county clerk in Kentucky, Kim Davis, refused to issue marriage licenses to same-sex couples because it violated her religious beliefs. And a federal judge sent her to jail because she would not comply with the law. Also this past week, a federal court ruled that employers could deny their employees insurance coverage for contraception based on moral objections, rather than religious reasons. Harvard Law professor Noah Feldman has been writing about these cases for Bloomberg View. Welcome to the program.

NOAH FELDMAN: Thank you so much for having me.

WERTHEIMER: Let's start with the Rowan County Clerk, Kim Davis. Why doesn't the court ruling violate her freedom of religion if the court is coercing her to act against her faith?

FELDMAN: If the court were ordering her to violate her faith, that probably would be a problem, but it isn't. The court is telling her that she has two choices. She can quit her job as county clerk if fulfilling the law doesn't match her religious beliefs. Or, as long as she's going to serve as a public official and get a public official's salary, she has to follow the law, as she swore to do. So there's a false impression that somehow she's being coerced. In fact, if tomorrow, if she simply resigned her position, she would be released from jail where she is on a contempt order.

WERTHEIMER: You also wrote about the other case we mentioned - a group called March for Life, which opposes contraception and abortion - said it should it should be exempt from the requirement that employee health care coverage include contraceptives. The group is secular and was making - according to a spokesman - a moral, rather than religious appeal. A federal court agreed with that. You do not agree. Why?

FELDMAN: The court said that it was irrational for the government to give exemptions to religious groups but not nonreligious groups. It's actually not irrational because the Constitution - through their free exercise clause - and the law - through the Religious Freedom Restoration Act - require the government to make special exemptions for religious groups. Morally, I find what the judge said very appealing, but legally, it's not a form of discrimination to provide only religious groups with exemptions.

WERTHEIMER: What about conscientious objection? How is that different?

FELDMAN: It's actually fine if the government chooses to give exemptions to people with secular motivations as it did, in fact, at the time of the Vietnam War when it came to conscientious objection. The question before the court here was, has the Obama administration discriminated invidiously against secular groups by choosing to give the exemption only to religious groups? And the court said that it had, and I think that's legally wrong.

WERTHEIMER: Now you note that in the past it's been liberals on questions like opposing the war in Vietnam, for example, and not conservatives, who've made the case that morality and religion should be considered equivalent. Are these two cases likely to change any of that?

FELDMAN: Yes. We're in the middle of a historic shift. Historically, liberals liked exemptions and conservatives were skeptical of them because conservatives like people to follow the law. But in the wake of Obamacare's contraception provisions and the Supreme Court's same-sex marriage decision, there's been a deep change in what you might call the political economy of exemptions. They used to be a liberal cause and now increasingly, they're a conservative cause.

WERTHEIMER: Noah Feldman is a columnist for Bloomberg View and a professor at Harvard's law school. Professor Feldman, thank you very much.

FELDMAN: Thank you so much for having me. Transcript provided by NPR, Copyright NPR.