School choice and a government mandate regarding contraceptives may seem like an odd couple. However, several writers have recently paired the controversial Health and Human Services insurance mandates with past decisions about school choice or voucher programs, including David Brooks of the New York Times and Libby Sternberg at Hot Air.  Religious institutions have gotten the short end of the stick in both cases, and somehow the First Amendment has failed to afford the protection it seems to promise.

The Obama administration has attempted to explain how the consciences of religious institutions and their members can remain clear even while the employees of those institutions are provided services by employer-paid health plans that violate the institutions’ religious beliefs.  However, these tortured justifications have inadvertently opened a line of reasoning that could invalidate the objections that say that government-provided vouchers or scholarships amount to a violation of the establishment clause of the Constitution. The key part of the latest version of the proposed HHS rule reads as follows:

[T]he Departments intend to propose a requirement that health insurance issuers providing coverage for insured group health plans sponsored by such religious organizations assume the responsibility for the provision of contraceptive coverage without cost sharing to participants and beneficiaries covered under the plan, independent of the religious organization, as a means of meeting these goals.

The basic structure of the argument is this:

  • A religious employer pays premiums to the insurance company for health insurance.
  • The insurance company puts the money from the premiums in Account A.
  • The insurance company takes money from Account B, which contains funds from a source other than the religious employer, and pays for the objectionable benefits for employees of the religious employer.
  • The First Amendment guarantee of freedom of religion is intact.

The objection to school vouchers has been that government funds going to religious schools violates the separation of church and state and amounts to an establishment of religion.  Using the Obama administration argument outlined above, the school voucher concept can now be freed from the entanglements of the religious issue:

  • The government remits funds from a government-sponsored voucher program to a deserving recipient family.
  • The family puts the money from the government in Account A.
  • The family takes money from Account B, which contains funds from a source other than the government, and pays the tuition to the religious school.
  • The First Amendment prohibition against the establishment of religion is intact.

Of course this sounds like a parody, and it would be were it not for the identical glorified money-laundering scheme that the HHS has proposed to resolve the religious objections to their health insurance mandate.  In reality, the validity of the two issues has been flipped.  School choice voucher programs are not a government establishment of religion, while the proposed HHS “compromise” truly does restrict  religious freedom.  But the silver-lining could be the exposure of the fallacy of both arguments; and the harder the Obama administration pushes its HHS “compromise,” the weaker its position against vouchers will become.

Jeryl Bier blogs at Speak With Authority

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