Tehrik-e-Taliban, the Pakistani Taliban, is a closely held, profit-making enterprise organized on religious principles. One of its principles, announced as public policy in July, 2012, is that children should not be inoculated against polio, because the vaccines violate God’s law. So sincere are the Taliban’s religious beliefs that its followers have assassinated scores of public-health workers who have attempted to administer polio vaccines in areas under Taliban control or influence.
If the Pakistani Taliban, aided by clever lawyers, organized a closely held American corporation, and professed to run it on religious principles, might its employees be deprived of insurance coverage to inoculate their children against polio? And would the Supreme Court, by the five-to-four decision issued on Monday in Burwell v. Hobby Lobby Stores and in Conestoga Wood Specialties v. Burwell, endorse such a move?
Let us count the ways . . .
Under the Religious Freedom Restoration Act, the government must meet a two-pronged test before it can “substantially burden” the free-exercise rights of American citizens: it must (1) demonstrate a “compelling government interest” and (2) impose the “least restrictive means” available to pursue that interest.
Whatever the importance of birth control to individuals, the interest of the government in preventing pregnancy doesn’t strike me as especially compelling. (My reading of Hobby Lobby is that the Court expressed similar skepticism without reaching a judgment, and went on to rule on test #2. But others have read it differently.) In contrast, preventing pandemics is the very definition of a compelling government interest, and I have no doubt the Court would recognize that.
Which brings us to least restrictive means. Google confirms my recollection: the government already, and for my entire life if not the lives of my parents, provides free vaccines in public health clinics. So it already has in place a less restrictive means of providing vaccines than forcing employers to pay for them.
Ironically, if the New Yorker really wanted to use vaccinations to make a case against RFRA, it would attack the exemptions given on religious grounds to individuals from the otherwise mandatory (for public school enrollment) schedule. (I’m personally in favor of such exemptions. While I do not share the skepticism of, for instance, Vox Day, I have yet to see a compelling cost-benefit analysis that quantifies the interest of the public in the vaccination of any particular individual against his wishes.) But that, of course, would undermine the New Yorker’s attempted point, that people preserving their religious freedom in the conduct of their businesses is somehow uniquely troublesome.
As a further irony, the New Yorker inadvertently makes a compelling argument against Muslim immigration. Religious accommodation becomes progressively more difficult the more society’s demographics stray from its Protestant-and-Protestant-inflected-Catholicism-with-a-sprinkling-of-Jewish core. If that sounds too ethnocentric, let me cast it more generally: diversity+proximity=war+tyranny. What happens when FGM comes to America? Will the government show a compelling interest? Will it even want to? I’d answer “yes” and “I sure hope so” to these questions, but I have difficulty articulating a rationale that doesn’t start with you sick raghead bastards. Far easier to keep such people out.