In his March 16 op-ed, “The Paradox of Religious Liberty,” Jonathan Sarna criticizes the congressional testimony of Rabbi Meir Soloveichik in the latter’s attack upon the requirement that health insurance plans include the cost of contraception as threatening the “liberties of conscience” inscribed in the Constitution. Sarna contends that Soloveichik overlooked the countervailing First Amendment right of employees not to be “religiously coerced” and that refusing to mandate employers to pay for contraception by employees is just the type of conduct prohibited by the First Amendment.

Even if one puts aside the issue of whether a religious organization employer’s refusal to share any of its employees’ costs for contraception can somehow be viewed as religious coercion, Sarna overlooked a simple fact, dispositive of his stated First Amendment right in support of requiring health insurance plans to cover contraception. The First Amendment only prohibits “Congress” (and, by reason of the 14th Amendment, the States) from enacting a law that either establishes or impinges on the free exercise of, religion. It has absolutely nothing to do with private employers and employees.

Thus while Soloveichik can legitimately argue that a federal law that mandates a Catholic institution employer to pay for insurance plans of its employees that include contraception is a violation of the First Amendment, Sarna cannot rely upon the First Amendment to support the position that a law that exempts religious institutions from such mandate — and thus preserves the religious institution employer’s autonomy in this area — is unconstitutional.

To be sure, one can put forward good-faith arguments for the requirement that health insurance plans of all employers cover the cost of contraception. The First Amendment, however, cannot be counted among them.

Julius Berman
New York, N.Y.

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