Non-Kosher DeliSpeaking on Huffpost Live a couple of days ago, Rick Warren compared Obamacare’s contraception mandate to a law requiring Jewish deli owners to sell pork, saying that if the latter took place, “I would be out there with the rabbis protesting that. Why? I don’t have a problem with pork, but I believe in your right to not have to sell pork if it’s not in your faith.”

Let it be noted that Warren plagiarized…well, appropriated…this analogy from Archbishop William Lori, who, testifying before Congress in his capacity as chairman of the USCCB’s Ad Hoc Committee for Religious Liberty in February of last year, delivered himself of The Parable of the Kosher Deli. As I tried to make clear, the analogy didn’t work then, and it hasn’t improved with age. If I may be permitted to cannibalize myself:

“The parable imagines a new government order requiring kosher delicatessens to sell pork. The Orthodox Jews are up in arms, and the thing limps along in rough parallel to the current tale of the mandate. Yes, the government adjusts the policy a bit, but this now affects the kosher meat suppliers, and they’re not happy. You get the idea. What’s interesting about Lori’s little jeu d’esprit is not how inept the analogy is, however, but how a proper Parable of the Kosher Deli would prove the opposite of what he’s seeking to demonstrate.

“In fact, the rules of kashrut forbid Jews from eating pork, not selling it or otherwise being involved in its provision. No doubt, a mandate to sell pork would be resisted by the deli owners, but the point here–and it’s not a trivial one–is that Orthodox Jews have no objection to non-Jews eating pork, or to doing anything to help them to do so.

“So let’s imagine a more accurate analogy — one in which, for reasons of scarcity, say, places of employment were required to provide food stamps for their employees to obtain what they needed to eat. And let’s say that, as in the real world, such stamps did not cover all foodstuffs: no to Twinkies but yes to pork. Would our deli owners have any objection to providing stamps that their employees could take next door to Paddy’s Irish Pub and order a ham sandwich, or for that matter a traif plate of corned beef and cabbage? Of course not.

“And that’s the point. Orthodox Jews understand the requirement to keep kosher as a religious duty required only of their kind. The Catholic bishops feel that contraception is an evil in the world at large that they cannot be complicit in. And so rather than simply say, fine, you take your health care coverage and avail yourself of whatever legal services you’re entitled to, they say, ‘Sorry, because some of those are sins for us, we won’t pay for you to commit ‘em.’”

Now, in his interview, Warren goes on to claim that “without a doubt, the Obama Administration violated the First Amendment” in issuing the contraception mandate. But as the conflicting appellate court decisions indicate, there’s all kinds of doubt concerning the right of a private employer to have his sincerely held religious beliefs shape the terms of the health coverage he provides his employees.

Suppose, for example, an employer who happens to be a Jehovah’s Witness goes to court to claim an Obamacare exemption from having to cover his employees for blood transfusions because it’s against his religion. I’d say the state’s interest in protecting life is sufficiently compelling for claim to be denied. Would Rick Warren really be out there protesting to the contrary?

Categories: Beliefs

Mark Silk

Mark Silk

Mark Silk is Professor of Religion in Public Life at Trinity College and director of the college's Leonard E. Greenberg Center for the Study of Religion in Public Life. He is a Contributing Editor of the Religion News Service

30 Comments

  1. Edward Burton

    The analogy fails. The Jewish butcher being asked to sell pork, is being asked to stock and cut and sell and take money for pork.

    The Church, and Catholic officers, directors, shareholders, business or organization executives, are not being asked to sell contraceptives.

    Purchasing insurance which permits their employees to purchase or not purchase the same, is morally indistinguishable from issuing paychecks which permit their employees to purchase or not purchase the same. If the latter is permissible, then the former is indistinguishable from a pay raise.

      • Edward Burton

        and I can note that the paragraph:

        “And so rather than simply say, fine, you take your health care coverage and avail yourself of whatever legal services you’re entitled to, they say, ‘Sorry, because some of those are sins for us, we won’t pay for you to commit ‘em.’””

        And then they issue a paycheck. And that paycheck can be used for contraception. So are they ‘paying the employee’ to get contraception?

    • Not at all. It is about making up a right which does not exist. That a company has a religion which can be exercised.

      It is also about pretending the government does not have a right and engages in the regular practice of determining what constitutes the mandatory provisions of insurance policies.

      It is about pretending that religious beliefs of an employer trump the personal privacy of the employees.

      • Actually, the Supreme Court has never said corporations cannot exercise religion; in fact to do so now would be a curious departure from cases like Gonzales v UDV, where a church, as a non-profit *corporation*, was found to have its religious freedom impermissibly curtailed by federal drug laws and cases like Bellotti where, during oral arguments One Justice noted the First Amendment does not require One to be an Individual to exercise the freedoms covered by it.

        Additionally, governments do not have “rights”; they have “powers”. In this case, the congress specifically instructed federal agencies, like HHS, to provide such religious accommodations when it adopted RFRA.

        Lastly, I believe You are misinformed about what Objectors seek; They do not say, “Our religious rights trump Your privacy rights,” as You stated; They say, “Our religious rights protect Us from being forced to directly violate Our beliefs under the threat of almost $40,000 per Employee per year.” At no point is Anyone asking for the right to invade Anyone’s privacy.

        • The Supreme Court never had to say corporations do not have religious rights because nobody ever was crazy enough to make such a claim. Its an inherently ridiculous concept which flies in the face of the nature of a corporation and religious exercise.

          Your citation to Gonzales v. UDV is utter crap. UDV is a CHURCH not a commercial entity. Churches already have their exemption. It NEVER stated the company had religious rights, only that the state could not prove its compelling interest in the light of RELIGIOUS RITES.

          Does that mean corporations can engage in sectarian discrimination because it is against their faith to hire Muslims, Jews and Hindus? Of course not. A corporation is separate from the individual existence of its owners. It cannot have a religious faith. A corporation is not an individual for purposes of civil liberties in that respect. It is not an individual except in the barest legal sense.

          The objectors have a bad faith argument. Your religious beliefs do not entitle you to harm the rights of others. This includes the privacy rights of employees. The whole argument has been nothing but a cheap political ploy to attack ACA and pretend corporations have greater rights than people do.

          • I think You have completely missed the point: UDV, being a corporation [501c(3), but a corporation nonetheless] strongly suggests corporations can exercise religion and can indeed have a religious faith, just as the New York Times can have political opinions and, consequently, are free to express and disseminate them.

            Whether the “parade of horribles” You suggest could happen would depend upon the strict scrutiny analysis required by RFRA. If I recall correctly, the discrimination claims You offer as an example has already been determined to have passed strict scrutiny.

            The implication the Objectors are harming the privacy rights of Employees is fallacious. No Objector in any brief has stated an intent to invade the privacy of Amy Employee. If You can point to the page, paragraph, and sentence in any brief which shows to the contrary, I would be interested in seeing it.

          • I got your point, and your assessment of the case is completely false. It does not strongly suggest corporations have a religious faith. UDV is distinguishable from Hobby Lobby in all relevant respects. It is a church, not a commercial entity. You are full of it.

            My “parade of horribles” is exactly how someone would view corporate religion because essentially you are looking to religion to excuse compliance with laws governing basic labor relations. That is your argument in its most basic form.

            RFRA protects individual acts but not at the expense of others. It can shield an employee from employers but not act as a bludgeon of an employer vs. their employees. There is a widely recognized difference in the power relationship which is taken into account.

            As for privacy rights, again you are full of it. It is employers dictating to their employees exactly how their compensation is to be used. It is no different from telling employees to spend their paychecks. How compensation is used after it is issued is a privacy issue of the employee. You labor under the delusion that it is perfectly acceptable to force others to comply with one’s personal religious beliefs.

          • Given Your writing style, the more You try to convince Me to the contrary, the more Your words lead Me to believe You actually have never read the text of the applicable laws (RFRA and the Dictionary Act) and the applicable cases (Sherbert, Yoder, Thomas, and UDV itself).

            Additionally, Your repeated use of the phrase “full of it”, especially in light of Your lack of citations to bolster Your positions suggests You might not be in a position to constructively discuss this topic. Until You are able to do so, I think We might be done here. By all means, when You are able to provide citations to back up Your claim, please do so. Until then, I might suggest backing away from the keyboard or at least this site.

          • It is really the privacy rights but actually a public health issue and a gender discrimination issue. Contraception is listed by the CDC as one of the ten greatest public health advances of the 20th century along with vaccines and antibiotics. That is not an accident. Contraception allows the spacing of births and is known to decrease maternal death and to improve women’s lifelong health and life expectancy. We see this in the third world where just the introduction of contraception in the absence of any other healthcare improvements dramatically decreases maternal death. The CDC has even set up goals to decrease the unplanned pregnancy. In addition most major medical groups both asked for and backed the mandate. The unplanned pregnancy has much higher rates of premature birth, low birth weight babies, birth defects and maternal morbidity. Thus contraception becomes a public health issue and denying coverage can effect children as well as women in their health and in their very lives.

      • It is a question on line drawing. The fact that an exception exists to the mandate invalidates the argument that it is vital and necessary coverage. You can’t say a private company employee has the right to birth control coverage while telling a church administrator to go pound sand.

        Now religion is both the philosophy expressed in the houses of worship and the practice that comes in establishing charities, hospitals, schools, ect. Now which do you think make a religion more relevent, how many butts are in the pew, or its involvement in its community? When you draw a line around the house of worship, you marginalize religious practice.

        This is a nuanced distinction, and the act is probably unintentional on the administration’s part. They saw this as a Catholic only issue and thought exempting the churches would be the easiest compromise. That said, the issue has been lardely hyjacked by opponents of the healthcare law to backdoor a constitutional fight.

        • Not at all. The fact that an exception exists only proves there is a religious lobby in Congress when the bill was being passed. A company is not a church. Its members are not volunteering to be part of the same faith or be held to its principles. That is the distinction you are trying to ignore at all costs.

          When a church branches out into activities other than the explicit rites of worship, it no longer acts like a church. It can be held to the same standards as any other organization performing the same functions. It is not nuanced at all. It is clear as day.

          • Whether a company is a church or not is irrelevant. I am not a church; yet, Nobody would expect to be taken with any degree of sincerity if They claimed I could not exercise religion. Additionally, at the church I attended years ago, We had a Accountant Who is Jewish. As far as I can tell, She was “not volunteering to be part of the same faith or be held to its principles”.

            And while a church branching into other areas may or may not be held to the same standard as other organizations, RFRA states precisely what that standard should be for any “person”, which the Dictionary Act defines to include corporations.

          • You are an individual. You have clear 1st amendment rights. Of course that does not mean you can deny something to others that they have a rightful claim to.

            If you owned a company and employed people you would be acting on behalf of your company. An entity which is probably shielded from your personal liability by function of law.

            RFRA does not apply to a corporate “person”. Corporations do not have recognized religious beliefs, nor can they do so logically. The beliefs of its owners do not equal corporate beliefs because of the legal split between a corporation and its ownership. Its employees certainly are not of a given faith since it cannot hire based on acceptance of sectarian beliefs.

  2. A big problem with this supposed debunking: I do know many Jews who will not touch pork for religious reasons nor help others to obtain or eat it.

    Additionally, in regards to “Sorry, because some of those are sins for us, we won’t pay for you to commit ‘em”, the author misses the point it is the PAYING FOR IT which is considered a sin as well.

    • Actually the real point is that your religious freedom is not a bludgeon to use against the rights of others. Just because you may believe something is sinful, it does not mean you have a right to withhold it from others. Especially when the nature of the job and the laws demand otherwise.

      Besides, it is not the employer paying for it. They are providing insurance and contraception just happens to be part of the minimum mandatory coverage. The government sets minimum standards for insurance which include mandatory provisions of all policies. Employers can always insure more than that level, but they cannot go below the mandated “floor”.

      The argument is like claiming you don’t want to pay for the liability portion of your auto insurance because negligently harming others in a motor vehicle is against your Christian ethos.

      • “Actually the real point is that your religious freedom is not a bludgeon to use against the rights of others. Just because you may believe something is sinful, it does not mean you have a right to withhold it from others. Especially when the nature of the job and the laws demand otherwise.” — I might agree except, 20 years ago, congress explicitly instructed federal agencies to make as much religious accommodations religious accommodations when it adopted RFRA. The Objectors are not asking for a new law to be made or even an exemption from existing law; They are asking the stillOnTheBooks law, RFRA, be enforced since Congress never repealed it.

        “Besides, it is not the employer paying for it.” — Actually, in the case of self-insured companies, like Hobby Lobby, They absolutely are paying for it directly.

        “They are providing insurance and contraception just happens to be part of the minimum mandatory coverage. The government sets minimum standards for insurance which include mandatory provisions of all policies. Employers can always insure more than that level, but they cannot go below the mandated ‘floor’.” — Again, the congress told federal agencies (paraphrasing), “You must make as much religious accommodations wherever You can,” when it adopted RFRA. The HHS has not done so.

        “The argument is like claiming you don’t want to pay for the liability portion of your auto insurance because negligently harming others in a motor vehicle is against your Christian ethos.” — While the analogy *NIGHT* be applicable, RFRA *does* give the government a way which would enforce the liability regulation and not the contraception regulation. (Presume a federal insurance liability regulation for this point, since RFRA only applies to federal laws/regulations and auto insurance is a state matter.) If the regulation is in furtherance of a compelling government interest, like protection from financial loss due to a car accident, and the means used to advance that interest are the “least restrictive”, such a regulation would pass RFRA. In the case of the contraception mandate, the millions of exemptions from the regulations do to so-called “grandfathering” and the White House’s statement how the regulations affects only ~5% of Employers strongly suggests whatever interest is advanced is not “compelling” while the fact the government could either move contraception over the counter, give tax credits for buying such, or start selling or giving away contraception itself, shows the means used are NOT the least restrictive. Therefore, the mandate fails RFRA and is illegal.

        • Being a self-insurer does not mean you are exempt from regulations concerning insurance and mandatory policy provisions. Even if it is coming directly out of the owner’s pocket, they don’t get to excuse themselves from the statutory minimum standards set by the government for policies.

          RFRA does not apply to companies. It applies to individuals and churches. Churches get the exemption because by its nature its in the business of providing religious rites and its members chose to follow the religion’s tenets. You can’t say that for a commercial entity. You can’t say that for a company providing a service to the general community.

          RFRA does not allow people to use their religious beliefs to pose a harm to others. If the owner of Hobby Lobby doesn’t want to use contraception, that is their choice. They do not get to force their employees to adhere to the same religious beliefs. Your argument is akin to saying that a company can force its employees to attend mass as a prerequisite to being paid.

          • I never said “Self-insured = exempt”; instead being Self-insured shows any alleged level of “insulation” does not exist.

            While You keep insisting RFRA does not apply to corporations, the very text of the law uses the word “person”, which the Dictionary Act defines to include corporations. Plus, I think One could “say that for a company providing a service to the general community”; case in point: Starbucks with its emphasis on using Fair Trade coffee and Amazon with its “Smile” donation program. I would find any argument these policies are not based in some form of religious belief to strain the limits of credulity.

            And again, You insist Hobby Lobby is trying to force Employees to not use contraception. Nothing in the record shows this to be the case. Again, if You can show Me the portion of the legal briefs or any public statements by Hobby Lobby or its Owners to say They want to do such a thing, I would be interested in seeing it.

            Lastly, You have conflated non-participation with deliberate denial. Suppose You and I are having dinner; further suppose I am a Vegan for religious reasons and You eat steak; suppose further still a plate of steak rests on the table next to Me on the opposite side of where You sit. If You asked Me to pass You the plate and I said, for religious reasons, “No,” I am not denying You the ability to eat the steak; I am only not helping You to do so. The difference is enormous from My ethical perspective.

          • Actually that was your exact point. You thought that Hobby Lobby being self-insured meant that their health insurance has to be considered differently from a carrier providing insurance to a company. It was ignorant on your part.

            Corporations are not persons in the sense for religious rights. Only individuals (or churches) have religious rights or even the ability to exercise them. Being declared a “person” does not mean you have all rights. Minors are people but cannot vote or can be held to contractual liabilities. There is not even a sane way you can exercise corporate religious rights.

            Your Starbucks analogy is terrible. You think that all charity = religious belief. I can point you in the direction of plenty of charity loving atheists who will think you are mental. Starbucks is also not withholding anything from their employees to engage in charitable actions. It is not an exercise of power from employer to employee.

            “You insist Hobby Lobby is trying to force Employees to not use contraception.”

            That is exactly what they are doing. They are using their power as employers to attack the ability of its employees to access coverage which is provided to them by law as a mandatory part of their insurance.

            “You have conflated non-participation with deliberate denial. ”

            Because it is. When participation is mandated by law, you have to cough up an excuse why one should feel exempt from it. Alleged religious freedom is not ever going to fly.

          • Ok, I was leaving the door open to the possibility You were indeed familiar with the relevant law and case and were willing to construct a sound argument. Clearly You are not else You would know the Supreme Court has said philosophical beliefs qualify as religious beliefs, which covers Your Atheist reference. Additionally, non-participation is not interference and simply saying, “Yeah huh,” is not a valid argument, much less a sound one. We are done here.

    • The issue is far more complicated since it in essence can drastically affect the health and welfare of both babies and Moms as well as women in general. Contraception is the best tool to space births. The medical community has long known that spacing births and having fewer children both increases women’s lifespan and improves overall health. This is why the CDC lists contraception as one of the ten greatest public health innovations of the 20th century along with vaccines and antibiotics. It is also well known that the unplanned pregnancy has much higher rates of low birth weight babies, premature births, birth defects and maternal morbidity. In addition 30% of all births are through cesarean section which after about three of those can leave scar tissue in the uterus. This makes pregnancy number 4 very risky indeed for Mom and the baby with both risking death or morbidity. Also contraception is needed for women taking category X drugs. A category X drug is known to both cause birth defects and or fetal death and are banned on pregnancy. Right now at least 3.5 million women of childbearing age take those drugs and the number is expected to grow both in percentage and in absolute numbers. The American Heart recently is recommending increased use of statins (cholesterol lowering medications like Crestor). Statins are linked to vertebral, esophageal, kidney, cardiac, limb birth defects as well as killing the baby. All this if taken in the first trimester. It often takes women weeks to know that they are pregnant. There are worse drugs out there. In addition the Catholic method of natural family planning cannot be used by all women for valid medical reason. So the Catholic Church is saying work for us and you, the female employee, get to risk death or disability or your unplanned baby gets death or birth defects. All preventable if the woman had the contraception. After all the bishops’ religious freedom trumps the life and welfare of the employee every day of the week. Then they turn around and say that if the employee cannot afford contraception on their own and cannot use natural family planning that they should all have sexless marriages. (That is exactly what the Catholic Church said to HIV positive men married to HIV negative women in Africa. Rather than allow the use of the condom which they knew reduces the transmission of HIV by 85% and they knew that women contract HIV in any given sexual encounter more easily than men do. Still they fought every non-Catholic aid group from passing out or teaching about condoms and literally said that there should only be sexless marriages. Knowing full well that most people cannot have sexless marriage and would most likely have relations and thus give the woman HIV. So she would then die. Oh well, at least no mortal sin was done. That attitude is not going to fly in the U.S.) The Catholic Church further does this while 75% of its employees are not Catholic and while the overwhelming majority are women.
      RFFA is not a blanket get out of jail free card. The government can pass a law that may restrict religious freedom if there is compelling government interest. Prevention of birth defects and maternal morbidity or death is a compelling government interest.
      geriatricnurse

  3. A fascinating discussion. When I was investigating the topic of abortion years ago before the Internet, there were books by authors whom I would not trust to be truly informative or enlightening. But there was another delightful little book full of essays on both sides of the issue.

    I find the contraception funding issue replete with similarly delightful ethical and moral nooks and crannies. I appreciate all those who approach it with a passion for truth and a sense of intellectual fair play – which is in fact possible, even on the Internet.

  4. charles hoffman

    the analogy could have been phrased properly had the item in question been one that is not only forbidden to be eaten but even forbidden to be trafficked in or even profited from.

    Chametz – unleavened bread – is forbidden even to be owned or trafficked in. A Jewish-owned bakery which was required to continue baking bread during Passover would fall in the category of a business being forced into violating conscience.

    But it’s a stretch, and the rabbis have already devised “work-arounds” for most of these problems

  5. David M. Nieporent

    Your understanding of Halacha is, let us say, limited. While it is true that there is no prohibition on non-Jews eating pork, there is a prohibition on Jews dealing in pork for human consumption. So, no, it is not correct to say that “Orthodox Jews have no objection to non-Jews eating pork, or to doing anything to help them to do so.”

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