A Stubborn "Fortnight for Freedom"

The contraceptive coverage mandate originally required organizations such as Catholic schools, hospitals, and social service organizations (which employ many non-Catholics) to directly cover employees’ contraception. After intense opposition from the United States Conference of Catholic Bishops, as well as criticism from many prominent liberal Catholics, including Washington Post columnist E.J. Dionne and MSNBC host Chris Matthews, the Obama administration offered a compromise in which the coverage requirement is shifted to insurance companies if the employer has a religious objection. This satisfied many Catholics, including Sister Carol Keehan, head of the influential Catholic Health Organization, who said that the compromise “has responded to the issues we identified that needed to be fixed.”
However, the USCCB rejected the compromise and continued to demand that the mandate be rescinded entirely. One concern raised was that many of the Catholic organizations in question self-insure. As Richard Doerflinger, the USCCB’s associate director of pro-life activities, observed: “Putting the obligation on the insurer and not the employer doesn’t help much if they are the same person.” Another major sticking point for Catholic groups is that HHS defines a “religious employer” rather narrowly as one that “primarily” serves and hires co-religionists, whereas the Catholic organizations in question see it as part of their mission to serve all people, not just Catholics.
Several months after the original dispute, various Catholic organizations, dioceses, and the University of Notre Dame filed suit in every relevant federal circuit in an attempt to overturn the mandate. Sister Keehan, who had initially accepted the administration’s compromise, withdrew her support. Still, it should be noted that the Catholic community is far from united on the lawsuits: only 13 out of America’s 195 Catholic dioceses sued.
As these suits are pending, the Supreme Court is preparing to hand down its ruling on President Obama’s Affordable Care Act. If the ACA is struck down in its entirety, the HHS mandate, which stemmed from the ACA, would also fall, seemingly removing the main impetus for the Catholic campaign. If the Court either upholds the ACA in its entirety or only strikes down the individual mandate, though, the HHS mandate will stand at least until the Catholic suits are heard, which Gerard V. Bradley, professor of law at Notre Dame, believes would not happen until after the presidential election, since the courts would prefer a political resolution.
Meanwhile, the USCCB has released a statement, “Our First, Most Cherished Liberty,” in which the bishops explain their understanding of what religious freedom means and how Catholics must act in order to defend it. They write that “To be Catholic and American should mean not having to choose one over the other” and that religious freedom means not only freedom of worship but also freedom of conscience. As Michael Moreland writes in Commonweal, a progressive-leaning lay Catholic magazine, the bishops espouse a view, articulated by theologians such as John Courtney Murray, that groups (including Catholic organizations) in civil society occupy a separate sphere from the state and that “the limits to the state’s ability to regulate such groups are not merely a concession on the part of the state but are the result of a genuine differentiation of jurisdiction between the authority of the state and the authority of subsidiary institutions.” This is in contrast to the view, expressed by political philosophers as far back as Thomas Hobbes, that religious and other civil institutions are fully subject to state regulation.
The bishops seem to believe that religious freedom is absolute. Yet even the Second Vatican Council’s Declaration on Religious Freedom (Dignitatis Humanae) concedes that, since “The right to religious freedom is exercised in human society . . . its exercise is subject to certain regulatory norms” and “due limits.” Moreover, while the bishops’ statement might lead one to believe that curbs on religious liberty are a new phenomenon, the reality is more complicated.
Religious institutions have come into conflict with the state before, with mixed results. As cited by William Galston, also writing for Commonweal, when Prohibition was enacted in 1919, the use of wine for sacramental purposes (important to both the Catholic and Jewish faiths) remained legal. However, in Employment Division v. Smith (1990), the Supreme Court ruled that the First Amendment’s Free Exercise Clause did not grant Native Americans in Oregon the right to use peyote (a banned substance in Oregon) as part of a religious ritual. In his majority opinion, Justice Antonin Scalia wrote: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Scalia was actually quoting an earlier decision, Reynolds v. United States (1878), in which the Court had ruled that religious duty did not exempt Mormons from a federal anti-bigamy law. Similarly, as noted in the Reynolds opinion, nobody could seriously argue that a religious group should be allowed to engage in human sacrifice.
In addition to making an absolutist argument for religious freedom, with no attempt to take account of competing viewpoints and the responsibilities of the state, the bishops call for an uncompromising response from Catholics. They describe the contraception mandate as an “unjust law” and write that, whereas “Conscientious objection permits some relief to those who object to a just law for reasons of conscience . . . An unjust law is ‘no law at all.’ It cannot be obeyed, and therefore one does not seek relief from it, but rather its repeal.” They go on to say that, “If we face today the prospect of unjust laws, then Catholics in America, in solidarity with our fellow citizens, must have the courage not to obey them.”
While many liberal-leaning Catholics (myself included) saw some merit in the bishops’ objection to the original mandate, the suggestion that people are morally obligated to disobey every law that they find unjust is truly alarming and, if taken to its logical extreme, a recipe for anarchy. By this logic, shouldn’t bishops and priests (and, for that matter, ordinary Catholics) stop paying income taxes, since tax revenue has been used to support many activities to which the Church objects, including the war in Iraq?
The Obama administration responded to the outcry over the initial mandate by offering to shift the burden to insurance companies. When the issue of self-insuring Catholic organizations was raised, the administration again signaled a willingness to seek common ground on the issue. It is regrettable that the bishops have shown no willingness to do the same.
Moreover, the extreme and alarmist rhetoric of individual bishops and priests suggests at best an overreaction, and at worst, a troubling tendency toward “picking fights with President Obama.” Bishop Daniel Jenky of Peoria, Ill. cited Otto von Bismarck’s Kulturkampf and the policies of Hitler and Stalin before warning that, “Barack Obama, with his radical, pro-abortion and extreme secularist agenda, now seems intent on following a similar path.” Some priests have reportedly compared Obama’s actions to those of Mexican dictator Plutarco Calles, who razed churches and executed priests in the 1920s and 1930s. The same analogy was made by Columbia, the official magazine of the Knights of Columbus, the world’s largest Roman Catholic fraternal organization.
Such rhetoric has drawn accusations of political motivations not just from commentators, but also from other clerics, including Bishop Stephen E. Blaire of Stockton, Calif., who suggested that some right-wing groups are turning the contraception controversy into “an anti-Obama campaign.” While the USCCB has also criticized some Republican policies, notably the Ryan budget, it has been far more strident in its condemnation of the contraception mandate. Meanwhile, although the rhetoric of conservative bishops and priests suggests that the Obama administration is trying to push the Church into a corner, Network, a Catholic social justice lobby headed by Sister Simone Campbell, has observed that funding for Catholic charities and organizations has actually increased under the Obama administration.
Over the course of the contraception controversy, the bishops and their supporters have expressed some legitimate concerns—especially over the breadth of the initial mandate and the narrow definition of a “religious employer.” Their response, though, has been over-the-top both in terms of rhetoric and in terms of the action—widespread civil disobedience—that they demand when the mandate goes into effect. Whether their actions are politically motivated or not, it is no wonder that many observers have come to that conclusion. While the Church and its leaders are certainly entitled to speak out on the issues that concern them, it is unfortunate that they do not acknowledge the need for some accommodation in a pluralistic society and that many have chosen to engage in the same hyperbolic rhetoric that has become commonplace in partisan political debates.
 
Photo Credit: Anthony M. Sanchez