Religious Exemptions & the Contraception Rule
I’ve been refraining from commenting on the contraception rule, because, to be honest, I’m puzzled both by the decision to mandate contraception coverage (which strikes me as politically very tone deaf) and by the reaction to it among liberal Catholics. I’ll leave the political wisdom of the decision to others, but let me explain why I’m a little surprised by the vigor of the reaction to it on the Catholic left. (And my puzzlement is not merely rooted in my concern about the wisdom of lending credibility to the mostly fatuous “religious freedom” line of attack that religious conservatives have strategically adopted as their new all-purpose refrain in the culture wars.)
Part of my uncertainty about the merits of this particular controversy is due to my own ambivalence on the question of religious exemptions generally. In this case, my confusion revolves around the difficulty I have in understanding the boundaries of appropriate demands for religious exemptions when it comes to moral claims like the Catholic hierarchy’s opposition to contraception (or, more accurately, to being compelled, if they choose to employ or provide services to non-Catholics and to provide them with health insurance, to pay for health insurance that covers contraception, which the employee may or may not choose to use). A couple of clarifications. First, for the purposes of this post, I’m distinguishing “moral” claims about how one ought to act in day-to-day life from claims related to ritual obligations. Not all groups would recognize that distinction, but I don’t tend to think of Catholics as being such a group. Second, I’m talking about the entitlement to an exemption here primarily in normative, and not in positive legal, terms.
My main question is what it is that properly qualifies a moral claim as “religious” such that the person who holds it is arguably entitled (on grounds of religious freedom) to some kind of exemption from a legal mandate to act otherwise. For reasons I’ll explain, I think this is a particularly challenging line for Catholics to draw because of our tendency to approach moral issues in terms of natural reason. But the uniformity of Catholic condemnation of the Obama administration’s decision makes me feel like I’m missing something.
Let me start with by limiting my focus to claims by an indisputably religious group (or individual) to an entitlement to an exemption from some regulatory requirement grounded in religious freedom. I know that this is not an uncontroversial starting point, since some theorists reject the notion that religion should be entitled to special solicitude when it comes to such exemptions, but since the criticism of the Obama decision has taken for granted that this is a question of specifically religious freedom and not merely conscientious objection in some broader sense, it seems like a fair move.
One of my first publications dealt with the knotty question of how to define “religion” for First Amendment purposes. I will not rehash my entire argument (some of which I no longer agree with) here, but, drawing in part on that earlier work, I can think of a few reasons for classifying a moral commitment as “religious” such that it would arguably trigger a claim to an exemption on religious freedom grounds. The most obvious is one where the commitment is understood by the believer (or group) to be derived from some explicit theological premise, e.g., divine command. Another would be if the belief, although not rooted explicitly in theological reasoning, is so bound up with a religious identity that being required to violate it would be akin to being asked to give up one’s religion. I suppose this is roughly something like “centrality” — some moral beliefs might just be very important to a religious identity even though they are not themselves grounded in divine command (or some other explicitly religious logic) as understood by that religion. This latter category is potentially broader, but I think something like it is necessary unless every moral commitment asserted by any religious group is to count as “religious.”
The first of these categories strikes me as less problematic from a definitional point of view, at least as a starting point. But it is not without its difficulties. Nor (at first glance) does it seem very helpful for the church’s position in this instance, since the hierarchy tends to discuss the arguments about contraception in terms of natural law rather than explicit divine command. On the other hand, the hierarchy has made both sorts of arguments about contraception (although I am not aware of anyone making such an argument concerning the narrower question of the insurance mandate). Moreover, Catholics might very plausibly claim that, as God commands them to act at all times according to what is good, any conclusion they reach about the morality of a particular situation actually counts as a “religious” obligation in some sense, and so interference with their ability to act on even their natural-law-based conclusions constitutes interference with their religious freedom.
Of course, this last argument has a “heads I win, tails you lose” quality to it when Catholics are arguing about some moral issue with someone who adheres to a secular conception of the good. The Catholic claims that it is legitimate for the Catholic to impose his moral commitments on the secular person through the democratic process, since they are not explicitly based on theological premises. But, when the democratic process reaches a conclusion contrary to the Catholic’s, the Catholic then turns around and claims an entitlement (on religious freedom grounds) to be free from the outcome of the democratic process. I’m not saying this is a logical inconsistency, but it unappealing in its radical asymmetry and, moreover, is understandably likely to be a tough position for the secular citizen to swallow.
This highlights the need for some limiting principle in the exemptions context. There are several potential strategies: one is to distinguish among a group’s moral commitments to determine which are so important as to give rise to a claim for an exemption (the centrality move I mentioned above). Another is to bracket that question and simply focus narrowly on the cost to the state of creating the exemption. I’ll come back to this second one later.
Picking and choosing among the moral commitments of a religious group is a difficult thing to do. Groups seeking exemptions are not likely to be reliable sources. And the group itself might not be clear on the point. What are we to do, for example, if (as with the morality of contraception, not to mention the less direct question of the morality of providing insurance that covers it) most of the actual members of the group in fact reject the leadership’s claim that a particular position is required by the tenets of the group’s faith? Whose conception of the centrality of the belief to the group’s religious identity should prevail? This relates to the tangled question of who we understand to be the proper bearer of the exemption entitlement — the religious group; individual believers; individual believers only insofar as their views conform to those of the group; all of the above?
Perhaps a better way to explain the uniformity of opposition to the Obama administration’s rule — one that would avoid some of these difficult questions — would be to move away from the question of whether a moral assertion is a matter of religious conscience and towards the question of religious group autonomy. It may be that what Catholics are reacting to with the contraception rule is not an intrusion on religious freedom as it touches on conscience but rather a perceived intrusion on what they take to be the right of a group like the Catholic church to structure its affairs without interference from the state. Here, the claim would be more akin to the one raised in situations like the “ministerial exception.” But the problem with this approach in the context of the particular rule under consideration is that that rule only applies when the group steps outside of itself to employ or provide services to non-group members.
My bottom line, such as it is, is that this seems like a murky case (again, normatively speaking) for an affirmative entitlement to a religious exemption. So why is the Catholic left so riled up? In the end, I think at least part of the answer relates to the move I made at the beginning of this too-long post in focusing narrowly on religious conscience. I actually think that liberal Catholics, like many liberals more generally, tend to favor broader exemptions of deeply held conscientious objection, without so much regard for the foundations of the moral beliefs in question. Although liberal Catholics do not agree with the Church’s position on contraception, they accept it as sincerely held and therefore, because they generally look favorably on broad conscientious exemptions, they would extend the same courtesy to their own hierarchy (and perhaps to private Catholic employers as well), even in this borderline case of a mandate to either provide indirect aid to the practice or pay a fine.
Related to this is the notion (which I mentioned above) of evaluating exemptions from the point of view of the cost to the state of accommodating conscience. One thing that I think upsets many liberal Catholics about this rule is that it would have been a seemingly trivial task for the Obama administration to create an exemption for Catholic institutions along the lines of the Hawaii scheme. Such an exemption would have satisfied claims of conscience by the hierarchy while having only a trivial impact on access to contraception. And this objection to the Obama administration’s inflexibility holds even if it’s the case (as I suspect it is) that, as a matter of constitutional law, the Church’s legal entitlement to an exemption is weak (or, at best, uncertain), for reasons Grant mentions in his post below.
But maybe the best explanation for liberal Catholic anger against the contraception rule is simpler than all of this. I perceive a very real feeling among liberal Catholics of having been hung out to dry by this decision. Having expended considerable capital within Catholic circles defending the Obama administration on a number of fronts (including this very health care law) over the past few years, Catholic liberals put their prestige on the line to advocate for an exemption from this rule. And now they are both hurt and embarrassed by their visible lack of influence with the administration. Feeling marginal both within the Church and within the progressive movement is not much fun.