Which is it?
Most critics of the HHS contraception mandate have said the controversy is about religious liberty, not contraception. Some of the same critics have said that the question is not whether Catholics could comply with the mandate in good conscience if they had to, but whether the government ought to force them to comply with it in the first place. But these two claims are logically incompatible with each other.
If the controversy is about contraception, then critics of the mandate will not be able to win the argument without first convincing a majority of Americans either that contraception is evil (good luck) or that, even if it isn’t evil, there is some good nonsectarian reason not to require insurance to cover it, despite the medical and social benefits of preventing unwanted pregnancies. To make one of these arguments, in the hope that a majority of one’s fellow citizens will be persuaded by it, is to make an argument that has nothing to do with protecting the religious liberty of those whose beliefs are at odds with those of the majority.
But if the argument is about religious liberty, then critics must persuade those who aren’t opposed to contraception or the coverage mandate that requiring Catholic employers to provide such coverage—or facilitate it in any way—would force them to violate the teachings of their religious community. If it can be shown, therefore, that such requirements would not force Catholics to violate their church’s teachings, then no one can oppose the mandate on the grounds of religious liberty.
This doesn’t mean the critics of the mandate are wrong, of course. Those who say the government shouldn’t make employers (of whatever belief) pay for contraception coverage could be right. As could those who argue that the mandate, with or without the accommodation, would force Catholic employers to violate church teaching. And one can make both of these arguments at the same time. But if one is going to claim that the mandate violates the religious liberty of Catholics, one really does have to demonstrate that the material cooperation with contraception it requires is illicit according to the church’s own teaching.
Tags: contraception, health care reform, HHS, USCCB
If you tell a lie big enough and keep repeating it, people will eventually come to believe it.
THis appears to be the big lie for now. I have seen it repeated many places, most recently in an op-ed piece by Orren Hatch and Tony Perkins:
http://www.politico.com/news/stories/0212/72990.html
Joey Fishkin theorizes that the issue is the “politics of recognition”
Read the rest here: http://balkin.blogspot.com/2012/02/contraceptives-and-politics-of.html
Here are Joey Fishkin’s credentials:
http://www.law.yale.edu/faculty/JFishkin.htm
” If it can be shown, therefore, that such requirements would not force Catholics to violate their church’s teachings”
Matthew – who is authorized to decide whether or not this has been shown? Surely the church’s authorities have that right, and nobody else?
Yep. And many people do. And they mix and match, in ways you’d no doubt see as illogical. It’s a religious issue, and it’s a constitutional one. It’s an issue of power seeking power and an issue of manipulative and deceitful politicians. It’s a lot of stuff. Lawyerly dissection won’t discover the soul of it.
Jim,
It might help to provide some context. In a CNA article responding to David Gibson’s USA Today piece, a Dominican theologian who knows Catholic moral theology back and forth made the following remark: “He’s presuming that the HHS mandate is going to be imposed, and that Catholics have to figure out a way to live with it… That’s precisely what the Church is fighting against – saying ‘No, it shouldn’t be imposed!’” If there is a way for Catholics “to live with it,” then this is not a religious-liberty issue.
As for who gets to make the call, this is not a matter of divine revelation. It’s a mundane (but not unimportant) question about how a teaching that is supposed to be warranted by natural law relates to the laws of a nonsectarian state. One doesn’t need a special charism or any laying on of hands to make a sound argument about material cooperation.
“If there is a way for Catholics “to live with it,” then this is not a religious-liberty issue.”
But if religious liberty is diminished by the state, then “living with it” means “living in a country where religious liberty is no longer available”. As in, “living with it and hating every minute of it.” There are religion groups all over the world – not least Christians in some countries – who are “living with it”.
That may be what you mean by “living with it,” Jim, but that is clearly not what the Dominican meant in this context. He meant something like, “Maybe the mandate wouldn’t require Catholics to do something illicit, but why force them into a circumstance which is less than the Catholic ideal, even if most non-Catholics don’t accept that ideal? Why force Catholics to support in any way those who are doing something illicit?” That is not a question that a nonsectarian state can answer to the Dominican’s satisfaction.
Matthew – I am repeating here a point I’ve made in at least one other thread, so at the risk of repetition: it’s far from clear that nonsectarian states, or any other states, should be permitted to answer the Dominican’s question. Under the current, pre-mandate regime, every institution is free to answer that question – the question of “how proximate should my cooperation with the evil of contraception be?” – according to its own lights and to its own satisfaction. It is free to enter into private agreements that reflect its answer to that question. A government mandate removes that freedom for any items controlled by the mandate.
In your post, you wrote: “But if the argument is about religious liberty, then critics must persuade those who aren’t opposed to contraception or the coverage mandate that requiring Catholic employers to provide such coverage—or facilitate it in any way—would force them to violate the teachings of their religious community.” I am questioning your assertion that Catholics or other religious adherents should bear the burden of persuading anyone about this. Istm that possessing religious liberty means freedom from having to justify one’s antiquated, idiosyncratic or bizarre beliefs and practices to anyone else.
It might help to provide some context. In a CNA article responding to David Gibson’s USA Today piece, a Dominican theologian who knows Catholic moral theology back and forth made the following remark:
I pointed out in a comment in another post here that both theologians in that article start their analysis from an incorrect factual understanding of the situation.
As in the statement by Orrin Hatch in my first post above, their assumption is that the insurance company’s obligation to offer free coverage for contraception arises from its contract with the employer and the employer is, in some way, paying for it, even though the contract says it does not include contraception.
As I understand it, the insurance company’s obligation to offer free coverage of contraception will arise from a government regulation, not its contract with the employer. The employer has no involvement in it and does not pay anything for it.
If the employer has an existing contract excluding contraception and it is happy with, it can just continue with the same contract wihout changing anything in It.
“As I understand it, the insurance company’s obligation to offer free coverage of contraception will arise from a government regulation, not its contract with the employer.”
Important point, John H. It shows how remote the employer is from the whole issue of who pays for what *and* why. True, the employer’s not-paying for the contraceptives leaves the ins. co. with the alternative of paying for them himself or loosing a lucrative contract. But that’s ins. co’s problem, one caused by the government, not by the employer.
The issue seems to have arisen because the government wanted to extend itself into an area in which it had not previously been, in which there was freedom of action it’s now proposing to take away. This, I presume, arises from an expansion of this administration’s understanding of what constitutes the common good. It apparently sees the Catholic Church as standing in its way, an obstacle that must be removed in one way or another.
The government in fact has the power to do this. Its action may eventually be ruled unconstitutional or illegal for some other reason, but in the meantime, presumably, it will stand.
This strongly suggests, I think, that we are dealing not with a simple nonsectarian government but with an aggressively secular one. If that’s the case – and it looks like it to me – there will continue to be conflicts not only with the Catholic Church but with other churches and charities that are now doing work in ways the government will likely find objectionable.
It would be a worthwhile exercise to try to imagine where this is likely to go in the near future. The distant future is too far to look – too much will change – but the near future is here now.
This, I think, is a part of the changing goalposts which we have seen in the debate. But there is also another issue which we have to acknowledge: the way many deal with the mandate is as if it were making Catholics use contraceptives. The arguments many give only make sense if that is what they think is going to happen.
David Smith’s concern (@1:41) seems echoed in a piece by the philosopher Patrick Deneen who posted yesterday:
“The Church understood – long before this tendency became evident – that liberalism was finally incapable of “indifference” toward the choices of individuals, particularly when those choices involved the limitation of individual autonomy, and particularly when any such limitation occurred in the context not of organizations that stressed individual choice, but rather asserted the preeminence of conceptions of the Good that commended practices of self-limitation. In short, liberalism would finally reveal its “partiality” toward autonomy by forcing institutions with an opposing worldview to conform to liberalism’s assumptions. Liberalism would seek actively to “liberate” individuals from oppressive structures, even at the point of requiring such liberalism at the point of a legal mandate and even a gun.”
Deneen’s full relection is here:
http://www.frontporchrepublic.com/2012/02/religious-liberty/
Matthew- this analysis is spot on.
I am questioning your assertion that Catholics or other religious adherents should bear the burden of persuading anyone about this. Istm that possessing religious liberty means freedom from having to justify one’s antiquated, idiosyncratic or bizarre beliefs and practices to anyone else.
Jim,
Was the religious liberty of Mormons violated on the issue of polygamy?
And what about female circumcision?
What about religious parents who believe in faith healing and not modern medicine? Is it a violation of their religious liberty and their parental rights to have children with treatable conditions saved by modern medicine rather than be allowed to die at the hands of faith healers?
Liberalism would seek actively to “liberate” individuals from oppressive structures, even at the point of requiring such liberalism at the point of a legal mandate and even a gun.”
Father Imbelli,
I have read a couple of Deneen’s pieces, having discovered them through links over at First Things. It should be noted that when he talks of liberalism, he is talking about classical liberalism, a philosophy which American liberals and conservatives both subscribe to.
I am wondering if Deneen (and you) feel that the Catholic Church took a wrong turn in recognizing religious freedom in 1965.
Matthew,
On a thread that no one but John Hayes and I still follow, I posted the following argument, which I believe to be unassailable, that under both the mandate and the revision, the cooperation is formal:
“It seems to me that if this argument, and subsequent policy, were enacted then the Church would be placed in the position of hoping that contraception be actually practiced,” Fr. Corbett observed.
“For if it were not practiced sufficiently, then there would be no savings,” he explained. “If there were no savings then there would be higher premiums through which the Church would be more or less directly paying for contraception.”
“This would put the Church in the position of saying ‘A sufficient number of you must practice contraception to ensure that we will not have to pay for your contraception.’ This looks a lot like formal cooperation.”
http://www.catholicnewsagency.com/news/moral-theologians-reject-catholic-writers-defense-of-hhs-mandate
We buy the contraceptives either way. Either the employer buys contraceptive coverage outright, or we avoid buying the coverage because contraceptives are purchased under our plan, which drives down the cost of our plan so the coverage is free. In both cases we formally cooperate with the purchase.
My hope in bringing this to your attention is that we as Catholics can unite in our opposition to the revision as refreshingly as we did when the mandate was first announced.
Personally I think the next legal challenge should consider whether the powers accrued to the executive branch by the health care legislation are constitutional, and the next discussion should be about how much power, invested in the executive branch, is for the common good. But for now we are on the defensive. Something is being demanded of us that our religion forbids. And conscience is inviolable.
Mr. Nickol,
I thought Deneen’s piece raised interesting issues which I found stimulating. I have not been able to give them the time they deserve, but wanted to bring them to the attention of others who are pondering the issue. They could make an interesting discussion (as you intimate). Have you commented on his post on the frontporch blog?
As for your question, I am a child of 1965 (not of 1968 :-)! I have not recently reviewed the history of “Dignitatis Humanae.” I have a vague recollection that John Courtney Murray was not completely pleased with it. But Joseph Komonchak could certainly correct me on that point.
I think the present Pope has spoken repeatedly and forcefully about religious freedom. And, as some will tell you, I have great respect for his magisterium.
“I pointed out in a comment in another post here that both theologians in that article start their analysis from an incorrect factual understanding of the situation … their assumption is that the insurance company’s obligation to offer free coverage for contraception arises from its contract with the employer and the employer is, in some way, paying for it, even though the contract says it does not include contraception. As I understand it, the insurance company’s obligation to offer free coverage of contraception will arise from a government regulation, not its contract with the employer. The employer has no involvement in it and does not pay anything for it.”
Let’s set aside the claim that the employer is actually paying for the contraception or not – I think that one’s been beaten into the ground, and I believe you and I are in basic agreement.
I’m not sure that you’ve captured the gist of Fr. Petri’s claim regarding immediate cooperation. It goes something like this:
* Under the accommodation, the special arrangement is that insurance companies will subsidize the contraceptives of employees of Catholic institutions. So this special arrangement entangles the insurance company in the evil of enabling contraception. (It is, in fact, a structure of sin, whose construction is initiated by this government regulation).
* This special arrangement is triggered, and can only be triggered, by the Catholic institution contracting for health insurance with the insurer. If Mercy Hospital doesn’t contract with Aetna, then Aetna would never subsidize contraception for Mercy Hospital’s employees. It can only happen by Mercy Hospital and Aetna signing the contract.
* Therefore, the nature of the Catholic institution’s cooperation with evil is immediate: its cooperation is indispensable to causing the insurance company to pay for the employees’ contraception.
“Was the religious liberty of Mormons violated on the issue of polygamy? And what about female circumcision?”
Hi, David N, I agree that religious liberty is not absolute. But neither is it nothing, nor should it be minimal. The Hosanna Tabor ruling suggests that the Supreme Court harbors a view of it whose expanse probably exceeds the conception of most Americans who haven’t thought about it very deeply. My own view is that there needs to be a compelling reason to supersede religious liberty. It may be that polygamy or female circumcision or life-saving blood transfusions are examples of overriding circumstances. The central questions of the new regulation – What should the end-user price of contraception be, and who should pay the difference – doesn’t rise to that level of exigency. In my opinion.
And if an employer or an insurer holds ethical views on contraception that coincide with mine, he should be free to apply them to health insurance policies.
Very good post, Matt, and like Bob Imbelli, I also read Patrick Deneen’s piece, and others like them, with interest — in part because I think another internal contradiction posed by the bishops’ position is that they have strongly supported the very kind of “liberalism” (as Deneen seems to construe it) that is behind the mandate. The USCCB (contra the WH spokesman the other day!) were strong proponents of health care reform, and indeed one with the stronger government component. They would have backed (as a body, if with some individual reservations, to say the least) the ACA if they had been convinced there would be no government funding of abortion — a conclusion they could not accept (which had terrible consequences of its own in helping to decimate pro-life Democrats and diminish the political pull of pro-lifers, not to mention nearly capsizing the very health care reform that the bishops said was a pro-life issue).
In any event, there seems to be a contradiction in that the bishops want government-backed health insurance but don’t want what it entails when they don’t like it. As many have menetioned, a single-payer system would evade many of the debates, but if the USCCB is upset at the contraception issue rather than the mandate issue, then single-payer would not avoid the problem.
As George Weigel put it in one of his recent Melvillean broadsides against Leviathan:
Yes, that’s one way of looking at it. But it is not the way the church, from social justice Catholics to the U.S. bishops on down to the Pope, has viewed it.
Are they hoist on their own petard, as we say?
Sorry, Matthew, my eye skipped over your citation of the same exact article.
Those who think that the freedom of religion issue is a smokescreen should consider Archbishop Niederauer’s opposition to a legal ban on circumcision: http://www.catholic-sf.org/news_select.php?newsid=22&id=58608
** This special arrangement is triggered, and can only be triggered, by the Catholic institution contracting for health insurance with the insurer. If Mercy Hospital doesn’t contract with Aetna, then Aetna would never subsidize contraception for Mercy Hospital’s employees. It can only happen by Mercy Hospital and Aetna signing the contract.
Therefore, the nature of the Catholic institution’s cooperation with evil is immediate: its cooperation is indispensable to causing the insurance company to pay for the employees’ contraception.
–Jim Pauwell
If that conclusion were correct, Fordham University, the diocese of Madison (and if I recall correctly, DePaul University, Loyola University Chicago and the University of San Francisco) and other Catholic institutions that provide insurance covering contraception are involved in immediate cooperation with evil. Have they no theologians who have noticed that?
Matthew,
I may be mistaken. But the Catholic bishops who see the mandate issue as a freedom of religion issue probably have a well-established framework at work in their thought-world: the framework of secularism vs. religion. In my estimate, the secularism vs. religion framework is in effect Manichaean is spirit. In addition, the secularism vs. religion framework can appeal to our understandable tendency toward paranoid tendencies, if we buy into the framework and fear either secularism, as the Catholic bishops probably do, or religion, as critics of so-called theocrats and theocracy apparently do.
If this framework is well-established in the bishops’ thought-world, as I suspect it is, then the mandate issue would predictably cause alarms to go off. I would associate those alarms with our understandable human tendency toward paranoid tendencies.
As American citizens, the Catholic bishops are of course familiar with the American tradition of freedom of religion.
So why not co-opt the American tradition of freedom of religion to serve the cause of the framework of secularism vs. religion.
As American citizens, the Catholic bishops are of course free to express their political views and to try to rally not only Catholics but also non-Catholics to support their political views.
This brings us to the interesting question: “How do people in the political arena go about trying to rally support of others for their views?”
Aristotle discusses civic rhetoric in his famous treatise on RHETORIC (also known as the ART OF RHETORIC).
According to Aristotle, orators use three kinds of appeals: (1) logos, (2) pathos, and (3) ethos. I have long been impressed with Aristotle’s account of these three appeals.
Now, in your commentary, Matthew, you have stressed one appeal: logos. For example, you say, “But these two claims are logically incompatible with one another.” You are probably correct.
However, I suspect that pathos and ethos are also involved in the reactions of those orators and writers who are expressing concern about freedom of religion. Pathos is in play in the anger and the appeal to anger. Ethos is in play in the sense of each orator’s identity and in each orator’s appeal to identity and identification of the orator’s imagined audience, specifically religious identity.
Please don’t misunderstand me here. I am not trying to discourage from pressing the issue of logic, Matthew. But I am suggesting that logic is probably only one consideration involved in the current debate about the contraception mandate. However, as I say, I may be mistaken about this.
Finally, because ethos is not widely understood, I would like to recommend a fine essay about ethos by William M. A. Grimaldi, S.J.: “The Auditors’ Role in Aristotelian Rhetoric” in the book ORAL AND WRITTEN COMMUNICATION: HISTORICAL APPROACHES, edited by Richard Leo Enos (Sage Publications, 1990, pages 65-81).
On a thread that no one but John Hayes and I still follow, I posted the following argument, which I believe to be unassailable, that under both the mandate and the revision, the cooperation is formal:
Kathy, without repeating the details of my reply over there, Fr. Corbett’s conclusion is based on his incorrect understanding of the facts. He believes that the Catholic employer will pay more or less for the insurance depending on how many people use contraception.
John,
As on the thread below, you are missing the subtlety of the argument. The question raised again and again regarding the revision (as distinct from the original mandate) is whether the kind of cooperation has changed. That would be the crux of the matter for hospital ethicists and others involved in weighing the matter. Fr. Corbett argues that formal cooperation with evil (which can never be legitimate) remains, even after the revision.
This page makes some helpful distinctions: http://www.ascensionhealth.org/index.php?option=com_content&view=article&id=82:principles-of-formal-and-material-cooperation&Itemid=171
If you tell a lie big enough and keep repeating it, people will eventually come to believe it.
This appears to be the big lie for now. I have seen it repeated many places, most recently in an op-ed piece by Orren Hatch and Tony Perkins:
I want to clarify that I don’t believe that people who repeat as a fact that a Catholic institution is still required to pay for contraception are intentionally lying. I think that story has become an urban legend, like the emails people forward without questioning whether they are factually correct.
Sorry – I forgot to close the italics before “I want to clarify…”
Matt: This is very helpful, and I agree that distinctions need to be made, especially between the morality of contraception question and the freedom of religion argument. I wonder, though, whether proving that the mandate requires illicit material cooperation with evil is already asking the government to consider a proposition that is outside its jurisdiction. First, the issue is controversial within the Catholic community and requires some pretty sophisticated theological argumentation to even get people to understand that it is a morally significant consideration. Second, as Gary Gutting argued in the NYTimes yesterday, taking the teaching on the authority of the Bishops alone is controversial from the perspective of anyone who has not already accepted the theological premises on which that authority rests. So, determining whether or not Catholics are being unduly burdened to act against their Church’s teaching seems to already require the secular government to unduly burden itself with theological considerations that are not appropriate for a democratic polity that does not want the government to take sides in theological controversies. So, I think the question of religious freedom really boils down to whether institutions (other than actual churches) that employ and serve non-adherents can qualify for religious exemption from mandates of this kind. This is a properly secular question that does not require the government to even consider, let alone intervene in controversies over, the teachings of any particular tradition.
–Kathy, before people start thinking that the government wanted to prohibit circumcision, it’s worth noting that that was a proposed city referendum for which an individual gathered 12,000 signatures. It was thrown off the ballot because It wasn’t something a city could regulate:
Those who think that the freedom of religion issue is a smokescreen should consider Archbishop Niederauer’s opposition to a legal ban on circumcision.
Kathy,
Would he (or you) support a religious right to female circumcision?
My understanding of the proposed ban on male circumcision in San Francisco was that it was carefully crafted to pass constitutional muster. Circumcision is widely practiced and is not just a Jewish rite. The circumcision ban would have been a broadly applicable law that did not target Jews. The people opposed to circumcision are not anti-Semites. They are anti-circumcision. One of the most heated on-line arguments I ever participated in was about male circumcision, and the issue of religious freedom was a minor part of discussion.
John and David,
The bishops are not trumping up a cause in an election year. Nobody but Obama chose the timing of this fight. Any challenge to religious freedom is antithetical to Catholics. With the contraception mandate, our own religious freedom is at stake, so the bishops are speaking up. And when the freedom of others to practice their religion has been at stake, our bishops have spoken up. The cause is freedom of religion.
The bishops BC position has been torpedoed today by Santorum’s million dollar donor/sponsor Foseter Friess who says about BC ‘ the pill I like is aspirin, the woman holds it between her knees’ .. When you try to defend the indefensible don’t complain that you look awkward in the clown car.
More about San francisco and religious liberty….Catholic Health Care West, the huge hospital chain is the official medical sponsor of the San Francisco Giants. Great branding, mentioned over and over on all TV/radio broadcasts. Their logo flashes on the backstop right behind the catcher so you see the brand at every pitch.
This month they changed this World Champion brand CHW to Dignity Health. It’s Time to ask that hackneyed question…
What did they know and when did they know it?
Would that we all could excape this farce about ‘religious liberty’ so easily.
Thanks for the post on cooperation with evil Kathy. I certainly cant determine which level of cooperation applies in the contraceptive debate but its seems clear to me that the employer is involved and cannot claim duress, especially since they can opt not to provide any health care policy at all.
I wonder how many of those who are arguing against the bishops position would continue that argument if they thought the proper outcome was having all the affected employers drop all health coverage.
“If that conclusion were correct, Fordham University, the diocese of Madison (and if I recall correctly, DePaul University, Loyola University Chicago and the University of San Francisco) and other Catholic institutions that provide insurance covering contraception are involved in immediate cooperation with evil. ”
I don’t know the details of all those cases, but I don’t think any of them are comparable to the proposed accommodation whereby the institution’s insurer subsidizes the contraception. In the case of Madison, and presumably USF, they are conforming, presumably under duress, to state laws that require them to subsidize their employees’ contraception directly. Morally, this is arguably worse than President Obama’s proposed accommodation, although that it is done under duress mitigates the institution’s responsibility. The moral analysis would go somewhat differently than in an accommodation scenario.
(A long time ago now, before the Obama Administration proposed its accommodation, you wrote something very sensible: you advised Catholic institutions reluctantly to conform to the mandate, and work to change it.)
“The USCCB (contra the WH spokesman the other day!) were strong proponents of health care reform, and indeed one with the stronger government component. ”
David G, thanks for pointing this out.
It’s worth noting, though, that the bishops may be as confused/misled on this score as I was: we thought the scope of the Affordable Care Act was to provide affordable coverage to the working poor, i.e. people who didn’t qualify for Medicaid but whose jobs didn’t provide affordable care through group policies.
If this new contraception mandate applied only to the class of people I’ve described – the working poor – then possibly the current debate would rage on in some form, but it would apply only to that subset of people, i.e. those whom the ACA ostensibly benefited.
It’s disconcerting to discover that the ACA empowers HHS to issue sweeping new mandates that apply, not only to that subset, but to *all* people *everywhere*. This is not the bill of goods we thought we were buying.
But if one is going to claim that the mandate violates the religious liberty of Catholics, one really does have to demonstrate that the material cooperation with contraception it requires is illicit according to the church’s own teaching.
– Matthew Boudway, I think the argument now is that even if the material cooperation with evil it requires is licit, you shouldn’t have to cooperate with evil to begin with.
So far, the Supreme Court has not found that the First Amendment extends that far.
If it did, that would have implications for people who want to withhold income taxes because they may be used for government programs the feel are immoral, decide not to serve in a particular war thy feel to be immoral, etc.
Of course, the Supreme Court doesn’t deal in categories of licit or illicit cooperation with evil, which are internal decisions of a church, which it cannot adjudicate. The current standard requires that a government action cannot substantially burden a person’s exercise of religion unless it is he least restrictive way of furthering a compelling government interest”
Eventually, the three Becket Fund cases will get to the Supreme Court and the questions of “substantial”, “compelling” and “least restrictive” will be decided there.
Those are issues of U.S. law, not theology, and only the Supreme Court can decide them.
Whether the bishops are correct in their analysis of the Catholic tradition is largely irrelevant from a civic point of view. The government should not be in the business of determining what is authentic religion.
This debate has muddled the difference between the right to freedom of religion and legal accommodation of religious beliefs. In the first category are things that the government cannot force people to do or prevent people from doing. Any law that tries to do one of these things is unconstitutional. Religious accommodations are cases where the law is modified to make things easier for people with certain beliefs even though there is no constitutional obligation to do so. An example of this would be how Minnesota marriage law treats Quakers. The law allows religious clergy to perform civil marriages, but Quakers do not have a separate class of clergy. The state of Minnesota could just have them go to the courthouse, but instead it has a special provision of the law that allows any Quaker to act as a member of the clergy for the purposes of signing a marriage license.
Requiring insurance plans to cover contraception seems most analogous to requiring people to pay taxes that help pay for military activities. Pacifists have a long history of refusing to pay taxes to pay for wars that they find abhorrent, but the courts have found that requiring them to pay taxes isn’t an unconstitutional restriction of their freedom of religion. Therefore, the question of how to respond to the bishops’ objections to insurance that covers birth control is a political rather than constitutional question. The Obama administration has made some accommodation to Catholic religious beliefs, but it has decided that ensuring broad access to birth control is more important than making further accommodations to the desire of employers to avoid remote material cooperation with something they see as immoral.
Eric you wrote in part:
‘So, I think the question of religious freedom really boils down to whether institutions (other than actual churches) that employ and serve non-adherents can qualify for religious exemption from mandates of this kind. This is a properly secular question that does not require the government to even consider, let alone intervene in controversies over, the teachings of any particular tradition.’
But of course as citizens, we have the right to petition the government for a redress of grievances which includes the right of religious freedom. Believers regularly petition the Courts to live their religion as they see it, not as the government sees it. If Hosanna-Tabor tells us anything, its that allowing the government to define what constitutes religious freedom is no religious freedom at all. And the Catholic Church sees it as part and parcel of its missions to serve and lift up all people, not just professed Catholics.
Cupcake, requiring insurance is not at all analogous to paying taxes, particularly general taxes, ie those not specifically targeted for certain expenditure. General taxes are collected and then the government goes through a separate allocation process known as the budget and approves expenditures independently. That is not what is happening here and its not just a money issue. The provision of contraceptive services is predicated on the religious institution having a medical insurance plan. No plan, no contraceptive service….
Any challenge to religious freedom is antithetical to Catholics.
Kathy,
But Patrick Deneen, in the interesting piece linked to by Father Imbelli, makes a very interesting argument that the issue is not really “religious liberty,” but must be framed in those terms by the Catholic Church just to get a hearing:
I know how Catholic hate to hear this, but doesn’t that sound like Catholics attempting to “impose their morality” on those who are not Catholic?
David,
Doesnt that quote also make you think that the ‘dominant liberal worldview’ is also trying to be imposed? The quote depicts opposing forces each trying to win.
(A long time ago now, before the Obama Administration proposed its accommodation, you wrote something very sensible: you advised Catholic institutions reluctantly to conform to the mandate, and work to change it.)
I haven’t tried to find where I said that, but it was probably before Febuary 10. At that point, churches and some directly related activities were permanently exempt and non-profit religious organizations with religious objections were effectively exempt until August 2013.
I felt it would have been more productive for the bishops to welcome the opportunity to work with the government during that 18 months period to develop a workable solution for the hospitals, universities, charities, etc.
They did not and cotinued to raise such an uproar that the administration was forced to lay out its proposal for a solution that could be developed before August 2013. The bishops then complained htat they hadn’t been consulted – and that they didn’t like the administration’s proposal.
I think is clear that the administration’s basic position is that contraception is one of the preventative services that the law passed in 2009 requires that employees covered under all plans established after that time to receive free (grandfathered plans are exempt)
I think the “accommodation” indicates that the administration is willing to be flexible in how that is accomplished while respecting religious beliefs.
I would still encourage the bishops to jump in and work with the administration over the next 18 monhs to develop a plan that makes free contraception available in a way that is licit within Catholic morality.
If their goal is to prevent free contraception from being available – or to avoid any cooperation in evil, even if licit – then I don’t think those negotiations will be productive and they will have to hope that either Congress will pass a law or the Supreme Court will rule for them in the Becket Cases.
Congress and the Supreme Court do seem to be what they are hoping for according to the statement from Archbishop Dolan I quoted recently.
David N.,
No, it does not sound like the Catholic Church is “imposing a morality.” Government alone has the power to impose its will on a society. The Church has every right to “propose” a morality, and particularly an alternate worldview. This worldview is not partisan. Everyone wedded to a party will find something to dislike.
But the current debate is not about Catholicism’s voice in the public square. It has called forth remarkable episcopal voices, which is all to the good. But it’s not about public discourse. It’s about freedom of religion, the first amendment.
Doesnt that quote also make you think that the ‘dominant liberal worldview’ is also trying to be imposed? The quote depicts opposing forces each trying to win.
Bruce,
The dominant liberal worldview doesn’t need to be imposed. It is the worldview to which the vast majority subscribes. It is the worldview out of which the Declaration of Independence and the U.S. Constitution emerged. It is the worldview of both liberals and conservatives in American politics.
But it’s not about public discourse. It’s about freedom of religion, the first amendment.
Kathy,
I seriously doubt that the contraceptive mandate is unconstitutional. If it is, I don’t think the Church has anything at all to worry about. I think the current Supreme Court believes in the First Amendment and religious liberty. But I would note that the Court refused to hear two challenges to state mandates, and of course the First Amendment applies to states as well as to the federal government.
No, Kathy, this is not about freedom of religion. That’s just a pretext that the Catholic bishops are using to enter the public arena and try to advance their views there. As American citizens, the Catholic bishops are free to express their views in the public arena and try to win public support for their views.
However, having said that, I agree with you that the bishops do indeed have a worldview. As you intimate, their worldview is probably connected with their view of morality.
Now, if, as you say, the Catholic bishops as American citizens have “every right to ‘propose’ a morality, and particularly an alternate worldview” (your words), then other Americans should have every right to question and challenge and debate the proposed morality and alternate worldview.
I hope that Americans rise up to the occasion of debating the Catholic bishops’ proposed morality and alternate worldview.
It is the worldview out of which the Declaration of Independence and the U.S. Constitution emerged.
Actually, the Declaration of Independence and US Constitution emerged from much more of a Judeo-Christian view of the world. Abortion, contraception, gay marriage would not have received even a whimper of a hearing….
“I felt it would have been more productive for the bishops to welcome the opportunity to work with the government during that 18 months period to develop a workable solution for the hospitals, universities, charities, etc. They did not and cotinued to raise such an uproar that the administration was forced to lay out its proposal for a solution that could be developed before August 2013. The bishops then complained htat they hadn’t been consulted – and that they didn’t like the administration’s proposal.”
There are two different ‘levels’ (at least) of this dispute that are being worked simultaneously – the two levels that those Dominicans mentioned in their critique of David G’s article.
If the mandate is a fait accompli, then the best the bishops can do is cut the best deal they can (or somehow bring about the best outcome possible) within the basic framework of the mandate. From that point of view, the accommodation may be ‘a welcome first step, and deserving of further study’ (as a number of the official statements have framed it). This is a micro-level approach.
At a more macro level, the very mandate itself is problematic, for a number of reasons that have been / are being hashed out in other threads on dotCom. If it is possible for the bishops to cause the mandate itself to be rescinded, then perhaps they should do so. (If the mandate were rescinded, then we’re back to the status quo. I don’t view that as a problem).
Actually, the Declaration of Independence and US Constitution emerged from much more of a Judeo-Christian view of the world.
Bruce,
Judeo-Christian was not even a word until 1899, and the idea of American being in the Judeo-Christian tradition probably dates from World War II.
At a more macro level, the very mandate itself is problematic, for a number of reasons that have been / are being hashed out in other threads on dotCom. If it is possible for the bishops to cause the mandate itself to be rescinded, then perhaps they should do so. (If the mandate were rescinded, then we’re back to the status quo. I don’t view that as a problem).
If you pretend to be president Obama for a moment
He has two groups of people in front of him:
- one group says contraception is evil and no one should be required to include it in a health plan.
- another group says contraception is good and everyone should be able to obtain it free through a health plan.
Both say that is their religious or moral belief.
Unless you believe that “error has no rights” and you get to pick which side has the truth, what do you do?
For the cases of the two sides, see the article by Joey Fisher at Yale Law School that I referenced earlier. His view is that the basic problem is that both sides want the government to endorse their position:
http://balkin.blogspot.com/2012/02/contraceptives-and-politics-of.html
David Boies, who is a respected constitutional lawyer, says there is no constitutional issue here and that any case is unlikely to be accepted for hearing by he Supreme Court.
I don’t know that he is right but it was a welcome relief from all the people who start from the claim that the constitution is being violated.
Video: http://thelastword.msnbc.msn.com/_news/2012/02/09/10358005-constitutionality-of-birth-control-mandate
That was recorded on February 9, so he is talking about the original proposal, before the “accommodation.”
Adding to John Hayes, 4:02
Two groups citing deeply held moral/religious convictions. You can’t have it both ways.
One group has public health data on its side, an important aspect of the common good, also a large proportion of the general public, including most of his political base.
The other group is advocating for its side standing on a church doctrine that even its own adherents widely ignore.
” Any challenge to religious freedom is antithetical to Catholics. ”
A quick trip down memory lane will disabuse you of that fallacious idea.
That is in the same category as “The Pilgrims came to America to establish religious freedom for everyone.”
Sorry, Puritans
“Unless you believe that “error has no rights” and you get to pick which side has the truth, what do you do?”
You show a preferential option for religious liberty.
There’s a sameness to most of the comments here in their arguing over legalisms. I wish we could get away from that, since legal arguments are endless and solve nothing. They’re probably fun, but they’re unproductive of workable solutions, which are badly needed here.
The issue, it seems to me, is simply the continual expansion of the control of a government that understands itself to be the sole custodian of right. Opposition is not to be brooked. Perhaps unlike Patrick Deneen at http://frontporchrepublic.com I doubt that there’s any or much deep conscious thought behind this progressive government’s programs. I’m almost satisfied that their operating impulse is mostly a vaguely defined but nonetheless strongly held belief that democratic governments, led by educated elites, are the only valid source of moral certainty. In their mind, this furnishes them with the duty and legitimate power to eliminate any substantial competition, in the form of organizations that operate on other principles. The traditional institutional Catholic Church, of course, operates on very different principles.
You show a preferential option for religious liberty.
But aren’t both groups entitled to the free exercise of their beliefs?
I think Jim’s emphasis is on “liberty”, which is more or less what you’re asking for, no? When one group sets itself up as the only acceptable arbiter of right and wrong – as modern governments, including ours, seem to be tending to do – society becomes locked into one rigid pattern of behavior. Dissent is allowed only so long as it does not carry over into action.
That’s what we’re getting in this situation. The government’s decided that encouraging widespread use of contraceptives, abortifacients, and sterilization is good; any program going counter to that is discouraged or punished. This makes sense from their point of view: it’s for the common good, as they define it. To allow other organizations, like the Church, to push different programs reduces the effectiveness of the government programs.
I suppose we could say that the government sees the Church as a competitor, acting unpatriotically. Can’t have that.
At least several people in these threads are assuming contrary to fact that there can be no conflict of the laws within the Constitution. They therefore conclude that religious freedom is an absolute one. But there are conflicts of Constitutional laws just as there are conflicts between the laws of different nations. To assume otherwise is incredibly naive.
When one part of the Constitution contradicts another, then it is the function of the Court to decide which law is the more important given the the circumstances. That is what will probably happen in this matter — the Court will have to decide which is more important (for the common good): religious freedom or equal treatment under the law.
I wish some of the lawyers on the blog would say something about such conflicts and how the Court is supposed to resolve them.
Yes, Ann. “Equal” and “fair” and “just” treatment, as determined by the government.
And don’t forget that the courts are part of the government.
The deck is heavily stacked.
“But aren’t both groups entitled to the free exercise of their beliefs?”
Only one of the two competing sets of claims is religious, so only one is entitled to religious liberty protections.
Also – this conflict isn’t a zero-sum game. If the bishops prevail, then … people will be free to continue to consume birth control as they have been before. No free exercise of beliefs will have been abridged.
If there are individual health benefits or public-health benefits to birth control’s consumption, then the government can do many things to promote its use without imposing this mandate. It can run public service announcements. It can subsidize it directly (as it already does). It can make its expense tax-deductible. It can put a cap on the price. And many other things besides. I’m not endorsing any of these ideas; in fact some of them are really bad. But these are all things that government does currently or has done in the past for various goods and services.
David S. –
You talk as if the U. S. government were imposed on us by some aliens from Mars.
Of COURSE it’s stacked in the favor of government decision. That’s what a government is supposed to be in a social democracy — the decider for the people who elected it. When we put jackasses in office we get the jackasses we deserve. “It” is us.
Ann, I’m no longer sure democracy is a form of government that works when a society is as populous and complex as this one. What we have is more a plutocracy than a democracy. An occasional election to choose among candidates all selected by professional politicians and power brokers hardly makes for a meaningful democracy.
We don’t “get what we deserve”; we get what we’re given.
This issue is marred in legal controversy. The bottom line is that employees of Catholic Institutions will still have full access to free contraceptive coverage. The fallacy is that Catholic Institutions and other plan sponors, including self-insured plans, will not be charged any premium or cost of contraceptive coverage. That is total non-sense. The insurance industry will make up for this loss of profit and revenue by increasing administration fees across their entire book of business. Hence, every plan sponsor will pay for contraceptive coverage.
The other fallacy is the Obama administration’s policy that contraceptive coverage should be “free” because it reduces total healthcare costs. Many healthcare products and services reduce total healthcare costs, but are not free, or mandated by any state or the federal governement to be free. It is one thing for a state or the federal govenment to mandate that plan sponors offer contraceptive coverage. It is an entirely different thing that the federal government mandate that such coverage to be free. In other words, the insurance company must offer such coverage to all plan sponsors free and are prohibited from charging anything for it. It is highly questionable if the federal govenment can mandate the profit margins and costs that private insurance companies can make and charge respectively, without due process.
Expect a host of legal challenges. If not, expect that contraceptive coverage will be far from free.
The ways that Catholic organizations can morally comply with the mandate assume that it is already in place, and that the mandate is a form of “duress” that makes the organizations’ providing contraceptive licit.
This does not make the duress acceptable, or a violation of free exercise, or invalidate claims that this is about freedom.
Rape victims are not guilty of a sin against chastity, even if they determine the best way through the ordeal is to comply with their attackers’ demands. This does not absolve the rapist of responsibility, nor does it make the rape acceptable.
It’s circular reasoning — if the mandate is in place, you can licitly comply with it; therefore the mandate is not an infringement on religious liberty.
This issue is marred in legal controversy.
It’s mired in legal controversy the way so many other Constitutional issues are mired in legal controversy. The Constitution is a set of specific organizational rules and general protections written to work for a homogeneous society. This is no longer a homogeneous society – it hasn’t been for a century or more. Vague strictures like the First Amendment can hold only so long as the people agree on what they mean. That’s far from the case today, it’s become painfully obvious. In important ways, our Constitution has become vestigial and probably should be rewritten. Unfortunately, there’s likely no way an attempt to do that would be other than disastrous.
So we can look forward to a nation’s lifespan of endless bickering over the meaning of words in an outdated document. This doesn’t bode well for the future of America.
Sorry to go way back to a 2/17 comment (by David G), but was just reviewing old stuff – partly to see if I was being paranoid imagining that someone had really taken the trouble to censor out a whole little collection of comments by me and others – and came across this thought. David, there’s no contradiction I can see between wanting single payer and wanting to be certain it’s not done badly, with harm to unbendable principles.