Respondeo: A Reply to Michael Sean Winters (part 2)
I continue my response to Michael Sean Winters's column responding to my column. Part 1 of the response can be found here.2. The AccommodationSo where are we now? Weve moved beyond the original narrow exemption, at least in spe. Last year, the Obama administration sketched a possible accommodation for the objections of Catholic hospitals and universities. I outlined that accommodation in the column. Before going into more detail about the accommodation, Id like to say few words about how religiously infused moral judgments do and do not enter into the American political processand how the church's view about contraception matters to the process of lawmaking.Lets begin by acknowledging that official Roman Catholic teaching holds that the moral act described as contracepting is always wrong because it separates the unitive and procreative goods (fides prolesque) meant to be joined together in a sexual act. The church teaches that contraception is wrong as a matter of natural lawwhich means that it is wrong for all human beings to do, no matter whether they are Catholic or not. What if they dont agree? Well, the church teaches that they're wrong. The church also teaches that she herself is an expert in humanity, and is in a privileged position to interpret the natural law.How should this moral teaching about contraception be translated into the law in an American pluralistic democracy? Well, the church has always acknowledged that morality and law dont coincide entirely. So, John Courtney Murray and others argued long ago that contraception should not be illegal. But they also thought it probably shouldnt be encouraged either.From the bishops perspective, the problem with the contraceptive mandate is that it is encouraging contraception: Its one thing to fail to prohibit contraception; its another thing entirely to require it to be included in a basic benefit package. From the perspective of official Catholic teaching, there are two problems with the mandate: 1) it wrongly teaches that contraception is morally acceptable; and 2) it makes it widely available.So the first thing to note is that the bishops oppose the mandate, tout court, because they think it encourages a practice that will harm individuals and the common good. This opposition is a perfectly legitimate use of political freedom in the United States. Like other citizens, the bishops are free to make their case about the immorality of contraception in the public square, and to argue against any form of mandate based on that argument. And they did just that.But they lost that case: most people in the United States do not think that contraception is intrinsically immoral. In fact, they think it can be a useful way to fulfill their moral responsibilities to their children and themselves. Some might even say for themselves that it is morally required. Moreover, unlike the bishops, they think the widespread availability of contraception contributes to the common good. So we have a mandate. And the mandate is on the books as valid law.This is important: the bishops can and did argue that the mandate is unacceptable because it goes against the common good. What it seems to me they cant plausibly argue is that the mandate as a whole is unacceptable because it violates their religious freedom.
In a representative democracy, the majority is going to make the lawand law is coercive. So a pacifist cant argue, The country cant go to war at all, because going to war violates my religious freedom. A Christian Scientist cant plausibly argue, The country cant invest in medicine because it goes against my religious beliefs. And the bishops cant plausibly argue that the country cant have a contraceptive mandate as part of a basic benefit package because it violates Catholic teaching. Otherwise, one person's claim of religious liberty would functionally veto any ordinary law making. No law and religion scholar is going to say that is what the First Amendment requires. In fact, requiring the general law not to ever conflict with Catholic moral teaching would not be protecting religious freedom of Catholics; it would be enshrining Roman Catholicism as the established religion. The church can say that its Magisterium is the privileged interpreter of natural law. But the state just cant do that in the American system. What the bishops can and do argue, however, is that respect for religious liberty compels the government to grant an exception to the mandate in their case.So how do we go about thinking about exemptions based on religious-liberty claims? It is important to note that the government provided an exemption on its ownbefore any of this went to court. As my column detailed, the government first proposed a narrower exemption for religious institutions that (1) are mainly concerned with passing down the faith, (2)mainly employ their co-religionists, (3) mainly serve their co-religionists, and (4) are not-for-profit charitable corporations.Not only would such employers not have to cover contraception, their employees wouldn't get it covered by anyone. After a firestorm of protest, the Obama administration promised an accommodation that would insure that Catholic hospitals and colleges wouldn't have to pay for, provide, or refer for such services, but that employees of these entities would still have first-dollar contraceptive coverage. And thats where we are now.Is this the right place to be? In order to answer this question, we have to recognize that claims of religious liberty are never treated as absolute. The government (in the first instance) and the courts (in the final instance) need to look not only at the religious-liberty claims, but also at the purposes advanced by the law in question. Moreover, it needs to look at those purposes in the terms set by the government, not by the religious-liberty claimant. I have seen some bloggers trying to run the religious-liberty argument this way: The mandate interferes with religious liberty...and it doesnt serve a compelling state interest because it harms women and children, so it should be struck down." Thats a no-go. The church cant put both thumbs on the judicial scale, so to speak. The church can talk about the invasion of its own religious liberty, but the government gets to make the case for the purposes advanced by the law. Part of what I wanted to show in the column is that, taken on its own terms, the governments case is quite substantiaaccording to the National Institute of Medicine, the health of women and children is at stake.So, on to the accommodation itself. As I argued in the column, I think the accommodation is trying to give very high protection to Catholic hospitals and universitiesit says they won't have to provide, arrange, or pay for contraceptive services. But it is also trying to make sure that the purposes of the mandate get fulfilled, by ensuring that employees of these institutions get access to contraceptives. It repeatedly and explicitly honors the religious mission of these institutions.Is all of this adequate? As we look at this question, I think we need to separate two sub-issues: (1) does the accommodation sufficiently protect the religious liberty of Catholic institutions; and (2) is it clear, clean, simple, and workable. In my view, the accommodation does adequately protect the religious liberty of Catholic institutions; and it is a hot mess in terms of function. I think it is important to distinguish these two points.So I ask Michael Sean Winters to go back the actual text of the proposed accommodation, and take a second look. I ask him to consider whether it sufficiently respects the religious liberty of Catholic hospitals and universities. Doesnt it take pains to acknowledge the religious motives of, say, Catholic universities and Catholic parishes? Doesnt it bend over backwards to try to find a solution to the objections on the part of places like Notre Dame, while still protecting access for employees? Winters might object that the accommodation is cumbersome and bothersome and too complicated. All that is true.There are better ways to do this. And they should be advocated, as the Catholic Health Association and others are doing.But at the same time, its important to keep in mind that religious liberty claims don't entail a right to escape cumbersome and bothersome and complicated laws. If Catholic hospitals and universities are exempted, by no matter how cumbersome a method, they wont have standing to sue. In fact, Notre Dames lawsuit was just dismissed on procedural grounds, because the administration has promised them an accommodation that will exempt them from the mandate. Even courts that didnt dismiss suits on this ground recognize that the accommodation, once finalized, will affect the appropriate analysis.Were at a point in the national discussion, I think, where general clarion calls for religious freedom wont help. We need to get into the weedsand discuss the strengths and weaknesses of the options on the table.Tomorrow: RFRA analysis and United States v. LeeThe Weekend: Do Employees Have Religious Freedom Rights?
About the Author
Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.