Religious freedom and contraception case headed to Supreme Court?

Andrew Medichin AP Cardinal Timothy Dolan, archbishop of New York, is congratulated by two prelates after being elevated in St. … Continued

Andrew Medichin

AP

Cardinal Timothy Dolan, archbishop of New York, is congratulated by two prelates after being elevated in St. Peter’s Basilica at the Vatican, on Feb. 18, 2012.

Cardinal Timothy Dolan recently raised the possibility that the Catholic bishops would fight the HHS mandate to the Supreme Court.

Cardinal Dolan has shown himself to be a most able president of the United States Conference of Catholic Bishops (USCCB). He understands the complex media and cultural landscape within and through which Catholic bishops must operate. Because of this, his talk about the Supreme Court should be taken seriously–not as a threat, but as the result of considered reflection on the implications of the revised HHS mandate for Catholic institutions.

Given that the Catholic bishops have consistently emphasized the First Amendment issues raised by the revised mandate, the Supreme Court would seem to be an appropriate venue for addressing them. The Catholic bishops are also doubtlessly aware that there are Catholics on the Supreme Court who would be amenable to their position.

But if the fundamental issue is religious liberty-and not contraception-the Catholic bishops should apply appropriate caution in considering the Supreme Court as a venue. While it may provide legal redress for the Catholic church’s concerns, it cannot address the larger issues that the bishops now confront as they articulate their opposition to the HHS mandate and their apparent rejection of the Obama administration’s proffered compromise.

It should not be disputed that the Catholic Church has a right to pursue a legal strategy that includes the Supreme Court. Cardinal Dolan makes the point that the Catholic church would simply be availing itself of the options provided to “any aggrieved citizen.” But it’s also important to note that some of the most vital contributions to America’s robust conception of religious freedom can be traced to religious groups-especially marginalized religious groups–that challenged the prerogatives of local, state, and federal government. For example, Jehovah’s Witnesses, a far more maligned group than Catholics, aggressively litigated issues surrounding the pledge of allegiance and distribution of religious literature and in so doing created an expanded space for the exercise of conscience and religious speech.

To many, however, the issue of insurance coverage for contraception seems rather idiosyncratic and unimportant compared to the weighty church/state issues that groups like Jehovah’s Witnesses engaged. While the Supreme Court might validate and clarify the religious liberty concerns of the Catholic bishops, it is unlikely that that will dispel skepticism among many in the general public. Caution is especially warranted given the recent spectacle of Supreme Court arguments concerning the Affordable Care Act. It is doubtful that anyone’s view of the Affordable Care Act changed or deepened as a result of these arguments: The public is still divided over Obamacare and discourse seems to have progressed little since the legislation was passed.

Even if the Catholic bishops were to win at the Supreme Court that would not necessarily mean that members of the broader public would take their claims any more seriously or that America’s discourse on religious freedom would be enriched. If the bishops wish to pursue the broader issue of religious freedom-as Cardinal Dolan quite surely does-they need to understand legal strategy within a fuller context, and perhaps consider engaging the public in a different way.

An interesting possibility might flow from the bishops’ recent statement “Our First Most Cherished Liberty.” To be sure, the document can be read in different ways and can be adduced as evidence for a number of potential strategies, including legal and extra-legal protest. Anthony Stevens-Arroyo, for example, emphasizes the potentially sectarian qualities of the bishops letter, and there can be no doubt that there are strong sectarian tendencies in contemporary American Catholic life. By contrast, I emphasized how the Catholic bishops wished to affirm how religious groups, through their exercise of conscience, can make an important contribution to American civil society.

If the bishops decide to emphasize this latter point, one way to do so would be to engage other religious groups, and critics of the Church’s positions, personally and publicly.

The scenario I envision is based upon the example of the Catholic Bishops Conference of India. Back in 1994, India’s Catholic bishops invited journalist Arun Shourie to engage in dialogue with them. Shourie was a well known journalist–and later a government minister–who was particularly strong in his criticism of Catholic evangelization efforts in India. The dialogue between Shourie and the bishops was eventually published and it was instructive on a number of levels, even if it did have its difficult moments. Most important, it did show that Catholic bishops, in a highly charged political environment, could discuss important issues with their critics, openly and collegially, in a way that sought to enhance a broader national discourse.

In many ways, the upcoming “Fortnight for Freedom” does speak to this effort to enhance public discourse on religious liberty. But drawing upon the example of the Indian bishops, Cardinal Dolan and his brother bishops could consider a complementary possibility. A special plenary session of the USCCB could be called in which speakers address the HHS mandate in relation to religious liberty and the common good. It would be profitable to have representatives of religious groups who disagree with the position of the U.S. Catholic bishops in addition to those who would find common cause with the bishops’ overall efforts. Space could also profitably be given to those who do not have a religious affiliation and who have a different understanding of the boundaries of religious conscience in relation to social needs and obligations. The point of such a meeting would not be to discuss Catholic teaching on contraception. Instead, the point would be to broaden the discourse on religious liberty by including but also moving beyond specific issues as they relate to different religious traditions and Christian denominations.

The Catholic bishops might very well find unlikely allies for their position. But even if they do not, they might find their own understanding of the relevant issues clarified and deepened. Most important, the bishops will have contributed America’s continuing discussion of religious liberty. If matters do eventually require redress at the Supreme Court, the public will then have a much stronger sense of the issues at stake with regard to the HHS mandate and the diverse claims of religious conscience.

About

Mathew N. Schmalz Mathew N. Schmalz is Associate Professor of Religious Studies at The College of the Holy Cross.
  • SODDI

    Catholics trying to legislate morality in front of a Supreme Court that has a majority of Catholics sitting.

    This was the plan all along, wasn’t it? We KNOW Scalia et al won’t even bother to try to muster up a show of impartiality. They will do what the Vatican orders.

  • AnAnonymousFool

    It is an irony that the you use the JW example to contrast the Contraception mandate (which includes abortifacients). Do you see the irony?

    Aren’t you using an example argument for the preservation of life against the opposition (the USCCB/Bishops) to this mandate which is trying to support the creation of life.

    You can’t really have it both ways.

  • AnAnonymousFool

    Alright – so it is Catholics trying to legislate morality. I’ve heard that one before.

    So tell me why the free market solutions won’t work or are being deliberately prevented from being allowed to work. (See my first comment on this article).

  • ccnl1

    Way beyond the minor issue of providing “free” contraceptives to all:

    The reality of s-ex, contraception and STD control: – from a guy who enjoys intelligent se-x-
    Note: Some words hyphenated to defeat an obvious word filter. …

    The Brutal Effects of Stupidity:

    : The failures of the widely used birth “control” methods i.e. the Pill ( 8.7% failure rate) and male con-dom (17.4% failure rate) have led to the large rate of abortions and S-TDs in the USA. Men and women must either recognize their responsibilities by using the Pill or co-ndoms properly and/or use safer methods in order to reduce the epidemics of abortion and S-TDs.- Failure rate statistics provided by the Gut-tmacher Inst-itute. Unfortunately they do not give the statistics for doubling up i.e. using a combination of the Pill and a condom.

    Added information before making your next move:

    from the CDC-2006

    “Se-xually transmitted diseases (STDs) remain a major public health challenge in the United States. While substantial progress has been made in preventing, diagnosing, and treating certain S-TDs in recent years, CDC estimates that approximately 19 million new infections occur each year, almost half of them among young people ages 15 to 24.1 In addition to the physical and psy-ch-ological consequences of S-TDs, these diseases also exact a tremendous economic toll. Direct medical costs as-sociated with STDs in the United States are estimated at up to $14.7 billion annually in 2006 dollars.”

    And from:

    Consumer Reports, January, 2012

    “Yes, or-al se-x is se-x, and it can boost cancer risk-

    Here’s a crucial message for teens (and all se-xually active “post-teeners”: Or-al se-x carries many of the same risks as va-ginal se-x, including human papilloma virus, or HPV. And HPV may now be overtaking tobacco as the leading cause of or-al cancers in America in people under age 50.

    “Adolescents don’t think or-al se-x is something to worry about,” said Bonnie Halpern-Felsher professor of pediatrics at the University of Ca

  • persiflage

    This is nothing more than an arrogant abuse of the legal system. The Catholic hierarchy is full of itself and is making some kind of political play – laws involving heatlhcare and contraception in the USA are getting in the way of the traditional unrestricted dominance that the Vatican as a foreign power usually enjoys by way of their local proxy, the Bishop’s Council.

    If SCOTUS has a lick of common sense they’ll ignore the issue altogether – although there is an unfortunate majority of Catholics on the court and oddly, nary a single Protestant.

  • edallan

    The first, and most obvious, question is — Would women be allowed to participate?

    The second question is — If women were allowed to participate, would the Catholic bishops pay any attention?

    And would the Catholic bishops want to discuss the legitimacy of their diverting money from the church’s social services in order to keep Americans who are not Catholic from having the right to civil marriage — and at the same time depriving non-Catholics of THEIR religious liberties?

  • ccnl1

    Condoms are available over the counter. Make the Pill available over the counter and there will be no more debate. Planned Parenthood can offer deep discounts for those who say they cannot afford said protection.

    Or better yet, put a pack of condoms and a box of Pills in cereal boxes.

    Unfortunately, that would not ensure the condoms and/or Pills would be used.

    Based on Guttmacher Insti-tute data, said condoms and/or Pills are currently not being used as they should. (one million abortions/yr and 19 million cases of S-TDs/yr because either the daily Pill was not taken or a condom stayed in the pocket.)

    Maybe selling Pill-enriched sodas??? Hmmm?

    Condom-fitted briefs for men?? Hmmm?

    The door is open for other ideas!!!

  • edallan

    Hi. You somewhat misinterpeted the Supreme Court decision on hiring/firing by religious organizations. The court, quite rightly, ruled that a religious organization is the sole entity able to determine whether someone is a suitable person to conduct religious services for that religious organization and that the government has no business deciding whether someone is appropriate to lead services.

    The court explicitly said that it was limiting its decision to that.

  • jack824

    Nicely stated. I cringe when I hear Catholic religious freedom defined as the right to tell non-Catholics who they can and cannot marry.

  • MoralPilgrim

    With all due respect, Cardinal, mind your own business. This country was founded on the separation of church and state. I’d like it to stay that way, thanks.

  • ccnl1

    As noted previously: The business of reality that supersedes any bishop/Obama politics —

    The reality of s-ex, contraception and STD control: – from a guy who enjoys intelligent se-x-

    Note: Some words hyphenated to defeat an obvious word filter. …

    The Brutal Effects of Stupidity:

    : The failures of the widely used birth “control” methods i.e. the Pill ( 8.7% failure rate) and male con-dom (17.4% failure rate) have led to the large rate of abortions and S-TDs in the USA. Men and women must either recognize their responsibilities by using the Pill or co-ndoms properly and/or use safer methods in order to reduce the epidemics of abortion and S-TDs.- Failure rate statistics provided by the Gut-tmacher Inst-itute. Unfortunately they do not give the statistics for doubling up i.e. using a combination of the Pill and a condom.

    Added information before making your next move:

    from the CDC-2006

    “Se-xually transmitted diseases (STDs) remain a major public health challenge in the United States. While substantial progress has been made in preventing, diagnosing, and treating certain S-TDs in recent years, CDC estimates that approximately 19 million new infections occur each year, almost half of them among young people ages 15 to 24.1 In addition to the physical and psy-ch-ological consequences of S-TDs, these diseases also exact a tremendous economic toll. Direct medical costs as-sociated with STDs in the United States are estimated at up to $14.7 billion annually in 2006 dollars.”

    And from:

    Consumer Reports, January, 2012

    “Yes, or-al se-x is se-x, and it can boost cancer risk-

    Here’s a crucial message for teens (and all se-xually active “post-teeners”: Or-al se-x carries many of the same risks as va-ginal se-x, including human papilloma virus, or HPV. And HPV may now be overtaking tobacco as the leading cause of or-al cancers in America in people under age 50.

    “Adolescents don’t think or-al se-x is something to worry about,” said Bonnie Halpern-Felsher profe

  • djohnmurphy1

    Your column title is uninformed. This is NOT principally about BIRTH CONTROL. The central issue is ABORTION. Catholics see intended fully informed abortion as murder. That is CENTRAL to our thinking.

  • usapdx

    It is time the RCC knows that the supreme law of America is the Constitution which is by WE THE PEOPLE, not of any religion what so ever. No one can take a right from a American. A American can pratice or not pratice a religion. Connscience is a human thought that many would like to control.

  • cricket44

    The bigger the organization, the bigger the tantrum. The only religious rights in peril are those of the employees who would be subject to health care discrimination.

  • leibowde84

    Nope … you are dead wrong. This case that is due to come before the Supreme Court is about contraception. If you have a problem with Roe v. Wade, you have to come up with a new case that is HONEST with it’s intentions and doesn’t hide behind some meaningless/honorless fight against contraception, which is a blessing to our society as a whole.

  • leibowde84

    All of these comments show a greater need for contraception and planned parenthood. While their might be a scientific need to increase their effectiveness … they are definitely a big help with this problem.

  • leibowde84

    Christian school teachers ARE NOT PREACHERS!!!!!!!!

  • leibowde84

    They shouldn’t be treated as such. As a graduate of 2 Christian schools, the most enlightening experience I had was learning from people of different faiths. A real educated, intelligent person studies all faiths, not just his own. Only the selfish fool does that. Every teacher, no matter the school, should teach tolerance, and insight into people different than themselves and their students. It is, without a doubt, what Jesus would want for the world.

  • leibowde84

    What in the hell does contraception have to do with abortion?! Stop saying that unless you can back it up in any meaningful, logical way. If just makes you sound ignorant. Like you are hiding from the argument behind some Catholic shield of ignorance.

  • ccnl1

    Under See More:

    Obviously, political leaders in both parties, Planned Parenthood, parents, the “stupid part of the USA” and the educational system have failed miserably on many fronts.

    Unless Planned Parenthood plans to be involved in “triple plays”, they will have no effect in convincing drugged and/or drunk guys and gals to practice safe sex.

  • leibowde84

    Contraception = less abortions … that is a fact. Ask anyone who is educated on the subject beyond religiously.

  • ccnl1

    Lay teachers in RCC schools are Catholic and simply replaced nuns i.e. ministers of the church so we will see what the Supreme Court says.

  • jovan1

    Well, I do agree that the column title is uninformed. Because it is principally about RELIGIOUS TYRANNY and contraception, with the former being a major issue to more than half of the US population.

    Women see religious tyranny as a major threat to their freedom and liberty. Women see the actions by the Catholic Church for what it is – MISOGYNY at its worst. THAT is CENTRAL to our thinking, as it should.

  • dagbat

    The real question is why would the Church want to kick the can down the road and end up in endless dialogue that results in doing nothing. The Church is not alone in their concern and they already have a broad coalition of other religious institutions and people of faith including Christians, Jews, and Muslims. This issue is about an attack on religion and religious liberties as guaranteed in our Constitution. It has NOTHING TO DO with contraception, women’s choice, women’s health, or a male dominated Church aristocracy. These are just ploys concocted by the many secular believing spinmeisters who abhor the very thought of an eternal moral code based on the belief in a divine God and His commandments. One that can not be changed to accommodate the latest whims of society.

  • jovan1

    Bant, dagbat. This has NOTHING to do with religious freedom. NADA. So stop with the dishonest argument.

    This has everything to do with women’s health care rights, women’s freedom, women’s choices AND religious tyranny.

    In short, this has EVERYTHING TO DO with an attack on women – 52% of the American population – by the misogynists at the Catholic Church who, oh by the way, steals our tax dollars to attack women.

  • amelia45

    The Catholic Bishops cannot win the argument against contraceptives among their own people. Of course they will take it to the Supreme Court. They will control people any way they can.

    The Church lost the contraceptive argument among the Catholics of Europe and the U.S. They are losing it in Mexico and the Philippines, and in South American countries where incomes are rising. They lose it when incomes rise and education becomes more widespread. What happens is that the children grow up.

    The Catholic Church dealt with the introduction of contraceptives in European countries just fine. The Catholic hospitals and universities in Europe as just as Catholic today as they were the day before whatever country they are in included contraceptives in the national health care schemes.

    As a Catholic I find it extremely narrow of bishops to say that Catholic “identity” is at risk over birth control! There is a great deal more that is a great deal more important to being Catholic than birth control.

  • amelia45

    It is interesting to see that so many folks don’t know that the federal government has mandated contraceptive coverage among employers since year 2000. That year, the EEOC issued a regulation that requires employers to include contraceptives in health insurance if they offer health insurance benefits for other preventative health care needs. That one was on the books all during the Dubya Bush years. It was issued to assure there is no discrimination on the basis of sex (gender) – that is that males and females are treated equally.

    In addition there are requirements in state laws regarding inclusion of contraceptives in health insurance sold in those states.

    In 2004, the California Supreme Court upheld that state’s law, in a suit brought by Catholic Charities, on a vote of 6-1. The court ruled that Catholic Charities didn’t qualify as a ‘religious employer’ because it didn’t meet each of four key criteria. Those ‘four key criteria’ are virtually the same as the criteria used in the HHS mandate to define a ‘religious employer.’

    Two years later, in 2006, New York’s top state court rejected a claim by Catholic Charities and several other religious groups that the state’s contraceptive coverage law discriminated against them because it exempted churches but not their religiously affiliated groups.

    DePaul University covers contraceptives. The 1,800 employee-university responded to a complaint from the Equal Employment Opportunity Commission several years ago and added artificial contraception as a benefit to its Blue Cross PPO.

    The HHS mandate on contraceptives reflected already existing state and federal law. The definition of a “religious employer” is a definition that has been upheld in state and lower division federal courts.

    Perhaps it is time to take it to the Supremes. But, please note that this is not something new that the nafarious Obama Administration sprung on an unsuspecting country or Catholic Church. That is the lie that keeps getting told over and

  • grnlow

    May I point out the reason for all this problem is the church failing to do its job as moral leaders. Women and men fail to keep the moral laws as found in the Bible. That has lead to sexual disease crises, out of wedlock births, essentially breeding like rabbits or rutting hogs. Also the breakdown of the family unit.

    Clergy rap themselves in high sounding titles and costumes while forfeiting any obligation to do the job they claim to have.

  • DavidJ9

    Isn’t Cardinal Dolan satisfied that people sometimes listen to his corrupt, discriminatory rants, that he is able to discriminate against women without being called to account for it? As long as he is a representative of a foreign leader who claims to have unquestionable control, we need to ignore him and his close-minded nonsense. I will always choose what the nuns say over what the bishops say. The bishops have proven that they cannot be trusted, that they are not moral leaders.

  • AnAnonymousFool

    Let’s stick to the issue of discussion in this article. My apologies for repeating my first comment (and question). But, the other responses here are forcing my hand.

    Question: Why is this mandate necessary?
    Before you answer – consider these points:
    - The Obama administration (and Sebelius) have freely admitted that the Insurance Industry will be more than happy to pick up the tab for providing contraceptives free of cost as part of any health care policy they provide. Why? Because it is cheaper (according to them) to prevent a pregnancy than to pay for one.
    - Title X, public expenditures for family planning services totaled $2.37 billion in FY 2010. So there isn’t any dearth or shortage or any crisis on the contraceptive/family planning front.

    So since contraceptives are available (on the cheap or subsidized), since there is no dearth of contraceptives or the places that sell them, since the insurance industry is more than happy to pick up the tab – then why this mandate?

    Not one person thus far has been able to provide the rationale for the mandate. Instead everyone is happy to give up their first amendment rights and let this administration trample all over it.

    Instead of attacking straw men, provide a reasonable argument for the necessity of this mandate.

    In Christ
    An Anonymous Fool

  • AnOldVeteran

    I Am Not ,,,
    A Catholic,,I Am Protestant,,By My Own Choice..
    Neither ,,Can I Help,,, Conceive Of Children,,Towards ,,Any Women…
    I Had,, Myself,, Fixed ,,,21 Years Ago…
    With My Late,, Wifes,, Approval,,Since It May Be ,,Too Much,, For Her,,To Have Any More Children,, Then..
    I Do Have,,, One Son Though,,,
    So What I Say ,,,About A Persons Rights,,,If A Person,, Does Want Children..
    Could They..And If Some ,,Other People,,Do Not Want ,,,Of Any Children,, Is This Their Right..
    For A Question,,,On Faith,,,Or Of What,,Other Beliefs..
    If In Our U.S. ….
    There Is…. In Most Part… It Is…. As Anything ,,,May Pass …Of A Way….
    This Is Not,,,, My Own,,,,, Of A Way ,,,,For My Home…..
    But Every,,, Home ,,,,,,Is Different….
    Is There Of Any People,,,To Let Anything,,, Pass,,Of A Belief,,, Or Of faith,,,
    I Would Say ,,,,Nay,,,This Is Why ,,I Say Our World…. Is As,,,,, A Battlegreound..
    Maybe Countries,,Could Or Should,,Look To Try ,,,,To Help,,, Other Countries,,
    Around Their Own,,And Their Own ,,,Rather ,,,Than Fighting,,,,As Has Never Ceased Throughout History….Is Most Of This…. As True,,,, Or As False…
    Good Bye ,,Have A Nice,,,, Weekend,,,,, Somehow,,,, For Everyone…

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