Constitutional Law, Politics, Religion, Uncategorized

Contraception and Separation

By Mike Appleton, Guest Blogger

In Portrait of the Artist As A Young Man, Stephen Daedalus is asked by his friend Cranly whether, having forsaken Roman Catholicism, he will become a Protestant.  “I said I had lost the faith,” he replied, “but not that I had lost selfrespect.  What kind of liberation would that be to forsake an absurdity which is logical and coherent and to embrace one which is illogical and incoherent?”

But God works, as they say, in mysterious ways.  A black man, accused of being secretly a Muslim, a socialist and an illegitimate pretender to the presidential throne, has accomplished what all of the post-Vatican II reconciliation committees and joint worship services and inter-faith conferences could not.  Rev. Mike Huckabee has declared that Protestants will at last abandon illogic and incoherence.  No longer will the Pope be called the Antichrist, nor Holy Mother Church the Whore of Rome.  Once again, he says, we are all Catholics.  My late Irish grandmother’s faith has been vindicated.

Christians have reunited under the banner of Richard “Coeur de Lion” Santorum to defeat apostasy and reclaim America for Christendom.  The enemy this time?  An HHS regulation requiring most health insurance plans to include FDA approved forms of contraception in coverage for preventive health services.  There is, of course, an exception for churches, but not for religious institutions serving the general public.  The outrage has been intense, widespread and misguided.

The newest crusade, like its historical predecessors, is largely fueled by the bad faith of its leaders and the ignorance of its foot soldiers.  The President has graciously described the controversy as a difference of opinion between reasonable people, but his comments are undeservedly charitable.  The argument that the requirement is an assault on religious freedom is legally frivolous.  The suggestion that it raises serious questions under the Free Exercise Clause or the Religious Freedom Restoration Act is laughable, unless one is a graduate of the Michele Bachmann School of Constitutional Revisionism and Beauty Culture.

It has never been the law that the First Amendment exempts religion from all civil authority.  The First Amendment “embraces two concepts,-freedom to believe and freedom to act.  The first is absolute but, in the nature of things, the second cannot be.”  Cantwell v. Connecticut, 310 U.S. 296, 303-304 (1940).  Public policy demands have been found to trump freedom of religion in a number of contexts.  The Mormon practice of polygamy was long ago held to be subordinate to criminal statutes.  Reynolds v. United States, 98 U.S. 145 (1879).  Jehovah Witnesses have been compelled to comply with child labor laws prohibiting the sale of printed materials on public streets by minors.  Prince v. Massachusetts, 321 U.S. 158 (1944).  Bob Jones University was unable to prevent the loss of its tax exempt status despite its religious convictions opposing interracial dating and marriage.  Bob Jones University v. United States, 461 U.S. 574 (1983).  And the courts have frequently ordered the provision of emergency medical care to minors over the religious objections of their parents.

The new regulation implements portions of the Affordable Care Act intended to expand the availability of preventive health services to women by requiring insurance companies to provide coverage for those services.  Meeting the public health needs of millions of women pursuant to a grant of legislative authority surely fits any reasonable definition of a compelling governmental interest.  And the impact on religious expression?  None.  Religious institutions are not required to change their moral views on contraception.  No woman will be compelled to practice birth control.

But if the regulation does not raise constitutional issues, why all the fuss?  The answer is that the reaction is a contrived and cynical political attack for election year consumption by Catholics and right-wing evangelicals.  It is an effort to extend the notion of religious expression to include what are clearly non-ministerial functions.  It is also part of an effort to further weaken the wall of separation between government and religion.  Indeed, the position of the Catholic bishops reinforces my opposition to the entire faith-based initiatives program.  How is it that a religious body can assert the propriety of accepting public tax dollars to support what it asserts to be a public function, such as operating a general hospital, and simultaneously insist that the operation of that same hospital is protected religious expression for all other purposes?

The government is obligated to respect the free exercise of religion.  Religious bodies engaged in the operation of public facilities are obligated to respect the rights of all employees, including those having incompatible religious beliefs, and to comply with applicable laws.  Once this has been made clear to all, Christians can return to warring among themselves.

526 thoughts on “Contraception and Separation”

  1. Bush reached out to latino catholics. Their bumper stickers said,”Viva Bush”.

  2. Thank you all. I will continue with my pas-de-deux with myself, exposing my ignorance with each post.

    Such rewards: Gene gives the full text, which in itself proves Jefferson was indeed a genius.
    Blouise invites me to contribute with something other than kibbitzing (my natural character from high school as someone pointed out on the VA killing thread). And Elaine acknowledges with a a new chapter.

    Did you plan this “lets kill him with love”-attack?

  4. Liberal Catholics challenge bishops on Obama’s contraception rule
    By Dan Gilgoff, CNN.com Religion Editor
    2/15/12
    http://religion.blogs.cnn.com/2012/02/15/liberal-catholics-challenge-bishops-on-contraception/

    Excerpt:
    Washington (CNN) – America’s Catholic bishops have criticized the White House’s mandate for insurers to provide free contraception coverage to employees, but plenty of other Catholic groups have endorsed the plan – some taking swipes at the bishops in the process.

    “The Catholic bishops and their allies in the Republican Party are increasingly isolated,” James Salt, executive director of a liberal group called Catholics United, said in a statement over the weekend supporting the White House’s contraception rule.

    “The bishops’ blanket opposition appears to the serve the interests of a political agenda, not the needs of the American people,” Salt continued, e-mailing his group’s support for the White House to tens of thousands of Catholics nationwide.

    Another Washington-based Catholic operative, John Gehring, e-mailed reporters over the weekend to knock the bishops for criticizing President Barack Obama, even after his administration revised its contraception rule Friday to mandate that insurers – not Catholic institutions – pay for birth control coverage.

    “You have to ask why the bishops can’t take yes for an answer,” wrote Gehring, who works with the progressive group Faith in Public Life.

    On Wednesday, Gehring helped organize a call with reporters to discuss a congressional hearing this week at which some bishops are expected to testify against the contraception rule.

    For the White House and Democratic Party, such expressions of Catholic support have been helpful, providing political ammunition against conservative allegations the administration and party are anti-religion and are at war with the Catholic Church.

    But the support has not come easy. It reflects a years-long campaign by liberal Catholic activists to push back against the leadership of their church on controversial political matters – and years of White House bridge-building with a spectrum of Catholic groups.

    In an election year in which Catholics will constitute one of the nation’s biggest swing voting blocs – and in which the bishops are likely to continue slapping the White House – the political heft of a new generation of progressive Catholic groups and the White House’s Catholic outreach efforts are about to face a huge political test.

    Groups such as Catholics United and Faith in Public Life got off the ground during and just after the 2004 election when a Catholic Democratic presidential nominee – Sen. John Kerry – was hard-pressed to find Catholic support in the face of condemnations from some Catholic bishops over his support for abortion rights.

    Kerry, the first Catholic presidential nominee since John F. Kennedy, wound up losing the Catholic vote to George W. Bush, who made Catholic outreach a priority.

    “For too long, the far right owned the values debate and there were very few progressive and religious groups willing to speak out in specific and strategic moments to help shape that debate,” Catholics United’s Salt said. “But since 2004, there’s been a turnaround.”

    The emergence of progressive Catholic groups such as Catholics United helped Obama handily win the Catholic vote in 2008.

    And such groups provided Catholic support for the president in 2009, when he faced conservative Catholic criticism over his commencement address at the University of Notre Dame, and in 2010, when the bishops opposed Obama’s health care law, alleging that it left the door open to taxpayer-funded abortion.

  6. Then there is always the French existentialist take on it . . .”Hell is other people.” – Jean-Paul Sartre

  11. idealist,

    Since you liked the piece by Gene Lyons, I thought you might like the following one by Charles Pierce:

    “United” Catholics in the Prism of Beltway Power
    By Charles P. Pierce
    2/13/12
    http://www.esquire.com/blogs/politics/meet-the-press-contraception-catholics-6654935

    In case you missed it, and God be praised if you did, yesterday’s Meet The Press was a nightmarish mishmash of Beltway smugness, Beltway ignorance, and Beltway clownishness. The peak probably came when David Gregory held up a sweater vest and had a good giggle with Rick Santorum, and have I mentioned recently what a dick he is? Santorum, that is, not Gregory, but, then again…

    Prior to that, Gregory interviewed Jack Lew, the White House chief of staff:

    I want to ask you this, I asked Newt Gingrich this last week, why shouldn’t austerity be a centerpiece of what the United States government is about these days given how high the budget deficit is and how much economic uncertainty that fiscal insanity contributes?

    Not enough people are yet suffering out in the country for David Gregory’s liking, and Jack Lew — who used to work for Citigroup, running a hedge-fund that bet against the crap mortgage securities that were at the root of the entire financial meltdown — had to explain to the King of Pain that “austerity” is really not what you want in the middle of a fragile recovery, and he also had to explain to Gregory, politely, and over the entire remainder of his segment, the basic truth of the blog’s fundamental economic philosophy: Fk The Deficit. People Got No Jobs. People Got No Money.

    But it wasn’t until they started talking about lady parts that everything really went off the rails.

    Gregory brought on a panel consisting of Squint Scarborough, E.J. Dionne, and Peggy Noonan, the Madwoman Of Merlot, to discuss developments in the “controversy” over contraception, which the president had attempted to defuse last week by trying to reach an accommodation with creepy celibate authoritarians and their academic enablers. It was generally agreed that the president had made a mistake at the beginning by not recognizing the question of “religious liberty.” The following colloquy ensued:

    MS. NOONAN: That’s what the church thinks. Can I just note, by the way…

    MR. GREGORY: Yeah.

    MS. NOONAN: …as Catholics it was so great for three weeks that we all got along. We were all in agreement.

    MR. DIONNE: Yeah.

    MS. NOONAN: I mean, this is a church that…

    MR. GREGORY: Yeah, exactly.

    MR. DIONNE: President Obama united Catholics.

    MS. NOONAN: Yeah.

    We have to spend some time discussing the phenomenon of the Beltway Papist. Many of them are Catholics-come-lately, courtesy of a priest named John McCloskey, who is a member of Opus Dei and runs what is essentially a conservative Catholic lobbying shop that actually is located on K Street. (It was McCloskey who famously baptized both the late Robert Novak and former Kansas senator Sam Brownback.) I wrote about McCloskey and his operation nine years ago. And then we have the likes of Dionne and Noonan, who are opposites politically, but who apparently believe they speak “for Catholics” because they know the same 30 people and attend the same dinner parties. Consequently, you get the kind of fact-free assertions we see above. Yes, out in the country, Catholics were “united.” By the same kind of overwhelming majority with which they’ve rejected the Church’s stand on birth control for the nearly 50 years, they’d lined up in favor of the president’s position, and against the bishops, before the president came out with his accommodation. Noonan and Dionne simply don’t know what they’re talking about. They see everything through the prism of Beltway power, mistaking the bishops for “the Church,” which, as the council fathers of Vatican II taught us, is the entire people of God, and the people of God have demonstrated, time and time again, that, in their informed consciences, they do not see this as an assault on their religious liberty. They see it simply as a way to make their lives a little easier.

    What this plainly has been is the attempt of the institutional American church to regain the power and influence in the secular government that it lost when it was exposed to be an multigenerational conspiracy to obstruct justice. (It already had moved swiftly, and ruthlessly, against the dissenters within the Church. The best priest I know lost his parish, and had his good name slandered, because his opposition to business-as-usual-while-the-altar-boys-got-raped was too high-profile for the institutional Church’s liking.) This is the best chance they have of doing that, because an entire political party is treating the Catholic bishops as though they were Jesuits hiding from Elizabeth I, because voices of influences are arguing (seriously) that there are First Amendment implications in making the Church choose between contraceptives and tax breaks, and, yes, because a Democratic president, with all the trump cards in his hand, sought to accommodate them by moving off what was an unassailable political position and, in doing so, “recognizing” the legitimacy of a “religious liberty” issue that is all my granny.

    It has been argued that the president has maneuvered the Republicans, and the bishops, into a corner from which they cannot escape. That is only the case if the president mercilessly pressed his advantage on this issue. As long as Santorum, and Dionne, and Gregory get to spout off about “religious liberty” without somebody from the other side pointing out what a crock that argument is, then the political profit alleged to have been gained by this accommodation goes a’glimmering. It must be made clear within our politics that this whole affair has been an affront to the rule of law, an attempt to enshrine the doddering nonsense of Humanae Vitae into our secular lives, and that politicians like Rick Santorum who espouse it are not simply people of good will who disagree, but authoritarian extremists to whom the health of women is less important than the power of clerical bureaucrats in our lives. There is only one person who can make that case stick. We’ll have to see if he decides to do that.

  12. Blouise,

    I have an article I’m considering for this weekend that will (probably) touch upon that very issue. A guaranteed right to privacy needs to be very carefully worded or their can be some interesting unintended consequences.

  13. id707,

    “The FF’s didn’t need the horrors of our age to know human failings.”

    True, and I think they did a remarkable job, but neither did they have an inkling of how technology would amplify those failings and their potential costs.

    As to Jefferson, it was something like that. 😀 It was in the same letter as one of his most famous quotes. He said in a letter to William Smith, dated November 13, 1787, “God forbid we should ever be 20 years without such a rebellion. The people cannot be all, & always well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty. [. . .] [W]hat country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon & pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is it’s natural manure.”

  14. raf,

    “hypocrisy of the RCC is amazing” … it all started with good old Constantine.

  15. id707,

    Join in … see if you can draft a privacy clause … after all, it’s not too late … we still have the Amendment procedure.

  17. Gene,

    “I wish the Founders had addressed specifically in the document to minimize the “wiggle room”, privacy has to be at the top of that list.”

    I have often thought about that very thing but, and this may be the reason … let’s try to write a Privacy Clause now and see how far we get with it.

  18. Gene H.

    I know you were talking to Blouise, but:
    The FF’s didn’t need the horrors of our age to know human failings.
    They certainly were acutely aware that we could condemn for witchcraft or whatever on the “proof” of your choice of colors and the wart on your nose.
    Not faulting them however. 200 years of subversion is difficult to out-guess.

    Is it true that Jefferson said we’d need a new revolution every 20 years?

  20. Blouise,

    I agree. The privacy issue is paramount, especially in light of what I said about the rights of the non-viable/dead. Of all the rights recognized and protected by the Constitution under precedent that I wish the Founders had addressed specifically in the document to minimize the “wiggle room”, privacy has to be at the top of that list. I’m pretty sure if Madison, Adams and Jefferson had known the Information Age was coming, they’d have given a lot more thought to the issue of privacy.

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