To see the lack of a meeting of minds in the argument over whether forcing Catholic hospitals, schools, and other institutions that aren’t houses of worship per se is a violation of religious liberty you need only contrast John Holbo’s recent post at Crooked Timbers with an open letter signed by members of the faculty of Notre Dame Law School.
Mr. Holbo notes:
Religious liberty is individual liberty. It should now be possible to illustrate how McConnell’s proposal violates this principle without making it sound as though you are worried about creeping sharia, etc. (If two consenting adults want to submit to binding arbitration by an expert in sharia law, or something like that, that’s generally ok. Stuff like that. Group rights grow out of individual rights in this way, without fundamentally abrogating them.) You can explain that you are in favor of same-sex marriage (if you are) not just because someone somewhere says it’s religiously ok – so Bam! it is. For them. Rather, same-sex marriage is justified because it’s a voluntary association between two consenting adults, so forth. All this flows from consistent commitment to optimizing the supply of individual liberty. That means: making sure everyone has as much of the stuff as possible, consistent with everyone having it. When you give groups the right to restrict the religious liberties of individuals, you sacrifice this principle. (Americans are ok with some people having a lot more economic liberty than others, in effect, due to being richer. But I don’t think they think some people should have a lot more religious liberty than others, due to being richer.)
Suppose alcohol is made illegal, on purely religious grounds. I think it’s fair to say that forcing people not to drink amounts to compelling a kind of religious observance. (A negative observance, to be sure. But that’s still a form of observance.) Compelling religious observance is a violation of religious liberty, which includes the right not to be observant of any given religion. Suppose it’s just a ‘sin’ tax, not an outright ban. Alcohol is made hugely expensive. Well, if the sin in question is purely religious – if we aren’t making the case that the state has some compelling civic or secular reason for trying to discourage alcohol consumption – then I take it forcing someone to pay more, purely on the grounds that they are ‘sinning’, imposes a religious restriction on them. Purely religious ‘sin’ taxes ought to be regarded as violations of individual religious liberty. See, for example, the history of special taxes on Jews in European history.
Now, the pill. Yes, employees can go out and buy the stuff even if it isn’t covered by employers. But, since it would be free otherwise, by law, the church groups are, in effect, imposing a ‘sin’ tax, to express religious disapproval of what these individual are up to. Surely that’s a violation of religious liberty: to wit, the right not to regard being on the pill as sinful. If the Catholic church wanted to impose a voluntary sin tax on practicing Catholics – if the Bishops said all Catholics who use birth control should pay a bit extra, to atone for this sin – that would be acceptable (at least legally non-objectionable, in the eyes of the government). But the church can’t ask the state to compel payment of this tax, unless there has been some kind of binding contract to pay. The church can’t compel the state to help them extract payment even just from Catholics, let along non-Catholics. It’s not the government’s business. Quite the contrary.
That is, the issue is not one of religious liberty but of individual liberty competing with group liberty and the individual liberty should prevail.
On the other side the law school faculty:
It is morally obtuse for the administration to suggest (as it does) that this is a meaningful accommodation of religious liberty because the insurance company will be the one to inform the employee that she is entitled to the embryo-destroying “five day after pill” pursuant to the insurance contract purchased by the religious employer. It does not matter who explains the terms of the policy purchased by the religiously affiliated or observant employer. What matters is what services the policy covers.
The simple fact is that the Obama administration is compelling religious people and institutions who are employers to purchase a health insurance contract that provides abortion-inducing drugs, contraception, and sterilization. This is a grave violation of religious freedom and cannot stand. It is an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews, Muslims, and other people of faith and conscience to imagine that they will accept an assault on their religious liberty if only it is covered up by a cheap accounting trick.
That last is significant. Subsuming sterilization and abortifacients into a single category with the Pill as “contraception” and then tailoring the argument solely to the Pill, as much of the news and blogospheric commentary has done, is certainly cherry picking.
Is this just the tip of the iceberg? What other controversial rulings will HHS promulgate? For example, what fertility treatments must be covered by an acceptable insurance policy? That’s likely to be as problematic for Catholic institutions as the broadly-conceived contraception provision is. I’ve been unable to locate a consolidated statement of the specific requirements of an acceptable insurance plan. I’m guessing that the details are emerging piecemeal and there currently isn’t such a consolidated statement.
Are the provisions really the minimum requirement? Or are they trying to define some sort of optimal plan?
One final point: I really think there is a lack of meeting of minds on the subject of compromise. The Catholic Church is not a consensus-based institution. What most Catholics do is utterly irrelevant. If the church hierarchy elects to dig in its heels, the Obama Administration will have entered into a struggle from which the most it will exact is a pyrrhic victory.