..."This impetus toward public influence
seems to be operating in the bishops’ dubious claim that “it is essential to
understand the distinction between conscientious objection and an unjust law.
Conscientious objection permits some relief to those who object to a just law
for reasons of conscience—conscription being the most well-known example. An
unjust law is ‘no law at all.’ It cannot be obeyed, and therefore one does not
seek relief from it, but rather its repeal.”
It seems to me that this line of
reasoning about unjust law is at the heart of the bishops’ stance on the
contraception mandate. In February, they flatly rejected the administration’s attempts to
insulate Catholic employers from the mandate by requiring third-parties to
pay for and provide contraception coverage to employees of nonexempt Catholic
institutions. Nor did the bishops propose any accommodations themselves.
Instead, they claimed the only moral option is the complete repeal of the
mandate. Why is the mandate an unjust law? Because contraception is
intrinsically immoral—or so the bishops say. This position is consistent with
the Catholic view that the magisterium is the authoritative interpreter of the
natural law. But it goes far beyond the American understanding of religious
liberty. Of course, there are constitutional limits, but generally in a
representative democracy such as ours, the majority has the power to determine
through the legislative process what counts as a just and unjust law. The
bishops can propose. But it is ultimately up to the voters and their
representatives to dispose...
Finally, the most striking aspect of the
bishops’ claims about religious liberty is the absolute nature of their
assertions (they don’t really make arguments). They give the reader virtually no
hint that such questions must be assessed in a framework of competing rights and
duties, particularly the duty to promote the common good. This is ironic from a
theological perspective. Vatican II’s Declaration
on Religious Freedom recognizes that there are “due limits” on the exercise
of religious freedom, including the need to promote a “just public order,” and
preserve the “equality of the citizens before the law.” For years, Catholic
moralists and lawyers have railed against the assertion of rights claims without
any consideration of relational responsibilities. (See Mary Ann Glendon, Rights
Talk: The Impoverishment of Political Discourse, 1993.)
Nor does the bishops’ rights absolutism
make much sense as a legal strategy. American law does not treat religious
freedom as an absolute right. The leading case interpreting the Free Exercise
Clause, Employment
Division v. Smith (1990), holds that the Constitution does not require
lawmakers to give religious exemptions to neutral laws of general applicability,
provided no other constitutional rights are involved. Even under the stricter,
“compelling state interest” test that governed in the pre-Smith era,
religious freedom was never an absolute right, but had to be balanced against
competing state interests. Moreover, those interests must be assessed from the
vantage point of the lawmakers, not the religious objector...
The case that seems most on point with
regard to the contraception mandate is United
States v. Lee(1982). It was decided under the stricter test that the
Religious Freedom Restoration Act still applies to federal regulations such as
the mandate. In that instance, the Supreme Court held that it was
constitutionally permissible for the federal government to force Amish employers
to pay Social Security taxes for their employees, although both the payment and
receipt of Social Security taxes violated their religious beliefs, and although
the employees in question were Amish themselves.
Why should it be permissible to force
Amish employers to pay Social Security taxes but not to force Catholic employers
to pay for contraception? I don’t see a compelling distinction between the two
cases. In Lee,
the Court noted that “the Social Security system in the United States serves the
public interest by providing a comprehensive insurance system with a variety of
benefits available to all participants, with costs shared by employers and
employees.” A similar claim could be made about employer-based health
reform.
According to Lee,
“To maintain an organized society that guarantees religious freedom to a great
variety of faiths requires that some practices yield to the common good.” The
bishops do not agree, of course, that expanding access to contraception will in
fact contribute to the common good. And they are free to make that argument in
the public square. But just as a member of Peace Church cannot politically
demand that the only way to respect his or her religious liberty is to end a war
for everyone, so the bishops cannot insist that “the only way to respect our
religious liberty is to repeal the contraceptive mandate for
everyone.”
It just doesn’t work that
way.
Cathleen
Kaveny, a Commonweal columnist, teaches
law and theology at the University of Notre Dame.
No comments:
Post a Comment