The Law as Therapist
The HHS contraception mandate has nothing to do with health.

Sister Carol Keehan, president of the Catholic Health Association


The most pristine expression of this egalitarian complex of ideas can be found in Judge Stephen Reinhardt’s ghastly opinion, a couple of weeks ago, that struck down a ban on same-sex “marriage” that had been approved by California voters. Reinhardt reduced “marriage” — his scare quotes — to a “symbol [of] state legitimization and social recognition of [same-sex couples’] committed relationships.” As Reinhardt saw things, to say that same-sex couples cannot not marry is to say that they are second-rate people. And that is the end of it.

The emerging picture, and the force behind today’s recurring challenges to religious liberty, is this: So long as one remains in the strictly “private” sphere of home, social club, and sanctuary, one is free to hold misguided opinions about contraception, abortion, and marriage. But once one sets foot in “public” — defined expansively to include the workplace, shops, any place that receives state funds, and religious ministries that serve persons outside the faith — the rule is no discrimination, full stop. It is all aboard for the new “equal sexual liberty” orthodoxy.

It is no surprise that religious liberty in the new dispensation shall  protect only privatized religion. When preaching to the choir, pastors may speak freely, and politically incorrectly. The spirit may roam where it will, so long as it stays inside the church. Three United States senators defended the HHS “conscience clause” as just fine, because it pertained to institutions “dedicated to teaching religious doctrine.” Indeed it does. Senators Jeanne Shaheen, Barbara Boxer, and Patty Murray sharply distinguished, however, the teaching of doctrine from religious hospitals’ and universities’ “broader mission.” “Broad” or “narrow” as their “mission” might be, the question is whether the integral faith is part thereof.

In the new dispensation, invisible fencing will be enough to corral “religious doctrine.” The public sphere is — so the story goes — the home of rational discourse. Church doctrine is the realm of irrationality and superstition and of fantastic theories about the unknowable. “Doctrine” does not need to be kept out, so much as it must be disqualified from entering.

This lengthy reconnaissance allows us to see both the raw power of the ideological threat to religious liberty and the reasons why courts are beguiled by it. In this worldview, there is nothing special or distinctive about religion. Religious acts have the same dignity and value — according to this vision — as do the various choices, relationships, and acts by which other people express their deepest selves, or actualize their deepest desires, or display their most self-defining thoughts or emotions. (Perhaps even less value: Religions tend to be — in this construal — morally judgmental and politically divisive.) Religious liberty is one way of exercising the super-liberty of Casey. Having sex and getting an abortion are other ways. They are all species of the same genus.

The Obama administration’s position in the Hosanna-Tabor case expressed exactly this view. The administration opposed any such thing as a “ministerial” exemption and gainsaid any special treatment of employment relations in religious settings. Administration lawyers said that churches should enjoy only the same right to freedom of association as that enjoyed by other private groups, such as the Boy Scouts, the Jaycees, or the Teamsters.

The Hosanna-Tabor Court found this position “untenable.” It is indeed “untenable,” for the reason the Court offered: Why is there an explicit religious-freedom guarantee in the Constitution, if freedom of association does the whole job for churches? It is not “untenable,” though, insofar as the administration took its bearings from the Court’s mandate in favor of equal sexual liberty.

Equal sexual liberty does a ju-jitsu move on religious liberty across the board. In years past, religious-liberty plaintiffs were outliers: Quakers who would not fight, Amish who would not be scholars, Jehovah’s Witnesses who would not salute the flag, Biblical literalists who would not countenance graven images (pictures) on their driver’s licenses. Accommodating these believers imposed no appreciable cost, affected no one else’s rights, and had no culture-shaping effects. It was no stretch, and it took no great courage or vision for courts to back them.

In years past, judges understood themselves as champions of the underdog in religious-liberty cases. They thought and said that they were protecting tiny sects from the depredations of a state to which the sectarians were invisible, or from a state apparatus commandeered by majority religions seeking to impose their view upon a hapless religious minority. These categories no longer register.

In years past, judges could wrap their minds around the discrete interests at stake in a religious-liberty case, concerns such as a finite number of children whose parents refuse to let them be vaccinated, or the state’s alternatives to photographic identification of image-averse drivers, or the financial burdens of building a road so that it went around an ancient Native American burial ground. Now courts face a choice between the survival of hundreds of Catholic institutions and our daughters’ opportunity to live their dreams.