• This argument over the meaning of religious freedom was not initiated by the Catholic Church; it was initiated by an administration that seems to regard “religious freedom” as merely a privacy right to certain kinds of recreational activities (like worship). As in its international human-rights policy (which speaks exclusively of “freedom of worship”), the administration seems unwilling or unable to grasp an elementary truth: Religious convictions are community-forming, and those communities, like the individuals whose conscientious convictions form them, are the subject of genuine religious freedom.
• More than free exercise is at stake here, though. For the administration is arguably violating the intent of the “no establishment” provision of the First Amendment, which (among other things) means that the federal government is incompetent in theological matters. Yet that is precisely the turf onto which the administration is intruding with its attempts to define religious institutions, ministries, and employers so narrowly that Jesus and the Twelve would almost certainly not qualify, having fed five thousand people who were not “church members.”
• While the media’s attention to this battle has typically focused on the U.S. bishops’ conference and the administration, with Cardinal Timothy Dolan (the conference president) in one corner and President Obama and HHS Secretary Kathleen Sebelius in the other, the number and character of the litigants now challenging the administration’s mandate ought to make it clear that this is not “the bishops vs. the administration” during an election year; it is the administration vs. the Catholic Church on an issue of first principle. That one of the litigants is the University of Notre Dame, which in 2009 gave President Obama an honorary doctorate of laws and invited him to address its commencement ceremony, ought to underscore the point that the mandate is regarded as a threat to religious freedom far beyond the boundaries of the bishops’ conference. As Notre Dame’s president, Father John Jenkins, C.S.C., put it, “this [suit] is about the freedom of a religious organization to live its mission.” Period.
• The clock is ticking, and the pace of the battle will now accelerate. The mandate was finalized “without change” on February 12; it is now law. The mandate is scheduled to go into effect on August 1, with a “safe harbor” for some entities until August 1, 2013 — a “safe harbor” famously described by Cardinal Dolan as “a year in which we’re supposed to figure out how we can violate our consciences.” Even those entities to which the administration extends this “safe harbor,” however, remain vulnerable to private action to enforce the mandate (affording Ms. Sandra Fluke her second 15 minutes of fame?). Thus it would seem important that one part of the litigation strategy be the pursuit of a preliminary injunction that would prevent the mandate from going into effect this August. That would not only relieve pressure on Catholic institutions and Catholic employers to decide whether to shut down their schools, hospitals, and social-service agencies in response to the mandate; such an injunction would also signal clear concerns from the federal bench about the legality of the mandate.
• While Obama supporters (including some Catholics) will contend that this is partisan politics, it isn’t — except insofar as the administration has made it so. It was the administration that refused to countenance Catholic concerns before and after the mandate was issued. It was the administration whose apologists (including Secretary Sebelius) bent every effort to turn what was clearly a religious-freedom issue into a “War on Women.” It has been the administration and its Senate allies, like Majority Leader Harry Reid, who have refused to enter into any sort of serious discussion aimed at mitigating Catholic concerns. It is the administration that seems willing to drive the Catholic Church out of health care, education, and social services if that is what is required to enforce the administration’s notions of “reproductive health” and “reproductive choice.” If the administration pays a price for this in November, it will have no one to blame except itself.
Legal victory in the third and fourth quarters of this battle is not certain, but it seems likely. For it is very difficult to see how the administration can justify this burdening of Catholic employers (and other employers with religiously informed moral objections to the mandate) under the provisions of the Religious Freedom Restoration Act. As the battle continues, it will be important, amidst the litigators’ argument and the administration’s attempts to reply, to remember that what is at stake here is nothing less than the future of civil society in the United States.
A victory in the lawsuits filed against the administration’s mandate will be more than a victory for religious freedom, important as that will be. It will be a victory in defense of the social architecture of American democracy. Government is not the only custodian of the common good. The institutions of civil society bear a significant and irreducible responsibility for the common good, a responsibility they must be able to fulfill freely, without unwarranted interference from an overweening state that is ignorant of the limits of its legitimate reach. That is the truth for which today’s Catholic litigants are contesting — and they are doing so on behalf of all Americans.
— George Weigel is distinguished senior fellow of Washington’s Ethics and Public Policy Center, where he holds the William E. Simon Chair in Catholic Studies.