Friday the 13th was an unlucky day for the Obama administration. That afternoon Brooklyn federal judge Brian Cogan enjoined enforcement of the HHS “contraception” mandate against a host of Catholic entities in the New York area, including the Archdiocese of New York as well as Cardinal Spellman and Monsignor Farrell High Schools. Judge Cogan’s opinion is generally well-reasoned and reaches the right result. But in it he adopted a passage from an earlier superb and correct opinion by Judge Diane Sykes (Korte v. Sebelius) for the Seventh Circuit, also enjoining enforcement of the HHS mandate.
Here is that passage, as quoted by Judge Cogan after noting that the burden upon the New York Catholic institutions was not that the law allows their employees to receive and use free contraception: “It goes without saying that [plaintiffs] may neither inquire about nor interfere with the private choices of their employees on these subjects.”
Indeed, abortion is just one of many “private choices” that Judge Cogan’s assertion would evidently reach. Take your pick of additional examples. Here is mine: Is it so obviously unarguable that a Catholic high school could not discharge a male theology teacher who abandoned wife and children to marry his boyfriend?
In truth, I think that in all these cases (and more) “it goes without saying” that these Catholic employers could both “inquire about ” and “interfere” with all these “private choices.” In truth, the Supreme Court made that pretty clear in the Hosanna-Tabor case.