Politics & Policy

The Law as Therapist

The HHS contraception mandate has nothing to do with health.

The Obama administration’s contraception mandate touched off a firestorm when it was announced on January 20. Lawsuits challenging the rule were soon filed. Republican presidential hopefuls vowed to reverse it. Bills to do just that were introduced in Congress. The nation’s Catholic bishops (whose institutions would be most dramatically affected by the mandate) said — emphatically — that they would not comply.

At this point, it still remains unclear how much calm the administration’s February 10 “compromise” on the mandate will restore. The “compromise” conceded nothing to religious liberty; it was not meant to. It was meant to stop the political bleeding. The New York Times headline said that it “aimed to please the Catholic left.” It did so by applying a verbal salve. On cue, Sister Carol Keehan, president of the Catholic Health Association, said that she was “very pleased.” Liberal Catholic journalists and politicians were happy too. The bishops’ initial response was conciliatory as well, but on a careful second look they saw through the charade.

How the mandate imbroglio plays out is important, not least for those who care about Catholic institutional ministries. But no matter how the current fight ends, we are going to experience what the venerable Yogi Berra called “déjà vu all over again”: the same challenges to religious liberty, for the same reasons and with the same stakes, are going to keep popping up again and again. The bishops denounced the mandate as an “unprecedented” assault upon religious freedom. But that is not to say it is a one-off event or an abrupt anomaly. The contraception mandate is a pressure point created by broad and powerful social currents, but there are many such points (abortion and same-sex “marriage” among them), because the tectonic plates that underlay the mandate extend way beyond the Pill. Their momentum is far from spent, and their clash with religion will settle the meaning of religious liberty for some time to come.

These underlying factors are not impersonal forces beyond our control. They are not merciless juggernauts like digitalization or globalization. They are not the work of nature or of nature’s God. In fact, it is not even the U.N.’s fault. The good news, then, is that the assault upon religious liberty is ideological and cultural. Its roots lie in what a lot of Americans who have a lot of power think, and want — and say that all Americans should think, and should want.

But the bad news is that the assault is ideological and cultural, and that it is rooted in the social vision of powerful people, who are vain possessors of an ideology which they would impose upon all of us, ostensibly for our own good.

Partisans of religious liberty should not expect the courts to be reliable allies in this fight. The relevant judicial interpretations of the Constitution are discouraging. The clause that sounds most in sympathy is the one in the First Amendment that bans Congress from “prohibiting the free exercise” of religion. But its scope is basically limited to laws meant to harm religion; it does not relieve churches and believers from burdens imposed by laws of “general applicability.”

One might argue that the HHS mandate nonetheless violates the Free Exercise Clause. After all, contraception is already part of the cultural furniture, and it could be delivered to every address by means that do not involve religious employers. The administration’s decision to conscript these employers anyway may reflect a desire to remove the last moral stigma from contraception, precisely by involving the Catholic Church in it. If so, then the mandate evinces unconstitutional hostility to religion. While this argument is plausible enough to warrant development, it would take an especially independent-minded judge to hold that the Obama administration has aimed to handicap the Catholic Church.

The Supreme Court’s recent decision in Hosanna-Tabor about “ministerial” employment is surely right. It is surely a victory for religious liberty. But the Supreme Court, too, is nonetheless an unsure ally against the HHS mandate. In Hosanna-Tabor, the Court affirmed a Lutheran grade school’s prerogative to hire and fire teachers whose jobs include religious instruction. (Think of a morality teacher who handles sacred music on the side, not of a gym proctor.) The Justices held that the Free Exercise Clause exempted the school from compliance with employment-discrimination laws (in this case, the Americans with Disabilities Act). So far, so good. But Hosanna-Tabor was a narrow holding, supported by reasoning that lacks depth — which may have been the price Chief Justice Roberts paid for a unanimous Court.

One reason for the narrow path in Hosanna-Tabor was the Court’s evident unwillingness to reconsider its Free Exercise precedent about laws of “general applicability,” established in Employment Division v. Smith (1990). In that case, the Court ruled that a state was not required to permit an illegal act (ingesting peyote) simply because it was done for religious reasons (as part of a Native American worship ceremony). Hosanna-Tabor said that Smith had involved “outward physical acts,” while “the present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.” But firing someone is an outward act, too, and making a church’s sacrament a felony must, somehow, negatively “affect” its faith and mission.

Employment Division v. Smith was, in my judgment, rightly decided. But the Court’s core commitment in Hosanna-Tabor could have been leveraged to greater profit without overruling Smith. That commitment was, plainly, that when it comes to the faith and teachings it presents, every religion is a sole proprietorship. The state must not interfere in matters of religious doctrine; religious leaders are the sovereign masters of their messages. This is indeed a bedrock constitutional command, going all the way back to the founding. It rests as much (or more) in the Establishment Clause as it does in Free Exercise. It is so important, Hosanna-Tabor further held, that employment-discrimination laws (and the requirements of justice they embody) must take a detour around religious doctrine.

This perimeter protection is not limited to churches, either, as the victor in that case was a parochial school.

Here is the bridge to HHS. Lawyers for Catholic hospitals and schools could argue that these ministries exist to exhibit the Catholic faith, that their central purpose is to witness to the truth of Catholicism, that their mission is to present the faith publicly, by and through such means as healing patients and teaching calculus. The lawyers could then say that these institutions cannot convey the truth about Catholicism if the government forces them to peddle contraceptives. (This is in fact the heart of the bishops’ objections to the mandate.) To jumpstart any judge’s engagement with this argument, lawyers might note that the law stands in great peril of being an ass. After all, if the mandate stands, the law will be that a Catholic grade school has a core constitutional right to fire any teacher who uses the contraceptives that HHS requires the school to buy for her.

Many lawyers and academics have criticized the Supreme Court’s stingy (they say) Free Exercise doctrine. They would read Free Exercise more expansively, to require that any law imposing an appreciable burden upon religious exercise be strictly scrutinized in court. In that line of thought, any burden must be justified by a “compelling state interest,” and that the burden must be “the least restrictive means” of serving that compelling interest. Some state constitutions, as well as many state and federal statutes, contain this strict requirement, and sometimes it has been a difference-maker for religious liberty. But not as often as you might expect. The very limited exemption in the HHS rule (for houses of worship, but not hospitals or schools) is taken word for word from earlier state contraception mandates in California and New York. Both of those laws were judicially upheld, even though the courts upholding them applied the stricter brand of scrutiny. The Supreme Court declined to hear the believers’ appeals.

One reason why the level of scrutiny often makes no difference is that the decisive questions in court are like open channels for moral evaluative judgments. What is a “compelling” state interest? Does the mandate (for instance) combat “unjust discrimination”? In what sense — if any — do institutions have “consciences”? Isn’t it true that only persons have “consciences”? How should “conscience” be defined in a pluralistic democracy like ours?

Where judges are given chances like these to be ideological, most will side with the progressive mindset and against religious liberty. They have a vested interest in doing so: The Supreme Court itself has been the vanguard of the attacking force. The Court has propounded and enforced an ideology of freedom and law which we shall call equal sexual liberty. It is propelling the assault on religious freedom. Those tectonic plates have names like Brennan and Kennedy and Stevens written on them.

The HHS mandate is supposed to guarantee women access to “reproductive health” services. This claim is nested within a broader social vision from which all women — whether they want the Pill or not — supposedly benefit. The Supreme Court’s centrist bloc explained this in Planned Parenthood v. Casey, the 1992 affirmation of Roe v. Wade: “For two decades . . . people have . . . made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.” The justification for a more overt and extensive abortion mandate than HHS just promulgated (which includes morning- and week-after pills) is now at hand. “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”

President Obama expressed the same thought a few weeks ago when he welcomed another year of Roe v. Wade. We must, the president said, “continue our efforts to ensure that our daughters have the same rights, freedoms, and opportunities as our sons to fulfill their dreams.” The unstated but obvious corollary is that “our daughters” should also be able to have all the sex they want (or, at least, as much sex as our sons have), without losing a step to their fraternal competitors in the race for success.

This vision is powerful enough to compress religious liberty by itself. But the view so far described is not all of it. The story about “our daughters” comes out of what the Supreme Court in Casey christened as the “heart” of all constitutional liberty. It is the individual’s right “to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This unimaginably radical autonomy sometimes does business as “authenticity” or “identity.” It is the constitutional parent (or caregiver) of a politics of equal recognition and respect. The super-liberty of the “mystery” passage is the overriding good, the intrinsically valuable asset to personal fulfillment. It is what allows you to be you, and me to be me. What could be more important or more fundamental than that?

If this extraordinary moral independence were just a matter of being left alone by the law, it would be turgid rhetoric, but not the toxic threat to religious liberty that it is. The law today seeks to empower individuals to create their own worlds. Empowerment involves not only supplying folks with the tangibles (food stamps, guaranteed loans) of independent living, but also removing intangible impediments to one’s equal sexual liberty. Think of the proliferation and reach of sundry “non-discrimination” laws, including those about marital status and sexual orientation, all of which are meant to clear one’s path of obstacles deriving from the adverse moral judgments of others.

The law has also become a therapist. For several reasons — including the unprecedented penetration of legal norms into the workplace, the school, the culture, and the family, as well as the emergence of constitutional law as our society’s paramount value-repository and moral educatorthe law now seeks to affirm or endorse or recognize everyone’s lifestyle choices, whatever they happen to be. This writ runs beyond the law’s own precincts. Ordinary folks are called upon not only to respect everyone, notwithstanding his or her sexual and reproductive choices, but also to respect others’ choices, or at least not to publicly demean them.

This equal-respect dynamic is most visible in the law’s treatment of sexual orientation. The linchpin of the Supreme Court’s 2003 ruling against state laws prohibiting sodomy was the mystery passage from Planned Parenthood v. Casey. The Court in Lawrence v. Texas reasoned that even never-enforced laws against sodomy conveyed the state’s disapproval of homosexual persons. The law deemed them to be “second-class” citizens. This “demeaning” effect had to be uprooted, lest it promote — the Court further said — private discrimination against homosexuals. According to Lawrence, the Constitution requires judges and legislators to do what they can — within limits, to be sure — to protect homosexuals and lesbians from that sort of moral criticism.

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.

What is a judge to do?

Equal sexual liberty is not the first cluster of ideas that threatens to redefine religious liberty. Starting in 1970, the Court’s (and associated elites’) negative judgment about Catholic schools’ compatibility with our “democratic” values determined Establishment Clause doctrine. The effects lasted more than a generation. We are just now moving on from that inheritance. Today a host of challenges to religious liberty — involving contraception, sterilization, euthanasia, abortion, and the whole gamut of sexual-orientation questions, up to and including same-sex “marriage” — are poised to do the same remodeling job. This time the meaning of both First Amendment clauses is up for grabs.

This deal is not done. “Equal sexual liberty” is a powerful and seductive vision. It has many adherents. It has already scored some big victories over religious freedom. But its triumph is not inevitable, even though its proponents say that they are on the “right side of history.”

Any resistance strategy must recognize that most — not all, by any means — of the trump cards are held by legislators. Lawmakers are more likely than judges to see and act upon the distinctive nature and value of religion and religious institutions. They are more likely than judges to reject the phony moral equivalence of, say, Barack Obama, who stated on Roe’s anniversary that the right to abortion could not be abandoned without sacrificing family privacy. The president that day marched in lockstep with the Supreme Court, which defends abortion rights as inseparable from a woman’s right to have a baby. That one involves killing and the other does not is, evidently, irrelevant. Legislators are more likely than judges to overturn the HHS mandate, too.

The template for protective legislation could be the law that exists today about conscientious objection to capital punishment: The language is clear, the coverage is comprehensive, and judges can enforce it without sinking into perplexity over big questions, and without smuggling in equal-sexual-liberty ideology. This federal law states that no employee of any governmental unit (national, state, or local) may be required to “attend” or “participate in . . . any prosecution or execution” if doing so “is contrary to the moral or religious convictions of the employee.” Little or no objection has ever been raised to this entirely unexceptionable statute.

The protective shield around the objecting employee is large. “‘Participation in executions” includes personal preparation of the condemned individual and the apparatus used for execution and supervision of the activities of other personnel in carrying out such activities.”

Of course, this exemption implies no insult to anyone’s preferred path to orgasm. That is probably why it is uncontroversial.

— Gerard V. Bradley is a professor of law at the University of Notre Dame. A version of this article appeared in the March 5, 2012, issue of National Review.

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