Every time I go to the New York Times editorial page, I feel like Charlie Brown running towards the football, held by Lucy, hoping for a connection. And, like Mr. Brown, every time, I come away feeling pained by the effort.
Yesterday's Times' editorial regarding the lawsuits filed last week by a host of Catholic institutions against the HHS mandate was a new low even by the Times' low standards. It was not just wrong, it was dumb.
For example, they write: "But the First Amendment is not a license for religious entities to impose their dogma on society through the law." Huh? Which side in this fight is defending a "mandate" and in "impos[ing] their dogma on society through the law"? It is the government, not the Church, that has imposed the mandate here. The Church is looking for an exemption. Even the obvious meanings of the words should have tipped off the Times' editors.
They also state that the contraception mandate "clearly fits" the claim put forward by Justice Scalia in Employment Division v. Smith that "neutral laws of general applicability" are not subject to a constitutional claim based on the free exercise clause of the Constitution. "Plainly fits" is a pretty strong way of proceeding. Clearly, the bipartisan majorities in Congress who passed, and President Bill Clinton who signed, the Religious Freedom Restoration Act or RFRA in 1993 thought that Scalia got it wrong in that decision. Clearly, too, there is an obvious difference between the law at issue in that case and teh HHS mandate at issue today: The Oregon law banning the smoking of peyote had no exemptions whatsoever, it was "generally applicable" but the HHS mandate does include an exemption for houses of worship, so it is not exactly generally applicable. (I will have more on this seminal Supreme Court case and RFRA later in the week.)
The Times also strangely notes the twin standard set down by RFRA - a law msut advance a compelling government interest AND it must achieve that interest by means that are the least restrictive of religious freedom. By her sworn testimony before Congress, HHS Secretary Kathleen Sebelius admitted that she had not considered the "constitutional nuances" of her rule, and had not consulted the Department of Justice. So, how then can the government, and the Times, ascertain that there were not less restrictive means of achieving the compelling government interest?
The editorial finishes where it began, with the claim that the Catholic Church is trying to force its views on "everyone." Funny, all this time, I thought the Catholic Church was only asking that its own institutions be exempt from the government trying to force its views on us. We have not made any effort to criminalize contraception. There are no contraception guards at the entrance to a Catholic college. We are simply asserting that the First Amendment, which mentions religion but not contraception, should afford our institutions the right to be exempt from a mandate that coerces behavior that the Church teaches is morally repugnant.
I am obliged in conscience to say it: There is something Orwellian, and not in a good way, about the Times' editorial.