Religious Liberty: S. Court, Georgia & Scare Quotes

by Michael Sean Winters

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The U.S. Supreme Court and the Republican Governor of Georgia both threw curve balls this week in the struggle over religious liberty. Both events invite the U.S. Catholic bishops to take a step back and reconsider their approach to this important issue. It is far from clear the bishops will seize the opportunity.

Yesterday, the Supreme Court, a week after hearing oral arguments in the cases that center around the HHS contraception mandate, issued a rare order requesting additional briefs from the litigants, aimed at finding a solution that satisfied both the conscience concerns of the religious organizations challenging the law and the government’s interest in providing free contraception to women. In essence the Court said, “Grow up and come up with a solution!” to both groups.

Specifically, and indeed the Court was unusually specific in its order for new briefs and in proposing a compromise, the justices floated the idea that the religious organizations could simply notify their insurance companies in the normal course of contracting for insurance coverage that they did not want to include contraception coverage. “[The nonprofits] would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the federal government, or to their employees,” the order stated. “At the same time, petitioners’ insurance company — aware that petitioners are not providing certain contraceptive coverage on religious grounds — would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.” The religious organizations should emphatically say “yes” to this proposal and draft a brief that reflects their endorsement.

The problem, of course, is that heretofore neither side has wanted to find a compromise; They have wanted to win. And, I do not see that the political landscape has changed markedly. When the mandate was first announced, the Obama administration dared not offend powerful women’s groups one year before the president’s re-election effort which turned on the “war on women” theme. Say what you want about the president’s principles, or lack thereof, as a political strategy it worked. The religious organizations challenging the mandate felt hopeful that they could prevail in the courts and were also unwilling to say “no” to groups like the Becket Fund and the Knights of Columbus that were spoiling for a fight with Obama. Regrettably, many bishops were only too keen on a fight with Obama too.

On Monday, Gov. Nathan Deal of Georgia vetoed a religious liberty bill in that state. Keep in mind that the last time a Democrat won a presidential contest in Georgia was in 1992, when Bill Clinton took the state with 43 percent of the vote. (Ross Perot garnered 13 percent of the vote in Georgia that year, tipping the state into the Democratic column on a small plurality.) The governor vetoed the bill after enormous pressure from big business that threatened to flee the state if the bill went into law. It is nice of Gov. Deal to clarify what the GOP’s priorities are. When big business speaks, Republicans listen.

In Georgia, the worry was not the contraception mandate, but discrimination against the LGBT community in hiring and the provision of services. At the last minute, legislators amended the bill to make it easier for employees to challenge discriminatory practices in court, but the intent of the bill was clear: It would have made it easier to fire someone because they are gay. Discrimination will be the next battleground in the religious liberty fight, and it is more difficult than contraception: You can’t craft an opt out that let’s a third party hire or fire an employee.

But, in all the news coverage of the Georgia legislation and veto, the thing that should really give the bishops pause is the fact that many news outlets routinely now place the words religious liberty in scare quotes as “religious liberty” as if to say, “so-called.” A fundamental principle of our constitutional system, that has served the nation very well for over two hundred years, is now rendered in scare quotes. And, yes, the bishops are partly responsible for this unhappy outcome. By listening to the professional agitators who wield an extreme interpretation of religious liberty as their hammer, and just so see any and all issues as a secularist nail, the bishops have been complicit in a political and legal strategy that has precious little to do with Catholic doctrine.

The bishops, and the Catholic organizations they oversee, need to grapple with how they wish to proceed. Certainly, they should welcome the Court’s search for a compromise and try and get this nettlesome case behind them. They must also ask themselves why some of them seem intent on preventing gays and lesbians from working for Church organizations when there are plenty of other sins that do not prevent employment. And, they must decide if they are going to fight to maintain their own religious liberty, or go to the mat for the religious liberty claims of employers like Hobby Lobby with no distinct religious affiliation. This last is important because polling shows that large majorities believe companies in the public arena should not be permitted enjoy the same religious liberty protections as religiously affiliated organizations. The distinction has its roots in Calvinist theology, to be sure, but it is as old as the Republic.

Lastly, I believe the bishops must resist the advice of those whose commitment to religious liberty is so zealous, they develop tunnel vision, resist anything that looks like compromise and view it as betrayal, and who, in the final analysis, harm the cause they wish to serve. There are plenty of similar organizations on the other side, whose myopia has led them to entertain no second thoughts about diminishing religious liberty is such a diminishment would further their agenda. I hope that religious liberty will not become like the abortion issue, dominated by the extremists on both sides, special interest groups that demand all-or-nothing, who turn every issue into an existential battle. This strategy helps the groups with their donors, to be sure, but it makes meaningful compromise and progress impossible. The bishops are well advised to think more deeply about how they wish to pursue their religious liberty campaign going forward but, in the meantime, they should snap up the Supreme Court’s recommended compromise, declare victory, and go home.  


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