Zubik v. Burwell

Later this morning, the eight justices of the Supreme Court will hear arguments in Zubik v. Burwell. The justices are being asked to decide between conflicting lower court rulings, most of which favored the government’s position that asking religious groups to fill out a form or send a letter saying they object to providing insurance for contraception does not substantially burden their religious freedom, and a couple of which sided with the religious groups, arguing that the accommodation offered by the Department of Health and Human Services still involves them in the provision of insurance for something the Church finds morally objectionable.

Few topics have garnered more attention at this blog than the issue of religious liberty which at the heart of this case. It was here, after all, that President Obama’s first plan, offering no accommodations to Catholic ministries, was denounced in a rare Saturday morning post entitled J’accuse!,” a post which briefly made me a darling at the USCCB and was translated into several languages.

Then, the Obama administration offered an accommodation to religious ministries, in large part because of the pushback it received from those like E.J. Dionne and others who did not automatically detest anything associated with the Affordable Care Act, or with Obama more generally. I also opposed the accommodation, and still do, because it took a distinction from the tax code, between religious entities that have to file 990s and those that do not, which had never before been used in the context of religious exemptions, opening the door to future regulations that insufficiently protected the religious consciences of our ministries.

To be clear: I hope the court sides against the Obama administration when its eventual ruling is issued later this year. But, I hope it does so for different reasons from those being argued by the ministries challenging the rule. I hope that, like me, the Court is more wary of government intrusion into religious organizations, and recognizes the intimate connection between our ministries and our Church. I hope that Justices Alito and Kagan will recall their concurring opinion in Hosanna Tabor v. EEOC in which they wrote:

Throughout our Nation's history, religious bodies have been the preeminent example of private associations that have ‘act[ed] as critical buffers between the individual and the power of the State.’ Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984). In a case like the one now before us—where the goal of the civil law in question, the elimination of discrimination against persons with disabilities, is so worthy—it is easy to forget that the autonomy of religious groups, both here in the United States and abroad, has often served as a shield against oppressive civil laws. To safeguard this crucial autonomy, we have long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs. The Constitution guarantees religious bodies ‘independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.’ Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 

Here is a good and liberal reason to oppose the HHS contraception mandate, because it fails to honor the useful diversity in our society, and the importance of intermediate social bodies, of which religious organizations are a preeminent example.

Yet, I confess I worry about a victory for the ministries as much as I worry about a loss. Because, since the accommodation was first announced, I have come to realize that it is being driven, alternately, by a detestation of President Obama and by a maximalist understanding of the right to religious freedom that actually imperils the great accomplishment religious liberty represents in our nation’s history. The controversy over the mandate has become a part of a culture war that has harmed the Church, and harmed it gravely, and I fear a victory on this issue will only embolden the culture warriors.

My colleague Tom Roberts posted an article yesterday that pointed out that many ways different dioceses were dealing with the issue of insurance coverage of contraception. Nobody went to the mat. They held their noses, recognized the value of insurance per se and the fact that this is insurance, no one is being tied down to a gurney and being force fed the pill. Monday, Douglas Laycock pointed out the danger of the maximalist position the bishops have embraced. And, increasingly, I find evidence in countless conversations that the bishops and the Obama administration both picked this fight for their own reasons.

The culture war narrative was on full display yesterday in a talk at Brigham Young University delivered by Philadelphia Archbishop Charles Chaput. The text was published at First Things. Ask yourself: Can you imagine Pope Francis giving such a depressing talk? Compare the archbishop’s talk with Pope Francis’ address to Congress, or his address to the U.S. bishops. Did I miss the pope’s concern about “limited government”? Is the focus of the archbishop’s jeremiad not a little to exclusively on the Democrats? True, he acknowledges that the Church has “some serious problems” with libertarian thought, but most of his indictment is reserved for the left and, more problematically, his critique shares the same gaggle of resentments that are now common among conservative literati, but it does not persuade. It certainly would not serve as the basis for the kind of good faith negotiation with the Obama administration that might have averted this legal fight.

If the Church’s ministries win, it will not rescue the cause of religious liberty and if they lose it will not mean the end of religious liberty. Whatever the court decides, there is no ministry of the Church that should conclude it needs to close shop. No verdict by the court will confirm the narrative that the Obama administration hates the Catholic Church and is determined to destroy religious liberty. Yes, I blame Obama’s team and Obama himself for not avoiding this fight. They caved to the political pressure brought by women’s groups. But, the bishops are not without their share of blame too. They hate Obama and they wanted this fight. I hope they win, but they deserve to lose.



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