What's next in the ongoing struggle between the bishops and Obama?

by Thomas Reese

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Watching the U.S. Catholic bishops and the Obama administration fight each other has been a depressing experience. The two should have been natural allies on universal health care, immigration reform, and helping low-income families. Instead, we have had to watch fights over abortion, birth control, and gay marriage.

The fight over birth control made it all the way to the U.S. Supreme Court in the Hobby Lobby case. The court endorsed the accommodation whereby an objecting employer would not have to pay for birth control, but the insurance company would still have to provide it to the employees.

This decision was quickly followed by an order in the Wheaton College case, which supported the college's refusal to file EBSA Form 700 with its insurance company. Wheaton College and the U.S. bishops object to Form 700 because they feel it involves them in immoral cooperation by forcing them to give a "permission slip" to the insurance company to provide the objectionable birth control.

The Obama administration's response to these cases has been telling.

On the legal front, in a brief filed with the 10th Circuit Court of Appeals in Denver, the administration said it is developing an alternate plan for those religious organizations that object to Form 700. What this alternate plan will be and whether it will be acceptable to the bishops remains to be seen, but administration lawyers appear to be making a good-faith effort to resolve the issue.

One suggestion is for the religious nonprofit to simply notify Health and Human Services that it objects to paying for birth control. Then it would be up to HHS to notify the insurance company, but the bishops would probably object to even that.

My preferred solution is for HHS to notify all insurance companies that if a religious nonprofit objects, either verbally or in writing, to paying for birth control, then that is all the information the insurance company needs to know that it is now responsible for paying for birth control for the employees.

I don't see how the bishops could object to such a procedure. This is not an additional requirement. If the bishops don't want birth control in their insurance policy, they will have to tell their insurance company anyway.

The political response to the two cases is another matter. Senate Democrats offered a bill that would overturn the Hobby Lobby decision in order to get their Republican colleagues on record voting against birth control. Democratic ads and fundraising letters are hysterically claiming that the court decisions allow an employer to deny birth control to his (emphasis on the male pronoun) female employees.

This is simply not true. Unless a Hobby Lobby employee follows the news, she will never know there was a court case because even though Hobby Lobby does not have to pay for certain birth control procedures, its insurance company will still have to provide them. The impact on female employees is zero.

The Democratic response is more about politics than the law. It is following the same strategy that worked well in 2012 by accusing the Republicans of waging a "war on women." It wants to get women, especially young single women, to the polls in November so the Democrats don't lose their majority in the Senate. The sad truth is that culture war issues get people to the polls better than do social justice issues.

Meanwhile, the president issued an executive order forbidding discrimination against lesbian, gay, bisexual and transgender employees by federal contractors. It left in place George W. Bush's 2002 executive order allowing religious contractors to hire fellow religious for senior positions.

The bishops loudly opposed this new executive order. The bishops say they do not discriminate against gay employees but do not want to be seen as endorsing homosexual activity or gay marriage. As a result, we see employees who for years were known to be gay being fired from church-affiliated organizations after they got married. We also see bishops opposing the granting of spousal benefits to gay spouses.

I am old enough to remember the days when church employees were fired for getting remarried after a divorce. In those days, the church used the same arguments that it is using today against gay employees.

I have never understood how the bishops with a straight face can impose their sexual ethics on gay employees if they are not willing to do the same with their heterosexual employees.

Today, divorced and remarried employees are no longer fired. Nor are employees fired for extramarital activity. Spouses of divorced and remarried employees get spousal benefits. Why can't gay spouses be treated the same?

The bishops are losing the battle against gay marriage in the court of law and the court of public opinion. How the bishops deal with defeat will be telling. Can they accept the defeat over gay marriage as an earlier generation of bishops accepted their defeat over the legalization of divorce and move on? Or are they willing to ghettoize Catholic charities and other institutions by forbidding them from accepting federal contracts and following the law?

I argued for a generous exemption to the executive order for religious nonprofits and lost. Intransigence by the bishops and gay activists made compromise impossible. Ironically, the Hobby Lobby decision discouraged compromise because the gay community feared that any exemption for religious nonprofits might be expanded to for-profit corporations by the courts. This, after all, is what happened in the Hobby Lobby case, where the court told HHS to offer the for-profit Hobby Lobby the same accommodation that it offered religious nonprofits.

It is time for the bishops to start planning how they will deal with defeat on gay marriage. Will they insist on taking down Catholic charities with them, or will they use traditional moral teaching that distinguishes between material and formal cooperation to find a legitimate way for them to survive? Formal cooperation is always wrong because it means you agree with the evil action. Material cooperation, however, can be OK, especially when the state is forcing you to act.

It is time for the bishops to sideline their lawyers and consult with moral theologians who truly know the Catholic tradition. 

[Jesuit Fr. Thomas Reese is a senior analyst for NCR and author of Inside the Vatican: The Politics and Organization of the Catholic Church. His email address is treesesj@ncronline.org. Follow him on Twitter: @ThomasReeseSJ.]

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