The Bishops & Religious Liberty by Cathleen Kaveny in Commonweal

http://www.commonwealmagazine.org/bishops-religious-liberty

..."This impetus toward public influence seems to be operating in the bishops’ dubious claim that “it is essential to understand the distinction between conscientious objection and an unjust law. Conscientious objection permits some relief to those who object to a just law for reasons of conscience—conscription being the most well-known example. An unjust law is ‘no law at all.’ It cannot be obeyed, and therefore one does not seek relief from it, but rather its repeal.”

It seems to me that this line of reasoning about unjust law is at the heart of the bishops’ stance on the contraception mandate. In February, they flatly rejected the administration’s attempts to insulate Catholic employers from the mandate by requiring third-parties to pay for and provide contraception coverage to employees of nonexempt Catholic institutions. Nor did the bishops propose any accommodations themselves. Instead, they claimed the only moral option is the complete repeal of the mandate. Why is the mandate an unjust law? Because contraception is intrinsically immoral—or so the bishops say. This position is consistent with the Catholic view that the magisterium is the authoritative interpreter of the natural law. But it goes far beyond the American understanding of religious liberty. Of course, there are constitutional limits, but generally in a representative democracy such as ours, the majority has the power to determine through the legislative process what counts as a just and unjust law. The bishops can propose. But it is ultimately up to the voters and their representatives to dispose...

Finally, the most striking aspect of the bishops’ claims about religious liberty is the absolute nature of their assertions (they don’t really make arguments). They give the reader virtually no hint that such questions must be assessed in a framework of competing rights and duties, particularly the duty to promote the common good. This is ironic from a theological perspective. Vatican II’s Declaration on Religious Freedom recognizes that there are “due limits” on the exercise of religious freedom, including the need to promote a “just public order,” and preserve the “equality of the citizens before the law.” For years, Catholic moralists and lawyers have railed against the assertion of rights claims without any consideration of relational responsibilities. (See Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse, 1993.)

Nor does the bishops’ rights absolutism make much sense as a legal strategy. American law does not treat religious freedom as an absolute right. The leading case interpreting the Free Exercise Clause, Employment Division v. Smith (1990), holds that the Constitution does not require lawmakers to give religious exemptions to neutral laws of general applicability, provided no other constitutional rights are involved. Even under the stricter, “compelling state interest” test that governed in the pre-Smith era, religious freedom was never an absolute right, but had to be balanced against competing state interests. Moreover, those interests must be assessed from the vantage point of the lawmakers, not the religious objector...

The case that seems most on point with regard to the contraception mandate is United States v. Lee(1982). It was decided under the stricter test that the Religious Freedom Restoration Act still applies to federal regulations such as the mandate. In that instance, the Supreme Court held that it was constitutionally permissible for the federal government to force Amish employers to pay Social Security taxes for their employees, although both the payment and receipt of Social Security taxes violated their religious beliefs, and although the employees in question were Amish themselves.

Why should it be permissible to force Amish employers to pay Social Security taxes but not to force Catholic employers to pay for contraception? I don’t see a compelling distinction between the two cases. In Lee, the Court noted that “the Social Security system in the United States serves the public interest by providing a comprehensive insurance system with a variety of benefits available to all participants, with costs shared by employers and employees.” A similar claim could be made about employer-based health reform.

According to Lee, “To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some practices yield to the common good.” The bishops do not agree, of course, that expanding access to contraception will in fact contribute to the common good. And they are free to make that argument in the public square. But just as a member of Peace Church cannot politically demand that the only way to respect his or her religious liberty is to end a war for everyone, so the bishops cannot insist that “the only way to respect our religious liberty is to repeal the contraceptive mandate for everyone.”

It just doesn’t work that way.

Cathleen Kaveny, a Commonweal columnist, teaches law and theology at the University of Notre Dame.