Since its unveiling, the U.S. Department of Health and Human Services’ contraception mandate has caused a public outcry, resulting in 44 (and counting) legal challenges, filed by religious institutions and family businesses of a number of different faiths.
Although the most recent proposed amendments Feb. 1 were meant to address this outcry and the unconstitutional nature of the mandate, it is too little.
The Obama administration still does not see that its mandate fundamentally attacks the American tradition of religious liberty.
First, some context. The controversy over the HHS mandate did not actually begin with the Obama administration. For the last few years, the logic of an understanding of equality has worked its way through a variety of state laws. Under the guise of "equality" or "health," these laws substitute a government determination for the religious sensibilities of private institutions.
For example, California and New York both passed laws on the books prior to the mandate that sought to impose similar obligations. In the case of California, the evidence of anti-Catholic bias was quite plain. Illinois and Massachusetts focused on adoption agencies run by the Church; the result of these laws was to force the Church out of the adoption services in which it had been active for many decades. There, too, it was hard to see these initiatives as anything other than attempts to cabin the voice of the Church and her adherents.
The egalitarian logic behind these laws cannot allow other viewpoints, including religious viewpoints, to be respected in the public square.
Instead, they must be marginalized and replaced by values more in line with a secular state. That is why these laws attack the Church’s charitable works: Once those are excluded, being Catholic — or any religion for that matter — becomes merely a matter of rituals in a church or silent thoughts. The critical witness of faith is curbed.
Catholics must acknowledge that we bear some of the blame for allowing this to happen.
Since the 1960s, too many Catholics have become comfortable with working with the government to provide social services. Although these partnerships have had benefits, such as being able to expand the scope of services being provided, they came at a cost.
First, too often, Catholics disregarded their tradition of subsidiarity, which essentially means treating social and political problems at the lowest level available to adequately manage them, instead of seeking bigger and more extensive state intervention.
Second, and more important, Catholic institutions risked losing their distinctive character as entities preaching the Gospel through acts of charity. Instead, they risked being seen (and perhaps at times saw themselves) as other conduits for state aid.
This may have made sense when Catholics broadly shared the goals of a larger society still nominally Christian, but that is no longer the case. Now, the state routinely places its thumb on the scale in favor of those seeking to limit the freedom to exercise one’s religion.
Under those circumstances, the dilution of the Gospel message in a bath of egalitarian, rights-oriented language made things like the mandate possible and even considered normal — as is evident from the large numbers of Catholics who voted for Obama in 2012.
The HHS mandate perfectly expresses this secular logic. The Obama administration is putting the force of the state behind certain understandings of what counts as "health care" and a "right" to such health care. Then it declared any other way of understanding that right to be invalid — indeed, unlawful — and exposed institutions that held such views to punishing penalties. The administration — rather than letting the market or individual decisions guide this question — is guiding the question of how health care should be provided consistent with religious belief.
The initial HHS mandate was brazen in its treatment of religious institutions. The original proposal basically exempted only those institutions staffed and served by people of the same faith.
This made a mockery of the religious mission of many faiths, including that of Catholicism, which serve others as a witness to their faith.
The amendment does not change this logic in any substantive way: According to Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, "the proposed ‘accommodation’ does not sufficiently protect religious liberty. The proposal gives only unclear second-class-citizen protection to religious nonprofits, and it gives no protection at all to religious Americans who try to live their faith in the business world. The government could easily solve this problem simply by exempting all religious objectors. That is the one proposal acceptable under our religious-freedom laws, and it is the only one that will resolve this unnecessary problem."
In particular, the amendment does not address cases like those brought by the family-run business Hobby Lobby, now engaged in litigation over the mandate. The owners of the business wish to organize it along the lines of their faith; this amendment gives them no relief and simply emphasizes the point. The state cannot fairly dictate how and under what circumstances people seek to exercise their faith.
The other accommodations to religious sensibilities place the onus on the religious institutions themselves to be granted an exemption.
The HHS mandate has opened up an important debate over what we mean when we say the Constitution guarantees "free exercise of religion," since the logic embodied in the mandate need not stop at issues of health, but can spread to any issue that the government deems worthy of its attention.
Although "health care" speaks to one concern of many Americans, the logic behind the mandate knows no such boundaries.
The HHS amendment shows that the administration believes religious liberty is its to grant, or withhold, based on its own values.
That is not what the Constitution provides — and that is what the 44 cases and counting will hopefully prove.
Gerald J. Russello is the
The University Bookman