'Interference' By Court Could Apply Churchwide

SACRAMENTO, Calif. — California's highest court has ruled that a Catholic charitable group must provide contraceptive coverage.

Catholic Charities has been told to include contraceptive coverage in its employee health care plans. But the Church teaches that contraception violates the unitive and procreative nature of the sexual act and is ilicit.

The decision could affect Catholic and religious charities, hospitals, schools and other institutions throughout the state.

In a 6-1 ruling in Catholic Charities of Sacramento Inc. v. Superior Court of Sacramento County, the California Supreme Court ruled that Catholic Charities is not a “religious employer” under California law because it offers services such as counseling and “serves peoples of all faith backgrounds, a significant majority of whom do not share the Roman Catholic faith.”

Justice Janice Rogers Brown, the court's lone dissenting vote on the case, called the ruling “an intentional, purposeful intrusion into a religious organization's expression of its religious tenets and sense of mission.”

“The government is not accidentally or incidentally interfering with religious practice; it is doing so willfully by making a judgment about what is or is not a religion,” she said.

Brown was nominated by President Bush to fill a vacancy on the U.S. Court of Appeals for Washington, D.C., but Senate Democrats have blocked her nomination.

The court's decision was based on its reading of California's Women's Contraception Equity Act. Twenty states currently have similar laws, which mandate religious organizations to provide birth-control coverage despite religious objections.

The other states are Arizona, Connecticut, Delaware, Iowa, Georgia, Hawaii, Iowa, Maine, Maryland, Massachusetts, Missouri, Nevada, New Hampshire, New Mexico, New York, North Carolina, Rhode Island, Texas, Vermont and Washington.

Catholic Charities is in a difficult position, according to Richard Garnett, a law professor at the University of Notre Dame.

It can avoid cooperating with what the Church teaches is illicit by stopping its practice of providing its employees with prescription-drug coverage, he said. However, the organization contends it is morally bound to provide such coverage.

Another option for Catholic Charities, Garnett said, is to “secularize” and decide to include contraception in its health plans regardless of Church teachings.

“Or, it can continue the struggle for religious freedom in the federal courts,” he said. “I suspect, though, that the act and the exemption criteria would withstand constitutional challenges, at least under current doctrine.”

In the end, he said, what is most necessary is an effort by the Church “and by all those who cherish authentic religious freedom to take the matter to the court of public opinion and convince fellow citizens and legislators that a broader exemption is appropriate.”

Nearby Nevada might be next to fight this issue: the American Civil Liberties Union, a civil-liberties group that has taken a staunch pro-abortion position — at times trumping its concerns for the freedom of religious Americans, some critics say — has voiced an intention to fight a state law that exempts religious groups from providing birth-control coverage in employee insurance places.

Richard Siegel, president of the Nevada chapter of the ACLU, told the Associated Press, “We're very interested in expanding employee rights. It's an extremely important area.”

Secularist groups applauded teh court's decision.

“I think there is a large lesson in this for religious leaders,” said the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, which filed a friend-of-the-court brief in the case urging that Catholic Charities be required to provide contraceptive coverage. “When churches set up a ‘faith-based’ affiliate to provide secular services — and take in public funds — government rules and regulations have to be followed.”

“We hope the sound decision made today will be reflected throughout the country as other state courts are faced with similar erroneous claims,” said a spokesman for the pro-abortion group Catholics for a Free Choice in a statement.

Others, however, see the case as an opportunity for the Church to clarify its teachings.

“If this case proves anything, it proves that there are many clever ways to discriminate against religious belief, including by ostensibly granting a religious exemption from a generally worded law that is in fact little more than a subtle and mean-spirited effort to force the Church to abandon its longstanding teaching on contraception,” said Douglas Kmiec, a law professor at Pepperdine University in Malibu, Calif. “The case should be appealed. I am not sanguine that the Supreme Court would hear it, or if they did, get it right. I do think this is a teaching moment and the Church must not let it pass.”

Terry Pell, president of the Washington, D.C.-based Center for Individual Rights, is not surprised by the court's decision and warns that Catholics are not the only ones who should be worried.

“The California law is not secular in purpose or effect,” he said. “It was passed by activists whose sole interest was to embarrass the Catholic Church for its teachings on contraception. … The ease with which activists routinely use the state's regulation of private individuals and employers to further overtly political agendas threatens everyone.”

‘Not About Contraception’

Ned Dolejsi, executive director of the California Catholic Conference, said in a statement: “This case was never about contraceptives. It was never about insurance. It was about our ability to practice our religion — providing food, clothing and shelter to the neediest among us — as a religious organization that is part of the Catholic Church.”

As pro-abortion and other liberal interest groups continue to press for laws similar to the one in California, Pia de Solenni, director of life and women's issues at the Family Research Council, recommends a public, proactive recourse.

“Catholics need to be brave enough to stand up for their convictions,” she said. “Catholic Charities could threaten to shut down and pull out because its Catholic identity is being needlessly compromised.”

“Face it,” Solenni said, “the Catholic Church provides a significant portion of these services. Without it, every state would be in crisis. It's time to start using that leverage.”

Kathryn Jean Lopez is editor of National Review Online.