Nailing down the boundaries of religion can be difficult. Complicating the task is the propensity of vested interests to distend or even break through the limits on what counts as a religious function or organization. The case of whether Catholic-affiliated organizations that “do” education and health-care should be exempted from federal regulations requiring employers to pay for birth-control in their health-insurance plans for employees (and) illustrates the problem. I don’t think the issue is constitutional because the matter of birth control is not religious, even in Catholic terms. I contend that the real issue is one of partisan politics going back to “Obamacare,” and ultimately of anger under the subterfuge of religion.
On January 20, 2012, the Obama administration announced that employers with a religious affiliation having “moral objections to birth control” would have to provide all forms of contraception approved by the Food and Drug Administration without co-payments or deductibles for health-insurance policy-holders. Churches and other houses of worship would still be exempted, but not hospitals, schools, and charities. Catholic-affiliated hospitals, schools and charities had petitioned the U.S. Department of Health and Human Services to recognize them as religious groups. Had they been recognized as religious in nature, the implication would have been that giving shots, operating on patients, and teaching non-religious subjects are somehow “religious” in nature. Potentially, virtually any function could be deemed religious in nature and the free exercise clause of the First Amendment of the U.S. constitution would mean that anyone could declare oneself exempted from any given law on religious grounds. David Boie, who represented Al Gore in Bush v. Gore (2000) said that “free exercise” does not mean that a religious organization can be exempted from a law that covers everyone. Rather, such an organization can sue the U.S. Government should it pass a law tailored to the organization—to stop it from engaging in a religious expression. Some “free exercise” advocates, however, presume that religious organizations have a blank check regarding laws that cover everyone and thus do not discriminate against a religion. Constitutional law does not support that position.
I contend, moreover, that the constitutional question does not properly arise in this case, for the moral objection is not in itself religious. Archbishop Dolan referred to even Obama’s compromise that the insurance companies pick up the tab as calling on the Catholic Church “to subsidize something we find morally illicit” (italics added). Yet he went on to characterize it as a “religious practice,” essentially treating morality itself as a religious practice like prayer or taking the Eucharist in a religious ritual. In other words, even as Catholic hospital and university organizations came out in support of the president’s compromise, the Catholic bishops were opposing it without a clear notion of how the practice of birth control relates to religion.
If wearing a condom or taking “the pill” interferes with a religious practice, then having unprotected sex is the equivalent to praying or attending Mass (e.g., taking communion). I don’t know of any Catholic official who would argue this with a straight face—as if Catholics could legitimately (i.e., on religious grounds) sleep in on Sunday mornings as long as they have a little sex and this would count as a religious practice. The distinction between a moral and religious doctrine takes a bit more explanation.
Historically, it was thought in the Christian West that one could not be moral without being religious. This assumption involves a category mistake. Were religion essentially morality, the Book of Job would be a tough nut to crack, for Job is not treated ethically though God allows the devil to abuse the righteous man. Moreover, God could not be all-powerful (omnipotent) were religion subject to our moral systems. Were religion oriented to morality, or should applied to conduct in this world, the transcendent aspect of religion would either be eclipsed or relegated. A moral position is therefore not a religious practice.
In using birth control, the vast majority (98%) of Catholic women in a position to use birth control (e.g. sexually active) use it. A New York Times/CBS poll issued soon after Obama announced the compromise found that 57% of Catholic voters supported the requirement for religiously affiliated employers, like hospitals and universities, to cover the full cost of birth control for their employees, while 36% opposed it. There was almost no difference between Catholic and other voters on the question. Presumably the percentage in support of the president’s compromise (i.e., insurance companies pay) was higher. Were having sex unprotected every time a religious doctrine or practice, the bishops would not have been so upended by their own flock.
Undoubtedly most Catholics simply concluded that their bishops had over-extended themselves into a non-religious domain (e.g., a moral question, or a health issue for women). Put another way, the fact that the bishops were not being followed by most of their flock undercuts the bishops’ credibility (or legitimacy) even in their own domain—that of religion. By presuming to over-extend one’s influence, one undercuts even one’s viability in one’s own backyard. The real story behind the story is the bishops’ irrelevance even to Catholics.
Following Dolan (someone apparently needs to) on birth control being “morally illicit,” I would argue that people have moral objections to government policy all the time; giving religious officials a pass simply because of their religious roles (e.g., in worship) is not fair to other citizens who have other moral objections. The First Amendment does not guarantee the free exercise of morality, even if the person having the moral scruples happens to be religious. Even if one’s moral view is informed by one’s theology, the moral stance is not itself religious. So I do not view the constitutional question as properly arising in this case. Rather, I view it as a good old-fashioned political fight of partisans.
The salience of political ideology can be seen even in how the various parts of the Catholic Church reacted to Obama’s compromise. According to the New York Times, the “leaders of several large Catholic organizations that work directly on poverty, health care and education reacted positively,” whereas the bishops continued to object—even arguing that Catholics who own businesses should not be required to provide birth control to their employees in their health insurance coverage. In other words, the personal moral view of a non-religious business owner should somehow exempt the business from the law that every other business in the U.S. must follow. Besides vastly over-extending the importance of the moral issue even within Catholicism (effectively making it a single-issue religion), the argument involves religion at best only tenuously next to business and constitutional law. Perhaps so many Catholics are unconsciously not following their bishops because of a natural aversion to such unabashed over-reaching (i.e., greed). Again, this could well be the story within the story, with the bishops so intransigent because they sense they had already undercut their own credibility from within. In other words, political ideological partisanship does not do well as the basis of a religious role.
For example, Archbishop Dolan gave a lecture on contraceptives at Fordham law school. At Fordham, birth control is covered by the student health plan, though none of the medical practitioners at the university clinic prescribe them; students must go to private clinics for prescriptions. During his lecture, Dolan criticized people who postpone conception with “chemicals and latex” as part of “the culture of death.” Is postponing a pregnancy synonymous with death? It is not as if a fertilized egg were killed. Moreover, is delaying a biological process in the religious domain? If so, then virtually anything could be classified as religious and the domain of religion become a meaningless tautology. The transcendent aspect is nugatory because by Dolan’s own admission the topic is biological reproduction—which Augustine wrote of as being so worldly, and thus tainted by original sin, that the act itself is not even to be enjoyed. Treating the worldly as definitive for religion risks making God in one’s own image, incurring pride as self-idolatry in the guise of piety. This is why most Catholics were not following their bishops on the issue.
Does Jesus even say anything about birth control in the Gospels? The Catholic Church would doubtless point to the magisterium (i.e., its teaching authority), though the argument that a teaching on which Jesus is silent is nonetheless central (even binding) seems to be a stretch. Dolan may have been kept unaware of these points, at least at Fordham, for the moderator screened the written questions that expressed or implied another opinion. As in a one-party state, Dolan got to hear what he wanted to hear; he could thus safely lecture as if he were preaching to the choir (which was actually doing the opposite—essentially voting with their conduct).
Bridgette Dunlap organizing an off-campus birth-control clinic at Fordham NYT
The partisan (even totalitarian) rather than religious nature of Dolan’s talk and its topic is evident just from the moderator’s statement to the audience, “If I don’t ask your question, I either apologize or I don’t care.” I suspect that the latter is the attitude residing just below the surface when partisans of the opposing view when they attend Mass. In other words, the “I don’t care” alone sends the message that Catholicism is for socially-conservative Republicans only. The attitude reflects a rather extreme degree of partisanship that admits up front to not having any concern whatsoever about being unfair, or even civil, to those with whom one disagrees. If you expected a fair shot at getting your question read—you know what—I really don’t care how you feel about being shut out. The dismissiveness alone indicates a belief that the persons do not even deserve customary politeness on account of their view. Such is the arrogance of I can’t be wrong. Raised to the level of truth, such arrogant partisan zeal functions like a knife, even if it haughtily claims in still more passive aggression to be in the name of compassion. The truth, as it were, is in the partisan pudding. Essentially, what is being worshipped is pride, which Augustine viewed as the chief sin of all.
I do not believe that religion was motivating the bishops in opposing Obama’s decisions. The New York Times reports that to many Catholic leaders, the controversy sounds like “a replay of the fight over the healthcare overhaul passed in 2010.” Even though Catholic bishops had been advocating universal health care since 1919, the bishops in 2010 “nearly blocked the passage of the health care bill” because they said it “did not go far enough to ensure that federal money would not be used to pay for abortions.” At the very least, the bishops’ motive in early 2012 should have been questioned, as they had opposed the law itself. It sounds more like sour grapes than anything religious.
Behind the “I can’t be wrong” may be an abstinent partisanship on the right that has a thinly veiled hatred of progressives. I suspect that the bishops had been working to remake their “universal” Church as a place for Republican Catholics to worship the God of moral issues. In other words, the bishops were blind to the dogmatism in the arbitrariness that is involved in limiting a religious practice to people of a particular political ideology. Such arbitrariness is enforced by power and intimidation.
I can just imagine Dolan’s seething hatred for Sister Anne Curtis, a leader of the Sisters of Mercy of the Americas, who supported Obama’s compromise in line with making health care available to all. Similarly, Sister Carol Keehan, president of the Catholic Health Association, also supported the compromise, saying “My special interest is that in 2014, the32 or so million people who do not now have health insurance will get access to health care.” Such compassion was notably missing from Dolan’s reaction to Obama’s compromise. I suspect he had little compassion for the sisters either.
Meanwhile, Democrats could feel at home in Unitarian Universalism, which is perhaps even more ideologically partisan, but at least up front about it: “religion” there being about instituting specific social structures that are deemed (by the Unitarians) to be moral. This “left-wing” partisanship can be seen in a letter sent by clergy on “the left” (including a few Unitarian ministers) to the White House.
The following sentence from the letter is telling: “As clergy, we are committed to upholding the important goals of reproductive justice and health, empowering women and men to make decisions about whether and when to have and bear children within their own moral and religious tradition, and assuring them the means and ability to raise their children in a safe and healthy environment. Access to reproductive health services recognizes a moral value embraced across the religious spectrum. We thank you for your decision supporting the fundamental value of reproductive health to women and families.” The only reference to anything explicitly religious are “clergy” and “religious spectrum.” It is as if the authors were political activists who just happened to be clergy.
I suppose what amazes me is that we in the general society are so willing to ignore obvious instances in which partisan sticks its ugly head out to toss a lit match on a pool of gasoline under the subterfuge of religion. Besides distending and contorting religion itself such that the rest of us would hardly recognize it if it hit us on the head, the practice of partisan fighting under the subterfuge of religion gives what is actually a political faction undue stature and influence, not to mention airtime. Essentially, anger is anger. I suspect that for the bishops it has become a habit.
Louise Radnofsky, “Catholic Leaders Blast Rule on Contraception Coverage,” The Wall Street Journal, January 25, 2012. http://online.wsj.com/article/SB10001424052970204624204577181413393315258.html
Denise Grady, “Ruling on Contraception Draws Battle Lines at Catholic Colleges,” The New York Times, January 30, 2012. http://www.nytimes.com/2012/01/30/health/policy/law-fuels-contraception-controversy-on-catholic-campuses.html
Amanda Terkel, “President Obama’s Pro-Choice Birth Control Decision Draws Praise From Religious Leaders,” The Huffington Post, January 30, 2012. http://www.huffingtonpost.com/2012/01/30/obama-birth-control-religious_n_1242680.html
Laurie Goodstein, “Obama Shift on Providing Contraception Splits Critics,” The New York Times, February 15, 2012. http://www.nytimes.com/2012/02/15/us/obama-shift-on-contraception-splits-catholics.html