Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, November 21, 2011

Democrats urge Pres. Obama not to expand religious-employer exemption

As MOJ readers know, Pres. John Jenkins (Notre Dame) and many others -- on "both sides" of the political spectrum -- have urged President Obama to re-think the very stingy exemption that exists for "religious employers" from the contraception-coverage mandate (which -- denials in some quarters notwithstanding -- will also include some abortion-inducing drugs) in the new health-insurance law.  On Sunday, the New York Times reported that many Democrats are urging the President not to agree to a "change that would grant a broad exemption to health plans sponsored by employers who object to such coverage for moral and religious reasons."

In my view, both the mandate and the narrow religious-employer exemption are objectionable.  I was struck, though, by this, in the NYT piece:

Senator Jeanne Shaheen, Democrat of New Hampshire, said: “It just doesn’t make sense to take this benefit away from millions of women. Americans of all religious faiths overwhelmingly support broad access to birth control.”

Sen. Shaheen thinks that it is relevant, apparently, to the question whether it "make[s] sense" to refrain from requiring objecting religious institutions to pay for abortion-causing drugs that "Americans of all religious faiths overwhelmingly support broad access to birth control."  Indeed, it appears that they do.  But, what work in the argument is "of all religious faiths" doing?

UPDATE:  Michael Sean Winters (who is, in my view, clear-eyed about the importance and foundations of religious liberty but mistaken in thinking that Pres. Obama is, too) notes

[T]here is something more than a little ironic about these liberal champions, the type of people who normally celebrate the “wall of separation” between Church and State, now clamoring over that wall as fast as they can to tell Notre Dame and Providence Hospital what they can and cannot do. Ironic, too, that liberalism which was founded on the principle of conscience rights, and at a time when the Catholic Church was unalert or hostile to the idea of conscience rights, has grown so indifferent to them while it is the Catholic Church today that champions them. But, irony is the coldest of comforts.


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Maybe the Senator is saying if the Papists don't like it here, they can go live in Vatican City? A Prius in every driveway, a chicken in every pot, an abortionist on every corner, and employer-provided contraceptives in every health plan. America: love it or leave it.

Posted by: Anon | Nov 21, 2011 11:34:17 PM

"Americans of all religious faiths overwhelmingly support broad access to birth control."

This statement makes it appear as if Americans of all religious faiths believe that the sexual objectification of the human person is for the common good.

Posted by: Nancy D. | Nov 22, 2011 8:32:42 AM

The word is "clambering," not "clamoring," in this usage.

Posted by: Joel Clarke Gibbons | Nov 22, 2011 10:05:22 AM

"But, what work in the argument is "of all religious faiths" doing?"

This seems like a picayune point as politicians of all stripes employ a lot of vacuous rhetoric. But, to the extent it is not just a content-free, feel-good phrase, I imagine she's trying to indicate that her position is: (1) on the side of the majority (not too shocking in a democracy), and (2) follows the actual wishes of the majority of people of various faiths, even if it contradicts dogma that is claimed to be faith-defining by the official organs of various faiths.

(Also, I also suspect that clambering, not clamoring, was intended by Winters, but I think clamoring kinda works anyway.)

Posted by: brennan | Nov 22, 2011 10:50:16 AM

Brennan -- (2) sounds likely (which, of course, makes my point not "picayune").

Posted by: Rick Garnett | Nov 22, 2011 10:51:44 AM

Your parenthetical in the update nails it, and also explains Winters use -- mistaken, in my view -- of the term "ironic." It's ironic for Democrats to be anti-conscience rights only if one accepts that their claims to being pro-conscience were sincere to begin with. If they were, all along, about claims for liberty "for me and not for thee," then there's nothing surprising or ironic at all about shutting down their opponents after gaining control. It's what many of us expected all along.

The only question is this: how many people, if any, will learn enough from this to oppose the existence of this anti-Catholic administration? I expect most to support him, and express disappointment again and again when he does exactly what his ideology dictates. Fool me twice . . .

Posted by: joe reader | Nov 22, 2011 11:02:05 AM

Prof. Garnett,
No insult was intended - so I apologize for my phrasing - and I appreciate the effort you put into blogging (even if I often disagree).

Posted by: brennan | Nov 22, 2011 11:33:34 AM

How can the the Catholic Church be correct on a moral issue if Jeanne Shaheen, Nancy Pelosi and a majority of otherwise-adherents are arrayed on the other side?

Posted by: A reader | Nov 22, 2011 11:42:14 AM

Brennan -- no worries. I was just joshin'.

Posted by: Rick Garnett | Nov 22, 2011 11:56:28 AM

Joe reader - turning a point about a broader intellectual trend into a narrowly partisan one does your argument no good, I think.

Posted by: Andrew MacKie-Mason | Nov 22, 2011 12:19:42 PM

With all due respect to Michael Sean Winters, The Catholic Church has never been hostile to conscience rights, The Catholic Church has always taught that we have an inherent Right to a well formed conscience which will not contradict the objective moral Law as taught by Christ and His Church.

www.beginning catholic.com/conscience.html

Posted by: Nancy D. | Nov 22, 2011 12:23:59 PM

Nancy raises an interesting issue, it seems to me. I believe (though I am not sure) that her capsule summary of Catholic teaching is accurate, which suggests that it is not possible to exercise freedom of conscience, in the Catholic sense, to disagree with Catholic dogma. This idiomatic Catholic understanding of conscience would be quite inconsisent with how "conscience" is used by non-Catholics.

So ... which sense of "conscience" is meant by the Catholic bishops in their current demands that the government respect freedom of conscience? If they mean it in the Catholic sense, aren't they asking for a government endorsement of very specific sectarian beliefs?

Posted by: brennan | Nov 22, 2011 1:49:56 PM

A well formed Catholic conscience will be consistent with the moral Law, so why wouldn't our Government, which professes to be One Nation under God, not want to endorse the belief that a well formed conscience that is consistent with the moral Law, contributes to the common good?

Posted by: Nancy D. | Nov 22, 2011 3:39:14 PM

While every citizen constitutes the political office of the politician occupying the office at the time, the politician still has a conscience and an immortal soul. Having sold his birthright for a bowl of pottage, the politician takes his constituents with him to the infernal place.

Posted by: Mary De Voe | Nov 23, 2011 4:15:05 PM

Andrew, I see your point, and I accept that a narrow partisanship isn't useful. Let me please I try to clarify: I do not intent to make a partisan appeal for the GOP, which has its own problems, nor do I intend to promote any particular third party. I am, I admit, partisan against Pres. Obama and against the wing of the Democratic party that is, in my estimation, anti-Catholic. That is, in my view, the record that Obama and certain others have established, on multiple issues.

The question, then, is what to do about it. My Catholic Democratic friends have sought to work from within, supporting the Administration and other Democratic officeholders, and seeking to pesuade them to be more friendly to certain viewpoints. As far as I can tell, they have little to show for it. Even the bishops were pro-health care, seeking only to limit the abortion and conscience parts, and they lost. Rev. Jenkins and Notre Dame gave the Prez a major platform to portray himself as open to our concerns, and it seems to have earned nothing at the table for conscience protection.

Thus, although I dislike having a narrowly partisan result, I can no longer avoid the logic of that result's flowing from the Obama record. Since persuasion from within is not working, I think the only alternative is to withhold support, explain why, and hope that in the long run it supports the resurgence of the moribund pro-life Democratic wing. Further support for Obama is, de facto, support for further assault on the Church.

About the only thing that can be said is that the other team would be worse if they got in again. On that score, it seems to me that they may do many bad things, but at this point in history, assaulting the Church and its institutional independence is not on the agenda. One must be prepared, then, to say that the various Democratic policy positions are so superior to the GOP's as to justify the cost of these anti-life and anti-Catholic moves, and I am not persuaded.

Now, if one prefers the Obama stance on abortion and conscience protection, that's another thing entirely. But for those who do not, I ask what evidence there is for standing by this man and hoping he'll treat you better tomorrow?

Posted by: joe reader | Nov 23, 2011 5:37:40 PM

Does any government agency have the authority from God and the people to redefine the person or man's response to the gift of Faith from God or the exercise of man's free will?

Posted by: Mary De Voe | Nov 23, 2011 10:50:06 PM

"...or prohibit the free exercise thereof;..."

Posted by: Mary De Voe | Nov 23, 2011 11:29:49 PM

Questions about the government requiring or prohibiting something that conflicts with someone’s faith are entirely real, but not new. The courts have occasionally confronted such issues and have generally ruled that the government cannot enact laws specifically aimed at a particular religion (which would be regarded a constraint on religious liberty contrary to the First Amendment), but can enact laws generally applicable to everyone or at least broad classes of people (e.g., laws concerning traffic, pollution, taxes, contracts, fraud, negligence, crimes, discrimination, employment, and on and on) and can require everyone, including those who may object on religious grounds, to abide by them. Were it otherwise and people could opt out of this or that law with the excuse that their religion requires or allows it, the government and the rule of law could hardly operate. Thus, the government can forbid discrimination against specified people and apply that law even to those who say their religion allows or requires them to discriminate. In rare (one hopes) circumstances, such a generally-applicable law could put an individual in an ethical Catch-22 if it requires one to take actions one considers immoral. For just this reason, when such binds can be anticipated, provisions may be added to laws affording some relief to conscientious objectors.

Here, it may be questioned whether there is real need for such an exemption, since no one is being "forced," as some commentators rage, to act contrary to his or her belief. Employers generally are not required by law to offer health-related benefits to their employees, although the practice of providing such benefits is common. IF an employer chooses to offer health benefits, though, federal anti-discrimination laws and health plan enforcement regulations act to protect an employee’s rights under those health plans. So, depending on whether an exemption to the law is allowed, either employers or employees are put to a choice. If religious employers are exempted from current discrimination and health benefit laws so they can offer health benefits omitting some medications and services, employees can choose whether to accept such benefits or seek employment elsewhere. If current discrimination and health benefit laws are enforced, religious employers can choose to offer health plans complying with those laws or not offer any health plans at all. To the extent that employers already have an option under the current laws consistent with their religious views, they have less need for an exemption from those laws.

Posted by: Doug Indeap | Jan 22, 2012 11:03:57 PM