The Weekly Sift

Cable-news shows the last two weeks (especially on Fox) have been dominated by the Catholic bishops’ objection to including contraception in the minimum healthcare plan employers must provide under the Affordable Care Act, and the compromise the Obama administration offered.

In brief: Churches could already claim an exemption to the rule, so the issue centered on other church-run institutions like hospitals or universities. By making a Catholic institution provide contraception to its employees, despite the fact that Catholic doctrine objects to contraception, “the Obama administration has cast aside the First Amendment to the Constitution of the United States, denying to Catholics our Nation’s first and most fundamental freedom, that of religious liberty” — according to one version of the letter which the bishops had read in every Catholic church.

The administration compromised: Church-run institutions also would not have to offer contraception in their healthcare plans, but if they didn’t, the insurance companies providing the plans must offer individual employees a separate, no-fee, no-co-payment contraception policy. (This works financially, because contraception doesn’t cost the insurance company money, it saves money by preventing pregnancies. So the employer is not subsidizing contraception, even indirectly.) But the bishops announced that they would not be satisfied until contraception was withdrawn from the minimum healthcare plan for everyone.

Most of the problems with the bishops’ claims have been dealt with in detail elsewhere:

• Similar mandates on the state level have not been a major issue.
• Numerous Catholic institutions (like DePaul University and Boston College) already include contraception in their health plans.
• Polls indicate that the bishops’ opinion on this issue does not represent American Catholics. (Why would it? Catholics never elected these guys to represent them.)
• The bishops are elevating employers’ rights above workers’ rights.
• The bishops are being partisan, picking a fight with Obama on a relatively minor issue while ignoring the much more serious ways Catholic doctrine conflicts with plutocratic Republican policies.
• The Catholic Church is asking for special rights no other religion has. (Nicholas Kristoff writes: “What if organizations affiliated with Jehovah’s Witnesses insisted on health insurance that did not cover blood transfusions? What if ultraconservative Muslim or Jewish organizations objected to health care except at sex-segregated clinics?”)
• If we did start recognizing this kind of “religious liberty” we’d create a hole in our system, as pictured in this NYT cartoon:

But one point is not getting nearly the attention it deserves: The bishops are not defending the religious liberty of individual Catholics (who remain free not to use contraceptives). They are claiming “religious liberty” as an institutional right of the Catholic Church.

It’s corporate personhood all over again.

The Founders must be spinning in their graves. The whole point of separating church from state is that we should not have to run our laws past a council of unelected bishops.

The United States has a long history of making room for individual conscience, most notably in allowing conscientious exemption to a military draft. But recognizing the institutional conscience of a church would be something new and strange.

In the American legal tradition, a church’s rights are derived from the right of its members to believe as they will, to worship as they will, and to freely assemble. Any “institutional right” that can’t be so derived is alien to us.

I found this spelled out quite clearly in the 1949 book Cornerstones of Religious Freedom in America by Joseph Blau (which also provided this week’s Sift quote):

Much as business corporations in the United States have battened on their fictitious legal status as corporate persons entitled to individual rights under the “due process” clause, churches — religious corporations — are able to grow overweening and oppressive if their claim to legal status as corporate persons under the First Amendment is granted. “Due process” for corporate persons has produced the legal anomaly of violation of the rights of the very individuals whom the due process clause was intended to protect. Religious freedom for religious corporations, if it is allowed, will end in the trampling of the religious freedom of the individual under the marching feet of a remorseless and self-aggrandizing hierarchy.