I enjoyed reading Mike LaBossiere’s post entitled “Church & State: Immaculate Contraception”, but I can’t resist the impulse to add a post of my own – perhaps because I lack free will in the matter, but mainly because I devote an entire chapter of Freedom of Religion and the Secular State to this sort of issue (so it is kind of on my mind), and certainly because it has become even more topical than usual.
In setting the scene, Professor LaBossiere describes a provision that the Roman Catholic Church is currently objecting to in the United State: “This law requires that health insurance plans offer free birth control. Since this would include Catholic affiliated hospitals and schools, the Catholic Church has been pushing back against the law.” He adds: “Not surprisingly, this is being portrayed as an attack on religious liberty and the values of Catholicism. However, it is rather important to note that the law does not apply to churches, but rather only to institutions, such as hospitals and schools, that serve a large number of non-Catholics and also receive federal money.”
He raises an interesting point – can we really say that “birth control”, i.e. the use of contraceptive technologies, is against Catholic doctrine if (as is the case) most Catholics, at least in the relevant jurisdiction, are not morally opposed to it? I’ll leave that issue to him, though let me say in passing that, for now, and into the foreseeable future, birth control is most certainly against official Catholic doctrine. In particular, the encyclical letter Humanae Vitae is still binding in the sense of being the Church’s official and unmodified statement on the matter.
However, if for some reason you’re not convinced that Humanae Vitae and all that it represents really is valid Catholic doctrine, I’ll ask you to put that issue aside and deal with the problem as if it were the valid doctrine. Okay? In that case you can immediately see the problem with requiring Catholic employers to provide their employees with insurance schemes that in turn cover the cost of birth control. Or is there really a problem after all?
My starting point is that there is not necessarily a problem. The employers concerned have not been singled out for persecution on the ground that the US government believes that Roman Catholicism is a false or dangerous religion. In fact, they have not been singled out at all … and the intent of the law is not to persecute Catholics. An easy way to see that is to ask whether this law would have been made if the Roman Catholic Church didn’t even exist. It is, I suggest, plain that it would have been. The purposes behind the law are not in any sense to persecute a religion or group of religions, or to favour others. The law was made for ordinary religion-blind purposes relating to the health and worldly welfare of women. Whether or not it is a good law, whether or not it is a law that I would vote for (I probably would have, but even if I wouldn’t have), it has not been made out of a wish to persecute certain religions or to favour others. In that legal (but not terribly difficult) sense, the law is neutral.
The law is also one of general application. It is not as if the employers concerned find themselves objectively singled out. Rather, they find themselves merely having to do what every other employer has to do.
Alas, you’ll need to read my book to get the full argument for this, but I take the view (which was also the view of John Locke, and is also the view of the US Supreme Court, and most notably that good Catholic Justice Scalia) that there is no breach of the fundamental concept of freedom of religion if a law has been enacted for some kind of understandable worldly (or “secular”) purpose (such as the health and welfare of women), and is a neutral law of general application. It might or might not be a good law, but it is not a law that is contrary to the idea of religious liberty or freedom of religion.
If anything, it is contrary to freedom of religion if some people (or corporations or whatever) are exempted from a law because of religious sensitivities. That is not religious freedom; it is religious privilege. It is giving the religious people (etc.) a privilege that the rest of society does not have, as, after all, we are talking about a law of general application.
However, I won’t go quite that far. In some circumstances it might be okay to privilege people by exempting them from certain laws, where obeying those laws would be against their consciences. As so often pointed out, we allow for conscientious objection in some circumstances. I don’t rule this out, as long as we understand that it is a privilege we are granting, and that it is not an automatic right. In this case, the Catholic employers would have to argue why their acceptance of official Roman Catholic canons of conduct – i.e. a standard that specifies that using contraceptives is a sin – should give them the privilege of not being compelled by the same law that compels everyone else.
Yes, reluctance to force conscience, with the kind of mental suffering that it might entail, sometimes might be a reason to grant an exemption. It is a compassionate reason. There may be other reasons as well, including just plain practical ones, e.g. because there is no point in putting a rifle in the hands of a committed pacifist (but one reason that the government should never use to explain its actions is that such-and-such a religion is actually the true one).
However, granting the privilege of an exemption from the law will usually place more burden on someone else (in this case, employees who do not receive the same advantages as other employees in the work force). That is a good reason for being reluctant to grant religious privileges – and if we are going to grant them from time to time, it is a good reason to make the exemptions narrow, applying only where the case for them is at its strongest.
Restrictions on the Church as an employer of people – such as priests – who are necessary for its very survival will have a different effect from restrictions on the employment practices of commercial enterprises that might happen to be owned by the Church. There are obviously situations in between. In cases like this, there will be many considerations that need to be weighed up, and there is nothing wrong with a degree of political compromise in trying to take into account the interests of everyone affected. In the end, the processes of political deliberation will determine just what exemptions should be granted, but if they are going to be granted at all they should generally be narrow and carefully crafted.
As far as I can see, the Obama administration was well within its rights to impose this neutral law of general application on Catholic employers, with only relatively narrow exemptions. I see no issue here of anyone’s religious freedom coming under attack. What I do see is some special accommodation of religious sensibilities – which, again, is a privilege granted by the law-makers – that has been kept within appropriately narrow bounds, developed throught the political process.
People who see this action by the Obama administration as an attack on religious freedom should go back and read John Locke, even if they don’t want to read my book. In fact, they could just go back and read Antonin Scalia.