Gil Bailie, writing on The Cornerstone Forum‘s Facebook page, declares,
The line in the sand appears to have been drawn. The Church didn’t pick the fight, but it is stuck with it. It’s odd—at least to the casual observer—that the Church is now the champion of the U.S. Constitution and in a showdown with the president and his political party. When the dust settles the world will have changed, for better or worse.
The Church is now the champion of the U.S. Constitution? I don’t think so. Employers may have a First Amendment right not to be religiously coerced, but so do employees. This is why, as I’ve said before, religious freedom is never an absolute. The bishops, however, wants absolute First Amendment protection for all Catholic employers—yes, all*—even at the expense of the employees’ rights to that same protection.
This was the elegance of Obama’s compromise: it optimally respected the rights of both Catholic institutions and their employees by shifting the cost of contraception coverage to the insurers. The insurers welcomed this solution because contraception is cheaper than childbirth or treatment of disease. Their calculus is that contraception saves four dollars for every dollar spent.
By any reasonable measure, this should have satisfied the Bishops, but, of course, religious liberty was not really the issue for them. The real issue was contraception.*
Here is a useful analogy that has been making the rounds recently: A Jewish kosher deli owner has a right not to sell pork, but he does not have a right to tell employees that they cannot buy pork with their earnings. In addition, he may not discriminate against employees who do buy pork.
The deli owner may complain, “The government is forcing me to pay for pork!” But the government is not forcing him to pay for pork. People in a pluralistic democracy such as ours have the right to protection from discrimination in hiring and from religious coercion by employers. They may do what they like with their earnings. Insurance coverage, by the way, is earned.
If the bishops have their way, the path will be clear for other religiously-affiliated institutions to discriminate on the basis of race or gender. That is not going to happen, however. American jurisprudence has been clear about this since the 19th century, and even Justice Scalia, a devout Catholic, has written,
We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.
Rev. Dr. Alethea Smith-Withers, speaking for the Religious Coalition for Reproductive Choice, had this to say,
While we respect differing religious views on contraception, the fact is that the religiously-affiliated employers that object to birth control being covered in their health plans are publicly funded, serve the public, and employ people of all faiths. They must comply with the law.
*Anthony Picarello, general counsel for the Bishops, said that nothing less than total repeal of the mandate would suffice. See the title and final paragraph of the U.S. Conference of Catholic Bishops news release here.