For more than a year, Americans have been lauding or protesting the HHS mandate that requires employers to cover contraceptives, including abortifacients, in their insurance policies. Since many employers don’t object to such a policy, the debate has focused on Catholic employers, who have a moral objection to contraception, and therefore to any requirement that they directly subsidize it. These employers argue, quite plausibly, that the free exercise clause of the Constitution (“Congress shall make no law . . . prohibiting the free exercise [of religion]”) entitles them to a religious exemption from the mandate.
This debate is welcome, because in a country that aspires to constitutional government, it’s important to ask whether its policies conform to its fundamental law. But this is not the whole inquiry. For us, the Constitution provides the bare minimum: It establishes certain rules that we should not violate, but it does not instruct us comprehensively on what is decent, just, or humane public policy. Put differently, the American way is more than just our written Constitution. It is also the traditions and habits guiding the dynamic between our government and society.
Accordingly, our duty to preserve what is best in America, and to transmit it to the next generation, requires that we question not only the constitutionality of public policy, but also its consistency with the best of our political traditions. We can apply this method to the HHS mandate by considering its likely consequences for American society—not just for American Catholicism, but more broadly for the kind of society we aspire to be.
Under its limited exemption policy, the government does not require churches to cover contraceptives, but this hardly satisfies the concerns of many American Catholics. Besides houses of worship, the Catholic Church runs other institutions such as universities and hospitals, which should be administered according to Catholic principles but are not exempted from the mandate. The mandate creates a similar problem for individual Catholics who seek to run businesses of their own in accord with basic principles of Catholic moral teaching.
If the mandate remains in effect, it could cause a schism or a break in the American Catholic Church. It does not take too much imagination to see how this could happen. It is not a secret that many American Catholics disagree with the Church’s teaching on the immorality of contraception. If the mandate is retained and enforced, then Catholic institutions will confront some hard choices. They can stop providing any health insurance to their employees, and face fines or additional taxes imposed by the federal government. They can provide insurance without covering contraception and pay the penalties that the government will impose. Or they can try to make themselves eligible for the narrow exemption. That is, they can restrict their hiring only to Catholics and provide services only to Catholics.
With such unattractive options, it is hard not to suspect that a few Catholic institutions, perhaps administered by Catholics who privately reject the Church’s teaching on contraception, would simply choose to abide by the mandate. They would be able to keep operating, but at the same time would put themselves in open rebellion against the nation’s Catholic bishops. Thus our government will have provoked a schism in the American Catholic Church by putting regulatory and financial pressure on it.
At any rate, whether or not such a schism ensues, the mandate certainly will reduce all faithful Catholics to the status of second-class citizens. The Catholic Church will be reduced to second-class citizenship among the nation’s churches. To be sure, it will be permitted freely to function as a church: The government will not molest it for preaching the gospel or administering the sacraments. But if it tries to do more, to do what it has done for centuries and what other churches still do—provide social services beyond purely spiritual services—it will face penalties. If it tries to follow a higher mandate than the HHS mandate—to organize institutions to feed the hungry, nurse the sick, and educate the ignorant—it will have to pay a fine to do so. This fine is essentially a steep admittance fee to the public square for any church that does not accept the philosophy of sexual liberation.
Catholic laypersons will face similar challenges. If a faithful Catholic wishes to start a business, he or she will have to keep the business small, so as to avoid the reach of the mandate. Or, if the business grows and employs enough workers to fall under the mandate, the owner will face the same tragic choices as formally Catholic institutions: Go out of business, or pay fines and penalties that will drive you out of business. Under the mandate, America will be a country where economic sanctions are applied to keep the Catholic Church operating within very strict limits and to keep Catholic laypersons from becoming very successful in business. The effect of all this is to minimize as much as possible the social and economic influence of the Catholic Church and faithful Catholic individuals.
Liberal defenders of the mandate might respond that the mandate doesn’t really force second-class citizenship on Catholics. Catholics, after all, would still have the fundamental rights of citizens: the rights to vote, speak, write, and organize politically. As for the problems they would incur by not conforming to the mandates, they represent the just fate of any group that chooses to defy government policy. Such an argument has some force, but it is very strange on the lips of American liberals.
In Sherbert v. Verner (1963), for example, Justice William Brennan—a hero to modern liberals—claimed that denying a Seventh Day Adventist unemployment benefits because she would not work on Saturday was the functional equivalent of fining her for worshipping on Saturday. Can anyone doubt that the same reasoning would hold that the mandate fines Catholics for their own free exercise of religion? To be consistent, to be intellectually credible, American liberalism needs to show the same solicitude for faithful Catholics that it has shown for other beleaguered groups.
Liberals might also say that the government’s actions are not as unprecedented as I suggest. After all, in the late nineteenth century, the government imposed serious penalties on American Mormons so that they would surrender polygamy and conform to what was at the time considered enlightened and modern morality. There are, however, two important differences between the effort to suppress polygamy and the present effort to enforce the HHS mandate.
First, while Catholicism in 2013 is a long-established and mainstream American religion, Mormonism in the mid-nineteenth century was a new and exotic sect. This is not to say that its newness and strangeness would justify a government’s effort to suppress it. It is only to observe that what our government is presently attempting against the Catholic Church represents a much bolder, and therefore more frightening, attack on religion.
Second, and more important in principle, our government penalized Mormonism because Mormons were promoting and engaging in a practice that the larger society considered to be wrong. No one today, however, contends that the HHS mandate is directed at some wrong practice perpetrated by the Catholic Church. Nor could anyone reasonably advance such a contention. Refusing to subsidize contraception—an omission—is not the moral equivalent of engaging in a practice like polygamy—an action. For a helpful discussion of this difference, see Richard Doerflinger’s recent Public Discourse essay on conscience protection laws.
Besides, even among those who think using contraception is perfectly innocent, hardly any think it is obligatory. Even those who think it prudent policy to encourage employers to provide contraception cannot think that it is morally imperative that they do so. This is evident from the exemptions for small businesses and churches that the government already allows.
The HHS mandate does not burden the Catholic Church because of any overt wrong it has committed, but only because of some supposed good that it has omitted to do. Catholic institutions do many things that are commonly accepted as good. They provide employment, educate the young, care for the sick. In the course of doing these good things many of them also provide generous health insurance for their workers. But under the mandate they are to be penalized because, while doing all of these good things that are manifestly helpful to society, they hold back from subsidizing contraception.
The triumph of the mandate, then, holds out the possibility that a major American church may be broken asunder under the pressure of government, and the adherents of its traditional teachings reduced to second-class citizenship, not because of any wrong they have done, but merely because they do not do good in the manner that contemporary liberals expect. We must ask ourselves: What in the world does such a future have in common with American liberalism’s repeated assurances that it stands for pluralism? And, more importantly: Is this an America that most Americans could recognize as truly free?