Thursday, October 07, 2004

Catholic Charities: Court Denies Cert

The Supreme Court on Monday denied cert in Catholic Charities v. California.

Quick Summary: California passed a law (The "Women's Contraceptive Equity Act," or WCEA) which mandates that private organizations that provide prescription drug coverage to their employees must also provide coverage for prescription contraceptives. There is a narrow "conscience" exception that affects a very small number of religious organizations (21 states have similar laws, and about 15 have broader exceptions). Catholic Charities is not covered by the exception. They filed an action for a preliminary injunction and declaratory judgment--saying that the law violates the Free Exercise clause--and lost at the trial, appellate, and Cal. Supreme Court levels. The cert petition was delivered over the summer, and cert was denied this week.

I think this is unfortunate, but unsurprising.

It's unfortunate for two reasons: first, I think there's something deeply troubling--and incoherent--about the Court's current Free Exercise jurisprudence (built around Employment Division v. Smith). Essentially, the decision leaves it up to state and federal legislatures to decide whether or not they will exempt or burden religious practice (unless, of course, the legislation is passed with outright animus toward a religion or a religious practice). My view is that the legislature shouldn't be relied on to make such decisions: the existence of the Free Exercise clause, and a vast human history of religious persecution (or, at the very least, denial of religious freedom) suggests that many religions and religious adherents exist as political minorities. This reality is manifest now when it comes to social legislation that runs counter to religious tenets. To say that "neutral laws of general applicability" do not run afoul of Free Exercise ignores what happens during the legislative process: lobbying. Is the lobbying of the Catholic Church over the issue of contraceptives--an issue that not too many ordinary Catholics are going to base their vote on--going to trump the lobbying of medical groups, Planned Parenthood, and other organizations that command an active political base that may actually base their votes on the passage of such a law? In other words, the Church itself really does have a voice in this matter, but it's a voice without political currency. Smith ignores this.

Second, anti-discrimination laws have essentially eviscerated tenets of the First Amendment. The only case to suggest that the First Amendment will trump anti-discrimination laws is Boy Scouts v. Dale (where the Court said that New Jersey's public accomodations law, which applied to the Boy Scouts, ran afoul of the First Amendment's protection of the freedom of expressive association when it forced the Boy Scouts to accept an openly homosexual individual as a Scout master).

To be sure, it is unsettling to say that my right to be, for example, racist or sexist or otherwise prejudiced ought to be protected by the First Amendment, when those views affect the ability of others to be members of national organizations. Nevertheless, the idea that an organization might be forced through legislation to take actions or accept individuals that send a message contrary to the message(s) they wish to send seems to me in great tension with freedom of speech and association.

In the Catholic Charities case, the idea that California can force an arm of the Catholic Church to either pay for prescription contraceptives--when it is well known that the Church finds the use of such devices morally repugnant--or to opt out of paying for any prescription drug coverage benefits plan--when it is well known that the Church tries to act out the moral ideal of social justice--seems to me to run afoul of vital free speech values: the value of associating for expressive purposes and the value of having organizations (here, a religious organization) convey and teach specific messages, all without government interference. It makes me wonder what we as a society truly value: freedom (of thought, speech, expression, and association) or correct social norms.

I think we begin walking on a dim and dangerous road when we allow popular social legislation to blind us to the importance of these free speech values. And that danger is compounded when the free speech that is being eviscerated is that of a religious group whose views on a particular practice are contrary to, and out of favor with, a political majority.


Blogger Tom said...

The State of California has argued that Catholic Charities, by choosing to incorporate itself separelty from the Catholic Church, was entitiled to less protection that then Church itself. I'm not sure that's so bad. The Church chose to distinguish the two institutions, possibly so that the charity could receive public money that the Church could not. It doesn't sound grossly unfair to me that the state can then say that when the Church acts through distinct secular institutions, those institutions must play by the rules set up for them by the state.

I would compare it to the doctrine of sovereign immunity, where a foreign power is more open to being haled into court the more its actions look less like governance and more like commerce.

As for the underlying notion that "the Church" finds birth control repugnant, well, this isn't a theolgical or cannonical discussion, but while the Church Hierarchy clearly holds that view, the Church as a whole, counting the views of the faithful, clearly does not: most of them came to terms with birth control a long time ago, and birth rates show it. In the eyes of the law, the Church may be the Hierarchy, but in the real world, the question is much more open.

October 10, 2004 at 3:08 PM  
Blogger Chris said...

I'm going to address the last of Tom's comments (the first merits consideration in the main body of the blog).

I think (speaking as a Catholic) that the distinction between Church hierarchy and "the people" who make up the Church is too facile. First, the ecclesiology of the Church is one based on the concept of authority: authority given by Christ to the Apostles, and passed down from the Apostles to subsequent bishops. Church doctrine, then, is by definition created by the hierarchy; and what the Church believes--that is, what the faithful ("the people") are taught, whether they are obedient to it or not--is what that hierarchy teaches. To substitute the practices of the faithful of the Church for what the Church "believes" is, I think, to misunderstand the nature of the Church.

Second, if we're going to get really technical about it, the Church--the whole, entire Church--is not just who are living here and now as believers and communicants. We are only one part of the Church, the Chuch "militant." There is also the Church "triumphant" and the Church "suffering"--those faithful who have gone before us and either currently share in God's glory or who suffer in Purgatory. So, there's not only a horizontal element to the Church's teaching (what the faithful here and now are taught and must be obedient to), but a vertical element (those beliefs are shared throughout time).

So the point is that it is simply too easy to say that, because most Catholics use artificial birth control, then the "Church" really doesn't believe birth control is wrong. I think that misunderstands the nature of Church authority and doctrine, and also misunderstands the very makeup of the Church itself.

October 11, 2004 at 2:16 PM  
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