Religious freedom and contraception case headed to Supreme Court?
5/1/2012 11:51:00 AM
By Mathew N. Schmalz
Cardinal Timothy Dolan recently raised the possibility that the Catholic bishops would fight the HHS mandate to the Supreme Court.
Cardinal Dolan has shown himself to be a most able president of the United States Conference of Catholic Bishops (USCCB). He understands the complex media and cultural landscape within and through which Catholic bishops must operate. Because of this, his talk about the Supreme Court should be taken seriously--not as a threat, but as the result of considered reflection on the implications of the revised HHS mandate for Catholic institutions.
Given that the Catholic bishops have consistently emphasized the First Amendment issues raised by the revised mandate, the Supreme Court would seem to be an appropriate venue for addressing them. The Catholic bishops are also doubtlessly aware that there are Catholics on the Supreme Court who would be amenable to their position.
But if the fundamental issue is religious liberty-and not contraception-the Catholic bishops should apply appropriate caution in considering the Supreme Court as a venue. While it may provide legal redress for the Catholic church's concerns, it cannot address the larger issues that the bishops now confront as they articulate their opposition to the HHS mandate and their apparent rejection of the Obama administration's proffered compromise.
It should not be disputed that the Catholic Church has a right to pursue a legal strategy that includes the Supreme Court. Cardinal Dolan makes the point that the Catholic church would simply be availing itself of the options provided to "any aggrieved citizen." But it's also important to note that some of the most vital contributions to America's robust conception of religious freedom can be traced to religious groups-especially marginalized religious groups--that challenged the prerogatives of local, state, and federal government. For example, Jehovah's Witnesses, a far more maligned group than Catholics, aggressively litigated issues surrounding the pledge of allegiance and distribution of religious literature and in so doing created an expanded space for the exercise of conscience and religious speech.
To many, however, the issue of insurance coverage for contraception seems rather idiosyncratic and unimportant compared to the weighty church/state issues that groups like Jehovah's Witnesses engaged. While the Supreme Court might validate and clarify the religious liberty concerns of the Catholic bishops, it is unlikely that that will dispel skepticism among many in the general public. Caution is especially warranted given the recent spectacle of Supreme Court arguments concerning the Affordable Care Act. It is doubtful that anyone's view of the Affordable Care Act changed or deepened as a result of these arguments: The public is still divided over Obamacare and discourse seems to have progressed little since the legislation was passed.
Even if the Catholic bishops were to win at the Supreme Court that would not necessarily mean that members of the broader public would take their claims any more seriously or that America's discourse on religious freedom would be enriched. If the bishops wish to pursue the broader issue of religious freedom-as Cardinal Dolan quite surely does-they need to understand legal strategy within a fuller context, and perhaps consider engaging the public in a different way.
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