The United States Conference of Catholic Bishops has taken a bold stand for religious freedom. In a recent statement, titled “Our First, Most Cherished Liberty,” the bishops call for repeal of contraception coverage mandated by the Department of Health and Human Services. The clarified position sets up a dramatic confrontation with the Obama administration—and would, if the bishops prevail, help preserve the religious liberty of all Americans.
The HHS mandate requires employers to provide insurance coverage for contraception and sterilization services. It is, according to the bishops, an “unjust law.” They write: “It cannot be obeyed and therefore one does not seek relief from it, but rather its repeal.”
The statement is a rebuke of President Obama and the so-called accommodation his administration proposed in February. It also raises the stakes between the president and the leaders of America’s Catholic Church.
The bishops call on Catholics in America, “in solidarity with our fellow citizens,” not to obey the law. They implicitly compare the HHS regulation to a segregation-era statute, and even cite Martin Luther King Jr.’s “Letter from a Birmingham Jail.” In a not-so-subtle manner, the bishops tell the Obama administration that they are willing to go to prison rather than comply with the mandate’s provisions.
In doing so, the bishops are ruling out the possibility of a compromise that might preserve the mandate by expanding possible conscience exemptions from it. Most discussion had been over how far the religious liberty exemption should extend—but with the bishops calling for repeal, that all could change.
The Obama administration was not against an exemption per se, it just wanted a narrow one that only covered church employees serving members of their own faith with jobs pertaining to the inculcation of religious belief. The Catholic bishops, it seemed, wanted a more robust exemption that covered institutions of faith, including hospitals, universities, and other social service providers.
Now the bishops have made clear that the contraception mandate must be rescinded, because, in their view, even a more expansive exemption cannot sufficiently protect religious freedom.
The bishops did not have to take this route, but all those who cherish religious liberty should be glad they did. If the bishops settled for a more expansive accommodation, they might have been able to get an exemption for their hospitals and universities (including my own, Notre Dame). That would have been the easy way to “preserve” religious liberty while also retaining the mandate.
But what, then, would the bishops have said to business owners who likely would not have been covered by a more expansive exemption? How could church leaders say that it’s wrong for church institutions to pay for contraception and abortifacients, but that Catholic business owners must cover these costs?
The exemption approach might have allowed the bishops to secure religious liberty for their institutions, but not for all their followers. That would have been a failure of moral authority and political strength to protect the common good.
To their credit, the bishops appear to understand this and are now willing to lead the battle to preserve religious liberty for all, Catholics and non-Catholics, church institutions and private employers.
But it won’t be without confrontation. This statement from the bishops sets up a dramatic showdown between the leaders of the Catholic Church and the Obama administration, a confrontation that may not be good for either side. It is hard to see what middle ground exists, or even if it does.
The Constitution was designed to prevent such fundamental clashes between church and state. Perhaps the best way out of this thicket would be for the Supreme Court to step in and stop it from happening. Striking down the contraception mandate would avert the disastrous situation of the president sending bishops to jail for being faithful witnesses to their religious convictions.
Vincent Phillip Muñoz, Tocqueville associate professor of political science at the University of Notre Dame and associate professor of law at University of Notre Dame School of Law, is author of God and the Founders: Madison, Washington, and Jefferson.