Keep your eye on the real problem with Pres. Obama’s attacks on the 1st Amendment

All weekend I saw news items about the US Catholic Church resisting the Obama Administration over “CONTRACEPTION”.  When the story came up on the television, across the screen there would be a graphic saying, inevitably, “Contraception”.

No.  This is not principally about “contraception”.  Once the media or White House frames the conflict in those terms, the issue becomes confused.

The conflict is over the 1st Amendment and the imposition of the Executive Branch on the exercise of religion.

One comment I heard was a good reminder of how the media will confuse the public and distract from the real point.  When Pres. Clinton had his problem over Monica Lewinsky, the media turned it into a problem about sex.  But the real problem was far more serious.

About Fr. John Zuhlsdorf

Fr. Z is the guy who runs this blog. o{]:¬)
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  1. NDPhys says:

    The most recent USCCB statement (of Friday evening, after the “compromise”) makes that quite clear, and spells it out in unequivocal terms. The fight isn’t just about contraception, and it isn’t just about religious institutions. The fight is about freedom of conscience for all individuals, organizations and companies (religious AND secular) against the clear attacks on that freedom, which is granted by God and guaranteed by the First Amendment.

  2. Speravi says:

    I like to put it this way: Direct cooperation in sin is sin. The government of the United States of America is commanding people, even against their will, to commit sin.

  3. Dismas says:

    Last week, I thought the real problem was violation of the first amendment. Am I wrong in now seeing a second problem just as serious: the administrations apparent attempt to creat a state sponsored american church?

  4. XYZ321 says:

    President Obama was an adjunct professor of Constitutional law, although I don’t believe him to be as bright as the press as portrayed him. But, you would think that he would understand that this mandate is an illegal infringement of the First Amendment. Do you suppose that he just does not “get” how any church can have fundamental, basic tenets because of his lack of belonging to a mainstream church? Does black liberation theology have fundamental, basic tenets and teachings of intrinsic evils?

    [I really don’t like the “handle” you are using. Perhaps another, more human “handle” is in order?]

  5. Andrew says:

    If Obama can order Catholics to peddle contraceptives, what is there to stop him from telling them to provide abortions, or even, to preach a different gospel? The Church needs to be free to fulfill its mission without a mandate from the white house.

  6. Lurker 59 says:

    XYZ321 ~ I think you would agree that the State has the ability to create laws that compel private institutions to adhere to and promote public goods. The “free exercise of religion” clause is not a license for a religion to do whatever it wants. It rather means that a religion is free from government interference so long as what it does is not in conflict with public goods. Pres. Obama sees access to contraception as promoting the public good of reproductive health and the rejection of contraception by the Church as a private religious view point. As such, this is not a violation of the first amendment from his perspective. From the Catholic point of view, contraception is not really a religious position but rather a position according to the Natural Law thus access to contraception is seen as something that harms the public good. In the USCCB’s strong response to “Plan B”, we see that they are setting the issue up more so along the lines of the Natural Law as the letter is not content to seek for this mandate to not apply to just Catholic institutions, nor Catholic affiliated institutions, nor just Catholics. Correctly they see that all people should be free from this mandate because access to contraception harms the public good.

    Personally I think that the Obama Administration is very shrewd. If the conflict gets phrased in terms of contraception, the President will come out on top because most people think that access to contraception really does promote the public good of reproductive health and he will thereby split and marginalize the Catholic vote that is orthodox. If the conflict gets phrased in terms of the first amendment, watch for things to be phrased so that access to contraception is understood as a public good while viewing use of contraception as sinful is understood as a private religious viewpoint that the State will tolerate. A very narrow exception clause will be created which will last just until we switch over to single payer healthcare as single payer will be only focused on providing for the public good not private religious opinions. But again he will split and marginalize the Catholic vote that is orthodox.

    So long as the issue is understood as the public good of access of contraception vs. the private religious view that contraception is sinful, the debate will be lost, as long as the Obama Administration refrains from telling the Church what to believe and rather only focuses on forcing the Church to allow its members access to contraception (not that they must use contraception), because most people think that contraception promotes the public good of reproductive health.

  7. JonPatrick says:

    Lurker59, a good analysis. I would only add that in the past, the public good as perceived by the government and by Christians generally coincided as they shared a common set of objective truths; now in the new secular state there are no longer any objective truths so we have this conflict. I don’t know how this will play out – I think that unless other religious organizations see this as the threat to religious freedom and get on board, the Orthodox Catholics will be isolated. Time to pray!

  8. Fr Deacon Daniel says:

    I agree. For all those who want to reduce the HHS issue to one of “contraception” (which is supposedly just a “Catholic thing”), think again. The issue is one of religious liberty and the First Amendment to the US Constitution. It is about the right to exercise the freedom of one’s conscience, whether individually or collectively in a religious or non-religious institution, without the unjust application of force and the threat of punitive measures by the Executive, Legislative or Judicial branches of government to force these individuals and institutions to violate these matters of principle.

    President Obama and Kathleen Sabellius have no more right to impose their will in this truly sensitive matter of conscience than they do to force Baptists to open up ABC stores in their sanctuaries, Jews and Muslims to eat bacon, Amish to drive Hummers, Hindus to eat hamburgers, and Seventh-Day Adventists to worship on Sunday…and these are comparatively minor issues, especially considering the fact that as it relates to the Obama Mandate, human lives are being abused, disfigured and destroyed!

    If this stands, expect to see greater and bolder assertions of power over Churches and other institutions – religious or non-religious – by the Executive branch (including the Press). Expect to see liberties constrained as to what can be taught, said or preached, as is done now in Canada and in parts of Europe. All discussions of a moral nature that contravene the views of the current administration will be relegated to the status of “political speech,” thus threatening the tax exempt and legal status of those who serve in the churches, synagogues and mosques or Universities and Colleges that receive Federal money who disagree with State power and policy which touch upon these issues. Expect to see euthanasia mandated at every Catholic or Christian hospital. Expect to see the independence of the Catholic and Orthodox Bishops and Christian pastors constrained to the point where we witness in the next 10-15 years the development of what can only be described as a “Patriotic Church,” loyal to Federal Power.

    I know to some this may seem extreme, but this is the logical trajectory decisions like the recent one follow. It was not 20 years ago that Ukrainian Greek-Catholic bishops and priests met in homes in Ukraine in what was the largest illegal religious institution in history. They would sometimes have to serve in layman’s clothes, with a simple string or small cloth to serve as a vestment, and with liturgical items that could be disguised and fit into a shaving kit. If they or the faithful were caught, it could mean torture, imprisonment and/or death at the hands of the State. I shudder to think such a thing would be possible here, but what has ever stopped a totalitarian, secularist ideology from attaining its final end: the eradication of the rights of conscience and individuality? Religious institutions are the champions of rights of conscience. As heralds of transcendence, they are the champions against a divinization of State power and State figures.

    This is why materialistic eschatological ideologies like Marxism and Socialism must ultimately move to regulate, control, stifle, threaten or eradicate religious institutions. That is why it must silence its leaders or coerce them into violating their principles in deference to official policy. Under such an ideology, the only acceptable “religion” is that of State power. The only “cathedrals” are State buildings. The only “saints” are those who subject themselves to the predominant ideology. The only acceptable “sacrifice” is that of personal freedom and property to the collective. The only “pastors” are those of State officials along with their “deacons,” the government bureaucrats.

    If America chooses to follow the slow and steady march towards the oblivion of a secularist utopia, as Eastern and Western Europe, Russia, China and other nations have done in the past and present to their own peril, the architecture for such a movement is revealed in the recent HHS mandate: undermine the foundations of religious liberty, free speech and the rights of conscience and establish a new foundation based upon Executive power, which can then only grant concessions but never compromise its absolute faith in its own inherent divinity.

  9. mschu528 says:

    I would have to respectfully disagree. I see myself as a Roman Catholic first. My status as an American citizen is temporal and far inferior to my status as a baptized, confirmed member of Holy Church. The precepts of Divine Law greatly surpass man-made laws (such as the US Constitution) in every respect. This is the same reason why, although Roe v. Wade declared bans on abortion unconstitutional within the United States, it remains universally and objectively illegal under Divine Law. [The intentional killing of the innocent cannot be in harmony with natural law either.]

    I see it as a dangerous flirtation with moral Relativism to begin playing this game wherein we concern ourselves with arguments based in imperfect, temporal laws of man rather than appealing to the immutable, eternal Law of God. The two are irreconcilable. Divine Law is always and everywhere infinitely greater than the laws of human governments. [While in this word there is no perfect Justice (cf. Augustine) this world’s laws must nevertheless strive to reflect the perfect Justice of heaven.]

    Nevertheless, now is the time to unite in prayer for an outcome that is just and in line with some sense of sanity. Sancte Michael Archangele, defende nos in proelio!

  10. Lurker 59 says:

    JohnPatrick~ Thanks! I think it depends on whether or not the Supreme Court finds the universal mandate to buy health insurance to be constitutional. If it is constructional then the government does have the authority to determine the form of health insurance. If it is not constitutional, then there is still a possibility that mandating access to contraception would not be seen as running afoul of the First Amendment. The courts have found that access to abortion to be constitutional (and the prevention of access to be unconstitutional) and the argument for allowing access to contraception is not dissimilar.

    I wouldn’t go as far as to say that in this secular state there are no longer any objective truths. Both sides do agree that objectively that State is charged with promoting and protecting the public good and can make laws that compel private institutions to adhere to and promote public goods. So discussion can be still had.

    The isolation of Orthodox Catholics has already begun. At least where I am at, what got into the news cycle last Friday was the USCCB’s preliminary statement of “Plan B” being a step in the right direction. There sure wasn’t anything said at Mass or in the bulletin this last Sunday. In following the news of various sources, I think that the USCCB is very close to loosing control of the narrative. The Bishops need to be very very vocal that they will not comply and, more importantly, they will not shut down any Catholic institutions and affiliated institutions. Only from such a position will they have the ability to teach why they will not comply. If this ends up being about private religious beliefs, they won’t be given a platform through the media by which to educate and catechize and most people, if a topic is a matter of private religious belief, don’t really care to know why.

    The USCCB also needs to get all of this taught at the parish level.

  11. mschu528 says:

    Father Z-
    You seem to have misunderstood the final sentence of my first paragraph. To clarify, while Roe v. Wade declared it unconstitutional to ban abortion outright within the United States, I view this common law case to be utterly irrelevant, as abortion is always a grave violation of the Decalogue, and thus is never permissible. I was not making an argument in favor of abortion by any means. I should have worded it a bit better, I suppose.

    While you raise a great point by alluding to St. Augustine and the fact of no perfect Justice in this world, I am merely taking this same argument one step farther, concluding that since “this world’s laws must nevertheless strive to reflect the perfect Justice of heaven,” we should not be satisfied with contraceptives being the norm in society — so long as I’m not forced to help fund it; rather we should denounce as intrinsically evil the use of contraceptives (for contraceptive purposes — I understand some of these drugs do actually happen to also work as a real medicine for a few women), sterilizations, and abortifacients always and by everyone.

  12. cowboy says:

    I guess the only point I would like to add is that, while this certainly is a First Amendment issue, we should be speaking out against this mandate even in the case that it were not. Pretend that Obama did grant a real exemption to all Catholic institutions (of course he won’t–but that’s not the point): should we then be happy with the mandate? Of course not!–because it is still promoting the grave evils of contraception and abortifacients, both of which attack the human goods of life and love. It is important that people understand that this is an attack on religious freedom, but it is also important that they understand why the Church is against contraception, sterilization, and abortifacients in the first place. Because it seems clear that we in the Catholic Church have not spoken out against the very serious evils of contraception, etc., as much as we should. We cannot remain quiet while the world is proclaiming the lie that contraception is “a good,” “healthcare,” or “pro-woman,” when in fact the very opposite is true.

  13. StJude says:

    I saw this comment on the Catholic Forums.. and thought it raised a really good point….

    “There are two tests for federal “interference” in religion. First is a compelling government interest, and the second is that the government law/regulation is the least restrictive means of furthering that compelling governmental interest.

    What is the compelling government interest in this case? Access to contraception?

    If that is true, then Obama’s staff have shot themselves in the foot. They attack the Catholic position by constantly and publicly pointing out that 98% of women use contraception at some point in their lives. So if 98% of women already have access to birth control, how can forcing religious institutions to violate their tenets be the least restrictive means of ensuring women’s access to contraception???? It would appear, to me anyways, that when 98% have access to something there is no compelling interest in making access easier….”

  14. pattif says:

    You’re right, of course, cowboy, but I think the Administration wants nothing more than to frame this as a contraception issue. For the time being, I think we need to argue this on purely rational and constitutional grounds.

  15. Lurker 59 says:

    StJude~ Breaking things down, the argument being put forward is that the compelling government interest in this case is the necessity of the State to insure that the populace has a high standard of health and wellbeing. In order to insure the heath and wellbeing of the populace, the State feels that it has the moral authority to provide that the populace receive healthcare that brings about a high standard of health and wellbeing. Because healthcare is a cost, this cost can be dealt with in one of three primary ways 1.) by charity 2.) by the user paying at time of service 3.) by collective prepaying through various schemes one of which is health insurance. Because charity cannot provide universally and because paying at time of service is not possible for the very poor, collective prepaying is viewed as the solution that promotes the greatest degree of high standards of health and wellbeing amongst the populace. The USCCB was in general agreement with this when they signed on to Obamacare.

    One of the things that promotes health and wellbeing of a populace is reproductive heath. Both sides are still in agreement.

    The compelling argument then runs as such: Because the government must promote health and wellbeing of all of the populace, the government must insure that reproductive healthcare is available to all people, not just the rich, and not just those employed by organizations the value reproductive healthcare. Again no disagreement over this by both sides.

    The disagreement is over whether or not access to contraception promotes reproductive health.

    The 98% of women use contraception “statistic” is being used to show that there is a desire on the part of Catholic women for reproductive healthcare that includes contraception. It is not saying that there is easy access, but rather that the desire for access is understood to be a common good even by Catholics.

    The least restrictive means is to simply allow for access in all instances. If there were exceptions, then the law would be restrictive as it would create a situation where women employed by Catholic institutions were restricted from means of reproductive health and put into a situation were the standard of health and wellbeing was lower than that of employees of institutions the provided for contraception in their health insurance. Because it has already been agreed upon by the USCCB that the State has an obligation to provide for universal heath and well being of the populace and this can (and should be done) via single payer healthcare, the USCCB has already given tacit approval to the Obama Administration’s compelling argument requiring that health insurance cover reproductive health for all employees.

    Thus it is not really a first amendment issue and not the same thing at all as requiring Jews and Muslims to eat bacon. The equivalent would be for the State requiring that Muslims and Jews pay taxes so that their children have access to schools where Judaism / Islam is not taught. It is of course abhorrent to the theologies that a child should have access to be taught to live in a way that it contrary to the belief systems, but they are so taxed so that such access exists. This does not violate the First Amendment and likewise it will not violate the First Amendment to require that Catholic institutions pay taxes/fees so that their employees have access to things that go against Catholic religious principles.

    The Bishops have put themselves in a real bind by not strongly teaching that contraception universally harms reproductive health and that such access is not a public good.

  16. wmeyer says:

    Lurker 59: your contention falls apart as the Church is not a democracy. What sinners do does not alter what the Church teaches. And what the American Church teaches (or fails to) does not alter the doctrine of the Church of Rome.

  17. Lurker 59 says:

    wmeyer~ I am not sure where you are going with that. So long as:

    1.) opposition to contraception is viewed to be a private religious belief

    2.) access to contraception is viewed to be part of reproductive healthcare

    3.) reproductive healthcare is understood to be to be part of healthcare

    4.) Universal health and wellbeing of the populace is understood to be best promoted by universal prepay healthcare

    5.) the State has the moral obligation to promote universal health and wellbeing of the populace

    Catholic institutions will be forced into paying for contraception. Church institutions might get an exception but that will last only until universal single payer is off the ground. The Obama Administration doesn’t run afoul of the First Amendment so long as they refrain from making this about telling the Church how to practice the Faith, but rather making this about compelling the Church to allow its employees access to things which promote the common good. Remember the USCCB has already agreed, in supporting Obamacare, that the State can compel employers to monetarily provide access of their employees to healthcare through universal health insurance.

    Currently the majority of people, including Catholics, believe that access to contraception promotes the public good of reproductive health while viewing contraception as sinful is viewed as a private religious position. So long as this is the case, the Obama Administration has all the ammunition it needs to compel the coverage of contraception. It has popular opinion and the legal position of the ability of the State to make laws that compel private institutions to support and adhere to common goods, even if those common goods are contrary to private beliefs.

    The Church needs to argue that access to contraception is not a public good but rather a private position and as such, the State is neither obligated to cover it itself nor can the State create laws which force private institutions to cover it.

  18. St. Epaphras says:

    I re-read the Declaration of Independence today. Is anything new under the sun? It seemed eerily familiar.
    Today, First Amendment attacked. What will be next?

  19. muckemdanno says:

    I understand why everyone is upset about the current assault on the 1st amendment. But, is anyone at all surprised? The entire Constitution is ignored from start to finish, especially the Bill of Rights, thanks to Republicans just as much as Democrats:
    The 10th Amendment has been ignored since the Civil War. The entire “Obamacare” legislation, (and just about everything else the federal government does), is a gross violation of this amendment. Where is the outrage over that?
    The 2nd amendment is under constant attack.
    The 4th, 5th, 6th, and 7th Amendments have been eviscerated by the “Patriot” Act…Americans can now be searched without probable cause and without a warrant, can be arrested and detained without being informed of the charges against them, can be held indefinitely without a trial and without benefit of counsel, and can be hauled off to prison and tortured or even assassinated without a trial.

    People’s outrage over the “Constitution” being violated would be a lot more believable if it were more consistent.

  20. pm125 says:

    Executive Branch mandates that contraception is good for women’s health.
    Contraception stops life.
    Executive Branch therefore deems life is disposable for one and all.

    Catholic belief [conscience] is protected by 1st Amendment.
    Catholic belief[conscience] defines stopping life as mortal sin, leading to damnation at judgment.
    Catholic belief[conscience] is ‘compromised’ by complying with Executive Branch mandate.

    Executive Branch excludes conscience from contraception so defining man as a disposable body.
    Catholic belief[conscience] is that man is mind, body and soul a creation of a loving God.
    1st Amendment allows protection from mandated compromise of belief[conscience].

    How does this HHS problem get reasoned? Legislative with HR1179…? Supreme Court with ??
    Executive Branch finding another way with universal contraception. ??

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