To Defend HHS Mandate: Look at Anything but Constitution

The vacationing Deacon Greg Kandra has still managed, between spending time with Mickey and Minnie to post this interesting piece by Dave Gibson, who has written an informative article about what I called my First Things piece, yesterday, the “nuances between direct and indirect co-operation with evil”.

Gibson does his usual brilliant job in expanding on it, but he does so from a place accepting that President Obama’s recent “accommodation” did actually accommodate the churches. Completely ignored here is that the administration has already codified their decision in precisely the language — the original language — that gave most Catholics such agida to begin with.

How does this work? How does the illiberal language of the HHS Mandate — proposing unprecedented intrusion by the government into church matters — language that, pretty much all Catholics agreed in the first week could not stand, become codified in the next week with the approval of some of those same Catholics? Is this president’s word so trustworthy that it was enough for him to merely say he would change something he did not change and clearly has no intention of codifying?

Were some Catholics simply looking for a face-saving cover? Why, then? Because unity with their party was worth helping to set a bad precedent? What, specifically, in the codified language (or in Obama’s subsequent statement) has assuaged any conscience sufficiently to bring about an endorsement?

Much more importantly, with some Catholics now on board and making a variety of arguments supporting the administration, they are — intentionally or not — helping to distract people from the crux of the matter, which is simply this: when the CDC itself admits (as it did in 2009 [pdf]) that contraception is so widely available that fully 99% of women report using it at some point (so much so that, as Shea notes traces of birth control residue are found in our water supply), why did the administration find it necessary to even go where it went on the issue of contraception; why is it intruding on the churches own rights and abilities to own their conscience and define their missions?

That’s the question; it’s the ball we must keep our eyes on, and some are happy to get distracted, swing and miss.

It’s a political wedge issue, I get that, meant to divide and conquer, and the administration has clearly managed to do that, but this is also a genuinely bad precedent — so bad that I just cannot understand anyone’s willingness to support it, when this administration has demonstrated more than once that it means to put the churches in their places, and that their places are to be within the government’s mandates (hello Hosanna Tabor), or outside the public arena, altogether.

That anyone is willing to overlook the question of constitutionality for the sake of political expediency, I just don’t get.

But then, I was raised a classical liberal and I still actually believe that the press should be detached, people should be entitled to their differences and that (unlike monastic models, which are voluntary) government-enforced sameness is a tyranny, albeit a “soft” one, and I believe that the Bill of Rights is the thing you go to the mat for, no matter how much you like a candidate or (and, not without reason, are aghast at your other choices).

My parents adored Adlai Stevenson, but they voted for Ike because sometimes, no matter how much you like a guy, you have to know when you can’t trust him.

And to that point, here’s a good related question: Do employees of religious schools and other organizations get to make claims on employers that violate the tenets of the organization’s faith, but not on government on the basis of that same faith?

Gibson’s piece is undoubtedly smart and it will, undoubtedly, be effective in swaying many, but its efficacy depends upon ignoring a crucial reality, and it is a reality that we simply cannot afford to push aside.

Ed Morrissey has a great deal more on this, and I urge you to read him both at that link and at this one, too.

And btw, no one has asked me, and really, my opinion doesn’t matter except in my own little World of Lizzie, but I think the Blunt rule is an overreach that will backfire. Again, it’s taking the eyes off the ball, and playing into the administration’s hands. Which is precisely why Reid is allowing the vote. The GOP are such suckers.

More: Rivkin and Whelan say the Mandate is Unconstitutional

Max Lindenman is taking it all down for posterity

A thoughtful and worth pondering comment from “jkm” at Greg’s — it well-notes the validity of two sides of the argument but, to my way of thinking, too quickly shrugs off the constitutional issues. DOES the larger society want the government to insert itself into church affairs? Up until a few weeks ago, I think that answer was a resounding “no”. Now, suddenly, freedom of religion is a shrug-off? And if it IS something the larger society wants, is this something we do by presidential fiat or by constitutional amendment?

The Rhetorical Battle within the War:

“. . .in what way is the Catholic Church supposed to be depriving women of birth control? Is the Church picketing Walgreen’s? Is it highjacking shipments of Depro-Vira? Are they calling for the ban of condoms because they pose a danger to seagulls? No. They simply don’t believe that they should be forced to pay for their employees’ subsidized access to those things, accounting trick or no accounting trick.”

About Elizabeth Scalia
  • Gerry

    Yes, Barry lies.
    Any more questions?

  • MIke

    Just to be clear, the Bush administration was the one who sue Hosana-Tabor. Only the Supreme Court review was left once the Obama administration took over and the administration acknowledged the fact that the Supreme Court had never acknowledged a ministerial exception in these cases.

    In terms of constitutionality, you seem very certain Obama’s compromise (and original policy) is unconstitutional but that’s far from a majority view, even among conservative scholars. It was a carefully written law that protected actual churches and drew the line at non-church employers. That has satisfied every state that has looked at similar laws.

    [I understand that the Hosanna Tabor case began under Bush -- (I'm sorry, are you arguing that Bush was a perfect president?) -- but it was Obama's administration that decided to continue the argument before the Supreme court, which suggests that it supported the argument. As to the constitutionality question, I'm not looking at "conservative" or "liberal" commentary (although there is this) because the bottom line is this: acceptance of the "accommodation" is a tacit acceptance of the precedent that the government has the power to insert itself into church affairs. -admin]

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  • Bender

    Distortions and disingenuous arguments are not a “brilliant job,” they are scandal, especially coming from a nationally-recognized spokesperson for Catholicism.
    Gibson did the same scandalous thing promoting the Washington state vote for “same-sex marriage” as a great example of fraternal correction. Calling what is good evil and what is evil good is not a “brilliant job” deserving of a pat on the back, it is a grievous wrong that misleads people away from truth, deserving of condemnation.

  • Bender

    this is also a genuinely bad precedent — so bad that I just cannot understand anyone’s willingness to support it

    There are those Catholics who do hate and despise the Church. Take a look at what passes for commentary at Gibson’s home (Commonweal) and you will find it a cesspool of anti-Catholic hate. The amount of anti-Catholic bigotry spewed there is staggering.

    On every occasion, on every issue and matter, the Church, the Pope, the bishops are wrong — always. And what is so terrifying is that so many of those commenters are teaching our kids at Notre Dame.

    I’ve long taken them to task, pleading with them to set aside their antipathy for the Church and the Catholic Faith. When I asked, “Is there anything in the Church you like, is there anything you love about the Church?” And the overwhelming response was, “What is there to love?”

  • Brian English

    “That has satisfied every state that has looked at similar laws.”

    Absolutely wrong. In those states that did not institute broad exemptions, employers could avoid the mandate by dropping prescription coverage or self-insuring. The federal mandate requires the employer to either comply or drop insurance coverage completely, with a fine then being imposed of $2,000 per employee.

  • Mike H

    I’m not convinced that Dolan and the rest of the Catholic leadership have the stomach or stamina for a fight. The rhetoric has softened already. Jenkins has thrown in the towel. His response to Obama’s mealy mouthed olive branch?; He”applauded “the willingness of the administration to work with religious organizations to find a solution acceptable to all parties.” Not very inspiring.

  • Brian English

    “Gibson does his usual brilliant job in expanding on it, but he does so from a place accepting that President Obama’s recent “accommodation” did actually accommodate the churches.”

    It appears the the primary purpose for modern Catholic moral theology is to provide justifications for Catholics to vote for anti-Life politicians.

  • archangel

    Far be it for me to enter the mine field of “conscience” but I will go there any way. I think it would be useful to seperate the “political/constitutional” and the “theological”. Those who want to be swayed, will be swayed. The supporters of the administration who refer to themselves as Catholic want to be swayed and cojoled… and they have been. The 54% that went to BHO in 2008 will have roughly 30% “deadenders” in the mix. Those are lost. Its that middle 20% or so that’s up for grabs. This is where the power of the pulpit comes into play. The bishops have power and they may very well be forced to use it. The THEOLOGICAL “individual conscience” of each Catholic is not the same as their POLITICAL “conscience”. I have long held that to be PRO-ABORTION should be an excommunicable stance. There is no room in the “conscience”, theologically speaking.

    This “tool” MUST be put to use. If a Catholic supports abortion and ACTIVELY procures, initiates, or leads others to that end… that supporter is already in MORTAL SIN. IF that Catholic chooses to remain outside the Body of the Church and is receiving Communion… THAT is a mortal sin. IF that person is unrepentant, then they are CHOOSING to excomminicate themselves. Support of the mandate is the same thing. These people PUBLICALLY advocate that the Church places Herself in a condition of Mortal Sin.

    Should the bishops take the tack of excommunication and PUBLICALLY excommunicate Sibelius, Pelosi, and any other self-proclaimed Catholic who supports this mandate, the seriousness of the offense is brought home to the Catholics who are honestly confused by it all. Clarity is a beautiful thing. Will there be a hue and cry? You bet. But it will also take that “iffy” 30% and clarify the stakes for them. Good theology is good politics. This is a three-front war: On the one level its spiritual, the other 2 fronts are political/constitutional and theological. The bishops need to focus on the theological since they are pastors first. Through that, the political/constitutional will follow.

  • archangel

    That should be “iffy” 20%. NOT 30%

  • vox borealis

    How does the illiberal language of the HHS Mandate …become codified in the next week with the approval of some of those same Catholics?

    Because they are useful idiots at best, and at worst willfully prefer to be foot soldiers for the ruling elite rather than actual Catholics. For the latter (including, it seems, Kmiec) all they needed was a little cover, and a bandaid for any remaining shred of conscience.

  • doc

    MIke, you make an interesting claim. Can you please name any of these conservative scholars who have written that the HHS mandate is constitutional? BTW, there is no compromise. There was no negotiation. There was, however, a head-fake, for the benefit of the rubes.

  • kevin

    Gibson’s swipe at John Garvey and Mary Ann Glendon and their colleagues as “culture warriors” is amusing, especially since both are far more qualified than he is to weigh matters of constitutional law. Their deep and impressive backgrounds speak for themselves and hardly deserve such a cheap dismissal. And the substance of their letter makes it clear that we are not dealing with matters of moral theology in this instance:

    “It is morally obtuse for the administration to suggest (as it does) that this is a meaningful accommodation of religious liberty because the insurance company will be the one to inform the employee that she is entitled to the embryo-destroying “five day after pill” pursuant to the insurance contract purchased by the religious employer. It does not matter who explains the terms of the policy purchased by the religiously affiliated or observant employer. What matters is what services the policy covers.

    The simple fact is that the Obama administration is compelling religious people and institutions who are employers to purchase a health insurance contract that provides abortion-inducing drugs, contraception, and sterilization. This is a grave violation of religious freedom and cannot stand. It is an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews, Muslims, and other people of faith and conscience to imagine that they will accept as assault on their religious liberty if only it is covered up by a cheap accounting trick.”

  • MIke

    Can you please name any of these conservative scholars who have written that the HHS mandate is constitutional?

    I don’t know any that have. That does not suggest they are correct in believing it is unconstitutional, however.

    acceptance of the “accommodation” is a tacit acceptance of the precedent that the government has the power to insert itself into church affairs.

    Which has nothing to do with whether it is constitutional or legal. The government inserts itself into “church affairs” every second of every day if we are discussion Catholic Inc. and hospitals and schools, for instance. Even the church has to abide by certain laws, of instance tax law status, which represents a government power inserted into church affairs.

  • doc

    Bottom line, for so many Americans, particularly those in the journalism and academic industries, certain things are only outrageous when they are enacted by Republicans.

  • archangel

    PLEASE read the WSJ commentary by Rivkin and Whelan, linked by The Anchoress. The mandate IS unconstitutional in theory and in practice. There has been no ruling as such yet, BUT it is and this commentary clearly spells it out.

  • Brian English

    “Even the church has to abide by certain laws, of instance tax law status, which represents a government power inserted into church affairs.”

    But this is not about complying with laws of general application. This is about a regulation specifically intended to compel Church affiliated institutions to take an action that conflicts with the Church’s moral teachings. That is a First Amendment violation, and throw in an RFRA violation for good measure.

  • Bender

    Even the church has to abide by certain laws

    Not when those laws are unjust and violative of fundamental liberty, regardless of what it says or does not say in the Constitution (which the judiciary tells us allows for the legal murder of innocents). An unjust law is no law at all, and no one is obliged to obey — indeed, it is the constant teaching of the Church that one has an obligation to resist such unjust “laws.”

  • MIke

    But this is not about complying with laws of general application.

    It is a law of general application. The exception to the law of general application is the First Amendment accommodation for churches, as opposed to organizations that are not necessarily protected by the First Amendment’s free exercise clause like multibillion enterprises that are open to the public, serve non-members of the religious organization and are staffed by non-members.

  • Teresa

    I do hope and pray the Bishops have the stamina to fight this. This is perhaps the most diabolical administration I’ve ever seen. Cardinal George made the following statement. “This is the first time in the history of the United States that a presidential administration has purposely tried to interfere in the inner working of the Catholic Church; playing one group against another for political gain. What isn’t always understood is that the Bishops of the Church make no attempt to speak for all Catholics; they never have. The Bishops speak for the Church and apostolic faith, and those who hold that faith gather around them. Others disperse.” Mr. Obama is clearly working on those “others” for support. Sadly there are quite a few useful idiots.

  • Joe PewSitter

    I second @Mike H; the bishops will fold once the Stormtroopers of the Empire kick down the door of the cathedral during Mass, march up to the altar, and forcibly haul the bishops off in chains. Do that a couple of times, and the pews will empty out lickety split. For those that don’t get the memo, look for a couple of priests or nuns to be gunned down by SWAT teams, claiming “domestic terrorist”. That aught to do it. Can you say, “Mexican persecution, a la 1920s?”

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  • kevin

    Thanks for giving Obama that honorary degree Father Jenkins, and jailing the pro lifers protesting it. Good job there. How you sleeping at night lately?

    [In fairness to Fr. Jenkins...- admin]

  • Manny

    I said this over at Deacon Greg’s “Rift” blog. I think my comment fits here as well and given different readers I’ll post it here as well.

    What has shocked me is how quickly the Liberal Catholics jumped on board with the smallest of fig leaves. I knew there were sensibilities to a political position, and it’s that way for Conservative Catholics too. But I do not think if the roles had been reveresed that Conservative Catholics would have succombed to fig leaf rhetoric. No I do not believe that at all. Well, I guess if Catholics can overlook the pro abortion positions of the Democratic Party, then they’re really not on board with life and contraception issues. I can understand Catholic social justice issues. I disagree with what constitutes solutions for it, but I understand where such Catholics are coming from. I cannot understand how life and now religious freedom issues can be condoned. Unless of course Catholics on the left don’t really buy into them. Next time I won’t be so shocked.

  • Mark

    Manny should not be surprising. they use poverty and capital punishment as “proportionate reasons” to the killing of 54,000,000 babies with 4,000 more being added every day. Yep, that is one more dead baby in about the time it takes to post this comment. The bishops voting guide was designed by the leftist to have some cover around the term “proportionate reasons.” I hope the bishops have learned from this and will come out with a voting guide for dummies as it is sorely needed.

    1. you cannot vote for anyone who supports abortion. Doing so is grave sin and as such you should not present yourself for Eucharist until you make a prayful Reconcilliation that includes a promise never to do so again.
    2. you cannot fote for anyone who supports anything other than marriage between one man and one woman. Doing so is grave sin and as such you should not present yourself for Eucharist until you make a prayful Reconcilliation that includes a promise never to do so again.
    3. Any politician who supports either one or two above should stop it or refrain from calling themselves Catholic as they are excommunicated from the Church.
    4. Any politicians that supports attacks on Religious freedom guaranteed in the Bill of rights should stop it or refrain from calling themselves Catholic as they are excommunicated from the Church.
    I think keeping it very simple and direct might actually help those who seem so lost in trying to figure out what proportionate reasons might be.

  • Left Coast Conservative

    Have they considered the practical application of this bill in the secular world? Will people in position of authority in a business such as HR be able to see any medical claims? And, if so, will these people be able to deduce future expenses? For instance, if there is no longer a prescription being filled for contraceptives. If that can happen, then what is to stop the people in a position of authority from re-evaluating their staffing levels? And if that “can’t” happen, how can we take “their” word for this given the events of the past several years. Honesty isn’t a well practiced virtue with this group.

  • Gail Finke

    The elephant in the room: A lot of Catholic organizations already provide coverage for these things, at least for contraception. They did it, I would guess, because they thought it was no big deal. And yes, there is a difference between DECIDING to compromise your own teachings and being forced to do so by the government. The latter is unconstitutional, no matter how much of the former goes on. But it’s a scandal, it looks terrible, and it causes people to think we are hypocrites. It’s not surprising, I guess, given people like Nancy Pelosi and Kathleen Sebelius and Joe Biden — they didn’t come out of nowhere. But it’s disheartening and discouraging and distasteful and disgusting. And it makes me sad, to boot.

  • Frank Gibbons

    Here is a critique by some Catholic moral theologians of David Gibson’s article:

  • Gunga

    Like a four-year-old desperately clinging to the notion that there IS a Santa Claus, the Administration is desperate to convince an ‘ungrateful’ populace that there is such a thing as a free lunch.

  • Ms. Trish

    From the Dayton Daily News:
    “The University of Dayton [a Catholic university] is sticking to its employee health insurance plan that covers contraceptive care, coverage that has become a hot-button issue as conservative politicians and Catholic bishops decry a federal health care edict they say infringes upon religious freedom.

    “Our Catholic identity is at the heart of our institution’s mission, but, in light of the importance of the health of our employees and the prevention of disease, we entered into these plans,” said Teri Rizvi, UD’s associate vice president for communications. “We are not changing our employee health care insurance coverage.”

    UD’s employee insurance plan doesn’t cover abortion or abortion-inducing drugs, but does cover contraceptive measures including birth control pills, vasectomies and tubal ligations. ”

    How many other Catholic institutions already have this coverage? How can the Bishops stand firm when they have been undermined from within? The radical leftists see this and know they can strike at the Church.

  • Brian English

    “It is a law of general application.”

    It is not. This society is awash in contraceptives. Who do you think this regulation was specifically aimed at? Let’s stop playing games here.

  • Brian English

    “I understand that the Hosanna Tabor case began under Bush”

    The case under the Bush Administration was based upon what it turned out was a mistaken interpretation of the Smith case. It was the Obama Administration that converted the case into an argument that First Amendment rights had to give way if they conflicted with anti-discrimination laws. The head of the EEOC appointed by Obama also made those types of statements while the case was pending.

  • Sean Gallagher

    Gibson’s piece was not as smart as it could have been. In arguing that the “accomodation” was an example of remote material cooperation with an evil, he did not make any case that there are “proportionate reasons” for accepting the revised mandate.

    He also presumed in the article that religious employers have insurance companies that pay for their claims with the insurance company’s money–something that’s absolutely vital to the president’s revision. However, a large majority of dioceses are self-insured. Insurance companies that they work with *only* use the money provided by the dioceses to pay for claims. So, the dioceses would end up paying for objectionable medicines and procedures.

    Gibson’s piece, therefore, falls woefully short.

  • EBL

    And Debbie Wasserman Schultz said all women should get free contraception… Okay, can I have free whiskey and ice cream too? Here is the spin Rick should be giving this. Rick Santorum said flat out he is not for restricting contraception! Beyond that he might think of an ad on the topic by the folks who gave him Rombo. I love that ad.

  • DonM

    The best Supreme Court precedent for the “individual mandate” is Korematsu vs. the US, the case which affirmed the requirement for Japanese Americans to do what they were told, despite their conscience, despite their not having committed a crime.

    Now you know where you are headed. Mazanar.