The Uncomfortable, but Necessary Question: Should We Have Six Catholic Justices on the Court?

June 30, 2014

Alito: birth control harms the conscience of employers

In its decision in Burwell v. Hobby Lobby Stores, Inc., the Supreme Court has decided that the religious beliefs of employers, including closely held corporations, take precedence over the rights of employees to necessary medical care. The specific medical care to which the employers objected was certain forms of contraception. The five justices who decided that these employers’ objections were entitled to deference are all Catholics. (One Catholic justice, Sotomayor—a woman—dissented from the majority ruling.)

This outcome, including the reasoning behind it, points to an uncomfortable question. Indeed, even by raising this question one exposes oneself to a charge of bigotry. But the question needs to be asked: Is it appropriate to have six Catholic justices on the Supreme Court?

As indicated, it’s not just that five Catholic justices ruled that the government has to defer to the employers’ religious objections. It’s the reasoning on which the Court relied that causes concern. In explaining its decision, the majority made two very revealing points, one directly justifying its decision, the other distinguishing other, possible cases that might now cite Hobby Lobby as precedent. Both these points show how closely the majority adheres to Catholic teaching.

One question that many have had about the employers’ objections to contraceptive coverage is why are they claiming they are burdened? No one is forcing anyone to take contraception if they do not want to. It’s up to the individual employee to decide whether to take advantage of contraceptive coverage. So where is the burden on religious belief?

In Justice Alito’s majority opinion, he relies squarely on Catholic teaching about “complicity” to explain the supposed burden. In doing so, he reiterates the argument that the Catholic Church has made in the dozens of lawsuits it has brought challenging the contraceptive mandate. According to the Church, it violates the moral obligations of a Catholic to do anything—anything—that would “facilitate” the provision of contraception to an individual. So even if one is not using contraception oneself, if one facilitates access to contraception by others, a grave moral wrong has been committed. (Oh, think of the anguish an employer must feel at the mere thought that some employee somewhere is using birth control! The moral horror!)

The implications of incorporating this doctrine into the Court’s interpretation of the Religious Freedom Restoration Act are staggering, at least one would think. Presumably, employers who object to blood transfusions could refuse to provide such services to employees, Scientologist employers could refuse to provide for psychiatric care, and so forth, all on the grounds that doing so would facilitate immoral acts by others

But wait! Here the Court drew a line. As the majority emphasized, Hobby Lobby deals with contraception only. Other possible objections to health care coverage would present different considerations.

You’re damn right they would. They would present considerations important to Jehovah’s Witnesses, Scientologists, Christian Scientists, and the whole host of small minority religions that don’t have the benefit of having six justices on the Supreme Court.

From a secular, constitutional perspective—and at least the fiction is that the justices are upholding secular law—there is no distinction between “facilitating” contraception and other forms of health care. Of course, in the eyes of the Catholic Church, there is such a distinction, because contraception is immoral, whereas transfusions and other standard forms of medical care are not.

In the past, Catholics in the U.S. have suffered from prejudice and bigotry. One of the traditional knocks against Catholics had been they did not and could not support the separation of church and state. John Kennedy, along with many other progressive Catholic politicians, did much to lay those fears to rest. They showed that support for a secular state is not necessarily incompatible with being a good Catholic.

Unfortunately, a majority of the Supreme Court may now be resurrecting concerns about the compatibility between being a Catholic and being a good citizen, or at least between being a good Catholic and an impartial judge. In accepting the Catholic Church’s extremely expansive understanding of what constitutes a burden on someone’s religious beliefs, while simultaneously being dismissive of concerns that would be raised by minority religions, the Court majority is effectively undermining confidence in Catholic judges and forcing us to ask the uncomfortable question: Is it appropriate to have six Catholic justices on the Supreme Court?

 

Comments:

#1 Mario (Guest) on Tuesday July 01, 2014 at 12:40am

No.  Clearly, we should have a religious test for holding that office.  It’s the only way to maintain state/church separation.  (“No religious test” clause?  What’s that?)

#2 Leporello on Tuesday July 01, 2014 at 6:35am

As Mr. Lindsay points out, one Catholic on the court dissented from the opinion, Sonia Sotomayor, a woman. One might as well ask, “Should we have six male Justices?” Even if the current Court is overwhelmingly Catholic, well above the percentage of Catholics in the population at large, setting a quota of some sort (admittedly Mr. Lindsay does not propose one) certainly would start us sliding down a “slippery slope”. So, if it is indeed not “appropriate” to have such a large representation of Catholics on the Court, just what remedy is available?

#3 Ophelia Benson on Tuesday July 01, 2014 at 10:01am

It would be interesting to have a parallel text kind of thing, so that we can see how closely Alito’s wording reiterates “the argument that the Catholic Church has made in the dozens of lawsuits it has brought challenging the contraceptive mandate.” Interesting and, if it’s close enough, somewhat damning.

#4 Mario (Guest) on Tuesday July 01, 2014 at 12:11pm

“As Mr. Lindsay points out, one Catholic on the court dissented from the opinion, Sonia Sotomayor, a woman.”

The chief (no pun intended) difference between Sonia and the others is that Sonia is a progressive, E.J. Dionne-type of Catholic.  (The kind of C.‘s who, in my view, should disown that Church in a heartbeat.)  The others are crush-the-little-people conservatives.  Take religion out of the equation, and this decision is simply Citizens United, Part 2.  The right serves corporate interests, and to heck with the public.  (No, really!)

In this case, religion was used as the rationale for screwing the people.  Next time, the excuse will be, say, national security.  Or the “terr’ist” threat.  And so on.  The right has a million false premises for downsizing the rights and power of the people; if one doesn’t work, it tries another.  Sometimes the authority is the Bible; then it’s the Founder’s will; then it’s the best interests of corporate profit and its fabled trickle-down benefit; then it’s the imaginary threat of too-liberal admissions policies for minorities; and so on, and so on.  By now, these clowns know which buttons to push, and when.  They’re morally deficient and clownish, but quite brilliant.

The simple reality is that conservatives in charge=doom for democracy.  I don’t foresee a Constitutional amendment dictating right/left balance in office(s), though what other solution is there?  Maybe a requirement that Catholic justices recuse themselves on issues too close to home for them, but I suspect the SCOTUS would axe such a thing as unconstitutional.  That’s the rub.  The voting public allowed the Supreme Court to go rogue-right, so what can we do?  Observe in pure, helpless horror.

#5 Max (Guest) on Tuesday July 01, 2014 at 1:21pm

Should we have three Jews and no Protestants on the Supreme Court? How far do you want to take this?

#6 Max (Guest) on Tuesday July 01, 2014 at 2:19pm

“Oh, think of the anguish an employer must feel at the mere thought that some employee somewhere is using birth control! The moral horror!”

They believe it’s a sin, so to them it’s moral horror.

“So even if one is not using contraception oneself, if one facilitates access to contraception by others, a grave moral wrong has been committed.”

You don’t mind facilitating what you believe is a moral wrong? So you oppose all boycotts, you don’t get why ethical vegans don’t eat meat, and you don’t have a problem with providing material support for terrorism.

#7 Mario (Guest) on Tuesday July 01, 2014 at 3:51pm

“You don’t mind facilitating what you believe is a moral wrong?”

Yes, if you’re a Supreme Court justice!  There’s no room for injecting personal views, be they religious or otherwise, when your job is deciding what is and isn’t allowable under the Constitution.  Clearly, the five characters in question are only willing to follow our founding document when and if it complies with THEIR views and values, which makes them rogue justices, by definition.  I’m sure they know this, and I’m sure they don’t care.

#8 Max (Guest) on Tuesday July 01, 2014 at 4:10pm

Mario,

In that quote, Lindsay wasn’t talking about the justices. He was mocking the Catholic Church’s argument that facilitating a moral wrong is morally wrong. Here’s the quote again in context:

“According to the Church, it violates the moral obligations of a Catholic to do anything—anything—that would ‘facilitate’ the provision of contraception to an individual. So even if one is not using contraception oneself, if one facilitates access to contraception by others, a grave moral wrong has been committed.”

So it sounds like he disagrees with that argument, like he thinks it’s ok to materially support a terrorist organization as long as you don’t kill anyone yourself.

#9 Ronald A. Lindsay on Tuesday July 01, 2014 at 4:35pm

@Ophelia. Here is an example of the “facilitation constitutes a RFRA burden” argument from the Notre Dame lawsuit. Case cite is found in excerpt. More could be produced but, trust me, it would be duplicative

Here, Notre Dame has a sincere religious objection to paying for, facilitating access to,
and/or becoming entangled with “coverage for contraception and sterilization in [its] employee
health-care plans.” Korte, 735 F.3d at 683. The so-called “accommodation” does not change the
analysis, because even under the accommodation Notre Dame continues to have “an ‘honest
conviction’ that what the government is requiring, prohibiting, or pressuring [it] to do conflicts
with [its] religion,” id., and forces Notre Dame to become associated with the U.S. Government
Mandate in a way that causes scandal in violation of its religious beliefs. Affleck-Graves Aff.
¶¶ 19-20, 47-51. Among other things, the accommodation requires Notre Dame to issue a
certification the sole purpose of which is to grant its third party legal permission to provide
payments for abortion-inducing products, contraception, and sterilization procedures to
employees and students on Notre Dame’s healthcare plans. 26 C.F.R. § 54.9815–2713A; 29
C.F.R. § 2590.715–2713A. Notre Dame “object[s] on religious grounds to doing so,” because
taking such action would facilitate the objectionable services in a way that causes scandal.
Korte, 735 F.3d at 683. The act and consequences of submitting the self-certification and acting
as plan sponsor causes Notre Dame to become associated with the Mandate in a way that causes
scandal in violation of its religious beliefs. Nor, through coerced participation in this scheme,
can Notre Dame ensure disassociation with targeted communications such as those advertised to
Notre Dame’s employee participants and students that seek to normalize practices contrary to
Notre Dame’s mission, further causing scandal in violation of Notre Dame’s beliefs.
It makes no difference that the Government believes the accommodation is adequate to
dispel Notre Dame’s religious objections. What matters is that Notre Dame itself “ha[s]
case 3:13-cv-01276-PPS-CAN document 18 filed 12/11/13 page 25 of 60
-17-
COI-1500182
concluded that [its] legal and religious obligations are incompatible: The contraception mandate
forces [Notre Dame] to do what [its] religion tells [it that it] must not do. That qualifies as a
substantial burden on religious exercise, properly understood.” Id. at 685.
Thus, there can be no doubt that Notre Dame’s refusal to comply with the Mandate is a
protected exercise of religion under RFRA. It is undisputed that Notre Dame has a sincerely
held religious belief that it may not pay for, facilitate access to, and/or become entangled in the
provision of abortion-inducing products, contraception, sterilization, or related counseling,
including by contracting with an insurance company or third party administrator that will, as a
result, provide or procure the objectionable products and services for Notre Dame’s employees
and students. See Affleck-Graves Aff. ¶¶ 13-20. While courts are bound to accept Notre
Dame’s description of its beliefs without resort to any independent religious authority, here the
sincerity of Notre Dame’s beliefs is buttressed by repeated confirmations from the U.S.
Conference of Catholic Bishops.

@Max You miss the point. Within reason, people are free to protest whatever they want—as recent abortion clinic buffer zone case indicates. Likewise people can boycott by refusing to consume products themselves. Sure, I get why vegans may not want to eat meat. But that’s not what’s at issue here. What the Cath Church, and self-identified religious employers, want is government protection for their hurt conscience. They don’t want to provide health insurance if doing so means somebody else might use a product that troubles them. It’s like a vegan wanting to eat meals in a meat packing plan and asking government to shut down the plant while they’re eating because otherwise their presence might facilitate an evil

#10 Mario (Guest) on Tuesday July 01, 2014 at 5:43pm

“What the Cath Church, and self-identified religious employers, want is government protection for their hurt conscience.”

Oh.  Somehow, I thought they were using this issue as a means of pushing public policy in an anti-woman direction.

#11 Max (Guest) on Tuesday July 01, 2014 at 9:54pm

Ronald, unfortunately it’s not up to you what others consider immoral or a religious burden. You can argue all day that paying for birth control or working on religious holidays shouldn’t be a big deal, but for many people it’s a huge deal, at least if they’re sincere and not just gaming the system.
All you can argue is that their sensibilities don’t override other rights and responsibilities. Otherwise, anyone could opt out of paying taxes by concocting some religious prohibition or conscientious objection. That’s where you get into debates about “compelling government interest” and “undue hardship.”

#12 Ronald A. Lindsay on Wednesday July 02, 2014 at 7:23am

@Mario #10 I don’t think those are mutually exclusive objectives

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