What If The Catholic Church Wins?

May 23, 2012

As you probably know, on Monday, a number of organizations affiliated with the Catholic Church, including various organizations that provide secular services, filed suit in several federal courts around the country. The lawsuits maintain that HHS has violated the First Amendment rights of these organizations by requiring them to include within their employees’ health care plans coverage for contraceptive care. Although these coordinated lawsuits smell like a publicity stunt — the lawsuits are premature since the regulation is not in effect — we should consider what the precedential effect would be of a Church victory.

Let’s assume the Supreme Court ultimately upholds the Church’s claim. Let’s project forward a few years. Perhaps we will see this news item:

Washington, D.C., June 29, 2018: The Supreme Court ruled today in Halal Services, Inc. v. O’Connor, that nonprofit organizations affiliated with Islamic institutions need not include within their health care plans coverage for nursing services provided by women to male patients. Writing for a 7-2 court, Chief Justice Roberts stated that, “In Diocese of Fort Wayne v. Sebelius, we unambiguously held that affiliates of religious institutions are not required to provide their employees with health care coverage to which the religious institution objects. Requiring the affiliates to provide such coverage would be a gross violation of religious liberty. This rule applies even when the affiliate provides services that are also provided by secular organizations or businesses. We see no reason to revisit that ruling today.”

The plaintiff, Tim O’Connor, a truck driver for Halal Services, tried to distinguish the ruling in Diocese of Ft. Wayne by arguing that Halal Services — which specializes in providing cosmetics that are consistent with Islamic tradition — does not carry out a function traditionally associated with religious institutions, such as education. Roberts rejected that argument, reasoning that, “It is not for this Court to define the mission of religious institutions. Doing so would constitute an unwarranted intrusion by the government into religious affairs. Halal Services was founded by and is indirectly managed by the Islamic Conference of Michigan. This is sufficient to qualify it as an entity entitled to protection under the Free Exercise Clause.”

Justice Clarence Thomas issued a separate opinion, concurring in part and dissenting in part. Thomas maintained that the federal government has no right to interfere with religious entities, but he also observed that because the United States is a Christian nation, state governments would be free to regulate Halal Services if they desire to do so.

Is this scenario far-fetched? No. Read the complaints that the Church has filed. Distilled to its essential core, the Church’s argument is that any organization affiliated with the Catholic Church that is carrying out the Church’s mission need not comply with health care regulations that would violate the Church’s teachings. Moreover, it is the Church, not the government, which has the right to define the Church’s mission.

The logical conclusion of the Church’s position is that any organization affiliated with a religious institution can impose religious dogma on its employees even when these employees are providing secular services and no matter how ridiculous the dogma. After all, it’s not up to the government to determine whether the claim that using birth control is a mortal sin is more or less absurd than the position that female nurses cannot care for male patients. An organization affiliated with the Jehovah’s Witnesses could presumably refuse to provide coverage for blood transfusions.

The Catholic Church’s invocation of “religious liberty” represents an Orwellian distortion of language. There is no law in the United States compelling the Catholic Church or any religious institution to engage in secular activities and operate retirement homes, lending agencies, retail stores, hospitals, schools, or other secular institutions. Of course, the Church is free to establish stores, retirement communities, hospitals, and schools if it wants to. But if the Church decides to establish organizations to engage in these activities, it must abide by the same rules that govern the operation of other organizations providing secular services.

The First Amendment protects the Church’s right to preach whatever rubbish it wants from its pulpits, and no one is going to force Cardinal Dolan to wear a condom. The First Amendment does not grant the Church the right to impose its dogma on the employees of organizations providing secular services.