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Bennett L. Gershman

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It's Not About Conscience, It's About Bullying

Posted: 02/11/2012 9:28 am

The hysterical arguments by officials of the Catholic Church (and mimicked by their Republican water carriers) about being forced to abdicate their conscientious religious beliefs to accommodate women who seek to obtain contraceptive devices is reminiscent of the moronic arguments about "Death Panels" for elderly under Obama's health care legislation, Obama's birth place, and, for some fanatics, his Muslimness. These are the kinds of phony arguments that appeal to a segment of the population that H.L. Mencken famously described as the Booboisie. From a constitutional standpoint, the church's claim that its free exercise of religion is being subverted is fallacious and demagogic. One hopes that the Obama administration will refuse to back down in the face of these bullying tactics, and will stick to its sound and fair policy of requiring all health providers -- including hospitals and universities affiliated with the Catholic Church, to provide insurance coverage for women who practice birth control, that is, for the 98 percent of Catholic women in America who use some form of contraception.

The argument made by these alleged conscience-stricken church officials is phony. The following are only a handful of the numerous instances in which the Supreme Court and lower courts have ruled that claims of religious freedom and conscience do not override important public policies: the court upheld the power of the Air Force to forbid one of its personnel from wearing a yarmulke while in uniform; upheld the statutory authority of the Internal Revenue Service to deny tax-exempt status to religious institutions that engage in racial discrimination; permitted timber harvesting and the construction of a road through a portion of a national forest used for religious worship by members of three Native American tribes; prevented prisoners from exercising their religious beliefs to attend a Friday Muslim congregational service; denied unemployment benefits to persons dismissed from their state jobs because they used a sacramental narcotic substance in their ceremonial church service; and upheld the suspension from a public school of Native American students who sought to wear their hair in long traditional braids in violation of a school hair-length policy.

Government bodies in all of these cases rejected claims of religious freedom and conscience because an important public policy was deemed to override the individual claims of conscience and religious liberty. But there is no suggestion in any of these cases that the government was hostile to religion or particular religious beliefs, was targeting for invidious motives any particular religion or the freedom of people to worship, or was discriminating against any religion. To be sure, if government is seen to discriminate against religion because of its hostility to that religion -- as was the case in a Florida community which banned the religious practice of Santeria which involved the ritual sacrifice of animals -- then the government would be acting unconstitutionally.

But there is no question that the Obama administration's policy to require religious institutions to provide insurance coverage for contraception does not discriminate against any religion, and serves an important, even compelling public policy. That the Catholic Church is aggrieved by the law's application is no different than the grievances felt by those persons in the above examples who were prevented from freely practicing their faith. Indeed, nobody in the current controversy is being prevented from practicing their faith. No woman is being prevented from using, or not using, birth control. There has to be a fair and balanced accommodation between religious conscience and public policy, and that appears to be the way this regulation is written.

When officials of the Catholic Church resort to claims of conscience, they are not referring to the conscience of the women who seek insurance coverage for birth control; they are referring to their own stricken conscience, and how their own conscience is being adversely impacted by this regulation. But in seeking to curtail the right of thousands of female employees to receive insurance coverage, they are engaging in an obvious and blatant kind of bullying. Indeed, permitting the Catholic Church to deny insurance coverage to its more than 750,000 employees would effectively eviscerate the regulation. But, as noted, the First Amendment's guarantee of religious freedom, albeit a majestic protection, doesn't extend that far.