A vital conversation is taking place in the blogosphere about the bishops’ extraordinary statement and its implications going forward. I have raised questions of my own here, but I want to highlight issues coming from others.
Cathleen Kaveny, who teaches law and theology at Notre Dame, has a very helpful post at Commonweal examining the key case law around First Amendment issues and how the bishops’ rhetoric does not match the legal realities:
“there is nothing in the rhetoric of the bishops or their surrogates that suggests that this is a matter of discerning whether in fact, an exception is appropriate. Their rhetoric is absolute and demanding; it’s not “We -recognize-that–the normal-rule-is-this-but-we’re-entitled-to-an-exception.” That analysis requires looking at the factors on all sides of the equation, including the interests of the state in not granting an exemption, not asserting what appears to be an absolute right to religious freedom.
So we have a four step box dance that goes like this : 1) The bishops focus the attention on the absolute right to religious freedom; 2) when people say, “What about Smith” (the basic case on the matter); they respond “look at the exceptions” to Smith; and 3) when people say, well, actually, deciding whether an exception applies requires a careful balancing test, taking into account the interests of the government; 4) they respond, 'the right to religious freedom is basic and absolute.' And we’re back where we started.”
Michael Sean Winters is also concerned about the rhetorical corner the bishops are putting themselves into and, like me, sees the influence of Neuhaus in the sharp lines the bishops are drawing. He thinks that "there has been a broader narrative on the right and it was very disappointing to see it intrude into the bishops’ document…The conservative concern about religious voices being barred from the public square, the 'naked public square' is demonstrably nuts. The public square is drowning in religious arguments, assessments of the religious motivations of politicians, discussion of the political motivations of religious leaders, polling about the attitudes of religious voters, other polls about the attitudes of all voters towards religion. It seems to me that you can scarcely spit and not hit someone making a religious claim in the public square. A note to those who drafted the USCCB’s document: Just because Richard John Neuhaus said it, does not make it so."
And Mark Silk has highlighted a point that struck me as well—what exactly are the bishops threatening to do in response? They invoke a range of options, but some seem contradictory. As Silk says:
"Exactly how a religious employer is to conscientiously disobey in this case is not clear, since in its current form there's nothing short of doing away with health insurance altogether that would enable the employer not to provide the mandated coverage. And it's not against the law to decide not to provide employees with health insurance. But then, according to the bishops, consciencious objection can only provide relief from a just law, and therefore, evidently, is not an option. Since the mandate is unjust, and therefore "no law at all," you're supposed to seek not relief from it but its repeal. Well, sure, go ahead and try to get Congress to repeal mandatory contraception coverage. And meanwhile, engage in un-conscientious disobedience of the mandate, if you can figure out how to do it."