Looked at through the lens of legal precedent, President Obama’s February 10^th announcement settled the issue of health care insurance covering contraception as preventive medicine.  The president’s compromise guaranteed both that religiously affiliated institutions would not be obliged to pay for such services but also that individuals might obtain them.  The distinction he drew followed current legal norms that both respect and also limit religious conscience.

A young participant holds a placard and a rosary during a pro-life demonstration in front of the White House in Washington on February 16, 2012. Park police detained at least six religious activists while they were protesting against US President Barack Obama in response for mandating religious institutions coverage of abortion-inducing drugs, sterilization and contraception in their health plans. T (JEWEL SAMAD - AFP/GETTY IMAGES) The Supreme Court ruled in 1990 ( Employment Division v. Smith: 494 U.S. 872) that individuals in the workplace -- smoking peyote according to their Native American religion -- cannot claim that religious freedom exempts them from the law:  

When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.

The author of that majority opinion in 1990 was Justice Antonin Scalia, who added: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” 

The 1990 decision concerned persons employed by non-religious organizations and it must be paired with the 2012 Hosanna-Tabor Decision.  That later ruling protects the theology within church practice from government interference.  Taken together, both decisions provide the fair approach to religious liberty that balances individuals and churches, as the president’s compromise was intended to affirm. 

Instead of putting the issue to rest, however, Washington has witnessed a new round of acrimony including proposed legislation that allows individuals to nullify provisions of law objectionable to that person’s theological beliefs.  No longer would it be enough to protect individual practice and the independence of religious institutions: the law would enable one person’s theology to restrict what others may do.  The right to practice of my own religion, according to this thinking, allows me to limit the rights of others. 

Two children hold a placard as they join other Christian religious activists during a pro-life demonstration in front of the White House in Washington on February 16, 2012. (JEWEL SAMAD - AFP/GETTY IMAGES) But if, as the Supreme Court has ruled, religion cannot be invoked to make peyote legal when it is illegal, can religion be invoked to make illegal the birth control pill when it is legal?  The theocratic principle that religion trumps the state is ably defended by On Faith blogger Jordan Sekulow, among others, it would give any employer’s theology the power to overrule everyone else’s practice.  Taken literally, his stance might also justify, for example, the beliefs of radical Islamists who, as a matter of theology, think that government must sit under the authority of religion. Perhaps this prospect explains the fear of Justice Scalia that legalizing legal exemption for one religion will lead to anarchic surrender to all of them.

It should not come to this.  Theology also explains to believers how to treat non-believers.  I think the “other” Scalia – Elizabeth – insightfully identifies the importance of the Catholic theology of cooperation with governmental laws that do not perfectly reflect one’s religion. She scolds the president for not paying greater heed to this theology.  She’s right: but I would ask if “listening to the bishops” requires that Obama obey them.  Moreover, are not also the bishops supposed to pay attention to the theology of cooperation?

If the bishops so chose, writes Dr. Stephen Schneck, they could avail themselves of the theology of indirect cooperation invoked by other Catholics such as Sister Carol Keehan, head of the Catholic Health Association. This theology already allow us to pay taxes that support capital punishment that violates church teachings or which finance unjust wars. Similarly, Pope Benedict XVI has lifted the absolute ban on use of condoms in order to fight AIDS -- a greater good.  Our theological argument is and has been since the time of Augustine (De Ordine 2:4) and Aquinas (ST 2-2.62.5.2) that Catholics can give indirect support to laws in conflict with church teaching because such support is not the same as directly engaging in sinful behavior.   Moreover, both saints argue for situations where a greater good is accomplished by following the code of civic order than in disrupting it. 

Choosing the theology of the pope and Doctors of the Church about such political matters is something the USCCB should seriously consider.