Cardinal Timothy Dolan recently raised the possibility that the Catholic bishops would fight the HHS mandate to the Supreme Court.
Cardinal Dolan has shown himself to be a most able president of the United States Conference of Catholic Bishops (USCCB). He understands the complex media and cultural landscape within and through which Catholic bishops must operate. Because of this, his talk about the Supreme Court should be taken seriously--not as a threat, but as the result of considered reflection on the implications of the revised HHS mandate for Catholic institutions.
Given that the Catholic bishops have consistently emphasized the First Amendment issues raised by the revised mandate, the Supreme Court would seem to be an appropriate venue for addressing them. The Catholic bishops are also doubtlessly aware that there are Catholics on the Supreme Court who would be amenable to their position.
But if the fundamental issue is religious liberty-and not contraception-the Catholic bishops should apply appropriate caution in considering the Supreme Court as a venue. While it may provide legal redress for the Catholic church’s concerns, it cannot address the larger issues that the bishops now confront as they articulate their opposition to the HHS mandate and their apparent rejection of the Obama administration’s proffered compromise.
It should not be disputed that the Catholic Church has a right to pursue a legal strategy that includes the Supreme Court. Cardinal Dolan makes the point that the Catholic church would simply be availing itself of the options provided to “any aggrieved citizen.” But it’s also important to note that some of the most vital contributions to America’s robust conception of religious freedom can be traced to religious groups-especially marginalized religious groups--that challenged the prerogatives of local, state, and federal government. For example, Jehovah’s Witnesses, a far more maligned group than Catholics, aggressively litigated issues surrounding the pledge of allegiance and distribution of religious literature and in so doing created an expanded space for the exercise of conscience and religious speech.
To many, however, the issue of insurance coverage for contraception seems rather idiosyncratic and unimportant compared to the weighty church/state issues that groups like Jehovah’s Witnesses engaged. While the Supreme Court might validate and clarify the religious liberty concerns of the Catholic bishops, it is unlikely that that will dispel skepticism among many in the general public. Caution is especially warranted given the recent spectacle of Supreme Court arguments concerning the Affordable Care Act. It is doubtful that anyone’s view of the Affordable Care Act changed or deepened as a result of these arguments: The public is still divided over Obamacare and discourse seems to have progressed little since the legislation was passed.
Even if the Catholic bishops were to win at the Supreme Court that would not necessarily mean that members of the broader public would take their claims any more seriously or that America’s discourse on religious freedom would be enriched. If the bishops wish to pursue the broader issue of religious freedom-as Cardinal Dolan quite surely does-they need to understand legal strategy within a fuller context, and perhaps consider engaging the public in a different way.
An interesting possibility might flow from the bishops’ recent statement “Our First Most Cherished Liberty.” To be sure, the document can be read in different ways and can be adduced as evidence for a number of potential strategies, including legal and extra-legal protest. Anthony Stevens-Arroyo, for example, emphasizes the potentially sectarian qualities of the bishops letter, and there can be no doubt that there are strong sectarian tendencies in contemporary American Catholic life. By contrast, I emphasized how the Catholic bishops wished to affirm how religious groups, through their exercise of conscience, can make an important contribution to American civil society.
If the bishops decide to emphasize this latter point, one way to do so would be to engage other religious groups, and critics of the Church’s positions, personally and publicly.
The scenario I envision is based upon the example of the Catholic Bishops Conference of India. Back in 1994, India’s Catholic bishops invited journalist Arun Shourie to engage in dialogue with them. Shourie was a well known journalist--and later a government minister--who was particularly strong in his criticism of Catholic evangelization efforts in India. The dialogue between Shourie and the bishops was eventually published and it was instructive on a number of levels, even if it did have its difficult moments. Most important, it did show that Catholic bishops, in a highly charged political environment, could discuss important issues with their critics, openly and collegially, in a way that sought to enhance a broader national discourse.
In many ways, the upcoming “Fortnight for Freedom” does speak to this effort to enhance public discourse on religious liberty. But drawing upon the example of the Indian bishops, Cardinal Dolan and his brother bishops could consider a complementary possibility. A special plenary session of the USCCB could be called in which speakers address the HHS mandate in relation to religious liberty and the common good. It would be profitable to have representatives of religious groups who disagree with the position of the U.S. Catholic bishops in addition to those who would find common cause with the bishops’ overall efforts. Space could also profitably be given to those who do not have a religious affiliation and who have a different understanding of the boundaries of religious conscience in relation to social needs and obligations. The point of such a meeting would not be to discuss Catholic teaching on contraception. Instead, the point would be to broaden the discourse on religious liberty by including but also moving beyond specific issues as they relate to different religious traditions and Christian denominations.
The Catholic bishops might very well find unlikely allies for their position. But even if they do not, they might find their own understanding of the relevant issues clarified and deepened. Most important, the bishops will have contributed America’s continuing discussion of religious liberty. If matters do eventually require redress at the Supreme Court, the public will then have a much stronger sense of the issues at stake with regard to the HHS mandate and the diverse claims of religious conscience.