Recent opinion surveys on the contraceptive mandate, in particular, have shown women to be an independent-minded lot. In coverage of its own recent poll, the New York Times conceded that the views of women on this topic are “split.” By a plurality of 46 percent to 44 percent, women believe that employers should be able to “opt out” of providing birth-control coverage for religious reasons. But opinion is not really “split” on the question of whether “religiously affiliated employers, such as a hospital and university” should be able to opt out of offering coverage. Women support this proposition by 53 percent to 38 percent.
How is this possible? Americans overwhelmingly endorse contraception and regularly practice what they preach. Most believe — myself included — that child spacing and preventing the spread of sexually transmitted diseases are public goods. Why not impose this social consensus on all private institutions?
The answer depends on your view, not of contraception, but of pluralism and religious freedom.
One tradition of religious liberty contends that freedom of conscience is protected and advanced by the autonomy of religious groups. In this view, government should honor an institutional pluralism — the ability of people to associate, live and act in accordance with their religious beliefs, limited only by the clear requirements of public order. So Roger Williams welcomed Catholics and Quakers to the Rhode Island colony, arguing that a “Church or company of worshippers (whether true or false) . . . may dissent, divide, breake into Schismes and Factions, sue and implead each other at the Law, yea wholly breake up and dissolve into pieces and nothing, and yet the peace of the Citie not be in the least measure impaired or disturbed.”
There is another form of modern liberalism that defines freedom of conscience in purely personal terms. Only the individual and the state are real, at least when it comes to the law. And the state must often intervene to protect the individual from the oppression of illiberal social institutions, particularly religious ones.
This is the guiding philosophy of the American Civil Liberties Union. But as Yuval Levin, editor of National Affairs, pointed out to me, this approach has roots in the Anglo American tradition of political philosophy. John Locke’s “Letter Concerning Toleration” urges legal respect for individual conscience because “everyone is orthodox to himself.” But Locke offered no tolerance for the institution of the Catholic Church: “That Church can have no right to be tolerated by the magistrate which is constituted upon such a bottom that all those who enter into it do thereby ipso facto deliver themselves up to the protection and service of another prince.” In Locke’s view, Catholics can worship as they wish as individuals, but their institution is a danger to the liberal order.
In American history, the treatment of the Catholic Church has often been the measure of institutional religious tolerance. It is amazing how Lockean (unconsciously, one assumes) recent actions by the Obama administration have been. Catholics individuals are free to worship. Catholic institutions must be forced to reflect liberal ideals and values.
On a variety of issues, balancing individual and institutional rights isn’t easy. But the contraceptive mandate is a particularly revealing test case. One side of the controversy argues that the autonomy of religious institutions is essential to the expression of individual conscience and important to the common good. The other side believes that the moral and health choices of individuals need to be protected by government against oppressive religious groups such as the Catholic bishops. So it is not enough for contraceptives to be legal and generally available; they must be provided (directly or indirectly) by Catholic institutions to their employees.
This is the real debate on the contraceptive mandate — and the administration has not won it.