A Reconsideration: Obstruction and Teaching are Different


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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25 Responses

  1. Avatar Murali says:

    I dont think that the duty necessarily extends only to just teaching that it is a sin.

    let me use a different example.

    Orthodox Hindus (roughly speaking) think eating meat is a sin. Many Hindu and Sikh temples provide food to the poor, who may or may not be vegetarian. Broadly speaking, whether or not one is vegetarian is a personal choice (in pretty much the same way contraception is a choice)

    It does not follow that Hindu temples ideally should provide non-vegetarian options and opportunities to the poor whom it tries to feed. (e.g. giving KFC vouchers)

    On issues of ritual purity, sometimes it is just that there are certin things we dont want to touch or go near at all. It is part of free exercise that individual parties have the freedom to choose how far removed (within reason) from ritual impurities they choose to be. Funding contraception seems to be one of those things. That the RCC feels like it would be enabling fornication by providing people with the means to sin without consequences seems to be the key fact here. Since the issue is not whether they are banned from purchacing it but wether they can otherwise afford it,  as per the priority of liberty, freedom of conscience trumps considerations of wealth or lack thereof.



    • Avatar Murali in reply to Murali says:

      Note that I am not personally against contraception even the morning after pill (just in case people were wondering)Report

      • Avatar Just John in reply to Murali says:

        The hypothetical of the Hindu temple’s menu options isn’t quite on target for a couple of reasons, though I agree that the grey area you’re pointing out is legitimately grey.

        Churches were already exempted from the contraceptive coverage mandate, and the issue is whether church-sponsored secular employers should be exempted.  Let’s make it a Hindu-temple-sponsored service agency with a cafeteria.  Still, the analogy is too weak to address the issue because the absence of meat options doesn’t conflict with any kind of substantial or consequential right to meat.

        At another extreme, consider the Tiller murder.  In that case, a person carried out an act to prevent further violations of his religious belief’s by Dr. Tiller (among other reasons).  There aren’t too many people who argue that his right to do that outweighed Dr. Tiller’s right to his own life or the interest of the state against murder.

        At yet another extreme is recently proposed legislation (Blunt?) that would exempt any and all non-compliance for reasons of religious conscience.Report

        • Avatar Murali in reply to Just John says:

          Only, the failure to fund your contraception via your insurance is nowhere near a violation of a fundamental right. The healthcare mandate even if otherwise constitutional, does not make healthcare a fundamental right. It is due to the fact that Dr Tiller’s legal right to life was violated that his murderer could not get away on a free exercise excuse. Also given that it is a matter of substantive access and not formal access, we should err on the side of liberty.Report

          • Avatar Just John in reply to Murali says:

            Agreed that access to contraception is not a fundamental right, though I must confess that I’m not well versed in the distinctions between fundamental rights and other sorts of rights.  I also agree that we should prefer to err on the side of liberty, though I’d say that should be individual liberty.

            The point of my extreme examples was to illustrate that the “correct” position in the contraceptive coverage debate isn’t so clear as the extreme case of the Tiller murder, just as it isn’t so clear as in the extremely trivial hypothetical of meat options on a Hindu menu.  The Blunt legislation is an ironic sort of ad absurdem that undermines the very purpose of those bringing it (I think) because it makes so clear that elevating the right of religious expression to such an extreme would undermine the rule of law.

            This is a legitimately difficult issue in a practical sense for a lot of people, even if it isn’t for me since I myself have no problem with requiring catholic hospitals because I don’t think people go to catholic hospitals as a religious expression, and I don’t think people work at catholic hospitals as a religious expression.  Universities and schools is a little greyer in my eyes on that score.  I think that the administration’s compromise of shifting the mandate to the insurers makes a lot of sense as an accommodation, and to argue that it’s an inadequate accommodation because money is fungible leads to a situation where universal consensus is required for everything.Report

            • Avatar Tom Van Dyke in reply to Just John says:

              Nailed it, “Just John.”  Contraception is not a fundamental right; religious liberty is.Report

              • Avatar Kimsie in reply to Tom Van Dyke says:

                How many wives do you have again?

                We have plenty of laws that infringe on the fundamental rights of religious people.

                For example: I live in a three chicken lot. Many lots were deliberately drawn to ensure that the people there did not have the right to have chickens. Check it out on a map (it’s free).Report

              • Avatar Murali in reply to Kimsie says:

                How many wives do you have again?

                We have plenty of laws that infringe on the fundamental rights of religious people.

                Precisely. Anti Polygamy rules are problematic on free-exercise grounds. It is only a matter of time before it is challenged.Report

              • Avatar Tom Van Dyke in reply to Murali says:

                Murali, since polygamy isn’t religiously mandatory, I think it’s below the 1st A Free Exercise radar: the state doesn’t require a compelling interest against polygamy since polygamy is not a religiously compelling interest. You can have no wife, one wife or four, it’s cool.

                This differs from the current hubbub where the Roman church’s theological opposition to contraception is a compelling interest [to them], whereas free oral contraceptives falls way below the compelling interest threshold for the state.


              • Avatar Kimsie in reply to Tom Van Dyke says:

                sorry to be slow… are you supporting polygamy? Because Muslims consider polygamy to be a compelling enough thing that they’ll vote for homosexual freedom if the bill will also be pro-polygamy.Report

              • Avatar Just John in reply to Tom Van Dyke says:

                I’m not sure what point you feel I’ve nailed.  Again, I’m not well versed in the discourse of rights, but I don’t believe it’s apparent that there are any rights that don’t have to be balanced against other rights, fundamental or not. I also don’t agree that living in a society that guarantees access to contraceptives violates anyone’s religious liberty or freedom of religious expression except to the extent that it prevents them from impeding the liberty of others.Report

              • Avatar Will H. in reply to Just John says:

                So, if I shoplift a box of condoms, I can’t be prosecuted?Report

        • Avatar DensityDuck in reply to Just John says:

          “[T]he absence of meat options doesn’t conflict with any kind of substantial or consequential right to meat.”

          In context of the original discussion, it would be like HHS declaring that ensuring proper nutrition meant that any food service provider would be legally required to offer at least one food item containing beef.Report

  2. Avatar Just John says:

    This is, I believe, the crux of the matter.  Thank you for articulating it in a manner so much more informed and cogent than I could have.

    Personally, I come down on the side of mandated inclusion of contraceptive coverage.Report

  3. I’m having a hard time with a couple of things.

    First, where is it determined that the Roman Catholic Church’s sole purpose is to teach? I’m not saying it isn’t; I had just never heard this. Other churches have a more robust mision, would they be allowed to deny coverage for contraception to employees?

    Also, this passage doesn’t sit quite right:

    The plaintiff entity attempts to frame the issue in the starkest of possible terms in paragraph 70 of this new lawsuit:

    Priests for Life’s sincerely held religious beliefs prohibit it from providing insurance coverage for contraception, sterilization, abortion, and related education and counseling. Priests for Life’s compliance with these beliefs is a religious exercise.

    In other words, the plaintiff claims that denying access to both information about contraception, tangible objects that are used for contraception, or services that implement contraception (as well as abortion) is, itself , the exercise of the RCC faith.

    Is the Priests for Life’s unwillingnes to provide contraception the same as “denying access” to contraception. I can imagine such an argument being made, but on what ground are you making it (or did I just miss something in post)?

    I’m still on the fence about this issue (though, really, I just don’t like health coverage being so linked to employment). I would like everyone to have full coverage, and would like to be persuaed to support measures that would demand full coverage, but I just can’t see that the case has been made fully.Report

  4. Avatar Tod Kelly says:

    I really love both your and Will’s posts on this issue this morning. I have been largely on the fence on the issue, despite the fact that I recognize that in practical matters this is an issue that will further hurt the GOP come the Fall.

    The way you put it, though, is compelling, and brings to mind a different but related question:

    Most Heath carriers provide information about how to protect yourself from sexually transmitted diseases. Like contraception, these are preventions that guard against activities that are seen by many (including the Catholic church) to be immoral. In fact, they are each attached to the same group of immoral activites. (Though perhaps STD prevention is arguably worse for the Church, since it can also be used by same sex couplings.)

    I have not heard any objection to preventative education, training or literature provided by providers by anyone in this debate. And I am now wondering, why? And if we decide that the contraception issue cargo one way, can we decide to not allow carriers to provide STD prevention tools to employer plans? I am guessing that most that support the Bishops will say no, but why is that?Report

  5. Avatar Chris says:

    While I agree with the position you arrive at, I’m not sure the reasoning is sound. The entity’s purpose isn’t merely to teach, but also to behave in a way consistent with the teachings, thereby serving as an example.Report

  6. Avatar James Vonder Haar says:

    It seems to me that determining the scope of what constitutes “religious exercise” is something that has to be undertaken behind a veil, so to speak.  Courts aren’t really equipped to gainsay what churches or individuals think is inherent to their exercise of religion or not.  It strikes me as similar to the “centrality” argument that Smith rightly dismissed as unworkable.  If the RCC says that buying insurance burdens their religious exercise, then buying insurance burdens their religious exercise.Report

    • Avatar Will H. in reply to James Vonder Haar says:

      I don’t think it’s so much an issue with insurance, but of what constitutes basic coverage.

      And really, if you think about the goofy sort of rules governing HSA’s, you can see that the whole issue is rather misplaced.

      If I am:
      1) obligated by my faith to tithe of my earnings to
      2) pay out-of-pocket for something this very church is teaching is sinful

      What gives?
      It’s the church, for crying out loud. They’re the only game in town. They’re got the Keys to the Kingdom, and if you want to get to Heaven, you need to ask to use those keys.

      The uninsured can find some other means of obtaining insurance, I’m thinking.

      Better yet, fire all secular employees across the board, and train the nuns as nurses.

      It looks to me like the churches really need to pull back in the manner of social services that they offer in order to maintain their integrity.
      And the natural result of that is that those people that see government as the answer to every problem will have a few more problems that government can step in to fix.Report