Last weekend, the New York Times Editorial Board treated us to its justification for the Obama administration’s “HHS Mandate”. The paper argues it is constitutional and a perfectly proper role for the State. Roman Catholics seeking legal redress to have it overturned, are, according to the paper, engaged in a “dramatic stunt”.
The New York Times lecturing Catholics is nothing new. For some time, Catholics have also opened the paper regularly to be treated to Maureen Dowd’s columnaic comedies positioned as serious thinking. They are usually so pedestrian and vitriolic they are not even any longer worth picking apart.
However a full editorial on the paper’s defense of the “HHS Mandate” permits a point by point response. It serves also as a backdrop allowing one to explain how somebody can (dare?) oppose this Obama administration policy and not actually be calling for converting the US into a 21st century version of the Papal States. In other words, time for an “old fashioned” fisking:
Thirteen Roman Catholic dioceses and some Catholic-related groups scattered lawsuits across a dozen federal courts last week claiming that President Obama was violating their religious freedom by including contraceptives in basic health care coverage for female employees. It was a dramatic stunt, full of indignation but built on air.
Speaking of air, prepare yourself. This Times editorial is a textbook example. As we will see, while full of finger wagging at Catholics who have the nerve to question State policy that assails their Church, the paper does not even see fit to share with readers where it believes State interference in Church might unconstitutionally actually begin.
Mr. Obama’s contraception-coverage mandate specifically exempts houses of worship.
Yes, the “exemption” for “houses of worship” that presumably Catholics are supposed to be supremely thankful to have been “granted” them by the State. As yours truly has noted elsewhere, that amounts to the “mandated” nuclear missile silos not having to be constructed directly under the pews. The administration has generously allowed that they need be positioned beneath only the parking lots.
If he had ordered all other organizations affiliated with a religion to pay for their employees’ contraception coverage, that policy could probably be justified under Supreme Court precedent, including a 1990 opinion by Justice Antonin Scalia.
Inaccurate. Because that is not the same thing. The 1990 ruling was that individuals could not engage in illegal activities (in that case, use illegal drugs) and claim in their defense that it is about freedom of religion.
However, the “HHS Mandate” sees the State trampling over its own law. Leaving aside the breathtaking arrogance of the Obama administration in deeming itself arbiter of religiosity. The “HHS Mandate” permits the administration deviously to sneak behind the IRS’s 501 (c)(3) charitable tax-exemption and demand donated funds that are tax-exempted must underwrite the State’s “free” birth control policy.
Meaning the “HHS Mandate” is, essentially, a tax on charities that are otherwise tax-exempted. Yet yours truly is not unreasonable: if the State wants to tax us as individuals to pay for birth control, that is the State’s prerogative to try to do so. The problem is in its “HHS Mandate” it is forcing charitable entities to cough up for that which they would not have to cough up for if it were a tax.
Nice to discover in this editorial that easily punctured deceit and profound constitutional cynicism are happily okay to the NYT.
But that argument does not have to be made in court, because Mr. Obama very publicly backed down from his original position and gave those groups a way around the contraception-coverage requirement.
President Obama stood before cameras and claimed “accommodation” could be made; but since then the original “mandate” curiously stands to be implemented unchanged. We also know what politicians’ promises are worth. New York’s Cardinal Dolan has for one said that on this then pending issue, the President last autumn had offered him assurances that never materialized.
Under the Constitution, churches and other religious organizations have total freedom to preach that contraception is sinful and rail against Mr. Obama for making it more readily available. But the First Amendment is not a license for religious entities to impose their dogma on society through the law.
Inaccurate. First, they have no right to “rail against Mr Obama”. If the Church hierarchy does so in a way construed as campaigning in support of an opponent, the Church’s 501 (c)(3) tax-exempt status would be at risk. The New York Times presumably knows that.
Second, it is unclear how the Church is seeking to impose its “dogma on society through law”. It is merely demanding, as it certainly may under the law, its non-partisan 1st Amendment rights under the Constitution be respected. That amendment admonishes the State not to “infringe” on the “free exercise” of religion.
No one holds any right to be absolute. However, this administration is certainly venturing into new territory in taking upon itself the authority to dictate to me that my non-taxable church charitable donations must be spent in a way my Church considers immoral. That falls squarely into the State interfering with my freedom of religion and is definitely worth being litigated.
The vast majority of Americans do not agree with the Roman Catholic Church’s anti-contraception stance, including most American Catholic women.
Immaterial. A fact the New York Times in other situations never ceases to remind us of is the Constitution is first and foremost about the protection of (often unpopular) minorities and minority opinions. Catholics as a religious group overall are precisely that — about a quarter of the U.S. population.
The vast majority of Americans are also not Muslims; and, for instance, only a tiny minority of Muslim women actually wear a burka; and when those women procure one, the cost is borne by themselves. Does the NYT believe the administration is empowered to ban it because most Americans are not Muslims, are regularly polled as disliking the burka, and most Muslim women don’t wear one? If the NYT seriously thinks so, it would be adopting a rather novel way to interpret the 1st Amendment.
Media recitations of how “most Catholics do not agree with” this or that teaching, is a public policy irrelevancy. Yours truly is totally indifferent to any newspaper or media outlet lecturing me, or my family (my wife, sister and mother are “Catholic women”), regarding what we believe or do not. All of that is entirely between myself and my Church alone — as it is for any Catholic.
More importantly, my personal faith is not, as James Madison would say, the proper business of this general government. What pollsters tell us about who they have polled as saying they observe which cherry-picked teaching closely and who does not, is most definitely never cover for the State to pummel my Church. It is absolutely none of this or any government’s business if I am this generation’s St Augustine, on the verge of becoming an Episcopalian, or fall somewhere into “cafeteria Catholic-dom”.
The First Amendment also does not exempt religious entities or individuals claiming a sincere religious objection from neutral laws of general applicability, a category the new contraception rule plainly fits. In 1990, Justice Scalia reminded us that making “the professed doctrines of religious belief superior to the law of the land” would mean allowing “every citizen to become a law unto himself.”
Misdirection. The NYT may try to hide behind (conservative Roman Catholic) Justice Scalia and that case until the cows come home. The bottom line is if the Obama administration wants to pay for contraceptives for all, no one is stopping it from seeking to fund that desired policy through “neutral law” that requires every individual must pay taxes. Nobody is arguing the State does not have the right to look to tax to pay for its initiatives.
In 1993, Congress required government actions that “substantially burden a person’s exercise of religion” to advance a compelling interest by the least restrictive means. The new contraceptive policy does that by promoting women’s health and autonomy.
How does the NYT define “least restrictive”? Others out here consider the State’s coercing tax-exempt entities certainly not as “the least restrictive” means available to pursue that end. The most obviously “least” would be for the State simply to redirect some of my taxes to pay for its determination to see to “women’s health and autonomy.”
Indeed why is the Obama administration apparently so terrified of looking to tax in the light of day to pay for what it loudly proclaims is a necessary objective? If it did, all tax-exempt entities — including religious organizations — would then be exempted. That would keep the State entirely in its universally accepted realm (taxation), while also continuing to shield “free exercise” of religion from the biggest State encroachment in any living person’s memory.
And there was no violation of religious exercise to begin with. After religious groups protested, the administration put the burden on insurance companies to provide free contraceptive coverage to women who work for religiously affiliated employers like hospitals or universities — with no employer involvement.
This Times editorial was published on May 27. One has to wonder where on earth has its editorial board been since January 20? Asleep? Or did it there just cut and paste and recycle lines from an earlier uninformed editorial effort?
Regardless, let’s here bring it up to date. Choosing to overlook momentarily that tax-exempt donations go towards paying for that insurance to begin with, a major church concern seems to be that because self-insurance is the norm for many of the charitable entities that will be hit with this “mandate” (again, read tax), there will not even be that “firewall” for those entities to hide behind when there is no 3rd party insurer involvement. Those tax-exempt Catholic entities deemed “not Catholic enough” by the Obama administration will have to pay for it themselves outright.
Consider this. Contraceptives are “vital”? So is securing a just Middle East peace.
Does the NYT believe it would be a violation of religious freedom if to facilitate it, all tax-exempt charities — including Jewish ones — found themselves “mandated” by the Department of State to hand donated monies … to Hamas? Of course if Jewish “consciences” are unduly troubled they can be “accommodated”. Their charities may instead hand the money to Switzerland, and the Swiss will give the funds to Hamas.
Ludicrous? Absolutely. The NYT regularly claims loudly to be in favor of complete separation of church and state, but as we see here it is not too fussed by State bullying Church.
The editorial then concludes weakly:
This is a clear partisan play. The real threat to religious liberty comes from the effort to impose one church’s doctrine on everyone.
No one is “playing” here at anything. That said, the “real” threat to religious liberty is not found in vapid newspaper editorials backing State attacking Church. It is instead found in the fabric of a State power grab which ultimately means if I as a Catholic contribute to, say, tax-exempt Catholic Charities, State edict says that organization must direct some of my donation to prop up whatever happens to be the State’s unrelated policy whim of the week.
Moreover, in doing so, that effectively also double taxes those monies. Talk about interfering in “free exercise”? The State obtains its regular cut from us taxpayers on its IRS front end … and soon it will get also to decree a second time how those monies are then to be spent?
That is appalling. Yet this distinction is evidently just too much for the great minds at the NYT (and others supposedly so passionate about defending “separation of church and state”) to grasp. Or they just don’t want to.
Let’s put it in terms here even the NYT might understand. The State may tax me until I’m broke to pay for its nuclear missiles, aircraft carriers, intelligence gathering in Pakistan, windmills, and abortions; but it has no constitutional right to re-direct even a cent of a charitable donation I make to my Church … to help pay for its nuclear missiles, aircraft carriers, intelligence gathering in Pakistan, windmills, and abortions.
Are we there now? However, the NYT did get its “clear partisan” charge correct, but not for the reason it appears smugly to think. For it is the Obama administration that has actually been blatantly partisan and constitutionally battering in this matter.
The modern Democratic party exists now in large part due to the support it received from Catholic immigrants, their children, and grandchildren, who found their political voice in it. As we know also, many Catholics voted for “change” in 2008. Yet one seriously suspects the “change” they had had in mind then was not primarily about a Democratic president beating up on their Church.
Thanks to the NYT for causing yours truly to reflect on that. In case one believes voting doesn’t matter, if John McCain had been elected president in 2008 we would in all likelihood not be here now facing the biggest State assault on Church since the ratification of the Constitution. A McCain administration would likely have been every bit as respectful of freedom of religion as every other administration had been since the creation of the federal presidency in 1789.
As this writer is not a tax-exempt charity, I may freely point that out.