|Little Sister with a patient. (Source: Becket Fund.)|
So far, Obama & Co. have been able to get away with stiff-necking their agenda through Congress because they’ve had the backing of the majority of the mainstream media, who are more than happy to blame the opposition for failures to “compromise” (i.e., give in). Despite the ideological crystallization of the parties which has led to the near-disappearance of political moderates in Congress, there are a few Republicans who, as Theodore Roosevelt said of William McKinley, have “the backbone of a chocolate éclair”, and will sign off on fig-leaf “concessions” to end the confrontation and “save GOP face”.
However, such tactics don’t necessarily work when the opponent is a litigant party who isn’t elected to any office and thus can’t be scared off with the specter of defeat at the next polls. It’s amazing to see an Administration so driven by image politics risk that image by holding the HHS mandate line against the Little Sisters of the Poor, a company of Catholic nuns.
In a sense, the Administration’s tactics are determined by the wider context of their battle against the Catholic Church in America as the Last Bastion of Conservative Morality. However, the standard party ballyhoo about “the war on women” and “Church imposing its morality” fails to erase the image of a monstrous bureaucracy intent on beating down a bunch of ladies who take care of sick people. Nuns evoke the kind of sympathy that bishops don’t.
The government’s line in the matter is simple: “All the Little Sisters have to do is sign a ‘self certification’, and the insurance provider will assist the employees under a separate rider without extra cost to the nuns. What’s the hang-up? Besides, their provider — Christian Brothers Services — won’t subsidize contraceptives even indirectly. So there’s really no need for an injunction.” And, in fact, this is the line of reasoning the New York Times pursues in their editorial “No Burden on Religion”, calling the nuns’ litigation, in a fit of Orwellian hypocrisy, “an unjustified attempt by an employer to impose its religious views on workers.”
The Obama Administration and NYT, however, are engaging in verbal sleight-of-hand. As Matt Bowman explains, the certification in question actually obligates the third-party administrator to provide the contraception coverage. While the Administration currently concedes that it currently has no way to enforce the mandate against church-plan TPAs, in court documents (according to Reuters) the government has stated that it’s still looking for ways to do so. In essence, then, the certification is more than the “permission slip” a lower court judge called it; rather, it becomes a potential lever by which the Administration could compel Christian Brothers — who are co-plaintiffs in the action — to provide contraception coverage against their will.
In a dissenting opinion on a separate case in the DC Court of Appeals, Judge David S. Tatel argued, “Simply put, far from imposing a ‘substantial burden’ on appellants’ religious freedom, the challenged provision allows appellants to avoid having to do something that would substantially burden their religious freedom.” This is also the line NYT takes in their op-ed.
But Tatel and the Times editorial board are being disingenuous. The principle in question is material cooperation in sin, the moral equivalent of being an accessory to a crime. Even if Christian Brothers had no qualm about covering contraceptives, by signing the “permission slip” the Little Sisters would be guilty of facilitating a sin even if the person requesting the contraceptives does not recognize the sinful nature of the act. As the Becket Fund phrased it in their response to the DOJ’s brief, “Respondents are simply blind to the religious exercise at issue: the Little Sisters … cannot deputize a third party to sin on their behalf.”
That’s right, folks — material cooperation in another person’s sin is itself a sin (CCC 1868). When the matter is grave (i.e., intrinsically evil), and the cooperation is given “with full knowledge and deliberate consent” (CCC 1857), the sin is mortal; i.e., “it turns man away from God, who is his ultimate end and his beatitude, by preferring an inferior good to him” (CCC 1855). “Feigned ignorance and hardness of heart (cf. Mk 3:5-6; Lk 16:19-31) do not diminish, but rather increase, the voluntary character of a sin” (CCC 1859). Furthermore, as I’ve pointed out several times, the so-called “primacy of the individual conscience” merely means that, in the final reckoning, the individual person is accountable for his own choices; it does not mean that good and evil, sin and sacrament change according to the determination of the individual or his social context.
What about the Church “imposing its religious views on its employees”? As I’ve stated before, that is and always was a blatant piece of hypocrisy. Under the law — under PPACA, in fact — the employees can still buy their own insurance which will comply with the mandate, if they wish to pretend that they’re getting free contraceptives rather than paying for them indirectly through insurance premiums. Alternatively, since the most common contraceptives are just not that burdensomely expensive, those who choose to contracept can pay for the bloody things themselves, as they have been in the majority of states for the last fifty years and change. Chastity, continence, monogamy and fidelity are also valid personal choices … plus, they entail no real health risks, as opposed to contraceptives. People who do not wish to bear or beget children have access to all these options without need of their employers’ permission or checkbooks.
But since contraception is a personal choice, there’s no legal or Constitutional basis for compelling other people to help subsidize that choice. Put differently, a right to contracept does not by necessity entail a right to free contraceptives, let alone a right to compel the unwilling to share the costs of the “free” contraceptives. When you use the police and judicial powers of the State to pull money out of my wallet to fund your choice, you are imposing your morality on me.
The DOJ’s argument that the certification requirement is de minimis is ridiculous on the face of it. Those groups whom the government have chosen to recognize as religious employers are not required to “self-certify”; if the certification is truly meaningless, then the government has no reasonable grounds for either making the Little Sisters “self-certify” or penalizing them for not doing so. And in fact the certification is a major requirement of the government’s “carrot” — the generous compensation they offer to organizations that “play ball”.
But the Little Sisters can’t play that game because Catholic rules don’t allow for “designated sinners”.
This isn’t a fight the Administration can win just by being stubborn. At some point, they have to convince the courts that the facts and the Constitution are on their side. So far, they fail to convince us that they even know what the facts are. Or what “freedom of religion” really means.