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Obama’s Contraception Rule and the Limits of Tolerance

January 29, 2012

As a Catholic, I naturally oppose the Obama administration’s decision to require Catholic hospitals, schools, and charities to provide their employees with insurance coverage for contraception.  With that said, I do not find the arguments made by my fellow Catholics any more or less compelling than the arguments on the other side.  Both sides, it seems to me, neglect to address the real issues at stake — for Catholics, a compelling explanation as to why it is not unreasonable to deem contraception immoral and, for our political opponents, a compelling explanation as to why access to contraception should be considered a civil right.

Instead of a robust debate surrounding these questions, what we get are, unfortunately, appeals to tolerance.  Catholics want to be allowed to run their institutions according to Catholic religious and moral values, while the other side wants to ensure that Catholic institutions do not impose religious values on women and, in doing so, deny them access to a basic right.   What both sides fail to realize is that, in a debate like this, tolerance is not really in the cards. It’s a zero sum game, though perhaps some compromise could be worked out along the lines suggested by Melissa Rogers.

Of course, to acknowledge the inevitability of intolerance would be political suicide.  I am not in the least surprised to see Catholic writers like Ross Douthat, on the right, and Michael Sean Winters, on the left, framing the issue in terms of religious liberty.  Nor does it seem to me likely that New York archbishop Timothy Nolan does his cause a disservice by pitting the Obama administration against the freedom loving Founding Fathers and Supreme Court.  Religious freedom, Nolan writes

is the lifeblood of the American people, the cornerstone of American government. When the Founding Fathers determined that the innate rights of men and women should be enshrined in our Constitution, they so esteemed religious liberty that they made it the first freedom in the Bill of Rights.

In particular, the Founding Fathers fiercely defended the right of conscience. George Washington himself declared: “The conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be extensively accommodated to them.” James Madison, a key defender of religious freedom and author of the First Amendment, said: “Conscience is the most sacred of all property.”

Scarcely two weeks ago, in its Hosanna-Tabor decision upholding the right of churches to make ministerial hiring decisions, the Supreme Court unanimously and enthusiastically reaffirmed these longstanding and foundational principles of religious freedom. The court made clear that they include the right of religious institutions to control their internal affairs.

Yet the Obama administration has veered in the opposite direction  .  .  .

From a political standpoint, this is the right angle for Nolan to take.  From a philosophical standpoint, I’m not sure it holds up.

Here’s the trouble.  Both sides of the debate view each other as intolerant and are — within their respective philosophical frameworks, at least — right in doing so.   For Catholics, artificial contraception violates the natural law and cannot therefore be construed, in any conceivable sense, as a political right. From this standpoint, the Obama administration looks guilty of intolerance. Yet for Sarah Lipton-Lubeh of the ACLU and countless others like her, the opposite is true: to deny women access to contraception is an act of “discrimination” — which surely counts as a violation of natural law (though it seems unlikely Lipton-Lubeh would frame the issue in these terms). Religion, Lipton-Lubeh writes, “must not be used to trump another’s civil rights protections.”  Commenting on a related case, in which the Catholic Bishops were denied a grant to administer a program assisting the victims of sex trafficking due to their refusal to apply the funds toward abortion and contraception, another ACLU staffer remarks:

There’s no question that the Constitution allows everyone to practice their religion as they see fit. However, the Constitution does NOT allow one particular group to impose its beliefs on everyone else with federal money. That is exactly what the bishops are seeking to do. Nobody’s religious liberty is in jeopardy here. It is the right of others to live free from discrimination that is in danger.

Notice the writer’s carefully selected use of the word “discrimination” – which is clearly intended to evoke the civil rights era businesses that denied service to blacks.  To allow religious institutions to deny women access to reproductive health services (as they are called) would, according to this point of view, be on par with allowing business to discriminate on the basis of race.  Which, most of us agree, should not be tolerated.  Nor, for that matter, should denial of the theory of evolution be tolerated among science faculty members at major universities.  Or bullying of gay teens be tolerated in public schools.  The logic here is not difficult to follow.

What the controversy over Obama’s contraception policy illustrates is the difficulty of resolving disagreements over (increasingly common) questions for which no shared ethical consensus exists.  Additional examples include: “Is abortion a civil right or an act of murder?”  and “is it fair or unfair to raise taxes on the wealthy in order to reduce the deficit?”

What matters most in cases like these, it seems to me, is not tolerance but truth.

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