Fortnight For Favoritism

Tomorrow begins the so-called "Fortnight for Freedom." I have written elsewhere of the logical inconsistencies in the USCCB's analysis, the studied avoidance of the myriad precedents from 1879 through the present which have disavowed and rejected the interpretation of the First Amendment advanced by the bishops in their claim that all religiously-affiliated institutions, and businesses headed by persons of faith, should be exempt from the contraception mandate and should not be denied government contracts even when they decline to fulfill conditions of the contracts which conflict with the tenets of their faith.

In the Religious Liberty FAQs, however, the USCCB goes a step further than it did in the documents I analyzed previously, and engages in argumentation which is remarkably misleading. It contends that the "the 'Free Exercise Clause'[] generally protects citizens and institutions from government interference with the exercise of their religious beliefs. It sometimes mandates the accommodation of religious practices when such practices conflict with federal, state, or local laws."

The FAQ subsequently (after outlining the USCCB view of the contraceptive controversy, the theological basis for religious liberty, and the Catholic Church's heroes of religious liberty) asserts that "[t]he HHS mandate fundamentally alters the fragile balance between government and religious groups created by the framers of our Constitution. The same First Amendment that protects religious freedom protects freedom of the press. We wouldn’t stand for the State telling newspapers or news programs what to write or whom to interview."

All of this, of course, conveys a strong impression that the Obama Administration's position is inconsistent with the rulings of the Supreme Court and the understanding of the First Amendment duty to accommodate which has prevailed since the days of the Framers of the Constitution--whom they approvingly cite. However, as Justice Scalia summarized the cases finding a duty to accommodate religion in the face of a neutral, generally applicable statute:

The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. Connecticut, 310 U.S. at 304, 307 (invalidating a licensing system for religious and charitable solicitations under which the administrator had discretion to deny a license to any cause he deemed nonreligious); Murdock v. Pennsylvania, 319 U.S. 105 (1943) (invalidating a flat tax on solicitation as applied to the dissemination of religious ideas); Follett v. McCormick, 321 U.S. 573 (1944) (same), or the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U.S. 510 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U.S. 205 (1972) (invalidating compulsory school attendance laws as applied to Amish parents who refused on religious grounds to send their children to school).

(494 U.S. 872, 881(1990)).

Absent such a "hybrid right", Justice Scalia wrote,"the [contrary] rule to which we have adhered ever since Reynolds [v. U.S.] [98 U.S. 145 (1879)] plainly controls." Id. at 882. The bishops have not made a claim of a "hybrid right," nor have they addressed the governing case law; as I demonstrated in my earlier post, the bishops either ignore Supreme Court decisions contrary to their interpretation, or address marginal cases as if they established the norm.

It's not unlike their including, among the "heroes of religious freedom" St. Thomas More, the "patron saint of religious freedom." Now, I love "A Man for All Seasons" too, but Thomas More was not a champion of religious freedom for anyone but Roman Catholics; as even More admirer Steven D. Smith acknowledges,

More [wrote in a letter] that he is content to leave every man to his own conscience and that they should leave him to his. But in fact, in his various offices, and especially as Lord Chancellor, More actively persecuted and prosecuted Protestant dissenters and in some cases approved their execution. As [biographer] Peter Ackroyd explains, "his opponents were genuinely following their consciences," but More "truly believed that Lutherans to be 'daemonum satellites' ('agents of the demons'), who must, if necessary, be destroyed by burning."
***
More did not merely do what his office demanded; he pursued the heretics zealously, exceeding both the efforts of his predecessor Wolsey and the king's own wishes. On occasion, he attempted to apprehend a wayward preacher toward whom the king was well disposed, hoping to act quickly before the king's leniency might step in to save the hapless heretic.

Steven D. Smith, "Interrogating Thomas More: The Conundrums of Conscience,"1 Univ. St. Thomas L.J. 580, 596-597, 598 (2003).

It simply will not do to position Sir Thomas More as a champion of religious liberty, other than as a champion of religious liberty for his own church. History has its claims, and one can--and I think, should--admire More's courage in the face of death, his faith, and his integrity, while acknowledging his moral failure in denying to others the same autonomy he rightly claimed for himself. Which may, in fact, make him the perfect patron of the Fortnight For Freedom.

Edited to add citation for Reynolds and link.