Alas, the United States Conference of Catholic Bishops (the "USCCB") has not heeded General Flashman's wisdom. Instead, it has issued a "Call to Action" in which it contends that religious liberty, the "first freedom," is under threat "at home and abroad." Specifically, the statement claims, citing Supreme Court precedent and invoking the Framers of the Constitution, that the Obama Administration (and, to a lesser extent, several states) are violating the First Amendment rights of Catholics and other religious entities regarding moral issues, especially regarding the requirement in regulations promulgated under the Affordable Care Act that insurance provided by employers or educational institutions provide contraception coverage.
While the bishops address several other issues, they recur again and again through the statement to the contraception regulation, raising it as their chosen paradigm no fewer than four times; the other domestic issues are mentioned briefly once each. Those issues include three other claims to exemption from generally applicable laws (state laws against "harboring" illegal immigrants--a claim which I can certainly sympathize with the bishops position, but nonetheless a generally applicable law not targeting religion--and Catholic service providers desiring exemptions from terms and conditions of contracts inconsistent with the Church's practices), and three murkier legal issues, the ability of local congregations to use school facilities as houses of worship outside of school hours (the subject of this decision and ongoing litigation), a 2009 Connecticut bill which was tabled after its patent unconstitutionality was clear, and the fact that "the University of California Hastings College of Law has denied student organization status to only one group, the Christian Legal Society, because it required its leaders to be Christian and to abstain from sexual activity outside of marriage."
The bishops explicitly ground their claim as a violation of the Constitution: "What we ask is nothing more than that our God-given right to religious liberty be respected. We ask nothing less than that the Constitution and laws of the United States, which recognize that right, be respected.”
And herein lies the problem.
The bishops claim not only that religiously-affiliated entities are entitled to accommodations, they claim that the law cannot require any religious person to violate the tenets of his or her faith:
It is essential to understand the distinction between conscientious objection and an unjust law. Conscientious objection permits some relief to those who object to a just law for reasons of conscience—conscription being the most well-known example. An unjust law is "no law at all." It cannot be obeyed, and therefore one does not seek relief from it, but rather its repeal.Now, I'll just let that well-known anti-Catholic Antonin Scalia address this claim:
The Christian church does not ask for special treatment, simply the rights of religious freedom for all citizens.
We have never held that an individual's religious beliefs [p879] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. . . "Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities."Justice Scalia went on to quote Reynolds v. United States (1879), which posed and answered the question, "Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."
Scalia then went on to cite a barrage of instances in which religious objections to child labor laws (the mother wanted her children to distribute religious literature, one hastens to add), Sunday closing laws, forcible conscription, and Social Security and related benefit programs were found to be constitutionally applied to religious believers whose faiths did not permit their compliance with those laws. The Court purposefully limited a few cases in which conscience exemptions had been recognized to cases presenting a "hybrid situation" involving "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, or the right of parents. . . to direct the education of their children." (Citations omitted) In closing, it reiterated that "Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now." The Court then went on to deny that the Constitution required that a "compelling state interest" be required to sustain any generally applicable statute which would substantially impact or burden religious exercise.
With that in mind, let's look at some of the paradigm cases. As linked above, the denial of church usage of school facilities has been upheld as constitutional by the Second Circuit Court of Appeals, and the litigation is ongoing, as the District Judge is far more sympathetic to the plaintiffs than the Second Circuit has been to date. The bishops acknowledged that the federal district court found their provision of services to trafficking victims involved unconstitutional limitations on services to accommodate the USCCB's moral beliefs; some argument as to why that decision is in error is necessary to establish that the converse is necessarily so. More significantly, the Supreme Court has found that Hastings College of the Law's antidsicrimination policy which resulted in denial of Registered Student Organization status to the Christian group did not violate the Free Exercise Clause. These facts are pretty relevant to the discussion, and the bishops omit them, while claiming the entities involved have violated the First Amendment. Even more significantly, in the case of the contraception requirement for insurance, the fact that Catholic Charities has been rebuffed by Supreme Court of California and the New York Court of Appeals (the Supreme Courtdenied review of the New York decision). Again, when you're claiming these instances as clear violations of the Constitution, omissions repeated failures to convince the courts of that claim are pretty damning to one's credibility.
But most important, the bishops do not, at any point, address Smith or any of the decisions relied upon by it. Instead, they cite Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, which held that the right of a church to select its own ministers bars an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. The ministerial exemption, as it has been known since the Nineteenth Century , is not, the Court found, inconsistent with Smith, because it is limited to pastoral employees, to ensure that the authority to select and control who will minister to the faithful is the church’s alone. The bishops do not analyze the scope of the ministerial exception reaffirmed in this case; they merely quote Chief Justice Roberts's paean to religious freedom.
So, what we have here is a claim that the Administration is violating the First Amendment that is unsupported by the jurisprudence of the First Amendment, whether in the Nineteenth, Twentieth, or Twenety-first Centuries. The spurious citation of Hosanna-Tabor and the repeated claims that the bishops are defending constitutional, non-partisan freedoms that are imperiled, take this approach beyond suppressio veri--omission of facts damaging to the argument they wish to make--and bring it to the level of suggestio falsi.
(Oh, and using the feast day of Thomas More to kickoff "a Fortnight for Freedom"? Assumes facts not in evidence, frankly.)