Church Goes to Court
by N.Y. Sun
Issue 205 – June 6, 2012
Congratulations are in order for the Catholic Church, whose archdioceses in America went to federal court today to challenge the Obama administration on the contraception mandates. Something like a dozen federal lawsuits were filed against the administration by something on the order of 43 plaintiffs, including the Archdiocese of New York, among others, and the crown jewel in Catholic education in America, Notre Dame.* It seems the liberal institutions within the Catholic world have come together with the conservative ones to stand up for the rights of religious Catholics — and by extension, the rest of us — to be free of government mandates in respect of their religion.
We liked the way the issue was framed in the brief for the Archdiocese of New York, which opened by noting what the lawsuit is not about as well as what it is about. It is, the brief said, “not about whether people have a right to abortion-inducing drugs, sterilization, and contraception. Those services are freely available in the United States, and nothing prevents the Government itself from making them more widely available.” It went on to complain that the government nonetheless “seeks to require Plaintiffs — all Catholic entities — to violate their sincerely held religious beliefs by providing, paying for, and/or facilitating access to those products and services.”
The church seeks shelter under both the Constitution, which prohibits Congress from making any law prohibiting the free exercise of religion, and a statute, the Religious Freedom Restoration Act. RFRA was passed in 1993 — by an overwhelming voice vote in the House and a 97 to three vote in the Senate — with the aim of protecting free exercise. It requires strict scrutiny of laws, and prohibits the government from substantially burdening “a person’s exercise of religion even if the burden results from a rule of general applicability.” The law is one of the important civil rights measures of the modern era.
It is early in the legal maneuvering over the contraception mandates, but it’s not too early to predict that the case the Catholic Church has just launched has the potential to emerge as one of the great civil rights lawsuits of our time. Or to observe that a much wider population than the millions of Catholics in this country has a stake in the outcome. The various organizations that represent many of the non-Catholic Christian communities, Muslims, and religious Jews will no doubt be watching this case with gratitude. And with the hope that if this case can be won they can get off the defensive on other religious issues.
It is but two generations since Estelle Griswold won in 1965 the right to distribute and use contraceptives. She did it in a lawsuit against Connecticut, which had imposed on her a $100 fine for her work for Planned Parenthood. She won her case by convincing seven members of the Supreme Court that there is a right of privacy in the Constitution. The lawsuits just launched are not privacy cases. But what an ironical turn history has taken. The Catholic Church is arguing, among other points, that it is being forced to submit to an intrusive investigation as to its own bona fides as a religious institution. We wish them well.