Six Varying Perspectives on the Mandate

The Immanent Frame is weighing in on the HHS mandate: “We’ve invited a small handful of scholars to comment on how the debate highlights enduring and nascent issues involving claims to multiple rights made in the context of American public life.” The group  includes professors and attorneys from Catholic University, Marquette, the University’s of Alabama, Tennessee, Hawaii at Manoa, Illinois at Chicago, and Columbus School of Law. From the first contributor, Finbarr Curtis:

The Catholic Church’s rhetoric in the recent contraception controversy pits public health policy against private constitutional rights. But what is unclear is exactly whose rights are violated. No Catholics would be forced to take contraception. Rather, the Church’s claim is that its liberty is violated if it has to affirm the religious liberty of its employees, who may be Catholics as well as people with no religious affiliation or with different religious affiliations. In other words, “religious liberty” does not protect individual freedom (whatever that may be) but allows organizations to police the religious convictions of their employees. What is remarkable, at least politically, is that employees could include many conservative Evangelicals for whom contraception within marriage is fine. This means that, say, a married Southern Baptist who takes a job at a Catholic university would have her healthcare choices influenced by Papal teachings with which she does not agree. For much of American history, this kind of ecclesiastical assertiveness would have ignited anti-Catholic fury. But drawing historical parallels is tricky here because the Church now insists that it has jurisdiction over the consciences of non-Catholics, which is a long way from earlier defenses of American Catholic freedom. Yet many conservative Protestant groups have come to the defense of the Church in a way that demonstrates a shared investment in expanding the power of private institutions. This vision of religious freedom confirms Winnifred Sullivan’s post on the Hosanna-Tabor decision, in which a “church” has first amendment rights. One could note an analogy between this language of religious freedom and the Citizens United ruling that grants corporate entities the rights of persons. In both cases, the rhetoric of freedom works to expand the power of private institutions acting beyond the scope of democratic deliberation and accountability.