As every law student quickly learns, the way one frames a legal issue can go a long way in ensuring that the case is decided in favor of the party which more favorably “frames” the issue in dispute. This principle applies even more so when legal cases implicate societal issues at large as these cases are litigated in the courts and debated in society. Thus, when the Catholic non-profit Institutions filed their federal lawsuits, many of us were heartened by the wonderful manner in which Archbishop Lori and other bishops were “framing” the issue in terms of the Church’s First Amendment right to Freedom of Religion. For once, it seemed that we Catholic-Americans were actually going to control the narrative in the public debate.
But two years later, as Catholic-American litigants such as the Little Sisters of the Poor suffer legal setbacks in the federal Courts of Appeals, we not only seem to be losing the cases at the appellate level, but we’ve somehow managed to lose the narrative as well. One need only read the headlines to see how the Government is racking up “victory” after “victory” in the “fight over birth control.” As we read these headlines, I think the Catholic-American non-profit litigants should re-group and not only prepare to take our cases to the Supreme Court, but make every effort to re-gain the narrative that we had when these cases started. Although we face a huge challenge, I believe we can re-gain the true narrative by emphasizing three significant points which demonstrate what’s really at stake in the HHS Mandate litigation:
First, the HHS Mandate and its entire scheme violated our First Amendment because of the manner in which it defined “religion” for the purposes of its “religious” exemptions. Although the government has somewhat modified its definitions of what is “religious” throughout the litigation, its initial attempts to limit “freedom of religion” to mere “freedom to worship” could only be construed as a hostile treatment of Catholic non-profit Institutions. In any event, the HHS Mandate remains an unacceptable violation of our First Amendment’s right to Freedom of Religion since the HHS continues to impermissibly define what is and what is not the Catholic Faith, and thus worthy of an exemption. Or to put it bluntly, in allowing exemptions for part of the Body of Christ and not the remainder of Christ’s body, the HHS Mandate and its scheme provides Constitutional protection for some of the Church, but severs (from Constitutional protection) other equally central and integral parts of the Body of Christ — the Church.
Second, although the so-called “accommodations” have made the Government’s intrusion into our Catholic Faith a little less severe, the current regulatory scheme still constitutes an unacceptable interference into the religious domain of Catholic-Americans. In advocating this aspect of our cause, we would do well to revisit the writings of the great Jesuit, John Courtney Murray, who arguably remains the pre-eminent Catholic-American authority on Religious Freedom. According to Murray, the United States’ Constitution’s guarantee of religious freedom means that there is a religious domain into which the government should not enter. Although Murray’s work was fragmentary and non-systematic, he repeatedly emphasized that there is a “sphere” of human activity, which pertains solely to the religious domain of human activities. The First Amendment guarantees that this religious “sphere” of human activity will not suffer from governmental intrusion. Murray thus saw the First Amendment’s Freedom of Religion as a guarantee that religious activity would be immune from governmental interference; and that it would prevent the government from assigning value to that which pertains to religious activity.
Third, the HHS Mandate and the government’s approach is objectionable to the extent that it represents another example of the government taking sides on Constitutional rights, including the right to privacy and healthcare over the right to religious freedom. No one can credibly argue that the courts have an easy job in balancing all of the competing rights and responsibilities and values at stake; but it seems that we Catholics get no Constitutional deference at all. At a minimum, the courts should take a neutral position regarding the Constitutional rights at stake. Just as is required from judges and Supreme Court Justices when a potential conflict of interest is identified, the Justices and Judges should at least “avoid the appearance” of favoring some Constitutional rights (i.e., right to abortion, right to privacy and medical choices, etc.) over the Church’s right to Freely Exercise Her Faith in all of the Church’s Trinitarian dimensions.
In sum, despite the admittedly painful string of legal losses we have suffered in virtually every Federal Court of Appeals hearing the non-profit cases, we Catholic-Americans should literally “Keep the Faith” and artfully frame the legal issues at stake. We also need to endeavor to take the narrative back from those who relish in the headlines that suggest the cases are only about religious zealots who want to fight over access to birth control in the federal courts. After all, there is much, much, more at stake than a fight over access to birth control.
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