RELIGION IN THE NEWS Spring 2003

If the Catholic bishops’ fervent campaign against the Obama administration’s refusal to exempt Catholic healthcare, educational, and social service institutions from having to provide contraceptive coverage as part of their health insurance packages was aimed at mobilizing Catholic voters, then the president’s re-election must signify the latest in a long series of failures to get ordinary Catholics behind their program.

In November, Obama carried the Catholic vote by 50-48 percent. Among Latino Catholic voters, who are the church’s demographic future, he won 75-21.

It is possible, however, that voter mobilization was not their chief goal. With more and more of the church’s highest ranking bishops counted among what the National Catholic Reporter’s John Allen calls the “gung-ho,” the leadership may have a greater interest in using political confrontation to press wayward Catholic individuals and institutions back toward pre-Vatican II norms of hierarchical authority and a tight Catholic subculture permeated by deep suspicion of the larger culture, even if that means off-loading or driving many of them away.

Consider the following: The rhetorical hot spot of the spring was Bishop Richard Jenky’s widely reported April 14 sermon at his Peoria, Illinois cathedral. The world noticed because Jenky compared President Obama to Hitler and Stalin, who “at their better moments, would just barely tolerate some churches remaining open, but would not tolerate any competition with the state in education, social services, and health care.”

“In clear violation of our First Amendment rights,” Jenky said in the next sentence, “Barack Obama—with his radical, pro-abortion and extreme secularist agenda, now seems intent on following a similar path.”

Jenky’s comparison, for which he did not apologize, found slightly less hyperbolic echoes among his colleagues. On a May 22 CBS News program, Cardinal Timothy Dolan of New York complained that Obama was “strangling the Church.” In early June Bishop Salvatore Cordileone of Oakland, then just named Archbishop of San Francisco, told a Washington conference that under Obama “we could be starting to move in the direction of license and despotism.”

While much of the media was struck by Jenky’s references to Stalin and Hitler, in a much less widely-quoted section part of his sermon the bishop also cited two more revealing bad actors (from his point of view): Otto von Bismarck and Georges Clemenceau. Bismarck, 19th-century Germany’s “Iron Chancellor,” and Clemenceau, premier of France in the early 20th century, were both effective anti-Catholic “culture warriors” who largely succeeded in their efforts to limit the Catholic Church, not in its worship, but rather from operating public educational, health, and social service institutions.

Just after linking Obama and Hitler, Jenky moved to the fall presidential election. “This fall,” he declared, “every practicing Catholic must vote, and must vote their Catholic consciences, or by the following fall our Catholic schools, our Catholic hospitals, our Catholic Newman Centers, all our public ministries—only excepting our church buildings—could easily be shut down. Because no Catholic institution, under any circumstance, can ever cooperate with the intrinsic evil of killing innocent human life in the womb.”

Bismarck and Clemenceau, not to mention Hitler and Stalin, did the closing in their version of the culture wars. What Jenky predicted was different. Implicitly, bishops would be the ones who closed “public ministries” rather than complying with government mandates to offer health insurance to employees that covered contraception.

Most journalists were more interested in the electoral contest between Obama and the bishops than in Jenky’s threat. Melinda Henneberger of the Washington Post served as a good example. Her June 8 opinion piece appeared under the headline, “Is the Catholic Church Taking on Obama?”

Writing just before the opening of the bishops’ “Fortnight for Freedom” campaign, Henneberger said that the “campaign to push back against this administration’s health-care mandate for contraceptives” sounded “so much like a ‘Fortnight to Defeat Barack Obama’ that I’ve gotten to wondering what our prelates would have to do to cost the church its tax-exempt status.”

William Lori, the Catholic archbishop of Baltimore who was appointed chair of the National Conference of Catholic Bishops’ Ad Hoc Committee on Religious Freedom created last spring, and some other bishops tried over the summer to temper political conclusions like that.

“We’re not trying to throw an election. We’re simply trying to defend fundamental freedoms. It’s not a Republican or Democratic issue. It’s not a Catholic issue. It’s a freedom issue,” Lori said at a Baltimore press conference covered in the June 7 National Catholic Reporter.

While it’s certainly fair to ask if the bishops were gunning for Obama during the campaign, that is probably too narrow a question—one that fails to capture the depth of the confrontation or its lasting significance. In many ways, this was a confrontation created by Obama’s considered decision not to accommodate the demands of Catholic bishops for a broad exemption from the contraceptive mandate. He had ample warning from his own staff that the bishops would react vigorously and he threw down his gauntlet.

A February 11 editorial in the Economist captured the dynamic best. “Plenty of laws in America trump religious belief,” the editors wrote. “For example, Muslims may take only one wife.” This is, they continued, “a case of two contending principles. Catholic institutions are making a principled stand for what they see as the sanctity of life. The administration argues with no less conviction that the well-being of women depends on affordable access to contraception no matter where they work. It did not pluck this idea out of thin air: this was advice from the august Institute of Medicine” (the health arm of the National Academy of Sciences).

It was a clash that had been in the cards for some time—one that would, for the first time since the 1960s, raise contraception back to the level of abortion and gay marriage on the bishops’ list of unacceptable social policies. What made it possible was the shifting landscape of health insurance regulation and the finance of healthcare.

Until the passage of the Patient Protection and Affordable Care Act of 2009 (Obamacare), most aspects of health care and health insurance were regulated at the state level. Twenty-eight states, including most of the largest ones, require that all health insurance policies cover contraception, although there are a variety of exceptions or limitations for religious objections.

And a recent trend at the state level has been to require almost all employers to cover contraception if they provide workers with health insurance. In 2004, for example, the California Supreme Court upheld the state’s Women’s Contraceptive Equity Act by a 6-1 vote.

Similar laws have been enacted in New York and others states, all of them based on very narrow definitions of exempt religious employers, mostly just for houses of worship. And so, in many places, Catholic institutions have been obliged to cover contraceptive services, sometimes by court action, sometimes not.

The legal reasoning that underlies many of these laws and judicial decisions has been shaped by the U.S. Supreme Court’s 1990 decision in Employment Division v. Smith (ironically written by Justice Antonin Scalia), which reduced the scope of free exercise of religion claims in cases of “neutral laws of general application.” (For a discussion of the free exercise of jurisprudence and the current litigation, see the accompanying article by Marc Stern.)

Obamacare shifted regulatory power over health insurance to the federal level. Congress left the technical definition of adequate health insurance to the department of Health and Human Services, which in August 2011 proposed implementation regulations that followed the California model.

That helped set the stage for the showdown. What also set the stage was the vigorous opposition to Obamacare of many Catholic bishops during its passage through Congress despite their longstanding support for universal health insurance, a fact that Obama clearly remembers.

During the fall, individual bishops and the U.S. Conference of Catholic Bishops lobbied the Obama administration hard for exemptions to the contraceptive mandate for Catholic educational, healthcare, and social service institutions. The new law already exempted Catholic healthcare institutions from providing abortions, and given the size of the Catholic health care system—one in six U.S. hospitals—most people expected a Democratic president facing a tough re-election fight to accommodate the Catholic leadership.

Things seemed to be moving that way. On November 12, when the newly elected president of the USCCB, Cardinal Timothy Dolan of New York, visited Obama in the White House. Dolan came away hearing that the president wanted to “work out the wrinkles.” Then, on January 30, Obama called Dolan to say he was willing to give Catholic institutions an extra year to comply, but not more.

Erica Werner of the Associated Press reported on February 11 that Obama knew when he made his decision that he “risked a fierce backlash if he required religious employers to provide insurance coverage for contraception in violation of their beliefs.” Werner reported that a number of administration officials, including Vice President Biden and then-chief of staff Bill Daley, both Catholics, “spoke of the need to be aware of the consequences, given how Catholic groups would view the decision and how it would affect them.”

“But the president was hearing from the other side, too,” she wrote. “Women’s health advocates and their allies inside the White House were adamant about the importance of making free contraception available to all women; to them it was a matter of health and fairness. Democratic senators and senior advisers joined in.”

And so, even if neither Obama nor his supporters ever spoke much publicly about the dispute, it is clear that Obama pulled the trigger.

It’s also likely that a less expansive view of “religious freedom” was held on the president’s side. In that view, religious freedom is, first of all, an individual right, not a right or preference that employers can force on employees in the marketplace. An expansive religious exemption might allow all sorts of employers to claim it, and most of the Catholic institutions at issue—hospitals, nursing homes, universities, social service agencies—received very large quantities of public funding.

After the initial blowback, the Obama administration offered one concession. Insurance companies rather than religious institutions would be required to pay for the contraceptive services. This would relieve the Catholic institutions, at least at the formal level, of the onus of providing contraception directly.

But that failed to move the bishops, and the battle was on, although it was the bishops who generated almost all the noise. At the head of the charge was a group of aggressive and vocally conservative bishops who have progressed into the upper reaches of the American hierarchy. These include archbishops Charles Chaput of Philadelphia, William Lori of Baltimore, Salvatore Cordileone of San Francisco, and Samuel Aquila of Denver.

“In the teeth of a perceived war on religion in America, the church is sending clear signals that it has no intention of backing down,” the National Catholic Reporter’s John Allen wrote on August 11. “Over the last six months, three of the country’s most important dioceses have been entrusted to prelates known for aggressively defending church positions on hot button issues such as gay marriage and abortion.”

Behind these episcopal elevations Allen detected the hand of Cardinal Raymond Burke, former archbishop of St. Louis and now a high Vatican official, who in 2004 led a movement of bishops who said they would deny the Eucharist to Democratic presidential candidate John Kerry and other Catholic politicians who supported abortion rights.

On the left side of the Catholic spectrum, many agreed that the Obama administration’s contraceptive mandate was unfair, but viewed charges that Obama was anti-religion as implausible. Gov. Martin O’Malley of Maryland, a Catholic who led the ultimately successful referendum for same-sex marriage in his state, called it “hyperventilating.”

In a June online column for Commonweal, Margaret O’Brien Steinfels, not a far left Catholic, asked what was causing the rift between the bishops and the administration. “Is it religious liberty, as they insist? Is it contraception and sterilization, as the headlines in my archdiocesan paper stresses? Is it desire, conscious or unconscious, to reassert their authority after the dog days of the sexual abuse scandal? Is it simply anti-Obama prejudice?”

Whichever, she wrote, “the daunting task of explaining Catholic bishops to others and to oneself has come a cropper. They are digging a hole from which they may never emerge.”

Standing in the middle of the fray, but giving somewhat mixed signals, was New York’s Cardinal Dolan, the highest flying of the “gung-ho bishops.” Dolan had worked hard to blunt contraceptive mandate and bellowed loudly when Obama backed it.

“Never before,” he wrote his fellow bishops in February, “has the federal government forced individuals and organizations to go out into the marketplace and buy a product that violates their conscience.”

But Dolan, whose usual public affect is more jocular than that of many bishops, also worked to mute those who were pushing for a complete break with the Obama administration, both in the hierarchy and among Catholic conservatives. He made irenic gestures episodically, appearing on the podium of both the Republican and Democratic conventions, inviting Obama to speak at the Archdiocese of New York’s Al Smith Dinner (alongside Mitt Romney), and asking both candidates to sign a “civility in politics” pledge proffered by the Knights of Columbus.

At the same time, Dolan was clearly behind one of the major counter-administration strategies of the spring: a massive collective lawsuit challenging the contraception mandate involving nearly 100 Catholic dioceses, colleges, and other institutions. These ranged from the Archdiocese of New York to the Franciscan University of Steubenville, a conservative hotbed that announced it was dropping all health insurance for its students in protest.

It also included the University of Notre Dame, which has not previously moved into line with the desires of many conservative Catholics—most famously in 2009, when it rejected the bishop of Fort Wayne-South Bend’s demand that the school disinvite Obama as its commencement speaker.

Some bishops hoped the suit would lead to a Supreme Court decision overturning the mandate (this was before June’s Supreme Court decision upholding Obamacare). Others, including, apparently, some untalkative bishops, pointed out that there were risks to this approach.

Writing in the June 6 issue of America magazine, published by the Jesuit order, Bishop Stephen Blaire of Stockton, California, noted his lawyers’ concern that the suit might be rejected on the same grounds that informed the 2004 California Supreme Court decision against providing exemptions for Catholic healthcare, educational, and social service organizations. The danger was that other already established exemptions for religious conscience in many areas of law might be undermined by such a decision.

That piece appeared in the middle of the June 21-July 4 Fortnight for Freedom campaign, marked by rallies and religious services all over the country, in which the bishops invited non-Catholics and those of many faiths who shared their concern about religious liberty to join in. In fact, there was an audience for the message about threats to religious freedom, mostly among white and Republican voters.

Released on October 23, the Public Religion Research Institute’s 2012 American Public Values Survey found that 60 percent of the adults it surveyed agreed that the “right of religious liberty is being threatened in America today.” Eighty percent of Tea Party affiliates agreed, as did 77 percent of Republicans, and 79 percent of evangelical Protestants, along with smaller majorities of mainline Protestants (56 percent), Catholics (58 percent) and black Protestants (54 percent).

But, when specifically asked whether religiously affiliated colleges and hospitals should be required to cover birth control at no cost to all employees, 56 percent of all adults agreed that they should—including 77 percent of African-American Protestants, 66 percent of religiously unaffiliated Americans, 56 percent of mainline Protestants, and 54 percent of Catholics. Strong majorities of younger, black, and Latino voters also supported the requirement.

And only a bare majority of those surveyed thought that houses of worship should be exempted. The report also showed little movement of opinion among either Catholics or others between surveys in the middle of the spring and late September.

So as an exercise in opinion formation or reformation, the Catholic bishops’ campaign bore little fruit.

Among less gung-ho Catholics, there were expectations of defeat, and even satisfaction that the bishops would come up short. For example, on October 14, the National Catholic Reporter predicted rejection at the polls:

“The bishops, for their part, face an uphill slog in this latest foray into the political arena. They’re paying a price for having allowed the most partisan elements in the conference to frame the Catholic position as a highly partisan, anti-administration stance and for doing everything they could to kill health care reform.”

“It’s no mystery why the administration is not now greeting them with open arms,” the magazine continued. “One of the early 21st century’s political realities is that the Catholic constituency is no longer a monolithic and dependable block. Politicians no longer pay the price they once may have for ignoring Catholic bishops or defying them.”

But for the Catholic hierarchy in America today, success at the polls may matter less than the opportunity to exert leverage on Catholics and Catholic institutions that haven’t been lining up with its program of engaged orthodoxy.

In this go-round, not only was the University of Notre Dame effectively pressed into the bishops’ lawsuit but also the Catholic Health Care Association, which attracted the wrath of many bishops in 2009 by supporting Obamacare, was induced to publish a letter stating that it agreed that local bishops appropriately defined the moral standards of health care in Catholic institutions. It was a letter that Cardinal Dolan was happy to publish.

Two generations ago, Catholics and their religious leaders eased out of the ghetto their ancestors had built to protect them from Protestantism and the acids of American skepticism. In doing so, they were fired up by the upward mobility of Catholics and inspired by arguments of insiders like the Jesuit theologian John Courtney Murray, who thought that Catholicism could influence society more powerfully by abandoning the methods of state church establishments.

But in recent years, more and more bishops have complained about the secularization of American society and the marginalization of the Catholic church in American life, not least in the lives of Catholics themselves. Like the present pope, many of them are increasing given to speculation whether they would be better off with a smaller, more orthodox and obedient Catholic population—with a return to the ghetto.

Most Catholics have not wanted to “shrink to greatness,” because such a move would drastically reduce internal resources and drive out their friends and family. (About 60 percent of Catholic voters believe that their church should emphasize its social teachings more and its opposition to abortion less, according to the American Public Values Survey. But it increasingly looks like many bishops are ready to do that, or at least to go down with their guns blazing.

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