Last year the 1,400 branches of Catholic Charities served 4.6 million meals and assisted 6 million needy clients. Most observers consider Catholic Charities to be one of the nation’s exemplary social-service agencies as well as, well, pretty Catholic. Not in California. According to the California legislature and the state’s Supreme Court, Catholic Charities of Sacramento is just not Catholic enough. In a 6-1 ruling earlier this month, the court rejected Catholic Charities’ argument that it was an organization with an explicit religious mission and identity that prevented it from complying with a California law requiring employers to provide a prescription-contraceptive benefit to employees. In other words, California law now stipulates that Catholic Charities contravene Catholic teaching.
Regardless of what one thinks about the church’s teaching on the sinfulness of artificial contraception (and we think it is flawed), having the state determine what is and what isn’t a religious organization and then dictate policy on sexual ethics to church-affiliated groups is a blatant assault on religious liberty and freedom of conscience. Logically, the ruling could be extended to compel Catholic hospitals to perform sterilization or abortion procedures. Catholic Charities, long a provider of adoption services, may soon be required, contrary to church teaching, to place children with same-sex couples. Abortion and gay rights are deeply contentious and divisive issues, and the Catholic Church holds no special access to truth when it comes to public policy. But forcing religious groups that have traditionally provided public welfare and health services to either violate their moral principles or abandon cooperation with the state in charitable work violates the most basic rights of conscience. Religiously distinctive institutions licensed to operate in the public sphere should not have to act like secular institutions. Moreover, the law imposes an unfair burden on Catholic Charities, since reasonable alternatives exist that can provide access to prescription contraceptives for California’s citizens. As the writers of the Bill of Rights knew, religious pluralism needs protection, especially when a religious group’s teachings are unpopular. Even wholly misguided religious teaching has traditionally been given broad protection as long as it did not compromise the state’s compelling interest in protecting fundamental rights.
How did California’s high court arrive at such a decision? In writing the law, which was designed to remedy women’s relative lack of access to contraceptives, the California legislature went out of its way to narrow the scope of exemptions for religious organizations. In order to qualify as a religious entity under the law, Catholic Charities’ principal aim would have to be proselytization, and most of its employees and those it served would have to be Catholic. In other words, only the most sectarian charitable operations qualify. That requirement in itself violates the religious liberty of Catholic Charities, which by conviction serves all the needy, regardless of religion, and employs those who share its mission even if they don’t share its creed. As Justice Janice Rogers Brown, the court’s sole dissenter, wrote, “[The court’s ruling] is such a crabbed and restrictive view of religion that it would define the ministry of Jesus Christ as a secular activity.” By restricting Catholic Charities in this manner, the court not only does violence to the free-exercise clause, it expels religion even further from the public square, largely confining it to the realm of private spirituality.
Twenty states have “contraceptive equity” laws, and some, such as New York, impose similarly narrow definitions of religion. Branches of Catholic Charities in California are now faced with either complying with the ruling and implicitly disavowing Catholic teaching, doing away with prescription-drug benefits altogether, or appealing the decision to the federal courts. The prospect of overturning the decision at a higher level, however, is anything but certain.
The California court rested much of its legal reasoning on the controversial U.S. Supreme Court ruling in Employment Division v. Smith (1990), written by Justice Antonin Scalia. In Smith, the Court rejected the claims of Native Americans that their use of peyote was protected by the First Amendment’s free-exercise-of-religion clause. Before Smith, the free-exercise clause was understood to allow exemptions to laws infringing on religious practice if the state could not prove that the law served a compelling state interest. For example, Catholic children are allowed to drink sacramental wine and Amish children are not required to attend school past the eighth grade. In Smith, however, the Court significantly narrowed its understanding of such exemptions, ruling that religious groups do not have a right to any special accommodation even from burdensome laws, as long as the laws do not single out any particular religious group.
Perhaps the California ruling against Catholic Charities will help further illuminate the limitations of Smith. Religious groups that are deeply and positively engaged in the public square, but which hold certain moral views that are rejected by the majority of Americans, now face real threats to their religious liberty. At stake here is not the rightness or wrongness of contraception. What is at stake is the recognition that citizens have loyalties higher than those to the state. In the guarantees of religious freedom written into the Constitution, the Founders acknowledged that such loyalties are essential attributes of a free and democratic people, not threats to the common good. Only the most compelling reasons can justify the state’s intrusion into religious practice. A country that protects the conscientiously held views of those who dissent from majority opinion gains far more than it loses. Infringing on the religious liberty of those who run Catholic Charities undermines the rights of all.
