Religion isn't issue, Constitution is

Saturday June 2, 2012


The Obama administration is neither at war with Catholics nor at war with religion. Anyone who falls for this nonsense is either blinded by personal hatred for the president or ignorant of the facts.

Mitt Romney, Republican Party leaders and GOP members in Congress, right-wing groups, right-wing media, and evangelical groups -- are all peddling this big lie for political purposes in an election year. Roman Catholic Church leaders mislead the public when they talk about values. Rev. John Jenkins, the president of Notre Dame, said that this is a matter of preventing the government from imposing its "values" on religious institutions when these "values" conflict with religious teachings. The mainstream media for the most part have only reported the statements made by these individuals and groups, instead of reporting what actually is involved.


When all the political hate rhetoric is stripped away, the real dispute between the leaders of the Catholic Church in America and Obama’s administration is a secular, constitutional issue. The Church has chosen to become involved in many activities that are secular in nature. This includes the running of hospitals, schools, universities and charities which are activities treated the same by government regulation as are such activities run by non-re ligious, non-profit institutions.

The national health care law is one such regulation. It states that employers involved in such activities must provide health care coverage to em ployees and in particular must cover women as specified by regulations promulgated under this law. These regulations re quire such coverage for contraception, sterilization procedures, abortion-inducing drugs, and counseling. Catho lic Church leaders claim that their religious teachings of opposition to the use of contraceptives and against abortion af fords them a constitutional right to be exempt from this regulation under the First Amendment right of freedom to exercise their religion.

Explaining why the Church took the Obama administration to court over this claim, Cardinal Timothy Dolan of New York, the president of the Conference of Bishops, said that the administration is on the wrong side of the Consti tution. He did not say that the president was on the wrong side of the Bible. He recognized that the Constitution and laws passed under it are the supreme law of the land. Con gress passed the health care law and the Constitution commands the president "to take care that the laws be faithfully executed."

Cardinal Dolan, Rev. Jenk ins and other Church leaders first lobbied Congress to re peal the provision dealing with reproductive issues, but the Senate defeated the measure 51 to 48. They then attempted to reach a compromise with the White House, but were not satisfied with the compromise making this coverage optional and to be paid by the insurer.

The Supreme Court is going to rule soon on the constitutionality of the overall mandate for insurance coverage under this law in other court challenges based on Congress exceeding its power under the Commerce Clause. But Church leaders de cided they could not wait for this ruling, so they filed their own court action based on the narrow issue of the First Amend ment Free Exercise Clause.

The Supreme Court since 1878 has ruled against challenges to various laws based on claims that they violated the Free Exercise Clause. These laws include anti-polygamy laws (a Mormon Church doctrine), Social Security laws (the Amish refused to comply on religious grounds), selective service law (conscientious ob jectors refused to serve on religious beliefs) and Sunday closing laws (opposed on religious grounds).


Constitutional law scholars point to the 1990 Supreme Court case of Division of Em ployment v. Smith as the leading case in this line of decisions which explains the constitutional doctrine applied by the Court in Free Exercise Clause cases. In this case, two employees of a non-religious drug rehabilitation center were fired for misconduct. They used peyote, an illegal substance, as part of a religious ritual in their Native American Church. They were denied unemployment benefits because they were fired for misconduct.

They resorted to the courts to overturn this denial based of the Free Exercise Clause. The Supreme Court upheld the de nial with an explanation of the constitutional doctrine in volved. A majority of the Court stated that the none of the case precedents go so far as to support the defense that a conscientious opposition (using peyote based on a religious belief) releases objectors (the two fired individuals) from any conflicting duty (the law making the use of peyote a crime) by a democratic government with a neutral law generally applicable to everyone.

In other words, if people were allowed to become exceptions to such neutral and generally applied laws because of religious beliefs, they would become laws unto themselves causing a serious disruption of our democratic relationship be tween religious entities, the government and society. Based on its precedents, the Court is not likely to side with the Catholic Church in this case. Otherwise, religious groups would be able to pick and choose which laws they would and would not obey with devastating consequences for our government which is based on the rule of law.

Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.


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