His Eminence, Ross Cardinal Douthat

By Charles Pierce, Esquire

09 July 14

is Eminence, Ross Cardinal Douthat, primate of the Archdiocese of Dorkylvania, having issued a previous pastoral letter in which he warned gay people that they ought not to celebrate their right to marry quite so ... gaily was back over the weekend crowing just a bit over the Supreme Court's decision in the Hobby Lobby case which, he says, liberals ought to celebrate, because Hobby Lobby is not a sweatshop. (It just buys its inventory from them, and from China, where the government enforces mandatory abortion laws.) Actual liberals, alas, continue stubbornly to ignore His Eminence on the grounds that the magisterium does not contain as much Pecksniffian dweebery as His Eminence apparently believes it does.

Let's leave aside the fact that His Eminence seems puzzled by the concept of an earned benefit. (Let's see the Times cut his bennies, and see if he screams bloody murder about it.) Let's also leave aside the now-customary disinformation about "abortifacients." (At least, unlike George Will, His Eminence states flatly, if incorrectly, that these forms of birth controls cause abortions. Will, as we saw, hides behind the notion that a simple uninformed belief that this is the case is sufficient.) And let us also leave aside the fact that the good liberal company in question has a record on this issue that fairly reeks of hypocrisy and political opportunism. Apparently, the Greens believe that contraception offends their religious liberty only in those cases in which it can't make the Greens a buck or two.

But let us concentrate instead on what His Eminence truly is arguing here—that, by denying their employees a medical benefit those employees have earned by virtue of their being employees, the Greens are contributing to a traditional liberal vision of religious pluralism in this country. (DeToqueville!)

Historically, support for religious liberty in the United States has rested on pragmatic as well as philosophical foundations. From de Tocqueville's America to Eisenhower's, there has been a sense - not universal but widespread - that religious pluralism has broad social benefits, and that the wider society has a practical interest, within reason, in allowing religious communities to pursue moral ends as they see fit. But in the past, tensions over pluralism's proper scope usually occurred when a specific faith - Catholicism and Mormonism, notably - unsettled or challenged the mostly Protestant majority. Today, the potential tensions are much broader, because the goals of postsexual revolution liberalism are at odds with the official beliefs of almost every traditional religious body, be it Mormon or Muslim, Eastern Orthodox or Orthodox Jewish, Calvinist or Catholic. If liberals so desire, this division could lead to constant conflict, in which just about every project conservative believers undertake is gradually threatened with regulation enforcing liberal norms. The health coverage offered by religious employers; the activity of religious groups on college campuses; the treatments offered by religious hospitals; the subject matter taught in religious schools ... the battlegrounds are legion.

There's more going on here that simply Douthat's usual fallback position of sexual panic. (What in the hell do the "goals of postsexual revolution liberalism"—Oy!—have to do with an evangelical group's fight with the administration at Bowdoin College? Once again, to borrow a phrase from Garry Wills, we see Douthat reducing the Gospels to "the mere smithying of chastity belts.") There is a political consensus—which is all that is supposed to matter in the secular law—among the great majority of the members of all the traditional religious bodies that Douthat mentions that birth control is both medically necessary, ethically sound, and theologically benign. The Greens themselves clearly recognize this secular consensus, or else they wouldn't have invested their money in the companies that produce birth control. Unless Douthat is willing to argue that the universally derided and universally ignored Humanae Vitae should be the basis of federal law, or that the Greens somehow have a heretofore unnoticed clerical status beyond their position as employers, the fact is that secular practice ought to trump sectarian doctrine. If nothing else, the people who framed the Constitution believed that. (Also, note well that Douthat links to the Yoder case, involving the Amish and the public schools, and not to the Smith case out of Oregon, which involved native Americans and peyote, and which, because it prompted the enactment of the Religious Freedom Restoration Act, is more directly on point as regards Hobby Lobby. This is probably because, far from being consonant with the older ruling, Smith trimmed the Yoder decision back.) What the majority of the Supreme Court did, although the majority never would have the courage to admit it publicly, was to take it upon itself to decide the legitimacy of an individual concept of sin. Take their claim on its face—which I don't, but play along—and the Greens are arguing that being required to provide the earned benefit of contraception medicine to their employees would make them complicit in the sin those employees would commit by using those medicines. That is the heart and soul of the "religious liberty" argument in this case. That is also the sum total of Douthat's argument; otherwise, why is he making the "official beliefs" of" traditional religious bodies" a legitimate governmental interest in the lives of millions of people who might not belong to any of them? "Religious liberty" doesn't exist in a vacuum. In this case, the right of the Greens to practice their religion is not in question In this case, it means to be free from the obligation of being complicit in what you (publicly, at least,) proclaim to be sin. The Supreme Court could not have decided this case were it not willing to determine the legitimacy of the Green family's concept of sin. Good god, is that ever not Sam Alito's job.