What if a state legislature enacted, and a state Supreme Court upheld, a law forcing family businesses operated by Orthodox Jews to remain open on the Sabbath?
Surely, reasonable people -- including those who don't share Jewish views on the Sabbath -- would recognize this as a crass and unconstitutional act.
So, too, should they regard the law upheld this week by a 6-1 decision of the California Supreme Court that orders various institutions of the Roman Catholic Church to purchase insurance that will provide artificial birth control to church employees.
In their petition to the California Supreme Court in this case, lawyers for Catholic Charities of Sacramento, a branch of the local Catholic diocese, convincingly demonstrated that a law compelling state employers to provide insurance coverage for prescription birth control (if they provide their employees with any prescription drug coverage at all) was specifically aimed at forcing Catholic institutions to act in contradiction to Catholic teaching, which holds that artificial birth control is wrong.
When the California legislature considered this bill in 1999, PricewaterhouseCoopers conducted a study of health insurance practices in the state. It found that "coverage of reversible forms of contraception is available to approximately 90 percent of insured Californians." A law mandating this coverage largely "would codify existing practices."
But Catholic institutions stood conspicuously outside the birth-control fold, and sponsors of the bill found this intolerable. As introduced, their legislation contained no exemption for church institutions. A report by staff of the Assembly Committee on Health said: "(T)he sponsors of this bill strongly object to a religious exemption."
California Sen. Jackie Speier, a Catholic who sponsored the legislation, attacked her church's teaching on birth control on the senate floor. "(L)et me point out that 59 percent of all Catholic women of childbearing age practice contraception," she said. "Eighty-eight percent of Catholics believe in a New York Times poll that someone who practices artificial birth control can still be a good Catholic. I agree with that. I think it's time to do the right thing."
The soul of tyranny dwells in this illogic. If 59 percent of Catholics said two plus two is five, would that justify California mandating that the Catholic Church concede two plus two is five?
Ultimately, the sponsors were forced to accept a fig-leaf religious exemption, so narrow as to be almost meaningless. As the ACLU summarized it in a brief supporting the law, it exempts "clergy officials and members of religious orders, who serve primarily spiritual missions and serve the church congregation" but not religious "hospitals, universities and relief agencies." The Catholic Church would be forced to buy birth control for lay administrators at a Catholic hospital, but not for the nun who takes care of the chapel.
Another brief filed collectively by the Lutheran Church-Missouri Synod, the International Church of the Foursquare Gospel, the Worldwide Church of God and the U.S. Conference of Catholic Bishops said: "The legislation challenged here is the camel's nose under the tent, the cutting edge of an attempt, by making a church pay for what it explicitly opposes, in effect to silence a church's message and mission anytime it does not conform to the prevailing secular wisdom."
With all due respect, the churches are wrong about just one thing here. The camel's nose was already under the tent. It went under when government succeeded in dictating to private businessmen of whatever religious denomination, or of no religion at all, just exactly what sort of insurance coverage they must offer their workers. The beast was up and stumbling under the canopy when no battle was pitched to protect individual Catholic entrepreneurs, as opposed to the church as an institution, from being forced to purchase artificial birth control for their employees.
Individual liberty fell first.
"Today's case is about contraceptives," said the churches' brief. "Tomorrow's will present some other issue that elicits public division, such as abortion, assisted suicide, cloning, or some issue of self-governance, such as the use of resources for evangelization or who a religious agency may hire to do ministry."
There is no doubt these battles are coming. Those who fight them should remember that they are not about the liberty of one group, or one religious denomination. They are about liberty, period.