Contraception, an Unrepresentative Church, and Unresponsive Courts

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Contraception, an Unrepresentative Church, and Unresponsive Courts

A shorter version of this piece was published in the Maryland Daily Record March 5, 2012

At this writing we still don’t have an outcome, either regulatory or political, in the fight between the President and the bishops over the proposed mandate that employers, including Catholic hospitals and universities, offer their employees health insurance plans with birth control coverage. But it is clear that the rhetorical battle line du jour is “religious freedom.”    The Catholic bishops call their rejection of the mandate “this effort to protect religious liberty and freedom of conscience for all.”  Their fellow-traveling politicans have sounded the same note.  Speaker John Boehner decried the regulation as “an unambiguous attack on religious freedom.”  Rick Santorum proclaimed that “it’s about freedom of religion” among other things.

The bishops may talk about “freedom of conscience for all,” but they do not mean all.  They’re actually quite selective about whose religious freedom is at stake. Clearly it is not the religious freedom of the 98% of sexually active American Catholic women have used so-called “artificial” birth control.  Nor is it that of the 57% of American Catholics who support the policy, including 59% of American Catholic women, per the Public Policy Polling Organization.  A just-published New York Times/CBS News poll turned up similar numbers.  Public Policy Polling summarized: “The Bishops really are not speaking for Catholics as a whole on this issue.”

Indeed not.  It does not take a great deal of cynicism to see this as an effort by the bishops to reassert a lost relevance, to point out to Catholic believers whom the bishops can no longer otherwise control that the hierarchy still rules the roost on Catholic turf.

If there seems to be something illegitimate here, though, it is this: that Catholic turf should not be the bishops’ to rule in the first place.  The hospitals and the universities were built with the funds and the blood, sweat and tears of generations of all Catholic believers, and should by all rights belong to all of their successors, the entire body of the faithful.  But legally speaking, that is not the case.  The deeds to every building, the title to every account, vest control in one constituency, the Catholic hierarchy.

Instead of acting like the in-title-only trustees of these institutions, accountable to those who built them and their successors, the hierarchy behave like the equitable owners.  And if you think these would-be owners are in favor of religious freedom for the rest of us in the Catholic fold, I have a bridge in Brooklyn I want to sell you.

Hitherto, the Catholic church has never claimed that its adherents and institutions should experience religious freedom vis-a-vis their own faith; that’s why all those heretics got burned at the stake, after all – why we had those Crusades and the Inquisition.  But a Church that for most of its history has been, internally, harshly authoritarian shouldn’t get to claim, in the midst of a national presidential campaign, that it is supporting religious freedom, of all things, especially for its female members, and, incidentally, for that of the men who love them.  Religious freedom is anathema, in the literal sense of the word, to my church.

Many of us who fill the pews (or, these days, sit in half empty ones) feel differently, however. We would like to see our faith acknowledge the views of those of us, evidently a majority, who see family planning as a good thing.  We would also like to see oral contraceptive medications also recognized as providing, and often being prescribed to provide, significant therapy for various medical conditions.[1]  We recognize employer-funded health insurance coverage of contraceptives as sound public health policy.  Our Church’s denial of any respect or accommodation for our views is antithetical to our religious freedom, and its use of institutions we and our predecessors built to reinforce that denial just compounds the insult.

This repeated disrespect for dissent and alienation of dissenters poses an existential challenge for the Church, however, in the decades ahead.  Everyone knows the Church has unsustainable problems, whatever metric one uses, whether it be the replacement rates of faithful,[2] of priests,[3] of nuns, or the survival of schools and churches,[4] or the state of church finances.[5]  I am certain that the largest cause for the Church’s decline is the authoritarianism of a hierarchy whose legitimacy is widely viewed as having disappeared.  The Church’s prospects for survival would be far more promising if there were some mechanism for turning out the current hierarchy and substituting one more responsive to what the majority consider to be God’s will.

And that problem is precisely highlighted by the birth control fight, which in part turns on whether the bishops on the one hand or the faithful on the other have the right to speak for the hospitals and universities.

In America, fights for control of institutions generally have a way of ending up in the courts.  I don’t see that happening with this one, however, because since 1872, the Supreme Court has been keeping courts and legislatures from second-guessing decisions about ecclesiastical control.  And the Court just did it again, unanimously, two months ago, in Hosanna-Tabor Evangelical Lutheran Church v. E.E.O.C.[6]

But not to choose is to choose.  Hands off doesn’t actually mean hands off.  It just means deferring to one side and one side only: the side controlling the hierarchical structures and tribunals, the deeds and the titles to the religious property.  That is the teaching of the precedents reaffirmed in Hosanna-Tabor.  It means going with the bishops even in the teeth of highly credible charges that by governing Catholic institutions in keeping with their doctrinal inflexibility they have abused their power and their trust.  It means choosing to let the bishops go on controlling what they “own.”

And that non-choice choice gives the bishops a huge and undeserved upper hand. It’s hard to have a faith anything like Catholicism without churches, schools, universities and hospitals.  This commons, once appropriated by a small entrenched and unrepresentative minority of the faithful, cannot be duplicated by the majority: the faithful have neither the means nor the energy to replicate them anew.

So, unchecked by the courts, the bishops will win.  But I predict their prize will be ashes.  There will always be religion and religions, but I’m gloomy about the future of my particular religion.  One in ten Americans has left the Catholic Church, making departed Catholics the second biggest “denomination” in the country.  Almost any Catholic can tell you about the good young men and women who leave and don’t come back, about the churches consolidating because there aren’t enough priests to say Mass on Sundays, about the closing parochial schools.  Anyone who thinks these stories are unrelated to the Church’s obduracy on the subject of birth control (and the usual list of related items: divorce, homosexuality, abortion, clerical celibacy, single-sex clergy, etc.) is deluded.  Disgust over that obduracy, together with the child abuse scandals, is the exact reason the Church is wasting away now and will continue to do so.

Will the last bishop to leave please turn out the lights of his church?  (It won’t be our church by then, thanks to courts that take sides by not taking sides.)

[1].    For these thoughts, I credit Max Romano, a medical student at the Johns Hopkins University School of Medicine, and various colleagues, in this piece.

[2].  Father John McCloskey had these observations in early 2006:

Before the Second Vatican Council, approximately 75% of Catholics attended Mass on Sundays. As of 2004, approximately 32% of American Catholics attend Mass every Sunday. On any given Sunday as many as 40% of American Catholics may be attending Mass even though some of them do not attend Mass regularly. Thus there are only more or less half as many Catholics attending Mass now as before the Council.

[3].  Father McCloskey said this on that score:

Let’s look at the numbers in the US first. In 1965, at the end of the Council, there were 58,000 priests. Now there are 41,000. By 2020, if present trends continue (and there is no sign of a dramatic upsurge in vocations), there will be only 31,000 priests, and half of those will be over 70. (To offer a personal example of the effect of these demographics, I was ordained in 1981 at the age of 27. Today, at the age of 52, I can still attend gatherings of priests and find myself one of the younger members present.) In 1965, 1,575 new priests were ordained. In 2005, the number was 454, a decrease of more than two-thirds — and remember that the Catholic population in the US increased during these years from 45.6 million in 1965 to the 64.8 million of 2005, a rise of almost 50%.

[4].  Father McCloskey said this in 2006 on that score: “Almost half the Catholic schools open in 1965 have closed; 4.5 million students attended Catholic schools in the mid-1960s, while today there are about half that many students.”

[5].  This is harder to get reasonable numbers on, because of the opacity of Church finances.  However, there is widespread anecdotal evidence that various dioceses are nearly bankrupt after paying settlements to abuse victims – and not receiving replacement donations from the outraged faithful.  See, e.g., this piece from National Catholic Reporter. Moreover, it is universally acknowledged that church finances at all levels lack adequate controls, internal or external, leading to endemic theft and embezzlement.  And what better way to ensure the autonomy of the priests and bishops in all matters spiritual and temporal within their fiefdoms than to assure that no one is allowed to look over their shoulders?

[6].  Justice Roberts summarized the decisional history – and I quote at length:

In Watson v. Jones, 13 Wall. 679, 20 L.Ed. 666 (1872), the Court considered a dispute between antislavery and proslavery factions over who controlled the property of the Walnut Street Presbyterian Church in Louisville, Kentucky. The General Assembly of the Presbyterian Church had recognized the antislavery faction, and this Court, applying not the Constitution but a “broad and sound view of the relations of church and state under our system of laws” declined to question that determination. Id., at 727. We explained that “whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of [the] church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them.” Ibid. As we would put it later, our opinion in Watson “radiates … a spirit of freedom for religious organizations, an independence from secular control or manipulation” in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952).

Confronting the issue under the Constitution for the first time in Kedroff, the Court recognized that the “[f]reedom to select the clergy, where no improper methods of choice are proven,” is “part of the free exercise of religion” protected by the First Amendment against government interference. Ibid. At issue in Kedroff was the right to use a Russian Orthodox cathedral in New York City. The Russian Orthodox churches in North America had split from the Supreme Church Authority in Moscow, out of concern that the Authority had become a tool of the Soviet Government. The North American churches claimed that the right to use the cathedral belonged to an archbishop elected by them; the Supreme Church Authority claimed that it belonged instead to an archbishop appointed by the patriarch in Moscow. New York’s highest court ruled in favor of the North American churches, based on a state law requiring every Russian Orthodox church in New York to recognize the determination of the governing body of the North American churches as authoritative. Id., at 96-97, 99, n. 3, 107, n. 10, 73 S.Ct. 143.

This Court reversed, concluding that the New York law violated the First Amendment. Id., at 107, 73 S.Ct. 143. We explained that the controversy over the right to use the cathedral was “strictly a matter of ecclesiastical government, the power of the Supreme Church Authority of the Russian Orthodox Church to appoint the ruling hierarch of the archdiocese of North America.” Id., at 115, 73 S.Ct. 143. By “pass[ing] the control of matters strictly ecclesiastical from one church authority to another,” the New York law intruded the “power of the state into the forbidden area of religious freedom contrary to the principles of the First Amendment.” Id., at 119, 73 S.Ct. 143. Accordingly, we declared the law unconstitutional because it “directly prohibit[ed] the free exercise of an ecclesiastical right, the Church’s choice of its hierarchy.” Ibid.

This Court reaffirmed these First Amendment principles in Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976), a case involving a dispute over control of the American-Canadian Diocese of the Serbian Orthodox Church, including its property and assets. The Church had removed Dionisije Milivojevich as bishop of the American-Canadian Diocese because of his defiance of the church hierarchy. Following his removal, Dionisije brought a civil action in state court challenging the Church’s decision, and the Illinois Supreme Court “purported in effect to reinstate Dionisije as Diocesan Bishop,” on the ground that the proceedings resulting in his removal failed to comply with church laws and regulations. Id., at 708, 96 S.Ct. 2372.

Reversing that judgment, this Court explained that the First Amendment “permit[s] hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters.” Id., at 724, 96 S.Ct. 2372. When ecclesiastical tribunals decide such disputes, we further explained, “the Constitution requires that civil courts accept their decisions as binding upon them.” Id., at 725, 96 S.Ct. 2372. We thus held that by inquiring into whether the Church had followed its own procedures, the State Supreme Court had “unconstitutionally undertaken the resolution of quintessentially religious controversies whose resolution the First Amendment commits exclusively to the highest ecclesiastical tribunals” of the Church. Id., at 720, 96 S.Ct. 2372.

Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694, 704-05 (2012).

Copyright (c) Jack L. B. Gohn

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  1. Joel Leininger says:

    It seems to me you pine for a democratically elected church hirearchy–such as exists in Congregationalist churches. The pastor gets out of step with the folks in the pews, he is at risk of being voted out. Everyone knows that–especially the pastor!

    The Roman church has never operated that way, and you knew that when you joined it. I’m puzzled, therefore, that you seem offended by the natural outcome: decisions come down–they don’t percolate up.

    Your insisting on religious freedom WITHIN the church is completely baffling to me. Without common beliefs, there is no body of believers. When everyone is free to believe what he wants, there will be no common beliefs, and the reason for the particular church to exist ceases. People are of course free to leave a particular church (or denomination) in search of one consistent with their conscience, but to insist on freedom of belief *within* a denomination is to render “belief” as a secondary premise for membership. Few Christians would sanction that. That’s what the Reformation was all about, you’ll recall.

    Preaching to the choir here, but the First Amendment is protecting my right to choose the church, not any right I may presume to have to stay in that church and disregard its teachings.

    Sorry for the tardy response, but I just tripped over your blog today and have been reading through it this evening.

    Your conservative friend and client,


  2. I don’t think I “joined” the Church; I was raised in the Church. It’s not like signing a contract. And why should I leave rather than insist on change? And why should change automatically mean chaos?
    Your not-so-conservative friend Jack

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