As the Obama administration is beseeched from both sides about a potential religious exemption to its expected executive order barring federal contractors from discriminating against LGBT individuals in hiring, Catholic commentators continue to hold up the administration’s botched handling of the religious exemption in the contraceptive mandate as an object lesson in how not to craft an exemption.
On the left, E.J. Dionne calls for a “broad public consultation with religious groups” on the issue to avoid another firestorm:
After first providing a far-too-narrow exemption from the contraception mandate for explicitly religious nonprofits, President Obama came up with an accommodation that provides birth control coverage through alternative means….
It’s unfortunate that the Obama administration’s initial, parsimonious exemption for religious groups helped ignite the firestorm that led to Hobby Lobby. It might consider this lesson as it moves, rightly, to issue an executive order to ban discrimination against LGBT people by government contractors. I’ve long believed that anti-gay behavior is both illiberal and, if I may, un-Christian.
While on the right, Ross Douthat, who has backed broad religious exemptions, opines that “the contraceptive mandate itself would have never become a major political flashpoint if the administration had included a more expansive religious exemption from the get-go.”
The takeaway is remarkably similar for two men from opposition ends of the political spectrum: that the controversy over the contraceptive mandate could have been avoided if nonprofit religious organizations were exempted from the get-go. But this misses the fundamental problem with the so-called compromise. The problem wasn’t that the exemption that the administration crafted wasn’t broad enough. The problem was that the administration was trying to respond with a policy solution to what was essentially a political statement by the Catholic bishops.
The exemption as originally conceived was a perfectly rational policy response to the question of a religious exemption from the contraceptive mandate. In exempting only organizations that were primarily religious in mission and employed people of the same faith, the administration hewed to two closely watched state supreme court decisions in California and New York that upheld similar exemptions. Religiously affiliated groups such as Catholic Charities and Catholic universities and hospitals weren’t exempted because they serve broad populations and employ religiously diverse workforces, so it would be unfair to impose the church’s contraceptive ban on them.
The firestorm over the policy resulted because liberal columnists like Dionne and the National Catholic Reporter’s Michael Sean Winters came into the conversation about religious exemptions—a conversation that women’s health and religious liberty advocates had been having for over a decade—in mid-stream. They were apparently unaware of the reproductive health policy issues at stake, the previous precedents that had been set, or the bishops’ long-term efforts to use conscience exemptions to beat back efforts to expand access to contraception. It was their off-the-cuff, emotional responses to the mandate, which they perceived as an attack (Winters accused the administration of “punch[ing] us Catholics in the nose” while Dionne wrote that “Obama threw his progressive Catholic allies under the bus”) that made the original exemption politically untenable, not the formulation of the mandate itself.
What they failed to understand was that the Catholic bishops weren’t seeking a solution to the problem of how to protect the integrity of the Catholic ban on contraception while allowing Catholic-affiliated organizations to participate in a secular marketplace in a way that also protected the rights of employees and students who chose to use contraception. If they were, there were solutions at their disposal that had already been pioneered by the Catholic health care industry, using the principle of remote material cooperation.
In fact, a study of Catholic HMOs by Catholics for Choice (which, full disclosure, I authored), found that nearly half of the 48 extant Catholic HMOs in 2000 were providing coverage for oral contraceptives and contraceptive sterilization through a variety of methods, including funneling payment for contraceptives through third-party administrators or arranging for another insurer to provide the service. Surely Catholic employers could have made similar arrangements with their insurers.
The fact that the bishops refused to even sign on to the so-called compromise shows that for them the whole point of the exercise was to make a political statement about the moral unacceptability of non-procreative sex (especially for unmarried women), to save face about the fact that most Catholics use contraception, and to gin up “religious liberty” concerns that would backstop their campaign against same-sex marriage.
The lesson of the contraceptive mandate debacle isn’t that Obama should attempt to craft a resolution that will please both sides. It’s that it’s probably not possible to craft an exemption that will please those intent on making a last-ditch political statement that they won’t accept same-sex marriage without giving them carte blanche to ride roughshod over the rights of others.