Monday, March 19, 2012

Should the "High and Impregnable Wall" Still Stand?

While I have been trying to stay out of the argument of the contraception debate, I feel that it is becoming too prominent now to ignore. This week, we have seen a strong objection from the U.S. Conference of Catholic Bishops. On CNN's Belief Blog, two journalists posted this article regarding the new proposal of religious exemption. Along these same lines, a fellow professor at Georgia State Universtity also wrote an opinion piece on Religion Dispatches that compliments this article from CNN and my thoughts quite nicely. First, the article posted on CNN is looking to the growing numbers of religious exemptions pertaining the contraception policy. On the legal side of things, President Obama is proposing that rather than the religious institution paying for the contraceptive coverage that the insurance policy would pay . Here, we see not only the individual being exempt but also the religious institution. What started as a debacle over Catholic hospitals and institutions is now turning to religious universities. In the conference call that took place on Friday, the new policy is suggesting a "four-part definition of who might qualify." Marrapodi and Yellin note that the definition entails, "the group must have religious values as its purpose, primarily employ people who share those religious beliefs, primarily serve persons who share those beliefs and be a nonprofit organization." Marrapodi and Yellin go on to write that earlier in the year when the mandate was first being introduced, "Religious colleges and charities were all but written out of the definition, so they would not be included in the exemption. . . .the administration said it does not want the new definition used as a precedent for future policies and regulations." 
This is where I would like to interject and pose my concern. As noted in Ravitch's law reader, there has been a historical shift in how the U.S. Supreme Court deals with the Establishment Clause and further, the messiness involved in the "public purse." The shift began with the Supreme Court enforcing a "high and impregnable wall" between the church and state in regards to the Everson vs. Board of Education case. Moving forward with the Lemon vs. Kurtzman case in (    ), we note a shift in the Justice's ruling that there will always be an entanglement of law and religion and that sometimes fuzzy lines must be drawn to avoid "excessive entanglement" and that religious freedom still be upheld and honored. This shift is apparently still recognized today as we can see with the changing of the definition of who might qualify for religious exemption regarding the contraception mandate. As Dr. Ruprecht writes in his article (linked above),  "If you want to run as a Catholic hospital or a Catholic university and not offer the full array of health care services to women as mandated by the state, then don't implicate yourself in any federal or state funding. Not one penny." While Dr. Ruprecht suggests that this is a "pretty simple solution," I would argue that on the surface it presents itself as so, but with such a historical shift in Justice's opinions, I am not sure that the Supreme Court would want to go back in time per se. While I understand that the Justice's in the Lemon vs. Kurtzman trial were honestly trying to uphold the importance of the First Amendment for its people, I fear that the more the government allows for such blurry lines to be drawn and to be weary of their decisions (aka, not wanting the new four-part definition of who is exempted to be used later) is allowing for "excessive entanglement" to intensify. Where does the government draw the line in such a predicament? While the public sees that the government is remaining consistent in their decisions (in a sense), there are consequences developing that I fear might be worse (or even avoided) had the government continued recognizing a "high and impregnable wall" that stands between church and state. As the plot thickens, I am interested to see if/where the contraception mandate moves in the progression of the courts. 


bethd said...

It is interesting to see what transpires with this issue. Whichever direction it goes I don't think it will satisfY all parties involved in this debate. I still take the stand that it would be an infringment of the churches religious rights under the First Amendment l.e. their freedom of religious practice. After all they are not saying the employees cannot take the contraceptives, they just do not want to pay for it, because it would fund something that goes against beliefs. To strong arm the chuches by threathening to not give them goverment funding unless they do as they are told by the government,I believe is not any better than forcing them to renounce their religion. Will this mean we have to continue changing or modifying religious belifs to accomodate and meet government standards?

Kyle I. said...

Kathryn, I thought the article you linked from Religion Dispatches was spot on and a really helpful reminder in this debate. While I know the Bob Jones decision is not necessarily good law anymore, I think the argument stands against funding programs or institutions antithetical to government interests in public welfare or allowing for tax exemptions to those institutions.
We forget that tax exemption is not a right nor a necessity. In these public purse cases, we have seen the necessary entanglement that arises from federal funds being directed towards religious institutions. As the saying goes, "Money always comes with strings attached". The Roman Catholic Church does not seem to be aware that taking vast sums of federal funds means the government has a vested interest in how those funds are being used. Divesting themselves from federal funds would strengthen their argument.

Carrie B said...

This is a very interesting perspective on this article. I think the propositioning of the case in terms of excessive entanglement is useful. I agree with Kyle's assertion that tax exemption is not a right. Still, through all of this underlies the rights of an organization that affects the rights of individuals. Churches and religious organizations have historically been tax exempt, so does this mean, as Kyle suggests, that they have to abide by government interest in these funds? I would like to know more about the historical reasoning for the tax exempt status of religious organizations. To what extent is this considered a privilege? Has it ever been considered a right?