Legislating the Constitution Down

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A big story getting barely any press outside of Catholic media is that the government is getting ready to press ahead with policies intended”note the word, intended ”to intrude upon one of the fundamental rights on which the nation was built: the freedom of religion.

Under the 2010 health care law colloquially known as “Obamacare,” the U.S. Department of Health and Human services is determinedly plowing forward with its so-called “contraceptive mandate””all private health plans are to cover contraception and sterilization as “preventive services” for women, and the mandate includes individuals and groups with moral or religious objections.

This is a policy so clumsily intrusive that even the University of Notre Dame is complaining about it; President Father John Jenkins, C.S.C., in a letter to HHS Secretary Kathleen Sebelius, said the mandate places Notre Dame (and, of course, all Catholic colleges) in an “impossible position” of having to defy Church teaching. “[The mandate] would compel Notre Dame to either pay for contraception and sterilization in violation of the church’s moral teaching, or to discontinue our employee and student health care plans in violation of the church’s social teaching,”

The government’s position is that their notion of “women’s health” must trump moral or religious concerns. It seems that one of the most fundamental freedoms provided for by our Constitution and the Bill of Rights ends at the beginning of a double-X chromosome.

Meanwhile, following a ruling by Circuit Judge John Schmidt, Illinois is moving to end a year-to-year adoption services contract with Catholic Charities, after four diocese in the state said they could not, in good conscience, place children in households with two unmarried adults. As in Boston and San Francisco, the church may soon have to exclude itself from offering adoption or placement services in Chicago and elsewhere in the state.

Reading through blog comboxes on these stories, one stood out. A supporter of the mandate who was clearly all out of sympathy for the church suggested sarcastically that Catholics were being asked to carry a heavy cross in giving up “one of their entitlements .”

But here is the question: if a church-based organization has”for decades”served the community through placement assistance for adoption or foster care, and if that service is now to be defined as an “entitlement,” is it one that should be lost or preserved under the constitution? The argument being made is that, since there is no such thing as a “right” to place children for adoption, then there is nothing to protect. But what about the right of a religious organization to be what it is, in its chosen service to a community?

There is no “right” to adopt, of course. For that matter, there is no such thing as a “right” to be married, whether one is hetero-or-homosexual. Yet gay marriage activists will tell you that legalizing same-sex marriage is intrinsically tied into a homosexual couple being “who they are” in society.

Well, all right. I can understand any person, or couple, wanting to be allowed to “be who they are” without government intrusion into their lives. Why, then, should a church have to surrender an activity simply because it is bound to perform it in obedience to its own strictures? Why must a constitutionally protected entity be put in a position by which it must either cease to be what it is, or recede into the background, and outside of the public realm?

This is how America will fade away, not with bursting bombs or tidal waves, but with legislators and courts reshaping the notion of rights and entitlements until they become difficult to tell apart, and then deciding who gets to be who they are , and who must change or be ostracized. “Live and let live” which is a dandy and peaceable philosophy acknowledging differences of opinion and perspective, is being supplanted by “think one way, or else.”

Look, if the government desires to provide women with free contraception and sterilization, it is quite free to codify that dubious benefit under existing medical programs, without mandating participation by any entity at all. Likewise, any legislation concerning any “entitlement” can be written with built-in protections and exemptions for religious service-providers. That so many politicians choose not to include such stated protections”or to write them so narrowly that they are easily unraveled”says a great deal about their commitment to the Bill of Rights, and it portends poorly for our constitutional future.

It seems that believers”particularly Catholics, Evangelical Christians and the Eastern Orthodox”are entitled to enjoy their freedom of religion, but only so far as advancing policies will allow. Thus is a precedent set that may chip away at one right after another”the right to freely assemble; the right to arm oneself; the right to speak one’s mind.

The HHS mandate, and the ruling in Illinois are both indicators that as same-sex marriage advances we will see civil suits brought against churches unwilling to perform homosexual weddings. The courts will likely push back against that encroachment for a while, but once the freedom to publicly practice a religion according to conscience has been penetrated and altered, it will not take long for a new generation of judges”as subject to pressure and sentiment as anyone”to take the easier path and submit to conventional wisdom, churches be damned.

If the government wishes to redefine the enumerated freedoms within our constitution, it demands more than a piece of legislation”even one supported by the growing tyranny of our sentimentalism. Upending fundamental liberties should require an amendment to the constitution. If our politicians are able to erode rights simply by writing policy, and if they can declare “outside the law” those who had previously worked under the protections of the constitution, then the nation is in grave danger of losing its heart, mind and soul.

We are watching the government initiate an erosion of religious freedom, by narrowing the scope of that freedom until the churches are excluded from the public arena, entirely. Freedom of Religion will soon enough become a right that is protected ” but only as long as one keeps it to oneself.

Elizabeth Scalia is the Managing Editor of the Catholic Portal at Patheos and blogs as The Anchoress . Her previous articles for “On the Square” can be found here .

RESOURCES

Fr. John Jenkins responds to HHS

Catholic Charities loses battle in Illinois

Archbishop Dolan’s letter to White House re gay marriage [PDF]

Elizabeth Scalia, Dictatorship of Sentimentalism

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