Smart v. Stupid
U.S. Constitution: Bishops don’t get a veto
A civics lesson for John Boehner and the bishops
Here's a civics lesson for John Boehner and the Catholic bishops who have vowed to sue the federal government over rules requiring that insurers provide women with birth control without a co-pay or deductible:
The first thing you need to know is that bishops don’t get a veto. Given the hyperbolic rhetoric now spewing from the likes of Boehner, Newt Gingrich and Rick Santorum, you could be forgiven for believing that churches have constitutional protections. They don’t. If anything, they are disfavored in constitutional law.
Cornell University Law School, in its well-regarded annotation of the U.S. Constitution tells us that the Supreme Court unanimously found in Everson v. Board of Education, “that the Establishment Clause forbids not only practices that ‘aid one religion’ or ‘prefer one religion over another,’ but as well those that ‘aid all religions.’”
What about the First Amendment you say? The Bill of Rights (and its 10 amendments) applies only to individuals, not denominations. Again, this is not an opinion, it is settled constitutional law. According to The Freedom Forum (which underwrites Vanderbilt’s First Amendment Center), “The First Amendment affirms the freedom of the individual.” Further, the Supreme Court itself recently reaffirmed in the Heller decision that the Second Amendment was an “individual right.” The Bill of Rights protects only the rights of individuals (as was the expressed intent of its writers back in 1791.) They have not, so far, conveyed Citizens United-style rights to churches.
So how does this translate regarding today’s issue du jour? When John Boehner says Congress will pass a law to confer veto power to religion, he is showing how little he cares about our founding documents. “Congress shall make no law” is pretty darn clear. The federal government may rightfully consider the view of Catholic bishops when crafting law, but only insofar as they are equal in stature to the 98 percent of Catholic women who use birth control. Bishops, in their professional capacity, have no special legal standing specifically because they represent a church.
Our Constitution guarantees that individuals be free from religious coercion. A church may cajole, threaten, beg, bother or excommunicate a member regarding these choices, but it can’t – in the USA – interfere if the individual chooses to ignore his, her, or someone else’s religious dogma. The government is simply not allowed to bend to the will of any religious hierarchy for any reason. To do so violates the oath to protect and defend the Constitution.
Further, while an individual conscience exception is allowed, no such right exists for a church. If it ever did, churches would be above the law – including churches run by the likes of David Koresh, Terry Jones, Jim Jones and Omar Abdel-Rahman. Imagine if some nutty, snake-dancing pastor decided that death by fire was part of God’s plan, and so refused to install sprinklers in his mega-church. It’s not so far-fetched.
But in fighting this fight, the bishops seek to have the government legislate what they have failed to inculcate. Almost all Catholic women have used birth control for family planning. Arguably most of their partners – good Catholic men among them -- are complicit. So what the bishops hope to do is to rectify a pastoral failure – the near 100 percent rejection by their own flock. Having failed in the use the tools of religious teaching – faith, fear and persistence – they want to fall back on the Feds to do it.
Yet there is a compelling public health interest in birth control. Ninety-nine percent of women want it. Of men, one in three is using condoms. And according to the National Institutes of Health, 700,000 women choose sterilization each year, most after a successful delivery. Yet all would be banned in a world where religious leaders have a veto. In some religions, women even lose the choice about whether to have intercourse or with whom.
There are more than 6 million pregnancies in the United States each year, about half of which are unplanned. Planned pregnancy improves a woman’s earning power, general heath, and family well-being. Smaller families are more able to help children go to college. And smaller families are less costly to our safety net when things go wrong.
According to the Guttmacher Institute, one in five pregnancies is entirely unwanted. That’s as many as 1.3 million children highly likely to end up as wards of the state. We’d all agree that every child should have loving parents who want him or her, right?
So in the end, there are two important lessons to be taken from the bishops' attempt to veto. One, laws enforcing religious dogma are unconstitutional. And two, if you’re for Planned Parenthood, you need to get up off the couch about birth control. The decoupling of politics from women’s health is ongoing.
Jimmy Zuma splits his time between Washington, D.C. and Tucson. He writes the online opinion journal, Smart v. Stupid. He spent 5 years in Tucson in the early ‘80s, when life was a little slower, swamp coolers were a little more plentiful, Tucson’s legendary music scene was in full bloom, and the prevailing work ethic was “don’t - unless you have to.”