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Jack L.B. Gohn: Contraception, an unrepresentative church, and unresponsive courts

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 percent of sexually active American Catholic women have used so-called “artificial” birth control. Nor is it that of the 57 percent of American Catholics who support the policy, including 59 percent 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. 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.

Existential challenge

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, of priests, of nuns, or the survival of schools and churches, or the state of church finances. 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.

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 10 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.)

Jack L.B. Gohn is a partner with Gohn, Hankey & Stichel LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at www.thebigpictureandthecloseup.com