I have a world of respect for Judge William Carey, and I enjoyed the opinion piece he submitted to The New Bedford Standard-Times published Sunday, March 11 (“Your View: A free lunch on contraceptive services.”) That said, I do wonder if Judge Carey is picking favorites regarding the specific clauses in the First Amendment to our national Constitution. “… or prohibiting the free exercise thereof … ” is the second clause in the Amendment, and where the faithful usually hang their hat, but we do curtail religious practice in this country, don’t we? In fact, the very first time the Supreme Court interpreted this clause, that’s the conclusion it reached. “Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices.”
The Reynolds case involved a member of The Church of Jesus Christ of Latter-day Saints who married a woman already married to another man. Now, in the Mormon religion, polygamy is considered a religious practice sanctioned by their holy creed, and we stopped it dead in its tracks. As recently as 1990, the Supreme Court was willing to uphold state laws that criminalize certain religious ceremonies, albeit only indirectly. In Employment Division, Department of Human Resources of Oregon v. Smith, our High Court ruled that Native Americans were not exempt from the laws of our land, and could not ingest peyote during religious ceremonies while it remained as a criminal offense on Oregon’s books. So long as the prohibition against peyote indiscriminately applied to all Oregonians, the faithful had to bow to it.
Notably, Florida screwed this up in 1993 with Church of Lukumi Babalu Aye v. City of Hialeah when they sought to-single out a specific religion, Santeria, and criminalize a particular religious practice: animal sacrifice. We even saw a bit of such prejudice right here in my home town of New Bedford, Massachusetts, recently when William Camacho was discovered holding chickens for slaughter and consumption in accordance with his chosen religion, Palo Mayombe. A Caribbean religion similar to Santeria. With all the hoopla involving Mr. Camacho, I laughed out loud at the hysterical proposition that the chickens in Mr. Camacho’s custody met a harsher fate, prior to his dinner, than do the commercially processed birds that land on our dinner tables.
Let me tell you something, take a glance into the world of commercial poultry and you will soon realize: That was one pampered chicken.
So, here we are. The Catholic Church and its ministries, including private universities and hospitals, have a religious prohibition against providing their employees with birth control. The government has mandated that all employers in the country provide their employees with the same. The mandate in question in no way singles out the Catholic Church; it clearly applies to all employers and all employees across the nation. And, yet, the Catholic Church has hunkered down for a fight. Do they think they can win? Probably, and due in no small part to the general belief that Judge Cary touched upon in his letter: that this is a Christian nation.
This leads us to the first clause in the First Amendment, “Congress shall make no law respecting the establishment of religion.” Is the United States of America a Christian nation? Well, that depends upon how you choose to construct the question. Yes, the overwhelming majority of Americans identify themselves as Christian. This is both clearly true and part of the problem. It’s problematic because, as such a strong majority, they stand ready to run roughshod over the rights of their fellow religionists, and the rest of us, by promoting a vision of America that incorporates their beliefs while ignoring those of others. In the matter at hand, the Catholic Church wants preferential treatment due to its sheer numbers and kindred spirit with the far larger population of Protestants.
Implicated here are the economic and social consequences of supporting unwanted children often shouldered by unwed mothers who otherwise had dreams and opportunity of their own. I can hear the mantra now: abstinence, abstinence, abstinence. This always reminds me of that old saying, “Conservatives care a great deal for your baby – right up to the moment he or she is born.” Is this a Christian nation? No, not as long as the establishment clause prohibits that final, governmental endorsement and the Equal Protection Clause of the Fourteenth Amendment stands ready to protect religious minorities from the, “tyranny of the majority,” in Tocqueville’s words.
Judge Carey’s preferred construction of this debate is that it’s all about a, “struggle for power,” but isn’t every political, social or commercial contest a, “struggle for power,” if you so choose to view it that way? The definition of, “power,” is getting someone to do something they don’t want to do.
Mike Frates practices criminal law in the City of New Bedford, Massachusetts. Originally published in the New Bedford Standard Times, March 15, 2012.