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June 14 - 16, 2012

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Contraception

March 20, 2012
The Catholic Bishops Misunderstand Religious Liberty 1960-2012
Guest Post

By Leslie Griffin, Larry & Joanne Doherty Chair in Legal Ethics at the University of Houston Law Center

Before the Second Vatican Council (1962-1965), the Catholic Church condemned the separation of church and state and taught that only Catholics had the right to public worship and religious liberty. In a series of nuanced essays written from 1940-1965, the New York Jesuit Catholic priest John Courtney Murray developed a historical argument that the prohibition on separation was not a timeless, universal norm, but was best understood as a response to the anticlerical liberalism of modern Europe. Hence, Murray concluded, American Catholics could favor the separation of church and state even though Rome (mistakenly) opposed it. Senator John F. Kennedy consulted Murray as he prepared his famous 1960 campaign address to Houston Baptist ministers pledging his commitment to the separation of church and state. The speech set the stage for Kennedy’s election as the first Catholic president of the United States.

The bishops of the Roman Catholic Church approved the Declaration on Religious Freedom, Dignitatis Humanae (DH), at the last session of the Council in December 1965. DH changed prior Catholic teaching by affirming that religious liberty is the right of every human person, not a right of Catholics only. Murray was the lead drafter of the declaration.

Murray told reporter Robert Blair Kaiser in 1965 that the “resolution of the religious liberty issue had ‘transferential implications’ for those trying to work out the birth control question.” The “birth control question” asked if the church should revise its prohibition on artificial contraception. After extensive debate and reports from a papal commission, the church did not do so. Pope Paul VI instead reaffirmed the immorality of contraception in his 1968 papal encyclical Humanae Vitae (HV).

HV is the intellectual source of the Catholic Church’s current battle with the Obama administration over the provision of contraceptive insurance to its Catholic and non-Catholic employees. The church teaches that contraception is morally wrong as a matter of natural law for all men and women, Catholic and non-Catholic, married and non-married, without regard to whether they choose to believe or accept the teachings of the Catholic Church.

No one doubts that the bishops are sincere in their commitment to the anti-contraception moral principle. They are mistaken, however, to believe that the religious freedom protected by the U.S. Constitution entitles them to enforce their moral beliefs on others through force of law. Murray and Kennedy had a better sense of what the Constitution protects.

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Religion clauses, Constitutional Interpretation and Change, Women's rights, Equality and Liberty, First Amendment, Contraception, Griswold v. Connecticut, Guest Post, Religious liberty
February 10, 2012
Obama Announces Change to Contraception Coverage
by Nicole Flatow

Following sharp attacks from religious and conservative groups of the health care rule that would require insurance plans to cover contraceptives, the White House has announced a minor alteration to the rule that maintains free access to birth control.

The change would shift the onus of providing the contraceptive services from the employer to the insurance provider. If a religiously affiliated employer objects to providing that coverage in its benefits package, the insurance company will be required to reach out directly to the beneficiary to offer full contraceptives coverage.

“No woman’s health should depend on who she is or where she works or how much money she makes,” Obama said in announcing the change today. He added:

I understand some in Washington want to treat this as another political wedge issue. But it shouldn’t be. I certainly never saw it that way. … We live in a pluralistic society where we’re not gonna agree on every single issue or share every belief. That doesn’t mean we have to choose between individual liberty and basic fairness.

Today's shift, described by one official as an “accommodation” rather than a “compromise,” was quickly endorsed by the Catholic Health Association, one of the original critics of the rule, as well as Planned Parenthood and NARAL Pro-Choice America.

But the announcement is not likely to satisfy some of the most committed critics. Just last night during a webcast, the Family Research Council blasted the contraception rule as “not only an attack on the consciences of employers and employees, but a direct attack on religious freedom.”

Throughout the week, constitutional experts have reiterated that the contraception rule did not violate the Constitution’s religious liberty clauses.

"There isn't a constitutional issue involved," prominent litigator David Boies told MSNBC’s Lawrence O’Donnell. “There isn’t anything in the Constitution that says an employer, regardless of whether you are a church employer or not, isn’t subject to the same rules as every other employer.”

“One thing I think is crystal clear — there is no First Amendment violation by this law,” Adam Winkler, a constitutional law professor at UCLA, told TPM. “The Supreme Court was very clear in a case called Employment Division v. Smith, written by none other than Antonin Scalia, that religious believers and institutions are not entitled to an exemption from generally applicable laws.”

Atlanta Journal-Constitution columnist Jay Bookman highlights some excerpts from the Smith decision in which Scalia, “himself a devout and very conservative Catholic,” makes the case for Obama. Scalia wrote:

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Administrative law, Religion clauses, Supreme Court, Individual liberties, Reproductive freedom, Constitutional Interpretation and Change, Women's rights, Economic, Workplace and Environment Regulation, Equality and Liberty, First Amendment, Contraception
May 13, 2010
Rethinking Family-Formation in the Information Age
BookTalk

Red Families v. Blue Families

Legal Polarization and the Creation of Culture

By:
Naomi Cahn & June Carbone

By Naomi Cahn, John Theodore Fey Research Professor of Law, George Washington University Law School & June Carbone, Edward A. Smith/Missouri Chair of Law, University of Missouri-Kansas City School of Law

Released last week, a new study found that women over the age of 35 in the U.S. gave birth to more babies than did American teens -- a reversal of the situation 20 years ago.

Given our research into family formation, this doesn't surprise us. In Red Families v. Blue Families, we discuss which families are succeeding in the 21st Century. It is "blue" families, which invest in women as well as men, delay family formation until after young adults reach emotional maturity and financial independence, and view sexuality as a private matter, that have adapted to the new information economy. By contrast, the "red" family system is a traditional one that continues to preach abstinence, early marriage and more traditional gender roles. The religious backlash against the new values has locked red families into a war against modernity. The book also shows how cultural controversies over abortion, gay marriage and single motherhood are masking the country's real divisions, and then suggest practical steps to reshape the debate surrounding red and blue America.
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Labor law, Reproductive freedom, Women's rights, Economic, Workplace and Environment Regulation, Equality and Liberty, Abortion, Blue Families, Blue States, BookTalk, Contraception, Family Values, June Carbone, Naomi Cahn, Red Families, Red States, Work/Life Balance

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