I have been pondering the controversy about the Obama’ administrations’  attempt to make Catholic institutions pay directly or indirectly for contraceptives and abortifacients. The Obama administration astutely picked a fight on a point of doctrine in which lay support for traditional Catholic moral teaching is weakest.

The bishops claim that they are being denied freedom of religion by being forced to pay for something they regard as immoral.

If a legitimate government decided to use general tax revenues to fund something that Catholics regarded as immoral, Catholics could not refuse to pay their taxes, because paying taxes to a legitimate government is a matter of justice. (pay taxes to whom taxes are due; render to Caesar what belongs to Caesar – and Caesar among other things funded idolatry). One could no more refuse to pay tax than one could refuse to pay a workman for work he had done because he was going to go out and get drunk or visit a brothel.

Bishop Gumbleton has been lauded by the Catholic left for his dissent from this He said:

Here in the U.S. we are in the season where Americans are told to pay their taxes. My work over four decades grew increasingly focused on changing the priorities of our government from being a leader in war to a leader of peace and justice. I know I share that conviction with you, and I honor the work of the National War Tax Resistance Coordinating Committee in its support for people who take the step of reversing those priorities with their own money.

We are in an age when we must actively oppose the violence that U.S. tax dollars promote with weapons around the world while stealing resources that could bring people out of poverty here at home. War tax refusal is an honest and bold response to the inequities of our day and a powerful way to show that we are not cowed by the unjust demands of our own government. Let us continue to work together in as many ways as we can to turn this country in a new direction.

So Gumbleton thinks that it is right to refuse to pay taxes that the government will use for an immoral purpose. He should a fortiori believe that a more direct involvement in immoral action, such as the direct or indirect payment of money through private, contractual means (health insurance) should be resisted.

But is being forced to support, through taxes or through direct payments, an action that one regards as immoral a denial of freedom of religion and a violation of the First Amendment guarantee of free exercise of relgion?

What is religion? For Jews and Moslems it is the whole of life. For Christians too, but in principle they recognize a distinction between God and Caesar, who can make legitimate demands.

The framers of the American Constitution lived in a society  that accepted uniform moral principles. By “religion” they meant that doctrines and practices and the internal government of various churches. The federal government would not require anyone to believe anything, nor would it interfere in the internal workings of the churches.

The federal government was limited in its scope; there was a common morality; taxes (almost all customs duties) were a matter of justice. Therefore it was unimaginable that there should be a conflict because the federal government would require anyone to do anything that his religion taught was immoral.

Conflicts did arise over the fugitive slave laws and later over the draft; and the federal government felt no qualms about forbidding polygamy.

The Catholic hierarchy, especially in Europe, finds statist solutions to social problems very congenial, probably because of the centuries in which Christ and Caesar worked hand in glove. However, in a society which lacks a moral consensus, an expanding state role will lead to more and more conflicts between the requirements of the state and the requirements of Christian morality. The bishops are unhappy that Catholic institutions are required to fund contraceptives fearing that this would be an opening to require Catholic institutions to fund or perform abortion and euthanasia,

I think they are correct that this is the intent. People who claim to see nothing wrong with abortion and euthanasia are made uneasy by the horror in which such actions are regarded by Catholics and other Christians. If Catholics could be persuaded, cajoled, pressured, or forced into accepting these actions, it would demonstrate that they really don’t regard them with horror. In Texas a Catholic hospital doesn’t perform abortions; it mere leases a section of the hospital to doctors who do.

It is unwise of a government to force citizens to act contrary to their deep moral conviction, convictions reinforced by religion. The draft therefore exempted conscientious objectors; the Amish are exempted from the school laws. But these are not precisely a matter of freedom of religion, but of legislative grace. The government sometimes exempts from religiously neutral laws those who have a strong religion-based objection to observing them.

This was the intent of the Religious Freedom Exemption Act of 1993, Wikepedia explains:

This  law reinstated the Sherbert Test, which was set forth by Sherbert v. Verner, and Wisconsin v. Yoder, mandating that strict scrutiny be used when determining if the Free Exercise Clause of the First Amendment to the United States Constitution, guaranteeing religious freedom, has been violated. In the Religious Freedom Restoration Act, Congress states in its findings that a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion; therefore the Act states that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” The law provided an exception if two conditions are both met. First, if the burden is necessary for the “furtherance of a compelling government interest.” Under strict scrutiny, a government interest is compelling when it is more than routine and does more than simply improve government efficiency. A compelling interest relates directly with core constitutional issues.^] The second condition is that the rule must be the least restrictive way in which to further the government interest. The law, in conjunction with President Bill Clinton‘s Executive Order in 1996, provided more security for sacred sites for Native American religious rites.

Congress, if it deems contraception essential to health insurance, could fund it through general tax revenue rather than requiring religious institutions to pay for it directly or indirectly. Those who object to such finding could try to change the law, but they still (pace Bishop Gumbleton) would have to pay their taxes, just as pacifists have to pay their taxes.

But the ultimate intent, I think the bishops are correct in discerning, is not to make contraception covered by health insurance, but to compromise Catholic institutions.

Those Catholics who disagree with the teachings on contraception and are content to see the state force the Church into compromises that manifest a grudging accepting of contraception may find that future governments may force the Church to compromise on abortion, euthanasia, and other practices that they do not like.