Religion in the Public Square

Whatever else the world has to say about the Jewish people, they can’t say we’re not entertaining. Just this week, we had the spectacle of a formerly hasidic woman meeting with a New York Post reporter over crab cakes in some Manhattan eatery to discuss, among other things, the least savory aspects of her hasidic sex life with her hasidic former husband. And then we woke up a day or two later to find the New York Times breathlessly reporting that an Orthodox rabbi publicly ate a chicken nugget that had been produced under his own supervision even after the caterer whose operation he was being paid to certify as kosher had been denounced by two former employees as demonstrably non-kosher. Later that day, the news services followed up with a story about a hasidic youngster from New Square who thought a good way to express his disapproval of his neighbors’ choice of synagogue would be to firebomb their home. Really, “entertaining” is hardly the word!

All that notwithstanding, however, the real question for American Jews to consider this week has nothing to do per se with Jews or with Judaism itself, but with the place of religion—and specifically religious values—in American culture and society, and with the specific way religion should and should not be permitted to influence public policy. I am, of course, referring to the Obama administration’s decision of last month to require all health insurance providers, regardless of religious affiliation, to provide birth control to women free of charge. At first blush, it doesn’t sound like much of an issue. The right to plan out one’s family in accordance with one’s wishes is widely considered a basic right. The right to have whatever kind of sex life one wishes without necessarily ending up producing unwanted children in the process is, if anything, even more widely considered sacrosanct. Moreover, the fact that the endless debate about abortion that has riven American culture in the almost forty years since Roe vs. Wade would become a non-issue if no woman ever became pregnant unintentionally would, you would think, make it all the more obvious that the public weal would only be served, and served well, by providing adequate and accessible birth control to people who might otherwise be unable to afford it. (That it is unimaginable that we could ever get to the point where no woman ever became pregnant unintentionally is not really the point. Not all sex is consensual. And no form of birth control is 100% effective in every instance and under every circumstance. Nonetheless, it seems undeniable that more widely available birth control will lead to fewer unwanted pregnancies.)

Nonetheless, the fact that a large number of our healthcare providers, including hospitals, are run under Catholic auspices has made this decision into a huge bone of contention. I myself hadn’t realized to what extent our healthcare is provided by Catholic institutions, actually, but the numbers are beyond arresting. One out of every six hospital patients in the United States is hospitalized in an institution affiliated with the Catholic health care system. More to the point, those hospitals employ a staggering 765,000 people, not all of whom are Catholics but all of whom will be affected by the ultimate decision regarding what their employers must provide in terms of healthcare and what they may decline to provide. (That number, incidentally, represents almost 14% of all hospital employees in the United States.) The nation’s fifth-largest provider of health care, Dignity Health—formerly called Catholic Healthcare West— has 44.000 employees and had $11 billion in revenue last year.

The Catholic Church has made its response as clear as could be: they’re going to go to the mats to resist any law that requires them to provide medical services to anyone at all that contravenes their religious beliefs, most definitely including the provision of counseling or material assistance with respect to the conventional methods of birth control to any whom its institutions serve regardless of whether they themselves, the people being served, are or are not Catholics. Nor does it matter, apparently, that the Guttmacher Institute, a non-profit organization (albeit one with its own publicly-stated agenda with respect to abortion rights and birth control), has published the results of a survey according to which an amazing 98% of sexually active American Catholic women report having used some form of birth control other than the rhythm method touted by the Catholic Church as the sole acceptable method of family planning, and that two-thirds of those women report regularly doing so. (If you are reading this on-line, you can find the Guttmacher report in its entirety here.)

The rhetoric has been, to say the very least, vituperative. The bishop of Pittsburgh, David A. Zubik, summarized the situation by stating, “The Obama administration has just told the Catholics of the United States, ‘To hell with you.’” Newt Gingrich, never one to mince words, referenced the administration’s decision as “war on the Catholic Church.” Other responses that I noted on-line were, if anything, even more shrill. Clearly, this issue is not going to go away. Whether the administration will cave in and abandon the policy is not clear. More likely, I suppose, is that some face-saving alternative will be put forth, one that would allow religious institutions formally not to provide services in contravention of their own policies and beliefs but which would also guarantee citizens’ access to basic healthcare services, including contraceptive services, regardless of the religious affiliation of their employers. How exactly that will work, who knows? The inclination of the Catholic hierarchy to resist compromise will possibly be affected by a poll released earlier this week, and much quoted by administration spokespeople, according to which a majority of Catholic Americans actually favor the policy and that it is really only their leadership that is implacably opposed. Or else it won’t be. I suppose we’ll all find out soon enough what happens. Nor is the fact that this is all unfolding during a presidential campaign an unimportant detail to take into account when imagining where this will all end. As I said, we’ll all find out soon enough.

Behind all the rhetoric, however, is a set of questions that are unrelated specifically to birth control or to the Catholic church. One of the most basic of all civil rights is the freedom to live within whatever faith one wishes. Freedom of religion is not just basic to our worldview, but is one of the foundation stones upon which American culture rests. And should rest! So the question at hand is not solely whether the administration’s policy with respect to the provision of birth control services is a good idea, but whether it is ever reasonable in a democratic state for the government to oblige citizens to act contrary to their own religious principles to serve a greater good, or whether the right to conduct oneself within the boundaries of one’s beliefs should be absolute. For Jewish Americans, this is not an issue to pass lightly by. We got a pass during Prohibition, but other groups (for instance, native Americans who use peyote as part of their rituals of worship) have fared less well. On the other hand, I wrote a few weeks ago about the so-called “ministerial exception” rule that the Supreme Court just unanimously upheld as constitutional, a rule according to which, among many other things, religious institutions are free to consider themselves exempt from anti-discrimination laws if those laws can be construed somehow—even tenuously in the extreme—to contravene some religious principle or another. (The case the Supremes considered had to do with a woman who was denied the right to sue the Lutheran Church in court because church policy conveniently dictates that all employer/employee disputes must be resolved within the church and not in the secular court system. I’m still outraged by that decision and still can’t quite believe I understand it correctly.)

Surely, we do not want the government obliging us to act contrary to the dictates of our faith. On the other hand, once an institution steps into the public square, accepts public money, and serves a public much, much wider than it would if it really was a church or a synagogue open only to members of the specific faith it exists to promulgate, then I think it is entirely fair to oblige such institutions to play by public rule and not to impose its own dogma on people who themselves are not even nominally affiliated with the religion that institution espouses as its foundational culture. In other words, if a university or a hospital is open to the public and employs people of all faiths, and if that institution accepts public money and so steps away from the cloister and into the public square, then I don’t think it is at all unreasonable to expect such institutions to play by the public rule book. Why not? There are, after all, Jewish hospitals as well. They too employ many, many non-Jewish employees and, of course, serve many non-Jewish patients. To the extent they accept public money and function under Jewish auspices but not specifically as Jewish institutions, they too should play by the rules. To describe an effort to require public employers of citizens of all faiths to obey the rules society puts into place specifically for the benefit of those citizens as an act of war against a specific faith seems to me to be an example unreasonably inflammatory rhetoric. If anything, institutions that self-define with respect to one or another of our nation’s great religious traditions should feel themselves more, not less, obliged to treat their employees fairly and with dignity….which precludes denying them services that that same institution if it were a real church would counsel those employees if they adhered to that faith not to accept. To my way of thinking, that’s two too many if’s to serve as a sound basis for public policy.