Should Catholic Judges Recuse Themselves from the Contraceptive Mandate Cases?

December 26, 2013

I believe Catholics can be good citizens. I also think Catholic judges and justices can fulfill their obligation to respect and enforce the Constitution and laws of the United States. However, I’m not sure the Catholic Church considers a judge’s oath of office to take precedence over the judge’s obligation to avoid being complicit in evil. This is troubling—because the Church has a very broad understanding of what it means to be complicit in evil.

You’re probably at least somewhat familiar with the litigation over the contraceptive mandate included in Obamacare and its implementing regulations. The mandate requires employers with health plans to provide cost-free contraceptive coverage to their employees. However, the government has gone to great lengths to accommodate religiously affiliated nonprofits. Religiously affiliated nonprofits which object to any or all forms of contraception can opt out of any involvement in providing care—requiring the insurer to pick up the costs—by simply completing and submitting a form certifying they have an objection. In other words, they just have to officially state what they have already unofficially stated.

There are dozens of cases involving religious objections to the mandate. Generally speaking though, the cases can be divided into two groups: for-profit companies which claim they have a religious identity and are entitled to be free of substantial burdens on their exercise of religion (and that providing contraceptive care through an insurer burdens their religion), and religiously affiliated nonprofits which assert that the government’s accommodation of them is not sufficient.

Although the for-profit and nonprofit cases raise different issues, tying these cases together is a common argument, which has been advanced most prominently by the Catholic Church and institutions affiliated with it. According to the Church, it violates the moral obligations of a Catholic to do anything—anything—that would facilitate the provision of contraception to an individual. (See this summary of recent court decisions for an overview of this argument.) According to the Church, this includes the simple act of filling out a form certifying that the employer has an objection to contraception. This act by itself would make the employer complicit in evil. It’s for this reason that some religiously affiliated nonprofits are suing over the mandate—even though as result of the government’s accommodation they will not have to pay a penny or spend one minute to arrange for contraceptive care for their employees.

Interesting. Think of the implications of this argument.  If simply filling out a form objecting to contraception makes one an accomplice to evil, what about rendering a judicial decision upholding the contraceptive mandate? This would appear to be a much more affirmative and consequential act than the completion of a form. But if that is the case, how can a judge who is a good Catholic by Church standards possibly render a decision upholding the mandate?

In the past, Catholics in the U.S. have suffered from prejudice and bigotry. One of the traditional knocks against Catholics had been they did not and could not support the separation of church and state. John Kennedy, along with many other progressive Catholic politicians, did much to lay those fears to rest. They showed that support for a secular state is not incompatible with being a good Catholic.

Unfortunately, the Catholic Church may now be resurrecting concerns about the compatibility between being a Catholic and being a good citizen, or at least between being a good Catholic and an impartial judge. In arguing for an extremely expansive understanding of a Catholic’s moral obligation, the Church is effectively undermining confidence in Catholic judges.

There are six Catholic justices on the Supreme Court. Can they possibly vote to uphold the contraceptive mandate? If they share their Church’s understanding of what it means to facilitate evil, I don’t see how they can.