When Government Thinks it Knows Religion
by Christopher Dodson
Executive Director, North Dakota Catholic Conference
February 2014

As courts across the country, including the U.S. Supreme Court, take up challenges to the HHS Mandate, they - indeed, all of us - could learn a lesson from an event from Anglican history.

In 1847, the Anglican vicar George Gorham sought the vicariate for a small parish in Devon, England. The Anglican bishop for the region, Henry Phillpotts, interviewed Gorham and found him to be unsuitable for the position because Gorham rejected the sacramental view of baptism and did not believe in baptismal regeneration. Phillpotts considered Gorham’s views as inconsistent with Anglican theology.

Gorham eventually appealed to a secular court which awarded him the position in 1850. The Gorham Judgment caused an uproar in the Anglican Church. For some, it represented inappropriate interference by the state into ecclesiastical affairs. For others, it confirmed their suspicions that the Church of England was more an arm of the state rather than a church in succession with the apostles. The affair was one event that led to many, including Henry Manning and John Henry Newman, to become Roman Catholics.

The Gorham Judgment was possible, of course, because the Church of England was - and still is - the “established church” of England. The Establishment and Free Exercise Clauses of the U.S. Constitution are supposed to prevent interference by the government into religious affairs in our country. Nevertheless, in its defense of the HHS Mandate, the Obama Administration has opined that the religious objections held by Hobby Lobby and Little Sisters of the Poor are not, in fact, religious objections.

In the case involving for-profit entities headed to the Supreme Court, the Administration claims that because Hobby Lobby puts money into a general fund to finance health care for their employees and because the employees choose whether to use the coverage for abortifacients, the injury to the religious rights of Hobby Lobby is too “attenuated” and remote.

Remoteness is, however, a religious question. Indeed, volumes of Catholic moral theology have been written on the subject. Undoubtedly, there are some who would agree with the Obama Administration that the decision by an employee to use an abortifacient is so removed from Hobby Lobby’s act of funding the health care coverage that Hobby Lobby should not feel like it violated its religious tenets. What ultimately matters, though, is not what others think, but what Hobby Lobby’s owners think. The Obama Administration position amounts to telling Hobby Lobby, “We know what is morally right and wrong more than you do.”

The Administration’s position for non-profits like the Little Sisters of the Poor is no better. The Administration attempted to create an “accommodation” for religious entities that are not places of worship. The accommodation provides that the religious entities do not have to pay for the contraceptives directly. Instead, they will be covered directly by the insurance companies or administrators. In order for the religious entity to take advantage of this accommodation, and before the insurer can provide the contraceptives, the entity has to complete a specified government form.

If the government form was only a notice to the federal government that the entity seeks the accommodation, there might not have been a problem. However, as numerous courts have agreed, the form is really a permission slip allowing the insurer to provide the objectionable coverage.

To moral theologians the dilemma is clear. If you cannot morally do a wrongful act you also cannot help someone else to do it by giving them legal permission to do so. To the Little Sisters of the Poor and many other Catholic entities, completing the form would make them complicit in something to which they morally object. The Obama Administration, however, despite admitting that without the form the insurer cannot provide the contraceptives, argues that completing the form would not violate the religious beliefs of the Little Sisters of the Poor.

All Americans should be troubled by the Administration’s attempt to impose its moral and religious analyses. Like the court in the Gorham case, the government’s position amounts to nothing more than the assertion that they know religion better than the rest of us.