Bishop Speaks on Contraception

Joseph Jablonski, Tower Staff
March 16, 2012
Filed under News

The HHS mandate forcing religious organizations to provide contraception for its employees is not unconstitutional.   Moreover, that the First Amendment should not be considered conscience protection, said Bishop William J. Curry, First Amendment Scholar.

The First Amendment, he said was “about what the government may not do. It is not about what individuals may do.” Additionally, according to the 1990 court case Employment Division v. Smith, since the mandate does not openly profess to target a specific religion, it is constitutional.

However, Curry, in a lecture entitled “Religious Liberty, Conscience and Contraception,” highlighted how the mandate’s exemption, deemed positive by many conservatives and religious people, violates the First Amendment by defining the term ‘religious organization’ according to government standards. The exemption, in deciding to limit religious institutions to only institutions that inculcate values and consist of people who are tenants of the faith, requires the government to judge who actually follows the tenants of a faith.

The government, Curry is saying, would thus have the power to decide who is and isn’t truly Catholic. This violation would involve governmental involvement outside of their strictly secular limits and would cause them to discern religious matters.

The Health and Human Services (HHS) mandate, first proposed by the Obama Administration in late 2011, requires all insurance providers to offer contraceptives and abortifacients free of charge. President John Garvey showed his distaste for the mandate in a Washington Post article while the United States Conference of Catholic Bishops and other religious leaders also protested.

Curry, who holds a Ph.D. in History in addition to the education he received as a priest and bishop, explained in detail how the First Amendment and religious freedom relate to the mandate from HHS.

According to Bishop Curry, while the government can legislate law exemptions for the betterment of its citizens, such as in the case of exempting Catholics and Jews from the strictly secular prohibition laws of the 1920s, an interpretation of the First Amendment that allows for conscience rights actually puts both religious and secular matters in the hands of the Federal government.

Curry pointed out that judicially, complications in understanding the First Amendment originate from the Supreme Court’s acceptance of the Blaine Amendments in the 1940s. These amendments, passed by states in the 1870s, were anti-Catholic in nature by banning funding for “sectarian” schools, mainly Catholic schools, but weren’t against the First Amendment because the First Amendment did not apply to states at the time.

However, this outlook has created the language “a wall of separation between Church and State.” These things do not heavily concern Bishop Curry, who points out, in his observation, that the past court decisions on religion support the First Amendment, while the court briefs do not.  He used the example of a recent case involving the firing of a Lutheran Minister to prove his point.

Garvey expressed his gratitude that Bishop Curry had come to speak, and said that he admires him as a scholar of the first amendment. Garvey, when introducing Curry as a speaker, explained how he first encountered Curry through his book The First Freedoms before he became University president.