Like their co-religionists across the border in Pennsylvania, Catholics in Ohio have flipped from opposing Barack Obama four years ago to supporting him today. According to the latest poll by the Columbus Dispatch, they now back him over Mitt Romney by four percentage points, 49-45. In 2008, they ended up favoring John McCain by five points.
That's a telling switch, because Ohio Catholics have a distinctly conservative streak. They are less likely to be unionized than Catholics in Michigan (who preferred Obama over McCain 52-46), and a disproportionately large number trace their ethnic origins to Germany. On social issues, German Catholics skew to the right.
So once again we need to conjure with the ineffectuality of the Catholic bishops' campaign to paint the Obama administration as an enemy of religion in general and Catholicism in particular, in the wake of its notorious mandate that health insurance under the Affordable Care Act provide free contraceptive services for women.
In that regard, it's worth taking a look at the decision handed down last Friday by U.S. District Judge Carole Jackson in the Eastern District of Missouri. The plaintiffs, a private employer and his company, contended (among other things) that the mandate constitutes a "substantial burden" on their religious free exercise under the terms of the 1993 Religious Freedom Restoration Act (RFRA). The judge was not impressed.
The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.
RFRA is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own.
A host of lawsuits have been filed against the mandate, and it is not unlikely that there will be decisions that go the other way. Very possibly, the Supreme Court will take the case, and in the process determine whether organizations are "persons" for purposes of the free exercise of religion in the same way that, thanks to Citizens United, they are persons for purposes of free speech.
But what Judge Jackson--a George H. W. Bush appointee, by the way--has done is nicely set out why ordinary Catholics have not been moved by their bishops' cries of alarm about the contraception mandate. Like other Americans, they understand religious liberty as fundamentally a right belonging to individuals, not organizations.
If a church is prevented by law from providing its members with the religious services they need, then Americans will understand it as an attack on religious liberty. But if the members remain free to exercise their religious rights according to the dictates of their consciences (or their religious authorities), then the threat to religious liberty represented by something like the contraception mandate seems, as the judge put it, "at most a de minimis burden on religious practice."
It's not only RFRA that's a shield, not a sword. The Free Exercise Clause is too.