Catholic Charities and Religious Freedom

I have contributed a short essay on the recent decision in the Catholic Charities case. In my judgment, the case is quite troubling. In the essay, I focus on a particular aspect of the case, namely, the fact that the "religious employer" exemption to California's contraception-coverage requirement rests on a premise that "inculcation of religious values" is the purpose and function of religious institutions, rather than activism, engagement, etc. As I see it, the exemption is, in a real sense, an effort by government to define -- and thereby to confine -- the nature and object of religious commitment. The exemption's premises are, I believe, profoundly un-Catholic (for reasons that have nothing to do with the morality of contraception), in that they embody an individualistic, privatized version of religion.

For another take on the decision, surf over to the Volokh Conspiracy, where Professor David Bernstein has posted his own analysis.

By the way -- A few years ago, I advanced a similar argument with respect to tax laws' restrictions on "political" activity by tax-exempt churches. I don't have a link, but the article was called "A Quiet Faith? Taxes, Politics, and the Privatization of Religion," 42 B.C. L. Rev. 771 (2001).

Rick