Libertas Ecclesiae

A while back, Rick suggested that an emerging question that will become more prominent with the passage of time is the liberty of the Church. At that time, I tended to agree with Rick. It is becoming increasingly clear that evidence is mounting demonstrating that Rick’s assessment and prediction are on solid ground.

I have just read the opinion of the New York Court of Appeals in Catholic Charities of the Diocese of Albany v. Serio decided this past Thursday. There is little doubt that this 6-0 decision constitutes a threat to the Church’s liberty, in general, and its ability to engage in its good works, in particular. While this decision is being hailed by affiliates of the American Civil Liberties Union and the Planned Parenthood Federation, among others, it is not only lamentable, it is foreboding. Although the New York court asserts that the legislation mandating the inclusion of “reproductive health care”, which it validates, is neutral, it becomes necessary for the court to belabor its discussion of “neutrality” on sixteen different occasions in a brief opinion of eighteen typewritten pages. In spite of the court’s conclusion that the legislation and, therefore, its opinion are neutral, they are not. I am sure that Catholic Charities, knowing that the United States Supreme Court has turned down a request to review a similar type case decided by the California Supreme Court, is carefully considering its “options.” Might they include: hiring only Catholics and others who agree with the Church’s teachings about the immorality of artificial contraception and other “reproductive health issues”; terminating all health care benefits for all employees; or, simply closing the doors of Catholic Charities and its corporal works of mercy (or, “social services organizations”, as the court likes to say)?

The New York court on page 8 of its decision relies on the California court’s opinion that quotes from the U.S. Supreme Court decision in Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos (1987). In doing so, I wonder if the New York court considered Justices Brennan and Marshall’s concurrence in Amos where they, Brennan and Marshall, expressed the view that there exists a “substantial potential for chilling religious activity” including “nonprofit activity” to which the law should defer. As these justices stated, “While not every nonprofit activity may be operated for religious purposes, the likelihood that many are makes a categorical rule a suitable means to avoid chilling the exercise of religion.”

The New York court’s decision has provided more than a chilling effect on the good works promoted by Catholic Charities. It has also increased the threat against the Church regarding its proper involvement in a wide variety of public spheres by arming “public interest groups” (such as Planned Parenthood) who are opposed to the Church’s positions with new arguments for their legal arsenal. In spite of the New York court’s view that it has avoided “the inflexible rule of Smith”, its decision has burdened not only the lawful exercise of religion but also a society that has benefited in the past from the many good works done in the name of God by the Catholic Church. The six members of the New York court have now defined what religion is and what it is not. What the members of the religious community have to say about this important matter no longer appears to have a bearing on the meaning of the free exercise of religion.   RJA sj