The Rights of Our Freedom

There are two Americas, separated by the cable news shows they watch. One America tunes into Fox News and regards liberals as enemies of traditional values. Another America watches MSNBC and despises conservatives as opponents of progress. Divisiveness often replaces cohesion. To paraphrase William Butler Yeats, things are falling apart, and the center cannot hold in America. Take, for example, the First Amendment controversy that arose after the Department of Health and Human Services promulgated an Obamacare regulation requiring Catholic hospitals, schools and charities to provide contraception coverage in their employee health plans–a mandate some say is contrary to the religious beliefs these organizations exercise. Fed by partisan reporting on Fox and MSNBC, dogmatic polarization threatens to destroy nuanced understanding of this regulation. Some conservatives regard liberals who want to increase the availability of contraception as enemies of religion. Some liberals view conservatives who support the freedoms of the First Amendment as reactionaries who want women to be barefoot and pregnant. The scholar Victor Davis Hanson suggests that Obama provided an ideological framework to understand this partisan clash when Obama made the following remarks in 2001: “The Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the federal government can’t do to you, but it doesn’t say what the federal government or state government must do on your behalf …” Although Hanson is a critic of Obama, he makes an illuminating point for people of all political persuasions. If Obama regards contraception coverage in insurance plans as a fundamental right, one can understand why he wants to extend it to as many women as possible–even if they are employees of Catholic organizations who religiously oppose contraception. The problem, according to critics of this regulation, is that Obama cannot expand this right to contraceptive care without simultaneously contracting the scope of religious liberty protected by the First Amendment. Thus, opponents of the Obama regulation argue that it constitutes an unwarranted governmental intrusion on religion–one that violates the free exercise clause of the First Amendment. The philosopher Isaiah Berlin framed the Constitutional concerns of these opponents of Obama’s contraceptive care plan when he observed, “liberty in the negative sense involves an answer to the question: ‘What is the area within which the subject—a person or group of persons—is or should be left to do or be what he is able to do or be, without interference by other persons.’” Obama sought to answer this question by arguing that the area of religious liberty guaranteed by the First Amendment does not extend beyond what The Washington Post columnist Charles Krauthammer calls, “the churchyard gate.” Thus, the Obama contraception regulation exempts Catholic churches, but it requires Catholic schools, hospitals and charities to provide contraception coverage. Uproar arose over this interpretation because many believe that these faith based Catholic organizations are religious in nature and are therefore entitled to the protection of the First Amendment. Obama responded by offering an “accommodation” that would require insurance companies to include insurance coverage for contraception free of charge to these Catholic organizations. However, Ross Douthat of the New York Times argues that this proposal “asks the parties involved to compromise their reasoning faculties and play a game of ‘let’s pretend’ since it still forces Catholic charities to pay a fine or to provide their employees insurance coverage for contraception. Others point out that this insurance coverage will not be free and that some Catholic groups self-insure. The result is a constitutional conflict that resembles a Greek tragedy in which two sides have legitimate but difficult to reconcile aims. On the one hand, there is the positive goal of expanding contraceptive care for women–a right many Americans support. On the other hand, there is the valid principle of religious freedom–a bedrock liberty established by the Constitution. In a better and less polarized America, there would be a compromise acceptable to both parties–one that would make free contraceptive care available without restricting the scope of the First Amendment. In our present and imperfect America, such a compromise will be elusive as long as hyperbolic partisanship continues to define our national discourse and divide us. Eric Meyers is a New Upper from Miami, FL.