Previously on Cornerstone, scholars discussed the implications of the recent Hobby Lobby decision for religious freedom and explored the wider function of religion in American public life. This week, we asked respondents to consider why contraceptives specifically are at issue in the case and to examine the lack of consensus on their use among religious and public interest groups.

By: Lisa M. Kelly

The Green family is the public face of Hobby Lobby. They claim to run their chain of craft stores according to Christian principles, an assertion that has won them praise by some as courageous followers of faith and castigation by others as hypocritical investors. Framing their business as an extension of family and faith also helped them win a recent Supreme Court victory. A majority of the Justices in Hobby Lobby held that the Religious Freedom Restoration Act protects closely-held corporations from complying with the so-called contraception mandate of the Affordable Care Act (ACA) on the grounds that it violates the corporation’s religious beliefs. 

Understanding the Supreme Court’s judgment in Hobby Lobby requires looking beyond its familial face. Hobby Lobby, and the larger wave of litigation of which it is a part, reflects a remarkable mobilization by the Roman Catholic Church in American public life. The US Conference of Catholic Bishops (UCCB) has joined with Evangelical Christians opposed to so-called “abortion-inducing” contraceptives and conservative lobbyists working to expand the rights of corporations to lead the charge against contraceptive coverage under the ACA. 

This campaign should give progressive Catholics pause. After having succeeded in negotiating an exemption for non-profit religious employers, the UCCB announced in July 2013 that this exemption was insufficient. Expressing ongoing concern with the definition of a “religious employer” and the treatment of businesses run “according to religious principles,” Cardinal Timothy Dolan, president of the UCCB, asserted the Church’s “need to continue defending our rights in Congress and the courts.”

Claiming that the Church is a victim of religious freedom violations offers a valuable counter-narrative in public discourse to the Church’s status as victimizer in the clerical sex abuse scandal. Through its religious freedom campaign, the UCCB has cast itself as a key defender against secular state overreach. This defensive posture vis-à-vis government counters contemporary portrayals of the Church as a law unto itself, its institutional structure capable of meting out justice for the Church’s “internal” transgressions. One of the most withering criticisms of the Church’s response to clerical abuse was its resistance—and often outright refusal—to report sexual crimes to secular police officials and submit to civil courts. Through its current struggle over contraception, the Church is reclaiming the liberal legitimacy of protecting free exercise of religion. 

This is not the first time that the Catholic hierarchy has doubled down on contraception in times of turmoil. Throughout the twentieth century, the majority of Protestant denominations, including the Anglican Church, relaxed their theological teachings to allow for contraception. Amidst theological reforms and the sexual and social revolutions of the 1960s, the Catholic Church affirmed its commitment to companionate and procreative marriage. In 1968, Pope Paul VI issued the encyclical letter Humanae Vitae restating the Church’s condemnation of contraception. In it, he urged men and women to “recognize that an act of mutual love which impairs the capacity to transmit life… frustrates [God’s] design which constitutes the norm of marriage, and contradicts the will of the Author of life.” The Catholic Church claimed to be the doctrinally pure protector of the sanctity of marriage. 

But in 2014, is the UCCB fighting a losing battle on contraception? A 2012 Gallup poll found that 82% of American Catholics believe that birth control is morally acceptable. This was only slightly below the 90% figure for non-Catholics. In the minds—and the bedrooms—of its parishioners, the Catholic Church in America seems to have already lost the fight. Yet that assessment depends on what is at stake for the Church. To the extent that the Church’s condemnation of contraception operates in part as a means to distinguish itself from other faiths and to affirm its own status within the secular polity, the actual practice of Catholics may not matter much. Retaining authority over official Catholic doctrine may suffice. In its amicus brief in Hobby Lobby the UCCB emphasized this point: “As the authorities ultimately responsible for the accurate proclamation of Catholic doctrine within their respective dioceses, the bishops… have a unique interest in ensuring the proper application of the substantial burden test.” In other words, the Supreme Court should—according to the UCCB—recognize its organization as the exclusive theological voice of Catholicism. 

For progressive Catholics, the lesson of Hobby Lobby may be this: the time for challenging the gap between religious laws on the books and belief in action is here. As the Church hierarchy fights a high-stakes battle over the role of religion in public life, progressive Catholics can ill-afford to cede theology to a select few or accept Church doctrine as immune from public scrutiny. The material stakes for women and men seeking basic health care in the United States and abroad are simply too high to ignore. 

EDITOR’S NOTE: The views expressed in this article are the author’s own and do not necessarily reflect the views of the Center for Reproductive Rights.

Lisa M. Kelly is a doctoral (S.J.D.) candidate at Harvard Law School, where she is a Trudeau Scholar and a Frank Knox Memorial Fellow. 

This piece was originally authored on August 6, 2014 for the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace, and World Affairs.