“Countervailing Rights and Interests”

These words in Justice Ruth Bader Ginsburg’s dissent on Wednesday to the Supreme Court’s decision regarding birth control should be engraved on all our hearts. When debating deep moral and religious issues, we must understand ambiguity, which the majority decision does not do. The rights of these employers have suddenly become paramount; the rights of the employees, especially the woman employees, can be ignored.

This is true in another case decided this week as well, allowing a “ministerial exception” for religious organizations to ignore not only moral considerations, but also national laws. Again, women are the plaintiffs, and their rights are defended in dissent by Justice Sonia Sotomayor. Thank goodness, these two women rose to the top of their profession. All other justices are in the majority in both decisions.

Women who want to be priests and who want women to be priests have exerted countervailing pressure on the Roman Catholic Church. We call everyone from the Pope on down to recognize the rights and interests of women. Especially our bishops.

There. I had to get that out. Now I’ll write more calmly about these decisions and how they impact us, all of us.

New Ways Ministry Executive Director Frank DeBernardo calls the “ministerial exception” decision “a sad and contradictory follow-up to the Court’s June 15^th Title VII decision which sought to protect LGBTQ people from employment discrimination.” I wrote with joy about that decision just three weeks ago; this decision is the one I feared. New Ways has documented over 100 cases in which gender issues were a factor in negative job actions.

As I said above, in this case the plaintiffs are women, one claiming she was fired for age discrimination and one after she shared her breast cancer diagnosis. (She has since died.) Mark Joseph Stern in Slate clearly explains the implications for all of us: “Neither school provided a religious reason for its decision. Yet when each woman sued, both schools raised the ministerial exception, suddenly announcing that, in fact, [they] amounted to ‘ministers’ and thus had no right to sue for discrimination.” Both led students in prayers, but neither had been required to have religious training. How substantial a “ministerial” duty is leading prayer? How many of us have done that in our church jobs?

Stern speculates on how the decision may be applied, saying Justice Samuel A. Alito, Jr.,  “accepted the schools’ claims at face value and in the process established a new test to determine who fits into the ministerial exception.” The test? Is the position “key to ‘carrying out the mission of the church’”? Stern concludes, “And if the church believes an employee fits this role, courts must defer to its determination.”

In America, Editor Matt Malone, S.J., says Alito “observed that ‘even though the employees [in the present cases] were not given the title of “minister” and have less religious training,’ the so-called ministerial exception still applies,” and then goes on to quote the decision further: “The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission.”

The potential breadth of this new test was not lost on Sotomayor. Stern quotes her dissent, which says that Alito’s “laissez-faire analysis appears to allow that employer to make employment decisions because of a person’s skin color, age, disability, sex, or any other protected trait for reasons having nothing to do with religion.” And, I would add, using religion as the reason.

Are the Jesuits known for their rose-colored glasses? Malone concludes: “The U.S. Supreme Court today ruled that religious institutions have a constitutional right to hire and fire for mission. This decision is correct. Church institutions, however, should not exercise that freedom in pursuit of an indiscriminate purging of church employees simply because they hold unorthodox views or have made life choices that do not accord with Catholic teaching. That would be wrong and would be a source of grave scandal for the faithful and for the country we seek to evangelize.”

The “ministerial exception” the church uses to exclude women from ordained ministry forces me to conclude that fear of “grave scandal” is not a sufficient motivator.

Taking off my glasses and putting on my facemask, I move to health care.

“Countervailing rights and interests” is how Ginsburg addresses the Court’s previous “balanced” decisions on reproductive rights that do “not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs.” Is there any reason why the Catholic workplace should be exempt from this balanced approach?

Or any woman’s workplace? The most interesting idea coming out of all this is in the concurring opinion of Alito, as quoted by Adam Liptak in The New York Times: “The A.C.A. does not provide contraceptive coverage for women who do not work outside the home. If Congress thought that there was a compelling need to make free contraceptives available for all women, why did it make no provision for women who do not receive a paycheck? Some of these women may have a greater need for free contraceptives than do women in the work force.” Women in Congress, are you listening?

Catholics for Choice Acting President Sara Hutchinson Radcliffe notes that “Only the Catholic hierarchy (and their ultraconservative allies) view contraception as controversial.” The organization has long documented that “99% of sexually active Catholics have used a form of birth control proscribed by the bishops.” So what is the game plan in bringing such cases all the way to the Supreme Court? And why would an order of nuns like the Little Sisters of the Poor be the plaintiff? Do I have to see control of women behind every action? Do I have to see women fronting such anti-woman litigation?

Radcliffe broadens the motivation: “The Catholic hierarchy has worked tirelessly and systematically to subvert the true meaning of religious liberty, to quash the religious liberty of the students and patients their institutions serve and to ignore the religious liberty of the employees called to provide those services.” It’s a deceptive argument to preserve institutions that are struggling. Those employees most affected are women, unrepresented in the Catholic hierarchy.  

In criticizing the decision, the Times editorial board concludes: “It’s hard to imagine the conservative justices of this court, especially, allowing employers to claim a moral exemption and require their employees to pay out of pocket for, say, a treatment for Covid-19. That sounds absurd. And yet, when it comes to birth control, such state interference with personal health decisions is considered a legitimate matter for public debate.”

These personal decisions can be life and death for women. Would they be determined in the Supreme Court if the bishops had not inserted them into the public debate? We must struggle for the countervailing rights and interests of women whenever they are ignored.