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Monday, February 20, 2012

Contraception and Church-State Relations

In this third part of my examination of the contraception controversy, I will focus on church-state relations.  Before I get to the meat of the matter, I feel compelled to mention something.  Given the limited space I have imposed on myself (no more than 2 pages), this part; like the prior parts; is of necessity cursory and in no way meant to be definitive.  This means that there will be issues that I don’t address due to space.  Consequently, I will be missing some of the subtleties and intricacies of the various areas as will happen when an immensely complex subject is boiled down to a brief area.

Now before I can properly address the current issues related to church-state relations in the United States, the phrase “separation of church and state” needs to be understood.  As a part of that understanding, it is necessary to look at the history of church-state relations prior to the enactment of the Bill of Rights in 1791.

Throughout history, church and state have generally been mixed.  From ancient tribes where medicine men and shamans held power to ancient India where Hinduism held sway to Greece where Socrates was executed for preaching against the gods to Rome where people were punished for atheism if they did not believe in the Roman gods to the Byzantine Empire and the Caesaropapism inherent in its system to the Peace of Augsburg and its ideal of “cuius regio, eius religio("whose realm, his religion", or "in the Prince's land, the Prince's religion") to the establishment of the Anglican Church by Henry VIII (and I could keep going) the history of having a state-accepted or state-dominated church was the norm.  Even when the Puritans came to America to practice their religion freely, they also established their church as the state church.  It was only in very few places that there was no official church, notably Rhode Island and Pennsylvania.

Interestingly, it was in Roman Catholic Western Europe that the authority of church and state was the most bifurcated.  When the Western Roman Empire fell, there was no secular institution or ruler that could readily take its place.  Instead, the Catholic Church entered the gap and there were bishops who became local landlords and protected the population.  With this came the rise of feudalism and eventually the rise of the nation-states of Europe.  During the Middle Ages, there were several controversies related to church-state relations including the Investiture Controversy between Pope Gregory VII and Emperor Henry II of the Holy Roman Empire.  Ultimately with the Concordat of Worms in 1122, the separate powers of church and state were delineated.

When the colonies revolted from Britain and the United States was formed, there were still established churches in many colonies.  With the adoption of the Constitution, this idea started to lose its hold.  In the Constitution itself (Article VI) the idea that there should not be a religious test in order to hold office is set forth.  In the Bill of Rights (Amendment I) the idea of an established religion is rejected as is the idea that people should not be free to exercise their own religion.  The phrase a “wall of separation between church and state” is never in the Constitution and is in fact based on the writings of Thomas Jefferson who took no part in the Constitutional Convention or in its ratification.  I find it confounding how the ideas of a man who was not present during the debates over the issues involved are considered dispositive; but then again I am not a fan of Jefferson, so that may have something to do with it.  Besides, the “wall” which Jefferson speaks of is not the modern unbreachable rampart imagined by so many secularists and atheists.  Rather it was a way of ensuring that people would be free to practice their own religion without government interference.  Put another way, it was meant to keep the government from interfering in the internal affairs of a church, *NOT* to ensure that the church had no part in the political sphere.

Put this way, it becomes easier to understand the position of the Catholic Church and other religious organizations towards the contraceptive mandate.  The religious organizations are objecting to the fact that they are being forced to pay for something that goes against their religious tenets.  Remember, the First Amendment (even according to Jefferson) was meant to protect the freedom of people to practice their own religion.  Therefore, forcing religious organizations to choose to either follow the law or follow the dictates of their faith is to interfere with their Constitutional rights.

Now, there are a lot of people asking about the people who work for a religious organization, but don’t share its faith.  Doesn’t it impinge on their rights to allow their employer to not pay for contraception?  The answer is no.  The Catholic Church’s opposition to contraception is not a secret and in choosing to work for a religious organization, they choose this path.  Also, they can still get contraception on their own.  No one is stopping anyone from purchasing contraception on their own.  In addition, free access to contraception is not a constitutional right.  The only right involved in contraception at all is the right to privacy as laid out in Griswold v. Connecticut (1965).  To argue that something that is not even a right somehow outweighs an explicitly guaranteed Constitutional right is beyond ridiculous.

I do wish to touch on a very tangential point that I have seen raised in relation to this discussion.  That point is that churches have no part to play in public life and that if they do so, they should be stripped of their tax-exempt status because they are violating the “wall of separation between church and state”.  As has been demonstrated above, that “wall” was never meant to prohibit churches from expressing their ideas in the public marketplace, but rather it was meant to keep the government from interfering in the internal affairs of the churches.  So let us dismiss this argument as the nonsense that it is.