The Uncomfortable Question: Should We Have Six Catholic Justices on the Supreme Court?

WASHINGTON - OCTOBER 08:  U.S. Supreme Court members (first row L-R) Associate Justice Clarence Thomas, Associate Justice Ant
WASHINGTON - OCTOBER 08: U.S. Supreme Court members (first row L-R) Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John Roberts, Associate Justice Anthony Kennedy, Associate Justice Ruth Bader Ginsburg, (back row L-R) Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito and Associate Justice Elena Kagan pose for photographs in the East Conference Room at the Supreme Court building October 8, 2010 in Washington, DC. This is the first time in history that three women are simultaneously serving on the court. (Photo by Chip Somodevilla/Getty Images)

In its decision in Burwell v. Hobby Lobby Stores, Inc., the Supreme Court has decided that the religious beliefs of employers, including closely held corporations, take precedence over the rights of employees to necessary medical care. The specific medical care to which the employers objected was certain forms of contraception. The five justices who decided that these employers' objections were entitled to deference are all Catholics. (One Catholic justice, Sotomayor -- a woman -- dissented from the majority ruling.)

This outcome, including the reasoning behind it, points to an uncomfortable question. Indeed, even by raising this question one exposes oneself to a charge of bigotry. But the question needs to be asked: Is it appropriate to have six Catholic justices on the Supreme Court?

As indicated, it's not just that five Catholic justices ruled that the government has to defer to the employers' religious objections. It's the reasoning on which the Court relied that causes concern. In explaining its decision, the majority made two very revealing points, one directly justifying its decision, the other distinguishing other, possible cases that might now cite Hobby Lobby as precedent. Both these points show how closely the majority adheres to Catholic teaching.

One question that many have had about the employers' objections to contraceptive coverage is why are they claiming they are burdened? No one is forcing anyone to take contraception if they do not want to. It's up to the individual employee to decide whether to take advantage of contraceptive coverage. So where is the burden on religious belief?

In Justice Alito's majority opinion, he relies squarely on Catholic teaching about "complicity" to explain the supposed burden. In doing so, he reiterates the argument that the Catholic Church has made in the dozens of lawsuits it has brought challenging the contraceptive mandate. According to the Church, it violates the moral obligations of a Catholic to do anything -- anything -- that would "facilitate" the provision of contraception to an individual. So even if one is not using contraception oneself, if one facilitates access to contraception by others, a grave moral wrong has been committed.

The implications of incorporating this doctrine into the Court's interpretation of the Religious Freedom Restoration Act are staggering, at least one would think. Presumably, employers who object to blood transfusions could refuse to provide such services to employees, Scientologist employers could refuse to provide for psychiatric care, and so forth, all on the grounds that doing so would facilitate immoral acts by others

But wait! Here the Court drew a line. As the majority emphasized, Hobby Lobby deals with contraception only. Other possible objections to health care coverage would present different considerations.

You're damn right they would. They would present considerations important to Jehovah's Witnesses, Scientologists, Christian Scientists, and the whole host of small minority religions that don't have the benefit of having six justices on the Supreme Court.

From a secular, constitutional perspective -- and at least the fiction is that the justices are upholding secular law -- there is no distinction between "facilitating" contraception and other forms of health care. Of course, in the eyes of the Catholic Church, there is such a distinction, because contraception is immoral, whereas transfusions and other standard forms of medical care are not.

In the past, Catholics in the U.S. have suffered from prejudice and bigotry. One of the traditional knocks against Catholics had been they did not and could not support the separation of church and state. John Kennedy, along with many other progressive Catholic politicians, did much to lay those fears to rest. They showed that support for a secular state is not necessarily incompatible with being a good Catholic.

Unfortunately, a majority of the Supreme Court may now be resurrecting concerns about the compatibility between being a Catholic and being a good citizen, or at least between being a good Catholic and an impartial judge. In accepting the Catholic Church's extremely expansive understanding of what constitutes a burden on someone's religious beliefs, while simultaneously being dismissive of concerns that would be raised by minority religions, the Court majority is effectively undermining confidence in Catholic judges and forcing us to ask the uncomfortable question: Is it appropriate to have six Catholic justices on the Supreme Court?