Is the First Amendment Outdated?

It’s easy to forget, in this freewheeling, anything-goes, tolerance-minded society of ours, that it wasn’t so long ago that Catholics were derided, their beliefs publicly ridiculed, and their leaders mocked.

Oh, wait, that was just yesterday.

Or so it seemed when the contraception debate began. That is, when advocates for the HHS mandate (saying all employers must include free contraception coverage in their insurance plans regardless of their church teachings on the matter) turned the tables on free-conscience supporters by making the debate about bishops and their fellow-traveling Republican men who want to control women’s health. You remember the infamous photo, correct? You can see it here, at this link.

Sorry, wrong picture. That’s a Thomas Nast cartoon from the 1800s suggesting bishops wanted to control American public schools (look closely—the alligators coming to attack the poor schoolchildren are wearing bishops’ miters). Those bishops. Always trying to control something or other.

The photo to which I’m referring, though, went so viral that a short description will probably suffice: about a half dozen men, most in clerical garb, seated glumly at a congressional hearing table, microphones and notes at the ready.

They were there to testify about religious rights, not contraception, but that didn’t matter to the folks who passed the photo around as one more example of the miter-wearing Y chromosome crowd trying to crush women under their heels.

In the interest of full disclosure, I do not agree with the Catholic Church’s position on many things, including contraception. But, like Kevin Seamus Hasson, the head of the Becket Fund for Religious Liberty, I believe the Church has the “right to be wrong.”

Hasson has penned a book with that title on first amendment issues. For Christmas one year, I gave each of my children a copy. It’s a fast read, chock full of valuable history and information.

Hasson’s book title is apt. It’s what the first amendment, with its protections of religious liberty, is really about: the right to a free conscience that makes moral judgments, even if sometimes those judgments are wrong and unpopular. That’s at the nub of the First Amendment, making it a relevant principle to atheists and believers alike—it protects individuals’ right to say, essentially, this is morally repugnant and I will not just “follow orders” and do it.

As I witnessed the contraception argument debated on Facebook and elsewhere, I was amazed at the number of people, however, who seem to think free conscience decisions should be popular in order to be truly valid. Many people seemed to think that the unpopularity of the Church’s contraception stance (as evidenced by the lack of large Catholic families) demonstrates that the Church is wrong on the issue, and because they are wrong, the Church must obey the more popular “right” stance on birth control coverage.

Arguing against this view usually elicited a litany of other Church wrongs, most notably the sex abuse scandals, Church views on sexuality in general, the celibate priesthood, and… Rick Santorum…as if these things confirmed the Church was wrong, too, on contraception.

The Church, of course, is not a democracy, and those who’d like to make it so should focus their efforts on trying to change it in the private sphere. (I suggest a nail, hammer, and some theses—perhaps, oh, 95.) Using the government to coerce the Church to change might get you what you want in the short-term but will likely lead to things you don’t want in the long-term, the dilution of free conscience rights overall.

The debate over the Church’s “wrongness,” however, reminded me that everything old is new again. It’s not really a joke that I included a link to the Thomas Nast cartoon above. It represented a commonplace view during its time, that Catholics were so wrong in their views that they needed to be legislated virtually out of existence. They had a different approach to worship (a Mass in Latin—quelle horreur!), celibate leadership (for a peek at views on this, take a look at Rev. Justin D. Fulton’s 1880s masterpiece Why Priests Should Wed, a treasure trove of anti-Catholic propaganda in the guise of “advice” on Catholic principles), a different Bible (the Douay and not the King James) and a foreign Pope, among other things. Anti-Catholic views were as acceptable back then as, say, bashing Mormons is today.

As a long-time school choice and voucher advocate, I’m aware of this history and how it played a distasteful part in a significant public institution in America—the creation of public schools, which were originally designed to blanche threatening “papist” views from new immigrant children’s minds. (That history still touches the voucher debate in the courts, by the way, in a tangential way. A regular legal opponent of school vouchers is the group Americans United for Separation of Church and State. At their formation in the 1940s in the wake of court rulings that benefited Catholic institutions, they were known as Protestants and Other Americans United for Separation of Church and State, only shortening their name in 1971.)

Here we are, more than a century after the anti-Catholic campaigns of yesteryear, though, and we’re still seeing the same old misunderstandings, and, in a way, the same old arguments. The Church is wrong, the Church is different, and—instead of “the Church is the enemy of America”—the Church is the enemy of women; therefore the State must make the Church into something else by legislating a violation of its principles.

In an increasingly secular society, people forget why it’s important to let the Church be wrong. Freedom of conscience is such a powerful human drive that it leads men to choose death over recanting their beliefs. Early Christians, after all, went to the arena rather than burn incense to pagan gods because they believed they had found a higher truth. Even atheists believe in seeking truth, which is at the foundation of a free conscience.

Hasson writes in his book, “A government that seeks to minimize the consciences of its citizens may well find itself, in a generation or two, in a predicament far worse than having too many principled people claiming too many points of conscience. It may find itself with too few principled people to sustain a society.”

The Becket Fund for Religious Liberty, which is fighting the HHS contraception mandate in court, is promoting rallies on Friday, March 23 for those interested in supporting rights of conscience. Information is here.


Libby Sternberg is a novelist. Her book website is here. This post can also be found at the Center Right Side blog.