I was once, literally, a footnote to history. In an important Supreme Court decision involving the military draft, Justice William Brennan (sadly, in dissent, as he so often was) cited some of my testimony on this topic to a House of Representatives committee.
Well, I am now a metaphorical footnote to a matter that could be of even greater consequence. On Feb. 16, Democrats on the House Oversight and Government Reform Committee asked whether I would consider testifying on a hearing about “religious freedom” that the Republican majority had convened.
The hearing was really about the controversy over the Obama administration’s decision to require religiously affiliated institutions to contract with insurance companies that would offer birth control at no cost to those employees who want it. Even though the policy doesn’t require religious groups to pay for contraceptives directly, some clergy claim it violates their right of conscience.
I’ve testified at a lot of congressional hearings over the years. This one struck me as particularly strange. The Democrats requested two witnesses, while the Republican majority was planning on at least eight. Originally, the Republican witnesses were all men.
I was happy to learn that my co-witness would be a woman named Sandra Fluke, a third-year student at my alma mater, Georgetown Law Center, who had been speaking out against Georgetown’s policy, which has the effect of denying contraceptive coverage even for women who need it for life-threatening medical reasons.
U.S. Rep. Darrell Issa (R-Calif.), chair of the committee, decided that Fluke would not be allowed to testify. Around 4 p.m. the day before the hearing, Issa told the Democrats that Fluke was not “qualified” to appear as a witness and that they could have one witness only – me.
Issa later stated that I was “clearly qualified” although he pointed out that he doesn’t agree with me. He also noted that I’m not a woman. (He didn’t have to tell me that.)
I rejected his offer to be the only witness for the Democrats because, frankly, I wanted a woman to testify and believed that if there was to be one witness on our side, it should be Fluke. She had a compelling story to tell, and I thought the nation should hear it. The hearing went on with no witness debunking the phony “religious freedom” claims of the Catholic hierarchy and other conservatives.
The rest is history. The male-dominated, one-sided hearing was a disaster for the GOP, and Fluke later offered her testimony to a separate hearing held by the Democrats. The articulate and poised Fluke was already attracting a lot of media attention before talk radio bloviator Rush Limbaugh decided to launch an ignorant and vile personal attack on her. That also backfired, leading Limbaugh to offer an insincere apology in a desperate (and unsuccessful) attempt to stop dozens of advertisers from fleeing his show like the proverbial rats on a sinking ship.
The only downside to being a footnote in this saga is that I never got the opportunity to tell Congress why it should reject the religious freedom claims being made in this case. I did submit written testimony to Issa’s committee, but it would have been nice to say it in person.
I would have pointed out that a corporate claim to conscience should never trump real individual conscience. The Catholic bishops are now asserting, along with their Religious Right allies, that every single employer who has a religious objection to insurance coverage for some procedure should have a constitutional right to deny it to his or her employees.
The chief attorney for the U.S. Catholic Conference of Catholic Bishops told USA Today that if he owned a Taco Bell he’d want to be able to deny contraceptive coverage to his employees. (I don’t imagine these people would be paid so well that they could just buy it out of their vast disposable income).
What’s next – no insurance coverage for blood transfusions if your boss is a Jehovah’s Witness? No psychological coverage if the woman who owns the corporation that employs you is a Scientologist?
What has happened is that “religious freedom” in the last few months doesn’t mean allowing a Sikh police officer to wear a turban, or allowing a church to decide the criteria for hiring a pastor. It now means the “right” of ultra-conservative clerics to receive as much taxpayer money as possible and ignore each and every rule, regulation or other governmental “imposition” with which they disagree.
Dangerously, even the Obama administration to some degree bought into this mythological constitutional claim. It didn’t need to create this still nascent Rube Goldberg scheme to get insurers to cover contraception; now that it has, it should make it clear that it doesn’t plan to exempt every religious entity from civil rights laws (as they demand regarding the faith-based initiative) or health and safety concerns (as even the Amish insist upon) and that it fully expects even the Catholic hierarchy to provide comprehensive services in the area where it receives taxpayer-funded grants and contracts for supposedly secular work.
Barry W. Lynn is executive director of Americans United for Separation of Church and State.