Obama Administration Gives Opponents of HHS Mandate All the Evidence They Need to Convince Court of Free Exercise Violation

The latest meme from supporters of the HHS mandate is that it's okay to force Catholic institutions to violate the Church's teaching on contraception because allegedly 98% of Catholics are using or have used contraception. Leaving aside for a moment the fact that I find this somewhat dubious statistic something likely to have been pulled from someone's ass (or the Guttmacher Institute, which is the same thing), let me just say that, even were it true, Ross Douthat does a masterful job of demolishing this meme.

But it's one thing for supporters of the HHS mandate to cite that 98% figure; it's quite another thing for an official in the Obama Administration to cite that figure on the White House's website in response to the criticism the Administration has received from the Bishops and others regarding the HHS mandate:

The White House, defending a decision requiring many Catholic hospitals, schools and charities to offer contraception coverage to employees, argues that most women — including most Catholic women — use birth control.

Cecilia Muñoz, director of the White House Domestic Policy Council, marshaled this statistic in a Feb. 1, 2012, blog post:

"According to a study by the Guttmacher Institute, most women, including 98 percent of Catholic women, have used contraception."

Does anyone else find it particularly troubling that a government official - a member of the Obama Administration, no less - would use the White House website to argue that the "fact" of 98% of Catholic women allegedly contracepting justifies the decision to force Catholic institutions, against their consciences and in violation of Catholic teaching, to pay for and provide contraceptives, abortifacients, and sterilization? It's beyond troubling, it's unconstitutional.

Citing this statistic on the White House website is a clear indication that the Obama Administration is making a subjective value judgment in taking sides in an internal Church dispute (which really isn't even a "dispute" since the Church has its clear and unequivocal teaching and those who don't abide by it are doing what has traditionally been called "sinning").

Clearly, the Administration has violated the Free Exercise Clause in defining the religious exemption far too narrowly. In essence, by basically saying that anything the Church does outside the context of the Mass - you know, like feeding the poor, caring for the sick, providing for widows and orphans, and providing Catholic education - does not qualify as sufficiently "religious", the Administration (i.e. the government) has done no less than define for Catholics what it means to be "Catholic". However, the Administration could arguably assert (although I believe tenuously and unsuccessfully) that the narrowly tailored religious exemption was formulated on the basis of broadly applicable and objective criteria not intended to infringe on religious liberties. Again, I think that argument is bogus and would be unsuccessful, but it could be made.

But the use of the 98% statistic to bolster the Administration's position vis-a-vis the Bishops is clear evidence of subjective intent on the part of the Administration to officiously intermeddle by taking sides on an internal Church matter. If I were an attorney filing suit on behalf of a Catholic organization seeking to overturn the HHS regulation, a print out of the White House website citing the 98% figure would be Exhibit A as evidence of the Administration's violation of the Free Exercise Clause.

The Administration's very act of engaging in such a calculus by declaring the Church's teaching to be out of step with its membership will be all the evidence the Supreme Court will need to conclude that the Administration is impermissibly inserting itself into internal Church affairs in violation of the 1st Amendment.