Do religious institutions have a valid constitutional argument in challenging the contraceptive access law? Maybe.

I’ve been having lots of discussions on Twitter and Facebook about this week’s latest volley of attacks by the Republican party that seem squarely targeted at women. From “personhood” laws that seek to eradicate access to abortion to this week’s Male-Opinions-Only-Please Congressional hearing on the issue of the contraceptive access law, everywhere we look it seems we’re seeing the GOP attacking women. And we should be clear on what the agenda is here: A large segment of the GOP seeks to redefine gender roles on a broader societal level, to reframe what being “woman” means. And it seems the GOP would like the term “woman” to mean some throwback to the pre-feminist ideals of the 1950s, because everyone knows that feminism killed family values. (Wait, was it feminism or the Gay Agenda? I forget.)

It’s easy for liberal intellectuals to be snootily dismissive of the religious right, but we need to pay attention, folks. Posting snarky Twitter comments equating belief in God to belief in the Tooth Fairy may be hilarious atheist humor, but that kind of loud-mouthed ridicule — apart from being utterly arrogant and condescending — is a great way to ensure your perceived opponent will tune you out before you even start making your point. Really brilliant. What’s at stake here isn’t whether you believe in God or you think people of faith are idiots, but about who holds the power and what place women have within that power structure. It’s about societally defined gender roles, about the power relationship between men and women, and about who gets to impose their values on whom. Personhood laws, in particular, are about power and gender as much as they’re about abortion.

But the debate over the contraceptive access law has been lumped in with all that other nonsense, and it needs to be separated. This particular issue is one of constitutionality, religious freedom, and First Amendment rights, not about birth control, and both sides would do well to remember that. On Thursday, the House Committee on Oversight & Government Reform held hearings to allow religious leaders an opportunity to make their case that the Obama-driven law that requires religious based institutions to provide contraceptive coverage as part of their health-care package is a violation of the Church’s religious liberty. Unfortunately, the decision by the GOP to call only male witnesses to testify about an issue so pertinent to women has obscured the whole religious liberty argument almost completely, which is unfortunate because that is the issue we really need to be discussing here.

President Obama advocates for all women having access to birth control without co-pays, and so do I. But the question is whether religious institutions, like Catholic hospitals and universities, should be required – compelled by the federal government – to pay for contraception, which goes against the teachings of the Catholic Church. And really, it would behoove the religious right to keep the discussion out of the realm of sex and family planning and in the strict realm of the First Amendment and religious freedom, because that’s not only where they’re most likely to cross political lines to get support, but also, coincidentally, where they might actually have a legal leg to stand on.

This is a tough issue for me. I was raised Catholic in parochial schools, taught by nuns. My uncle is a priest. I am firmly pro-choice, and I’ve used birth control throughout my adult life, but I don’t believe that under most circumstances, I’d get an abortion myself. As an adult, I’m a liberal socialist who’s chosen the path of Unitarianism, and that’s how I’m raising my kids, but I can’t deny that there’s a part of my personal values that were informed inexorably by the faith within which I was raised. There are feminists, I’m sure, who would argue that the mere fact that I chose to have five children disqualifies me from any claim to being a feminist, although I’ve always believed that the whole point of pro-choice is that women have the right to make the choice for themselves whether or not to bear and raise children, and that my choice to have five kids doesn’t make me any less a feminist than someone who chose to have five abortions.

I believe that access to contraception, for both men and women, should be free and universal, but I personally am more in favor of the idea that our government should be paying for those things directly through some sort of universal access to health care, than of the idea that we can or should force values that deal in matters of faith on the religious institutions our Constitution is designed to protect. In other words, just because I think access to contraception is a Good Thing doesn’t mean I think that it’s necessarily right to make your church’s dollars pay for my Depo shot, or your faith-based hospital to provide me with an abortion, and I think you may have a constitutional argument there. On the other hand, I also don’t believe that your faith gives you the right to pass laws based on your faith that dictate that women cannot have an abortion or access to contraception. You don’t want to use contraceptives or have an abortion, I have no problem with that, but stay out of my uterus, please. In the case of this particular law, though, we may be looking at a case where the government is actually stepping across the boundary between Church and State in a way that sets a dangerous precedent.

The contraceptive coverage law as written does force churches that happen to also own and run private universities and hospitals to pay for something that’s directly in opposition to the teachings of their faith. I don’t think there’s any denying that, is there? And if the belief that contraception is murder is an inexorable part of their faith, if we force them to pay for contraception, have we not created a law that prohibits the free exercise of religion? And if so, how does that not violate the First Amendment?

If you have an argument based on the constitutionality of the issue, I’d be very interested in hearing it, because the grounds on which to advocate for this law are not around the issue of whether birth control is right or wrong, or on whether the Catholic Church is stupid for being opposed to birth control, but simply on the constitutionality of the law. Find the argument that proves the law is, in fact, constitutional. That’s what the focus of the discussion needs to be. Because if we can’t make a coherent argument that its not a violation of the First Amendment to force a religious institution to pay for something that’s in opposition to its faith, we’ve lost the argument already.

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