Since when did judges become moral theologians?

Melissa Moschella has written an interesting analysis at Public Discourse, discussing the rulings in two recent HHS mandate cases.  It would seem that judges ought to be ruling on the law, and not on the validity of religious claims, or whether a plaintiff’s religion requires or forbids certain actions.  Yet that is just what these judges have done.

The owners of Hobby Lobby, the Green family, believe that morning-after and week-after pills that prevent implantation cause abortion.  They believe that life begins at conception, and these drugs can  cause the miscarriage of an embryo by preventing its implantation.  Because of this belief, they cannot morally provide insurance coverage for employees which pays for these drugs.  Frank O’Brien, a devout Catholic, owns a small manufacturing business in St. Louis.  The Catholic Church teaches that contraception, sterilization, and abortion are grave moral evils, and O’Brien therefore cannot morally provide insurance to his employees which covers these “services.”

Judge Carol Jackson, of the eastern district of Missouri, ruled against O’Brien (this ruling has since been overturned by the 8th Circuit Court of Appeals).  Judge Joe Heaton, of the western district of Oklahoma, ruled against Hobby Lobby (this ruling has been since upheld by the appeals court).  Heaton used the same reasoning as Jackson in his ruling.  Both judges ruled that any payment for employee insurance by the plaintiff into a plan which provides these objectionable “services” would not be any different than paying salary to the employee, who then might choose to buy these “services.”  The judges are stepping into the realm of moral theology, and making theological judgements.  Whether giving money (a salary) is the same level of cooperation in evil as giving insurance for a specific morally objectionable service is a good topic for discussion in moral theology.  Whatever the answer–it is not the judges’ to be involved in.  When judges do this, they are involving themselves in judging whether a religion requires individuals to do, or refrain, from specific actions. Judges do not have that authority, and it is a dangerous path to take should we give that authority to judges.  These judges decided the correctness of the plaintiffs’ religious beliefs, not the applicability of their claims under RFRA.  

Stick with the law.  Decide the cases on the merits under RFRA.  Leave the theology to the theologians.   

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