Are Catholic Bishops Seeking a Religious Preference or Religious Freedom?

34 Pages Posted: 6 Feb 2013

Date Written: February 2013


This Article questions whether religious institutions have become too aggressive in seeking preferences for themselves, often at the expense of the freedom of their members. In Hosanna Tabor, the Court recognized a "ministerial exception," based on the First Amendment, for religious organizations when sued by certain employees or former employees alleging a violation of a federal statute prohibiting discrimination in employment and retaliation against those who seek to enforce such a statute, or assist others in doing so. Shortly after the decision in Hosanna Tabor, the Catholic Bishops orchestrated a series of lawsuits challenging a provision of the Patient Protection and Affordable Care Act that requires most employer health insurance plans to provide certain essential health benefits, including "[p]reventive and wellness services," as required by Guidelines issued by Health Resources and Services Administration. The Catholic institutions pursuing these cases argue that the challenged provisions violate their religious freedom, protected by both the Religion Clauses of the First Amendment and a federal statute, because the mandated benefit includes birth control, the use of which Catholic doctrine prohibits. As in Hosanna Tabor, the institutions are asking the courts to provide them with a preference that trumps the freedom of their members. In my view, the institutions involved in these two situations are showing a callous disregard for the well-being of their employees where laws designed to promote equality and freedom have, at most, a marginal effect on the religious freedom of the institutions.

Suggested Citation

Bodensteiner, Ivan E., Are Catholic Bishops Seeking a Religious Preference or Religious Freedom? (February 2013). Valparaiso University Legal Studies Research Paper No. 13-1, Available at SSRN: or

Ivan E. Bodensteiner (Contact Author)

Valparaiso University Law School ( email )

656 S. Greenwich St.
Valparaiso, IN 46383-6493
United States

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