Sunday, February 12, 2012

Bishops v. Barack: Playing an Ace to Take a Deuce

We may all be a bit tired by now of the Catholic bishops' fight against Obama, but this contest holds out an extraordinary example of how NOT to engage in politics. I can't pass it by!

In the game of politics, as well as the game of life, it's a virtually fatal mistake to play an ace to take a deuce. It's also a dumb mistake (most of the time) to fail to declare a victory. And it's unforgivable to betray your supporters after they stuck out their necks for you.

In the present game of the Catholic bishops versus the White House, the Catholic bishops persist in making dumb moves. Let us acknowledge, for starters, that to them this is no game. They undoubtedly believe they are fighting for religious liberty and against the "sinfulness" of contraception. They therefore believe that their stakes in this fight are very high.

That's their first mistake.  In my last blog, I pointed out that there is NO issue of constitutional religious liberty in this fight. (I've taught law, and I've fought the religious liberty battle on behalf of Native Americans rather successfully, so I'm not just blowing smoke on this issue.)  Other writers are beginning to perceive this, e.g. the New York Times Sunday carried a column pointing out that Christian Science organizations routinely provide standard health insurance coverage to their employees even though a central doctrine of their faith opposes medical care as a failure of faith in God's healing power. This is a tiny example of the wide recognition in this country of our law and tradition that dates back to the Founding Fathers seizing Quakers' property when the latter, on religious grounds,  refused to pay a tax to finance the Revolutionary War. In effect, our country's birth involved the necessary recognition that, on some things of vital concern to the general welfare, religious convictions have to give way. This rule has been consistently upheld by our courts.

Thus, there is no legal nor traditional ground of "religious liberty" for the bishops to stand on. On this count, they are playing an ace not even to take a deuce. They are playing for a card that doesn't exist. And never has.

The second card they are playing for, i.e. fighting against contraceptive use, also isn't on the table. That play has already been made and is over. Their  Catholic flock removed the card long ago by ignoring church teaching and opting  -  almost 100%  -  for contraception. The bishops' present stance is not going to affect the behavior of Catholic women at all, not after approximately forty years of the Pill being available and used by Catholic women. And it's very hard to see how the bishops hope to convince these Catholic women to change their behavior by the bishops' denying contraceptive coverage to non-Catholic women employees.

So what is it the bishops hope to gain?

If you choose to enter the arena of politics (and so much of life IS politics of a sort), you have to recognize the rules.

The First Rule of Politics:  Don't go after a nothing! Not ever!

When you play an ace to take a deuce, or to gain nothing real, you lose all your credibility. You lose it with your opponents, and  -  even worse  -  you lose it with your supporters. And when you lose credibility, it's virtually impossible to get it back.

The game now is over, and the bishops could have declared victory after Obama announced that the insurance companies will have to pay for contraceptive coverage for employees of Catholic institutions.  He thus gave the bishops a face-saving victory while yet protecting what the White House and medical community believe is an important health care service for women.

But the bishops have broken yet another First Rule of Politics. (All the rules of politics are the First Rule.)

They are refusing to acknowledge their own victory! Instead, they are reportedly REJECTING their own victory and mumbling something about "sterilization".  WHAT?!

Sorry, bishops. You can't hold the attention of the American press or the public by meandering through a wish list of theological objections that may have some obscure relationship to a now-settled controversy.  You could have declared victory, walked away, and come back next time with some real stature to argue a point that people can grasp  -  like the church's opposition to capital punishment. Instead, you have chosen to look sulky and unreasonable. If you can't be satisfied when you get what you first announce you want, nobody will give you anything next time. That's how it works.

Even worse, the bishops have  -  knowingly or not  -  thrown in with John Boehner et al in the GOP cry that Obama's solution isn't enough and that only GOP legislation can save religious liberty. Why the Catholic bishops want to strengthen a GOP ploy is beyond knowing, given the GOP vow to cut programs for the poor and the sick whom the bishops have laudably cared for through all our history.

On top of imperiling its own wards who need care, the bishops have broken another First Rule of Politics:  Don't hang your buddies out to dry. Especially your buddies in the media.

When Mark Shields, Chris Matthews and other openly Catholic Democrats in the media went to bat for the bishops, they really, really stuck their necks out. So now the bishops are cutting their heads off by refusing to seem reasonable. Further, they make Matthews and Shields look stupid for having backed guys who seem determined, after a victory, to play the part of losers.

Next time the bishops need buddies in the media, do you think those buddies will be there?

If so, I have a blind camel I'd like to sell you.

P.S. Lawrence O'Donnell of MSNBC played it smart. Catholic Democrat though he be, O'Donnell didn't join Matthews and Shields in lining up immediately with the bishops but instead had  lawyer David Boies explain on camera why there's no religious liberty issue at stake in the contraceptive coverage fracas. You remember Boies from the fight over the Florida vote count in 2000 and his recent 9th Circuit victory against California's Prop 8 prohibition on same-sex marriage. On O'Donnell's show Boies relied on labor law to make his point. I choose to rely on law that is more directly about religious objection. So who's right? We both are. Mr. Boies is a famed advocate for big corporations and thus turns to labor law.  I worked pro bono for little bands of traditional Native Americans who live in the most remote corners of California  with virtually nothing of their own except their religion. So, David, different yokes for different folks! We come to the same conclusion by different roads, pal, so we must be right.  (I just wish you'd won the Florida vote count case!)



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