How The Virgin Mary Influenced The United States Supreme Court

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It seems clear from the tenor of this book that attorney and author L. M. Lilly disagrees with the United State's Supreme Court's decision in Burwell v. Hobby Lobby, which applied the Religious Freedom Restoration Act (“RFRA”) to closely-held corporations to hold that Obamacare's mandate that employers provide insurance that paid for contraception was unconstitutional because there were less burdensome alternatives available to achieve the governmental objectives.

Ms. Lilly is, of course, free to disagree with Burwell, although I found her reasoning less than compelling. In some ways, Lilly's analysis exhibits the cavalier disdain for those outside of her own class - presumably, the class described as the “professional managerial elite” by Joan C. Williams in [[ASIN:B01N276AU1 White Working Class: Overcoming Class Cluelessness in America]]. For example, Lilly complains that the word “women” is hardly mentioned in the majority decision, but, then, why should that word be used frequently since (a) both men and women use contraception and (b) the issue in question is the application of Obamacare to the plaintiff's religious rights. Likewise, Lilly claims that the element of burden was not discussed or established by the court, but, in fact, this is what the court wrote on that subject:

“The court concluded that the contraceptive mandate substantially burdened the exercise of religion by requiring the companies to choose between “compromis[ing] their religious beliefs” and paying a heavy fee—either “close to $475 million more in taxes every year” if they simply refused to provide coverage for the contraceptives at issue, or “roughly $26 million” annually if they “drop[ped] health-insurance benefits for all employees.” Id., at 1141.”

(Burwell v. Hobby Lobby Stores, Inc. (2014) U.S. [134 S.Ct. 2751, 2766, 189 L.Ed.2d 675, 694].)

So, the lower court determined that there was a substantial burden from Obamacare, and, as a matter of common sense, it would seem that compromising religious beliefs or paying a multi-million dollar fine should constitute a “substantial burden.” Lilly seems to think that the issue boils down to how much would employers be required to pay for contraception cost, ignoring thereby the issue that what was at issue is freedom of conscience and religion. It seems that Lilly's worldview does not give freedom of conscience or religion the weight intended by the First Amendment. In fact, Lilly quotes approvingly Justice Ginsburg's limited definition of the purposes of the First Amendment (actually “First Amendment” is a term not used in this slim book):

“But the dissenting justices may have had the same concern, as the dissent expressly noted that “approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,' the very ‘risk the Establishment Clause was designed to preclude.'”

But that is just an odd objection. The issue raised by Obamacare is not “establishment of religion” - unless it is a secular religion - but “free exercise,” i.e., the other clause in the First Amendment.

Lilly also mischaracterizes the court's holding with respect to other religious practices. The majority did not say that other practices were not protected by the RFRA. Rather, the court was conventionally responding to the dissent's “floodgates” argument by saying that other issues would have to be looked at individually:

“In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer's religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

(Burwell v. Hobby Lobby Stores, Inc. (2014) U.S. [134 S.Ct. 2751, 2783, 189 L.Ed.2d 675, 712].)

Of course, this is precisely how these cases should be handled, namely look to see if there are less restrictive alternatives.

However, the most objectionable feature of the book is its conventional appeal to bigotry in the form of anti-Catholicism. Anti-Catholicism has been described as the “last acceptable prejudice” and “the thinking man's antisemitism.” I don't accuse Lilly of consciously being anti-Catholic, although she may well be since Catholicism is a favorite whipping boy in some quarters, however, her book trades in a kind of anti-Catholicism that we might have seen in the early 20th century.

Thus, Lilly appeals to the most distinctive of Catholic distinctives to open her book, namely Mariolatry. If there is one subject sure to provoke a traditional American anti-Catholic response, it is the accusation that Catholics worship Mary. Lilly spends her first chapter in a kind of “gorillas in the mist” recapitulation of Catholic devotion to the Mother of God, going to the extent of putting the term “ever virgin” into square quotes in the title. She makes some tendentious sociological assertions, such as the claim that Catholics transferred pagan goddess-worship to the Blessed Virgin Mary, which is a commonplace claim made by fundamentalist Protestants who are prone to claiming that Catholics are “transitional pagans.” There is also this potted theology:

“After that, we're told Mary was a mother, remained a virgin forever, and was taken up body and soul into Heaven at the end of her life, apparently as a reward for spending that life being both a virgin and a mother.”

This is ridiculous, of course, as Lilly knows. The Catholic Church does not teach that Mary's Assumption was because of her being a virgin and a mother, except insofar as she is the Theotokos, the Mother of God.

Lilly glides right past that fact, presumably because it gets in the way, but readers should reflect for just a moment on the title Mother of God. It literally means that the most exalted human being is a woman, and she has the position not merely as a “breeder” but as a disciple who was present at the start of Jesus's ministry and at the end. This is what makes this simplistic formulation problematic:

“Why did God grant Mary this honor? The Church cites Mary's “virginal motherhood” and the “dignity of the Mother of God.” (See Munificentissimus Deus, Defining The Dogma Of The Assumption, Apostolic Constitution issued by Pope Pius XII on November 1, 1950.) As the four doctrines show, the Roman Catholic Church honors its central female figure for being a virgin forever and a mother. Because Mary supposedly remained a virgin and devoted herself to motherhood, she is seen as immaculate, pure, and holy.'

Lilly is simply playing the game of trying to make Catholics look sex obsessed by cherry-picking. As noted, Mary is considered a disciple of Christ, important enough for Christ on the cross to commend her into the care of the beloved disciple. Thus, Munificentissimus Deus mentions the following:

“It was fitting that she, who had seen her Son upon the cross and who had thereby received into her heart the sword of sorrow which she had escaped in the act of giving birth to him, should look upon him as he sits with the Father. It was fitting that God's Mother should possess what belongs to her Son, and that she should be honored by every creature as the Mother and as the handmaid of God.”

Presumably, since that wouldn't make Catholics look like sex-obsessed panty-sniffers, it wasn't chosen for inclusion.

Lilly's next chapter is more problematic. In her second chapter, she resurrects the Know-Nothing fear that Catholics are under the control of the Pope. Lilly argues simplistically that the majority were all Catholics and that there was a Catholic theologians' brief noting that Catholics were theologically required to obey their bishops. From this, Lilly infers that the majority were threatened or reminded that they were to toe the Catholic line.

But this is absurd and bigoted. Catholic jurists have repeatedly voted against the Catholic position. For example, Scalia supported the death penalty and Lilly notes that Sotomayor was on the other side in Burwell. Further, the point of the brief was not directed to the justices as Catholics but to point out that Catholics subjected to Obamacare were being put in an untenable moral position.

Finally, what is the connection between contraception and Mary. Lilly presents the connection on an intuitive leap that Catholics are obsessed by sex and virginity and, therefore, obviously, they must be against contraception, but, really, who cares what the reason for opposition to contraception stems from? Why is it important? Is Lilly simply playing on a genetic fallacy to the effect that the Catholic position on contraception can't be considered a substantial basis for exemption because of its basis in (weird)(not-Protestant)(unAmerican) Mariolatry?

In any event, the intuitive leap is wrong. Christianity, i.e, Catholicism, has condemned contraception from its first century (See, the Didache.) In other words, we have evidence of Christian opposition to contraception before we have evidence of Marian doctrines. In addition, the reason for the opposition to contraception is morality in the sense of distinguishing Christians from pagans; the Christians were the ones who kept their children, remained married and didn't use prostitutes.

This book is slim. Lilly is a good prose writer. The book covers the issue from a particular perspective. Obviously, given its problematic anti-Catholic bias, I cannot recommend it.