Sarna Slams Soloveichik, but too Softly

Professor Jonathan Sarna has levelled a strong critique against Rabbi Meir Soloveichik in an essay in the Forward, criticizing Soloveichik's testimony to congress about the funding of birth control, concluding:

...one hopes that Congress will ignore the testimony of Soloveichik. To focus on the religious liberties of employers while overlooking those of their employees, and to focus on only the free exercise clause of the First Amendment while ignoring the dangers of coercive religious establishments, is to pervert what Washington meant when he spoke of “liberty of conscience” and to set back the cause of liberty and justice for all.

The problem with Sarna's critique is that it is correct, but it is on a level too high to be meaningful. Sarna measures in theory, weighing institutionally wrapped religious rights against the clear legal individual rights of citizens. In our democracy all rights of organized groups derive from the rights of citizens on an individual basis. The Church does not have constitutional rights per se or any rights articulated in the Declaration of Independence. In fact, as we learned in grade school, a major impetus for the democracy in our land is "freedom of religion" for individuals. That never meant freedom of a religion to oppress the rights of individuals.

Also, Sarna was gracious in bequeathing some distinction to Soloveichik as "one of the foremost Orthodox rabbis of his generation" but failed to mention that he spoke on behalf of himself and not on behalf of any organization of American Orthodox Jews. We know that the notion of "organized" Orthodox Jewish religion is mainly an illusion. It seems to us that Soloveichik spoke as an individual Orthodox Jew on behalf of the powerful and truly organized institution known as the Catholic Church. And that makes little sense to us. We are quite sure that congress already understood the lack of weight behind Soloveichik's testimony and ignored it out of hand without the prodding of Sarna's counterargumentation.

We are disappointed that Sarna did not parse the specious argument made by Soloviechik at the heart of his testimony. He said mainly illogical things about Obama's accomodation to the Church. Obama's accomodation allows the insurer to provide the coverage for birth control, thereby creating a Talmudic shield around the Church, which now can claim it is not really providing birth control for its non-Catholic employees.

Soloveichik said before congress as follows, "This putative accommodation is, however, no accommodation at all. The religious organizations would still be obligated to provide employees with an insurance policy that facilitates acts violating the organization’s religious tenets. Although the religious leaders of the American Catholic community communicated this on Friday evening, the administration has refused to change its position, thereby insisting that a faith community must either violate a tenet of its faith, or be penalized."

The "facilitates acts" notion is specious, as Soloveitchik ought to know. The Church does not believe that all birth control in the world is an abomination, including that practiced by non-Catholics. It never could even imagine to say that. The Church has no authority over non-Catholics. So the idea that helping pay for birth control by non-Catholics is "violating the organization’s religious tenets" is simply wrong. There is no such "tenet" in the Church that prohibits the practice of birth control by non-Catholics. And there is no tenet in the Church that prohibits an individual Catholic from paying for birth control by a non-Catholic.

This is a bad mistatement, a falsehood, that is compounded by the next rhetorical escalation of the testimony, namely that Obama is, "insisting that a faith community must either violate a tenet of its faith, or be penalized." That sounds bad but it is not true. Soloveichik makes it almost sound like Obama is making Catholics use birth control against their will.

We won't go so far as to say that all of this particularly shady and misleading logic is a violation of the "false testimony" clause of the Ten Commandments. But we will say that in this case the rabbi came quite close to violating a tenet of his own faith.