Religious Exemptions & the Contraception Rule
I’ve been refraining from commenting on the contraception rule, because, to be honest, I’m puzzled both by the decision to mandate contraception coverage (which strikes me as politically very tone deaf) and by the reaction to it among liberal Catholics. I’ll leave the political wisdom of the decision to others, but let me explain why I’m a little surprised by the vigor of the reaction to it on the Catholic left. (And my puzzlement is not merely rooted in my concern about the wisdom of lending credibility to the mostly fatuous “religious freedom” line of attack that religious conservatives have strategically adopted as their new all-purpose refrain in the culture wars.)
Part of my uncertainty about the merits of this particular controversy is due to my own ambivalence on the question of religious exemptions generally. In this case, my confusion revolves around the difficulty I have in understanding the boundaries of appropriate demands for religious exemptions when it comes to moral claims like the Catholic hierarchy’s opposition to contraception (or, more accurately, to being compelled, if they choose to employ or provide services to non-Catholics and to provide them with health insurance, to pay for health insurance that covers contraception, which the employee may or may not choose to use). A couple of clarifications. First, for the purposes of this post, I’m distinguishing “moral” claims about how one ought to act in day-to-day life from claims related to ritual obligations. Not all groups would recognize that distinction, but I don’t tend to think of Catholics as being such a group. Second, I’m talking about the entitlement to an exemption here primarily in normative, and not in positive legal, terms.
My main question is what it is that properly qualifies a moral claim as “religious” such that the person who holds it is arguably entitled (on grounds of religious freedom) to some kind of exemption from a legal mandate to act otherwise. For reasons I’ll explain, I think this is a particularly challenging line for Catholics to draw because of our tendency to approach moral issues in terms of natural reason. But the uniformity of Catholic condemnation of the Obama administration’s decision makes me feel like I’m missing something.
Let me start with by limiting my focus to claims by an indisputably religious group (or individual) to an entitlement to an exemption from some regulatory requirement grounded in religious freedom. I know that this is not an uncontroversial starting point, since some theorists reject the notion that religion should be entitled to special solicitude when it comes to such exemptions, but since the criticism of the Obama decision has taken for granted that this is a question of specifically religious freedom and not merely conscientious objection in some broader sense, it seems like a fair move.
One of my first publications dealt with the knotty question of how to define “religion” for First Amendment purposes. I will not rehash my entire argument (some of which I no longer agree with) here, but, drawing in part on that earlier work, I can think of a few reasons for classifying a moral commitment as “religious” such that it would arguably trigger a claim to an exemption on religious freedom grounds. The most obvious is one where the commitment is understood by the believer (or group) to be derived from some explicit theological premise, e.g., divine command. Another would be if the belief, although not rooted explicitly in theological reasoning, is so bound up with a religious identity that being required to violate it would be akin to being asked to give up one’s religion. I suppose this is roughly something like “centrality” — some moral beliefs might just be very important to a religious identity even though they are not themselves grounded in divine command (or some other explicitly religious logic) as understood by that religion. This latter category is potentially broader, but I think something like it is necessary unless every moral commitment asserted by any religious group is to count as “religious.”
The first of these categories strikes me as less problematic from a definitional point of view, at least as a starting point. But it is not without its difficulties. Nor (at first glance) does it seem very helpful for the church’s position in this instance, since the hierarchy tends to discuss the arguments about contraception in terms of natural law rather than explicit divine command. On the other hand, the hierarchy has made both sorts of arguments about contraception (although I am not aware of anyone making such an argument concerning the narrower question of the insurance mandate). Moreover, Catholics might very plausibly claim that, as God commands them to act at all times according to what is good, any conclusion they reach about the morality of a particular situation actually counts as a “religious” obligation in some sense, and so interference with their ability to act on even their natural-law-based conclusions constitutes interference with their religious freedom.
Of course, this last argument has a “heads I win, tails you lose” quality to it when Catholics are arguing about some moral issue with someone who adheres to a secular conception of the good. The Catholic claims that it is legitimate for the Catholic to impose his moral commitments on the secular person through the democratic process, since they are not explicitly based on theological premises. But, when the democratic process reaches a conclusion contrary to the Catholic’s, the Catholic then turns around and claims an entitlement (on religious freedom grounds) to be free from the outcome of the democratic process. I’m not saying this is a logical inconsistency, but it unappealing in its radical asymmetry and, moreover, is understandably likely to be a tough position for the secular citizen to swallow.
This highlights the need for some limiting principle in the exemptions context. There are several potential strategies: one is to distinguish among a group’s moral commitments to determine which are so important as to give rise to a claim for an exemption (the centrality move I mentioned above). Another is to bracket that question and simply focus narrowly on the cost to the state of creating the exemption. I’ll come back to this second one later.
Picking and choosing among the moral commitments of a religious group is a difficult thing to do. Groups seeking exemptions are not likely to be reliable sources. And the group itself might not be clear on the point. What are we to do, for example, if (as with the morality of contraception, not to mention the less direct question of the morality of providing insurance that covers it) most of the actual members of the group in fact reject the leadership’s claim that a particular position is required by the tenets of the group’s faith? Whose conception of the centrality of the belief to the group’s religious identity should prevail? This relates to the tangled question of who we understand to be the proper bearer of the exemption entitlement — the religious group; individual believers; individual believers only insofar as their views conform to those of the group; all of the above?
Perhaps a better way to explain the uniformity of opposition to the Obama administration’s rule — one that would avoid some of these difficult questions — would be to move away from the question of whether a moral assertion is a matter of religious conscience and towards the question of religious group autonomy. It may be that what Catholics are reacting to with the contraception rule is not an intrusion on religious freedom as it touches on conscience but rather a perceived intrusion on what they take to be the right of a group like the Catholic church to structure its affairs without interference from the state. Here, the claim would be more akin to the one raised in situations like the “ministerial exception.” But the problem with this approach in the context of the particular rule under consideration is that that rule only applies when the group steps outside of itself to employ or provide services to non-group members.
My bottom line, such as it is, is that this seems like a murky case (again, normatively speaking) for an affirmative entitlement to a religious exemption. So why is the Catholic left so riled up? In the end, I think at least part of the answer relates to the move I made at the beginning of this too-long post in focusing narrowly on religious conscience. I actually think that liberal Catholics, like many liberals more generally, tend to favor broader exemptions of deeply held conscientious objection, without so much regard for the foundations of the moral beliefs in question. Although liberal Catholics do not agree with the Church’s position on contraception, they accept it as sincerely held and therefore, because they generally look favorably on broad conscientious exemptions, they would extend the same courtesy to their own hierarchy (and perhaps to private Catholic employers as well), even in this borderline case of a mandate to either provide indirect aid to the practice or pay a fine.
Related to this is the notion (which I mentioned above) of evaluating exemptions from the point of view of the cost to the state of accommodating conscience. One thing that I think upsets many liberal Catholics about this rule is that it would have been a seemingly trivial task for the Obama administration to create an exemption for Catholic institutions along the lines of the Hawaii scheme. Such an exemption would have satisfied claims of conscience by the hierarchy while having only a trivial impact on access to contraception. And this objection to the Obama administration’s inflexibility holds even if it’s the case (as I suspect it is) that, as a matter of constitutional law, the Church’s legal entitlement to an exemption is weak (or, at best, uncertain), for reasons Grant mentions in his post below.
But maybe the best explanation for liberal Catholic anger against the contraception rule is simpler than all of this. I perceive a very real feeling among liberal Catholics of having been hung out to dry by this decision. Having expended considerable capital within Catholic circles defending the Obama administration on a number of fronts (including this very health care law) over the past few years, Catholic liberals put their prestige on the line to advocate for an exemption from this rule. And now they are both hurt and embarrassed by their visible lack of influence with the administration. Feeling marginal both within the Church and within the progressive movement is not much fun.
Tags: contraception, HHS, USCCB
Eduardo: In certain respects, I am also puzzled by the reaction of certain Catholics such as the editors of COMMONWEAL. But I admit that I have a problem with how to refer to Catholics such as the editors of COMMONWEAL.
For example, if I were to set up an operational definition of the term “conservative Catholics” I would operationally define such Catholics as including all Catholics who want to conserve and uphold the old-fashioned so-called natural-law claims regarding sexual morality such as the claims used by the Roman Catholic Church to defend its teaching against artificial contraception.
So conserving the church’s old moral teachings regarding sexual morality is the basic position of conservative Catholics, according to the operational definition I’ve just set up.
Now, I’ve not seen the editors of COMMONWEAL publish an editorial in which they explicitly and unequivocally reject the church’s teachings regarding sexual morality and state their opposition to such teachings.
If the editors of COMMONWEAL have taken such an editorial stand, I will be happy to be corrected on this matter.
However, if the editors of COMMONWEAL have NOT published such an editorial position, then I will have to consider them to be conservative Catholics by default, as I have just operationally defined this term.
But the editors of COMMONWEAL appear to think of themselves as liberal Catholics, whatever that means.
This brings me to the question of whether or not there are indeed any practicing Catholics today who have set themselves up in the position of explicitly opposing the church’s traditional moral teachings regarding sexual morality.
Is there a critical mass of such practicing Catholics?
If there is, how might we designate such practicing Catholics?
One way of designating such practicing Catholics would be to refer to them as dissenting Catholics. This way of referring to them would have to be operationally defined and explained in the context in which the term might be used.
But if we operationally define Catholic who are committed to conserving the church’s old teachings regarding sexual morality as conservative Catholics, then the dissenting Catholics might aptly be referred to as liberal Catholics, because the terms “conservative” and “liberal” are often used today to express such a contrast.
This brings us back to your opening sentences, Eduardo.
Eduardo,
Thanks for the great summary of many of the issues involved. I think the Bishops’ strategy seems to be exactly a “heads I win, tails you lose” one. After losing the public “natural reason” argument, they seem to want to claim religious exemption from the obligations of political participation. One can’t simultaneously play politics and opt out of the system of political rights and duties. Well, one could (logically, as you say), but he or she shouldn’t expect people to like it.
I think this is related to the point about “liberal Catholics” and the “Catholic left.” I would want to distinguish between these. To my mind, “liberal Catholics” include those who want to participate in the political sphere “Catholicly,” as representatives of a certain constituency. They are “liberal” in the general sense of wanting to participate in the democratic project of “political liberalism.” This group can encompass both republican and democrat Catholics, but what they all have in common is that they want the representative “Catholic” seat at the table. The narrowing of the exemption upsets them, because it seems to place expectations on political participation (participation that includes serving and employing non-co-religionists) that challenges their official “Catholic” identity. If the “Catholic” identity is lost, then they lose their “Catholic” seat at the table and politicians don’t need to have “Catholic” advisory committees anymore. So, it is in the interest of “liberal” Catholics to retain the power to self-define their “Catholicity” so they can have identifiable political “influence.”
Now, both “orthodox Catholics” and the “Catholic left,” who care less about being used (or given the opportunity) to prop up the “liberal” establishment (republican or democrat), are less threatened by the narrowing of religious exemptions. The former are more than happy to place their religious commitments ahead of their political participation (e.g. “a smaller and purer Church”). The latter understand that playing “identity politics” is just a way of avoiding real questions of justice, which have nothing to do with making sure this or that interest group is included and everything to do with making sure every single person is included.
So, I think the Catholics you see clamoring for broad religious exemption and definition are the ones who have much to gain from being able to participate in the political process “religiously” as representatives of a so-called “Catholic constituency.” These are the politically “Catholic friends” of the republicans and democrats, who stand to lose their “friend” status when their “representative Catholic” status is no longer recognized as exceptional. This is why we see a strange alliance between colloquially “liberal” and “conservative” Catholics on this.
Eduardo,
Why are you and Grant focus only on the Constitution and ignore RFRA when you argue that “the Church’s legal entitlement to an exemption is weak.” As a law professor who has a particular interest in religious liberty issues, I had hoped you would have addressed the fact that the Church’s position is even stronger in opposing the federal mandate than it was with regard to state mandates. BTW, some of the state madantes have exemptions that apply to “moral opposition” in addition to “religious opposition” to including contraception coverage, so your point abbout their being some kind of distinction between the 2 concepts would not be applicable and I would think the Bishops would argue that such a broad exemption would be best.
I respect the complexities and subtleties spun out here, both in the blog and in the comments, but I’d like to suggest that if constitutional protections are to have any validity they have to be based on something a heck of a lot firmer than learned legal exegesis. Real people are very much involved – not just theoreticians. If you can’t make a cogent case that the average intelligent, moderately educated citizen can understand, you’ve moved your case out of the democratic light and into the smoky darkness of the law libraries and legal cloakrooms. The Constitution can’t be something that only legal scholars can make heads or tails of.
Either churches are to be left free of government coercion or they’re not. It has to be that simple.
Perhaps that needs to depend on how you define “practicing Catholics”. I’d guess there are few faithful church goers who feel that way. Certainly there are plenty who go now and then, when they’re in the mood. But most of them probably keep the explicitness to a minimum. It’s impossible to live in cognitive dissonance without some pretty sturdy mental partitioning.
But why the need to make everything so brightly lined? Life doesn’t come pre-partitioned. Trying to put everything neatly into one and only one box is something we do only to please homo Housekeeper, who seems to exist in the United States in unusually large numbers.
Either churches are to be left free of government coercion or they’re not. It has to be that simple.
This sounds great. My church will have human sacrifice and temple prostitution, and all those who join will be forbidden to pay income taxes and sales tax. Members suspected of heresy will be subjected to torture.
David Smith: Churches are exempt from the HHS mandate. Simple enough?
homo Housekeeper
What?
“My main question is what it is that properly qualifies a moral claim as “religious” such that the person who holds it is arguably entitled (on grounds of religious freedom) to some kind of exemption from a legal mandate to act otherwise.”
The fact that you ask that question shows that you are missing the point entirely. The defense of “religious” freedom is essentially a proxy (or if you like, an indicator) for a defense of freedom of conscience,period.
It is unbelievable that people like yourself and many others have the guts to call yourself “liberal” while, in fact, you are prepared to accept the most invasive legal
mandates. In fact, my only objection to the bishops’ protest is that they should also stand up for individual Catholics, like myself, who object to paying for morally abhorrent practices for other people. If anybody wants to use contraception or have an abortion, why should I pay (as their employer)?
The supreme paradox is many people who question, for instance, the authority of the bishops, are then completely subservient to the decisions of the Department of Health and Human Services. I refer you to a previous discussion I had with Eric Bugys where he made, essentially, the ridicolous argument, that one cannot appeal to freedom of conscience against decision by a “democratically elected government” in accordance with “medical experts” (I am using his words).
I think characterizing Eric’s arguments as “ridicu;lous” is ridiculous even as you disagree.
I get tired of the idea we need to argue the consevative/liberal party line divide with talking points.(Douthat’s NYT oped today on Komen/PP got my goat: he says it’s about abortion but I had the silly idea it was baout breast cancer and breas tcancer screening.)
The issues here are not simple.
The bishops’ right in this matter is one thing; their handling of it in the Churc hand public fora is another.
Comonweal editorials strike me as liberal generall;y re politics and mixed on matters Catholic -so reaction here by most readers subscribers do not invest any “infallibility” or label to them.
If you want a consistently liberal catholic periodical, try NCR (pace John Allen and MSW).
How the Catholic on the street wil deal with this is one thing; who is a”oracticing Catholic” depends on the frame one brings to it.But the cleavage inside the church is pretty clear and easy approaches do nothing to solve that isue.
My main question is what it is that properly qualifies a moral claim as “religious” such that the person who holds it is arguably entitled (on grounds of religious freedom) to some kind of exemption from a legal mandate to act otherwise.
A more fundamental question to this is — who decides? Who is the judge of whether the Church’s claims are sufficiently religious? The Church? Government? Is government to decide what is and what is not religious enough?
For government to be the judge and decider of such religious questions would be a gross violation of fundamental First Amendment jurisprudence. The cases are clear that for government to be the arbiter of religion would essentially constitute the government establishment of religion. This is cannot do.
Basic principles of the oft-proclaimed “separation of church and state” prohibit the government, including HHS, IRS, or any other agency, from interjecting itself in the Church’s determination of its religiosity or otherwise being so excessively entangled in religion.
The Church decides what is and is not sufficiently religious. And the Church has decided that to comply would be a gross violation of religious freedom. The Church is perfectly willing to be the king’s good servant, but it is God’s servant first.
“That means a Catholic parish likely would qualify for a religious exemption; a large church-run soup kitchen probably would not.”
http://www.huffingtonpost.com/2012/02/03/contraception-mandate-out_n_1252558.html
This morning I was at a Mass at a parish I don’t usually attend – St. Francis Xavier in NYC. On the way out of the church (magnificently restored, by the way) I picked up their annual report. Listed among their impressive outreach activities was the fact that they served 57,000 meals in their soup kitchen in the past year. And one could see a long line waiting for a meal after Mass today. Of course, the same scene can be observed at other churches in the city.
If HHS decides that church soup kitchens don’t qualify for a religious exemption there will simply be less money for these meals. Just as some consider an operation successful even if the patient dies, so HHS can exult in the reach of the contraception mandate even if fewer soup kitchens minister to the needy. Score another triumph for procedural liberalism taken to an extreme – - and for those standing in bread lines, why, let them eat cake!
I echo David N’s puzzlement @ “homo Housekeeper.”
That had better be a garbled posting!
“This brings me to the question of whether or not there are indeed any practicing Catholics today who have set themselves up in the position of explicitly opposing the church’s traditional moral teachings regarding sexual morality.
Is there a critical mass of such practicing Catholics?”
Critical mass is in the eye of the beholder. But I invite the readers here to consider such groups of self-identified and, in the main, “practicing” Catholics (whatever that actually means) in such groups as Dignity/USA, New Ways Ministry, Faithful Friends, Call to Action, etc. These groups have openly and often disagreed with many church positions regarding sexual morality.
Of course, those who don’t like this disagreement will instantly deny the label of “practicing Catholic” to these groups and individuals.
But to remind all —
“When Pius X died, the conclave of 1914 elected Benedict XV, who immediately issued an encyclical (Ad Beatissimi Apostolorum – http://en.wikipedia.org/wiki/Ad_Beatissimi_Apostolorum) calling on Catholics ‘to appease dissension and strife” so that “no one should consider himself entitled to affix on those who merely do not agree with his ideas the stigma of disloyalty to faith.’
‘There is no need of adding any qualifying terms to the profession of Catholicism,’ he concluded. ‘It is quite enough for each one to proclaim ‘Christian is my name and Catholic my surname’ “
(David Gibson, “Who Is a Real Catholic?” The Washington Post, Sunday, May 17, 2009)
Yes, the qualifier “practicing” was not used, probably because the pontiff didn’t feel such a qualification to be of relevance.
For government to be the judge and decider of such religious questions would be a gross violation of fundamental First Amendment jurisprudence. The cases are clear that for government to be the arbiter of religion would essentially constitute the government establishment of religion. This is cannot do.
Bender,
It seems to me that what you are proposing is that any claim of religious freedom by any person or body must be honored by the government. Consequently, if I found The Church of Anything Goes, and one of my core religious beliefs is that paying income tax is immoral, the government must defer to my claim, otherwise they are getting into the dangerous territory of trying to determine which beliefs of The Church of Anything Goes are valid and which are not.
I believe the Supreme Court has already decided that individuals can’t claim a religious exemption when it comes to paying income tax, but how dare the Church challenge The Church of Anything Goes! Our members will not pay income taxes, and we expect your support as a religious institution free from government interference.
There is a religious exemption now. Parishes, Dioceses, seminaries are deemed exempt. We don’t know yet how many other Catholic entities i.e Hospitals, universities that employ many non Catholics will be exempt. {Please forget soup kitchens run by parishes.. they are, will be exempt]. I volunteer at a parish homeless shelter. I and no others need BC anyway!!.
Bishops are not CEOs of universities and hospitals; they are run by boards almost universally staffed by Catholics and non Catholics alike.. If Catholic board members of these entities have conscience problems they can/ought to resign and a new Catholic board member can by appointed from the pool of millions of Catholics who have no BC conscience problems. I suggest look to the the hundreds of thousands of Catholic doctors, nurse practitioners, and pharmacists who proscribe and sell BC every day.
So, I am not ready to join the bishops’ anti-Obama war.. and please don’t call me a Catholic traitor.
Like Eduardo, I’m puzzled by the shape this controversy has taken and how it has seemed to have split progressive Catholics. Eduardo offers an analysis that may well be spot on, but I wonder if it isn’t less about logical analysis and more about the persistence of a certain sensibility among some of us. I understand that for others of us this is a sensibility we’ve been liberated from.
Clearly this can’t be about contraception alone. As the media reminds us incessantly somewhere around 98% of us have made our peace with it. Could it be about some lingering discomfort about how IUDs presumably function post conception? Perhaps, but not likely. Too complicated.
I suspect that the salience in our community has more to do with the fear of a slippery slope into abortion. Attempts to address that issue, as well all know, provoke intense exasperation and immediate sorting out between intransigent tribes, those who are anti-abortion and those who are anti-anti-abortion. (Bernardin’s dream of a consistently prolife alternative seems long dead.) But it just doesn’t go away, does it?
So following Bob Nunz’s lead, I read Douthat’s opinion piece in today’s New York Times. Bad form to admit it hereabouts, perhaps, but I found the essay compelling. It speaks to a certain sensibility that apparently still resonates within me, a sense that my tribe’s values are the object of derision and contempt.
I know many of you don’t feel that way, even regarding such feelings as the exclusive province of the Bill Donohues of the world. But I challenge you to read a smattering of the 500+ comments this essay elicited and see if you don’t feel even a bit beseiged. Here is one from 12:45 this afternoon, very much in the mainstream:
“How can ANYONE be opposed to a woman’s right to choose whether she will have a child or not? The 300,000 abortions provided annually by PP probably save Americans millions of tax dollars that would go to support most of the kids, were they born, and millions more to keep them in jail once they mature. Our planet, our welfare system, our courts and our jails plead for abortion availability.”
Yes, yes, I know that there is no *logical* connection between contraception policy and abortion policy. But there is a *social psychological* connection (fear) that may, the zeitgeist notwithstanding, have some resonance with more of us than might have been suspected.
My vote is safe. I can’t imagine anything that could shake my fealty to Obama. But there are lots of Catholics in swing states, most of them undoubtedly contracepting, that feel queasy about this. Perhaps our first task to understand them.
Mr. McG,
Following your lead, I read Douthat’s column and also found it compelling. I also read the comment on the article that you supplied and found it chilling. Thank you for bringing my attention to both.
Two of your own remarks might be further pursued.
You write: “Bernardin’s dream of a consistently prolife alternative seems long dead.” If true, it would be interesting to ask why is that the case?
You further write: “I can’t imagine anything that could shake my fealty to Obama.” Perhaps the two remarks have a bearing on one another.
That “persistence of a certain sensibility among some of us” (about which you wonder) may be only the lingering fragrance of the now empty jar of ointment.
I’m not sure what Ctholic liberals or Catholic left you are talking about … the Catholic lefties I know, including myself, are not upset at the contraception regulation but actually think it’s a good idea (see Catholics for Choice or this Catholic theologian).
Also I think you’re wrong in believing that the Catholic left accepts the bishops’ stance on all this as sincerly held – I don’t believe they are sincere but that instead they are using this issue to try to get a republican president next election. If they were sincere, why have they never yet objected at this level to the state laws that have already been making Catholic institutions pay for contraception in health care plans? ….
“It’s not like this is something new as over 50 percent of Americans already live in states that require health insurance companies to provide contraception in their policy offerings. Further, states like California, New York and North Carolina have the identical religious exemptions as have been promulgated by the Department of Health & Human Services while some states (Wisconsin, Colorado and Georgia) provide no religious exemption whatsoever. Thus, one wonders why religious organizations in these states have not previously raised a fuss.” – Forbes
Eduardo, I know lawyers must pick things apart, but dissecting a living organism is almost certain to kill it. When a thing has long ceased to be self-evident, it’s probably died.
About the tribal reaction of some Catholics: how is this devotion to whatever the bishops want, even when you’re not sure they’re right but simply because they lead US Catholics and you’re a Catholic, any different than the kind of jingoistic patriotism that states “my country, right or wrong”? Wrong is wrong, even if it’s your country or your church.
David Smith=
I love “homo Housekeeper” (if it means the propensity of humans to oversimplify by throwing out distinctions).
I disagree, of course, that analysing “kills”. You have confused distinguishing, a mental operation, with slicing, a physical one.
Crystal, for my part the tribal reaction has absolutely nothing to do with a devotion to whatever the bishops want. Instead it reflects the intuition that the issue at hand involves considerations significantly more consequential than contraception alone.
I think the assertion that resistance is jingoistic is unfair to those of us whose views don’t fit into binary categories represented, on the one hand, by the bishops, and on the other, by Catholics for Choice.
P. S. — homo Housekeeper also ignores contractions in his/her own thinking and trashes evidence when it doesn’t “go with” his/her mental decor.
Oops — should be: ignores contradictions . . .
“. . . the mostly fatuous “religious freedom” line of attack . . .”
Eduardo –
Historically one-religion countries such as Spain and Ireland have not had the the sort of experience of religious persecution in nations such as France, England and Germany. Perhaps it’s because of such experiences had by our ancestors that we are more sensitive to threats to religious freedom. Remember, as I keep reminding folks, “The past isn’t dead, it isn’t even past.” (William Faulkner)
“The Catholic claims that it is legitimate for the Catholic to impose his moral commitments on the secular person through the democratic process, since they are not explicitly based on theological premises.”
Eduardo –
There are propositions which we assent to for more than one reason. For instance, I might agree that it is raining because I looked out of the window, and because you have told me that it is storming outside. In some cases of moral judgment we agree for two reasons: 1) our Church told us so, so we believe that that is the will of God, and 2) our ethics teachers in college or our own reasoning and experience persuade us so because of non-religious evidence.
The Church does not claim the right to impose moral commitments on purely theological grounds. That would be contrary to Vatican II — other religions who disagree have the right to their contradictory teachings. The Church does claim the right to argue for certain moral principles on purely non-theological grounds. Contraception is a case in point.
You also ask:
“Whose conception of the centrality of the belief to the group’s religious identity should prevail?”
Doesn’t the recent unanimous decision about the Lutheran case indicate that SCOTUS thinks that it is not the business of the Court to say what a religion’s own teachings are?
Big oops — I should have said: One-religious countries have not had the sort of internal religious persecution that France, England and Germany have had. (The Irish are only too well aware o religious persecution by conquorers.)
Hi Mike,
I understand it’s not all about contraception. To me it seems to be about how one religious denomination can remain true to itself while existing as part of a larger pluralistic whole.
Ann, I really do feel that extensive verbal analysis is likely to kill its subject. Take apart a good joke and there’s nothing left alive. Take God apart and all you have left on the dissection table is words. The same goes for anything that we feel embodies goodness – charity, love, tolerance, simple kindness, whatever. A psychologist will no doubt explain that all have a purely mechanistic explanation – that there is no such thing as goodness apart from the physical and neural needs of the body. Same with the issue at hand – lawyers can easily turn it to mush.
One point of view :o)
David –
Just because some verbal analysis kills, it doesn’t follow that all verbal analysis does. I grant you, jokes can’t be explained and stay funny.And talk of God gets us only so far when we run into contradictions. But analysis of, say, justice and fairness are quite another thing. Some analysis of some poetry also kills. but great criticism helps poor interpreters like me.
It depends . . .
” Nor (at first glance) does it seem very helpful for the church’s position in this instance, since the hierarchy tends to discuss the arguments about contraception in terms of natural law rather than explicit divine command. ”
I’ve noted, from wading through various posts and comments in all of these threads, that there are folks who find this persuasive, but doesn’t this argument overly constrict Catholic views of revelation? The notion that revelation is limited to, say, what is between the covers of the Bible, may be an article of faith for some Christian denominations, but it isn’t the Catholic view.
In other words, this opposition of natural law to divine revelation seems a false dichotomy.
Or in still other words, why wouldn’t it be possible to discern God’s will through natural law? Why wouldn’t natural law be a medium through which God reveals himself to us? And why shouldn’t a religious group – Catholics – view natural law as a means for discerning (some of) God’s commands to us?
If they were sincere, why have they never yet objected at this level to the state laws that have already been making Catholic institutions pay for contraception in health care plans?
Crystal, you’re making the same mistake that David Nickol made in another thread, i.e., that of assuming that no one has ever complained about this issue before when, in fact, you think this only because you are not well-informed. In fact, Catholic Charities filed lawsuits in both California and New York when those states (unlike some other states) created contraceptive mandates without broad religious exemptions.
@Jim P. Indeed, and Thomas Aquinas took up this very question in the FIRST question of the Summa Theologiae when he asked “Whether, besides philosophy, any further doctrine is required?”(http://www.newadvent.org/summa/1001.htm.) A startling question from a staunch Dominican, because it amounts to “Can’t we just think our way into all truth?” He insists that we need revelation for two reasons: 1. some things that pertain to salvation aren’t approachable by natural reason. 2. Even that stuff about God that we can reason our way to “would only be known by a few, and that after a long time, and with the admixture of many errors.” So besides reason we need revelation. However, right reason and revelation can never conflict.
But natural law arguments are human reason about human flourishing, no more and no less. They should make sense even to those who don’t share the Christian faith. Magisterial argumentation about birth control claims to be natural law reasoning. While it’s perfectly reasonable for the magisterium to impose this reading of natural law on Catholics as a religious discipline, the argument really hasn’t captured hearts and minds at all–Catholic or non-Catholic. It’s possible that everybody is wrong and the celibates really know best about sexual relationships. Or…it is also possible that lots and lots of people have done the hard work of forming their consciences and have come to a different conclusion. In our sadly finite condition, we cannot claim certainty on this, and many other controverted matters, but keep making our best arguments about human flourishing. And the grand Catholic tradition of probabilism (Liguori, et al.) can help us through.
@ Studebaker, no doubt you’re right, that bishops may have raised a ruckus at the local level. But aren’t you saying that in the end they agreed to violate their consciences? What a scandal that would be–that our leaders object, but then simply go along with what the state dictated? Our tradition’s high valuation of following conscience would have expected more from them. Or if they came to the conclusion that what they were being asked to do constituted remote material cooperation, isn’t the same situation facing them now? Why would federal standards be a violation of conscience and state standards only remote material cooperation? This is a dangerous line of argument by the bishops.
” Or…it is also possible that lots and lots of people have done the hard work of forming their consciences and have come to a different conclusion.”
Hi, Lisa, do you really think that lots and lots of people have done the hard work of forming their consciences on this? I don’t.
One amazing thing that has come out of this controversy is that bishops are not only writing about contraception, they’re actually insisting that their letters be read aloud at mass and published in parish bulletins. I was too young to experience the fireworks around Humanae Vitae, but I’d think this is the first time since then – some 44 years ago – that a concerted effort has been made to really teach on this topic. So maybe some younger generations will get the opportunity now for some genuine conscience-forming.
Lisa — if the bishops in New York and California had canceled the offering of health insurance, wouldn’t you have criticized them for being so intransigent, for not choosing the lesser evil, etc.? But if they didn’t cancel health insurance, you criticize them for not really caring about their conscience after all.
I’m still awaiting an answer. What is with the “homo Housekeeper” crap?
Has this blogsite deteriorated that much? I was taken to task for using the term Big Kahuna, but “homo” is OK?
Grant? Peggy? Mollie?
Jimmy — I took it as “homo” (Latin: “human or man”), not “homo” (Greek: “same”).
There are at least 2 (sometimes 3) of us who post here as openly gay men and we both did not see it as Studebaker did.
Jimmy Mac, I have absolutely no idea what David Smith was trying to say, as is so often the case. But I can’t see any reason to suspect that he was not simply making a play on “homo sapiens.” Unless it was a typo/autocorrect disaster. I’m sure David will let us know if we are missing the anti-gay content in his witticism.
“I can’t imagine anything that could shake my fealty to Obama.”
For what it’s worth, I sure wish you hadn’t used the word fealty.
Life doesn’t come pre-partitioned. Trying to put everything neatly into one and only one box is something we do only to please homo Housekeeper, who seems to exist in the United States in unusually large numbers.
I think that Molly is right, and that he meant: people naturally want to classify, have one label for each thing. When each thing is put into the correct box and labeled properly (for example, “good” or “bad”), it feels very orderly and it makes many people very happy. David Smith thinks it appeals to the housekeeping instinct in us, and jokingly calls us “homo housekeeper” instead of “homo sapiens”.
In this instance, it seems to me that Molly and Stuart are right. – but I’m open to correction.
Mollie: David remains strangely silent. Why is it up to others to defend his comment? Let him either justify or apologize.
This is a sincere question, why are the bishops so opposed to Obama? No matter what the cause, they never have a kind word.
Sandra, I don’t think that’s the case. After his meeting with President Obama on Nov 8th, 2011, Archbishop Dolan had some kind words about the President. This was a few months before the HHS ruling, and part of why this whole controversy is so bizarre.
“Dolan, president of the bishops’ conference, described his Nov. 8 meeting with Obama — first reported on Saturday by the National Catholic Reporter — as ‘extraordinarily friendly.’
“’It was very candid. I would say there were areas of agreement and disagreement,’ Dolan told reporters at the bishops’ gathering.
“ ‘But I would say this: that I found the president of the United States to be very open to the sensitivities of the Catholic community that were worried about an intrusion into religious liberty.’
“Dolan said Obama was ‘very sensitive’ to the bishops’ concerns over gay marriage and insurance mandates to provide artificial birth control coverage as part of the new health care reform law.’
“’He was very ardent in his desire to assure me that this is something he will look long and hard at. And I left there feeling a bit more at peace about this issue than when I entered.’”
Thank you, James.
The stance of bewilderment is strained here, since Penalver skates right past the key part of the argument made by, inter alia, Michael Sean Winters in the NCR, Matthew Boudway on this very blog, Ross Douthat in the NYT, etc. etc. Oceans of digital ink have been spilled in a short time – there’s no need to wonder so abstractly what people are objecting about. Here’s the skating passage:
It may be that what Catholics are reacting to with the contraception rule is not an intrusion on religious freedom as it touches on conscience but rather a perceived intrusion on what they take to be the right of a group like the Catholic church to structure its affairs without interference from the state. [um, yes!] Here, the claim would be more akin to the one raised in situations like the “ministerial exception.” But the problem with this approach in the context of the particular rule under consideration is that that rule only applies when the group steps outside of itself to employ or provide services to non-group members.
Wait, why is that a problem? What Penalver blithely assumes here is exactly what’s disputed: that a proper understanding of religious freedom applies only to “in-group” activities. Sure, there has to be some limiting principle somewhere, but it’s radical to say that a complete uniformity of religious institutions is required once they are providing a service to the public rather than to their co-religionists. There’s no argument here to show that this is a “problem” in a way that rules out the position in question.
This is not a weird or hard-to-understand argument. It has to do with the Tocquevillian idea that non-state institutions like churches and local associations help to constitute civil society, and that ensconcing their autonomy (not absolutely, but in a substantive fashion) is a distinctive part of the American system. Douthat’s editorial pushes this line, for example. It has not a little to do with the principle of subsidiarity as well.
If it’s too much to read Douthat or Dionne or one of various bishops, just take a glance down the blog a bit for the nice post by Matthew Boudway. He uses the analogy of a food pantry (or the like) run by Jains, which is vegetarian. If the federal government happens to think that food pantries should provide meat to the public, is it reasonable for them to tell the hypothetical Jains to a) start serving meat, or b) stop serving the public at large? It is precisely the point that religious freedom (not as to individual conscience but as to the constitution of religious organizations) should not be construed as extending only to in-group operations. I’m flabbergasted at how casually this post just sails by the point that everyone is making.
I’ll ignore the unnecessarily aggressive tone of Joseph’s comment just to say that I don’t understand Matthew’s post (or the Dionne piece or the bishops’ arguments) to rely on an argument from group autonomy in the sense of the ministerial exception (i.e., freedom to structure internal church affairs as the group sees fit). Matthew seems focused on religious conscience, and his example works in that vegetarianism is a central, theologically founded, commitment among Jains. As such, it would fit within either of my two understandings of what it means for a moral claim to constitute a “religious” commitment. My question just is whether that logic extends to the particular example at issue — a conditional mandate to fund insurance that covers procedures to which the bishops object to on natural law grounds but that most Catholics accept as unproblematic — falls in the same category.
Michael Gerson in WaPo gives figures for the money values of Catholic charities to the poor . For instance, in Philadelphia in the summer half of the meals for poor kids are offered through Catholic programs. Think of it. Hunger v. full belly once a day. According to Gerson, the total of Catholic donations to the needy totals hundreds of billions a year. I wonder if that is an exaggerations. But the point is clear: Catholic donations are a very substantial part of what helps keep the very poor healthh, and in some cases, alive.
http://www.washingtonpost.com/opinions/the-poor-pay-the-price-for-obamas-political-calculation/2012/02/06/gIQAU7W5uQ_story.html
Eduardo,
I concede the matter of tone, and will dial it back several notches – my apologies. I don’t see how you draw such a bright line between group autonomy and religious conscience: surely the group autonomy is not just group autonomy simpliciter, as if this were equally applicable to a chess club, but autonomy as a group that is constituted around principles taught as binding on the individual member’s conscience. So the fact that Matthew brings up religious conscience doesn’t mean he’s ignoring the group autonomy issue. I think you’re reading his argument in a strained way to fit it into your schema. It seems to me his point has little to do with the centrality of vegetarianism to Jains – it would work the same way if it were a rather minor element of their religious observance. Either way a tolerance for a diverse spectrum of religious charitable institutions, which serve the public, tells in favor of exemption and against forced uniformity, in the absence of a compelling reason to the contrary.
Let me put my criticism of your passage on the group autonomy issue this way: while it is a similar concern to the ministerial exemption issue, I don’t see why it should be constrained (without argument) within those tight limits. That is, why should a religious institution’s presumption of autonomy in structuring itself around its beliefs be restricted only to purely internal matters? I see that the presumption of autonomy is weaker when it is not an exclusively internal matter, but I don’t at all see that it is so weakened as to be outweighed by default whenever some administrators don’t care to pay attention to it. So I don’t see how you can just note that there is a level of disanalogy between the ministerial exemption and this case, without stopping to consider that a common principle might underlie both cases, even though it applies somewhat differently in each. That is, why does the disanalogy make a relevant difference, normatively speaking?
MikeD
Just in case you missed it, RFRA was struck down by SCOTUS. CITY OF BOERNE v. FLORES. Scalia was in with the majority on this decision, btw.
http://www.nationalcenter.org/Boerne.html
YW
“That is, why should a religious institution’s presumption of autonomy in structuring itself around its beliefs be restricted only to purely internal matters? I see that the presumption of autonomy is weaker when it is not an exclusively internal matter, but I don’t at all see that it is so weakened as to be outweighed by default whenever some administrators don’t care to pay attention to it.”
Why does it not matter that most people who come to work for Catholic-run institutions are certainly not unaware of the Church’s position with regards to artificial contraception and therefore can freely choose whether or not insurance coverage for it is essential to taking the job? I mean if we’re talking about individual conscience, if your conscience is firmly against the Church’s teaching and you believe your employer-provided insurance coverage ought to extend to it, then surely you should be willing to forego taking the job. Again, as Douthat has pointed out, these institutions aren’t saying ” you cannot work for us and use artifical birth control,” but rather, “we as an institution who objects to the morality of artifical birth control will not provide you with insurance coverage for it.” Does the individual not bear any responsibility here?
Henry:
RFRA was struck down only as to state laws. It is still applicable to federal laws, which is what we are talking about here.
Jimmy Mac: you wrote, “David remains strangely silent.”
Mollie: you wrote, “I’m sure David will let us know if we are missing the anti-gay content in his witticism.”
I see it differently.
David isn’t “strangely” silent, Jimmy; that’s his way when he’s pressed.
There’s no reason to think David “will let us know,” Mollie; that isn’t his way, either. Consider these examples:
1. His comment, and my reply, on Paul Moses’ post on Bishop John Magee:
Did David “let us know” what his response was to those points? Not really. He sent in a feeble reply to one of them, and was totally – but not “strangely” – silent on the others.
2. His comments, and my reply, on Christine Neulieb’s post on Occupy Wall Street:
David didn’t “let us know” what he thought about that reply, either; instead, he vanished from the scene, never to be heard from again on that thread.
Summing up: his comments, too often, are cheap shots; his pattern, too often, is to hit and run.
In this particular case, Stuart and Mollie and Claire might be right in their benign interpretation of David’s comment. But we’ll never know for sure because yet again David, when pressed, has gone missing, instead of “letting us know” his position. Given that Jimmy Mac and others obviously found his comment off-putting, and possibly hurtful, the proper thing for David to do was to write in and tell them what he meant by it; as Jimmy Mac put it, “let him either justify or apologize.” He did neither. How can that be right?
[...] Religious Exemptions and the Contraception Rule (Commonweal) [...]
Yes, exactly, Mollie. Man, the creature who oversimplifies things in order to understand them once and for all – who puts everything into neatly stacked boxes on shelves.
I apologize for not replying sooner. There have been so many other comments recently on other blog entries that I’d simply stopped following this one. Thanks to Gene Palumbo for calling this to my attention by email.
Jimmy, it would never occurred to me to interpret “homo” that way. I’ve very sorry it was offensive to you. Homo sapiens, Homo neanderthalensis, etc. And now I see I got the capitalization backwards, which must also have contributed to the misunderstanding. Sigh.
David:
Thank you very much for this comment.
David: yes it was offensive – words have to be carefully chosen.
Thanks for finally commenting.
Hi David! I’m glad you were not offensive on purpose! As I thought – this blog has a certain level of decency beneath which it will not sink. Phew!