Mark Silk & Douglas Laycock on the bishops & religious freedom. (UPDATED)
Don’t miss the second part of our series on the U.S. Catholic bishops’ most recent statement on religious liberty. From Mark Silk:
Given the dubious argumentation and the high rhetorical gloss of “Our First, Most Cherished Liberty,” I confess some uncertainty as to whether it is a statement of principle or merely a prudential document. If the bishops were truly concerned about religious liberty as customarily embraced, they ought to have given some attention to Free Exercise claims that would permit behaviors of which they disapprove, such as polygamy. They would also have taken note of Employment Division v. Smith, which has done more than any other recent Supreme Court decision to restrict religious liberty in the liberal sense by limiting Free Exercise claims to laws that are not neutral or generally applicable.
And the third, by Douglas Laycock:
Do the bishops mean that the requirement that health-insurance plans cover contraception must be repealed? Or do they mean the Affordable Care Act must be repealed? They do not say, and given the widespread calls for repeal of the whole act, ambiguity on that point is inexcusable. Would the bishops really deprive millions of Americans of health care rather than seek an exemption from the one implementation rule that deprives Catholic institutions of religious liberty? I hope not.
Read the rest here.
Silk claims that “No one, however, has a constitutional right to a government contract.” “No one”? Not quite. Critics of the bishops are apparently subject to the same hyperbole as they accuse others of having. It is established American law that in many cases, though not all, there is a constitutional right not to be denied a government contract on the basis of viewpoint discrimination, including religious viewpoint. It doesn’t apply everywhere but it applies pretty broadly. “No one” is simply a misstatement of law, not the first from Commonweal in opposing the US Bishops’ campaign for religious freedom. Not the only misstatement from Silk, either. “it’s not against the law to decide not to provide employees with health insurance. You just have to pay a fine.” Absurd by any understanding of “law” or “fine.” The government imposes a mandate and a fine for violating it. Cold comfort to the victim of government compulsion for Silk to label this not against the law. To bolster his case that it is the bishops being unreasonable, Silk is claiming that the legal mandate doesn’t really exist, when everyone sees that it does. Then, “there’s nothing the employer can do not to provide the mandated coverage.” Sure there is–a self insured entity can provide coverage and omit the objectionable items. And because that’s illegal too, it will face fines and lawsuits. Silk faults the bishops for not mentioning the Smith case, but he himself doesn’t mention RFRA, which makes Smith’s diminishment of free exercise rights completely irrelevant as applied to the entire topic Silk is talking about. And it makes the mandate itself illegal. But not worth mentioning, I guess, to someone who knows what kind of omissions are material. Silk proves it takes one to know one who engages in “dubious argumentation and high rhetorical gloss.” Of course, the entire idea of Commonweal persistently lobbying, one symposium contributor and blog post after another, against a religious freedom campaign would have seemed absurd not too many years ago. Dignitatis Humanae wasn’t a swear word on liberal Catholic websites until the age of Obama.
Nancy: Stop posting here. You keep creating new accounts. Cut it out.
Thanks for this, and for the ongoing series.
I’ll defer to the constitutional and legal scholars here, but I took Silk’s line, “No one…has a constitutional right to a contract” as a relatively straightforward statement. If, for example, a state contracts out adoption services to private agencies, and a portion of the contract requires that agencies not discriminate against same-sex couples (or single individuals, or divorced-and-remarried parents) in the course of performing its duties, then an agency that has a moral, religious or philosophical objection to same-sex marriage (or unmarried parents, or divorce), and refuses to fulfill that part of the contract, has no constitutional right to that contract.
Continuing a conversation from previous threads on this topic, I continue to be concerned about the apparent gap between the bishops’ rhetoric and actions. Appealing to “Letter From Birmingham Jail” without displaying (as yet) any willingness to put their bodies on the line, or even to take any action more substantive and risky than saying Masses, holding press conferences and filing lawsuits…well, viewed from a distance, it seems a risky* strategy.
*Risky in the sense of “likely to fail” as opposed to risky in the sense of “risking death, injury or imprisonment” for acting on one’s beliefs.)
Silk seems to twist David Schindler’s fine argument into some curious “shot across the bow” at the Bishops, but I think that Silk picks the wrong bow. Schindler’s primary target is the “liberal rights” talk that has been adopted by the Administration (and the New York Times), and so a lamentable degree by the Bishops as well. But Silk omits that many Catholic liberals are also the intended target. Schindler writes, for example, taking aim Commonweal EJ Dionne: “It suffices here simply to note that Dionne’s criticism misses the fundamental point of Cardinal George’s argument: that there is an understanding of the principle and nature of rights implied in the Obama administration’s mandate that is no less peremptory and arbitrary in its own way than that affirmed in the Constitution of the former Soviet Union.”
Overall, I find the tone of Silk’s piece (wherein of “shots” and “campaigns”) to be lamentable.
I enjoyed Peter Steinfels’ piece, with one question. He notes, as supposed evidence of the “partisan” bent of the bishops’ efforts, that many of the advisors to the episcopal committee have Republican ties (never mind that they also happen to be accomplished legal scholars, e.g. Rick Garnett and Mary Ann Glendon – both scrupulously fair if nothing else). Yet in the last Presidential election, both Grant Gallicho and Cathleen Kaveney belonged to the “Catholic National Advisory Committee” associated with the Obama campaign (no word yet on whether it still exists for this go-round). So if the former is evidence of partisanship, is not the latter as well?
Are you in charge of selecting the photographs, Grant?
That is really not a very flattering photograph of Archbishop Lori.
Thomas Farrell:
Perhaps you would have preferred the photograph posted by Rocco Palmo last March.
http://whispersintheloggia.blogspot.com/2012/03/son-of-hickey-heir-of-carroll-bishop.html
Laycock’s article is very good. He seems like the kind of guy that bishops would want to have serving on an ad hoc committee for religious liberty. Is it known who actually drafted the statement under discussion in this series? I don’t know if any of Laycock’s critiques were considered by the drafters or the ad hoc committee, but all of them seem worthy of consideration.
Douglas Laycock illustrates well what was meant by the recent observation “The question is what is our focus as bishops…” (Bp. Blaire in America, May 22). Steinfels and Silk have paved the way.
With court bombardment in progress and a Fortnight of Freedom imminent, the inability of the USCCB to present publicly a coherent, sharply argued declaration of purpose and position that invites and supports allies while deflecting opponents raises another question. What is going on in the “conference ” that leads to such a product on an issue said to be so important, considering the talent that should be available in the United States among a few hundred bishops and those to whom they presumably have access?
Laycock notes: “The requirement to cover contraception includes a requirement to cover sterilization and morning-after and week-after contraceptives that the bishops view as causing very early abortions. So the bishops believe they are being asked to pay for the killing of human beings.”
Isn’t it the case that all forms of hormonal birth control (the pill or IUD’s) may work as abortifacients when they fail to prevent ovulation, because of the way they affect the uterine lining? http://christianfamilyplanning.org/articles/fsa8035.pdf
So why single out emergency contraception?
Laycock says the bishops shouldn’t mix substantive policy with religious freedom. Well, OK they should be distinct. It is not legitimate to say, if you want to make abortion illegal you have no claim not to tell others to not force you to pay for it. Same for other issues. The bishops don’t actually propose to outlaw contraception, so it doesn’t make sense to say the bishops are confusing that issue with religious freedom. Opposing the mandate on “Microsoft” is not the same as outlawing contraception, not by a long shot. The mandate is altogether new on the federal level and in this extreme form, and it is perfectly legitimate to say that the federal government should not mandate that everyone in America treat pregnancy like it is a disease. When the market letpeople do so, the bishops did not complain. It would be suicidal, not helpful, for the bishops to retreat all the way back to nothing but a religious freedom claim. Legalization of abortion, contraception, and same sex marriage have inevitably led to attacks on religious freedom. Saying that religious freedom defenders should not push back on the substantive agenda’s advance is poor advice. Thankfully Laycock does seem clearer than most here that the religious freedom claim itself is necessary to defend.
@Anitra Williams (6/1, 6:31 pm) Excuse my ignorance, but what does it mean to say “that the federal government should not mandate that everyone in America treat pregnancy like it is a disease”? Are you implying that is what the federal government is doing/has done? Hasn’t pregnancy been treated as a medical/health issue for centuries?
Also, in what ways has, for example, legalization of contraception “inevitably led” to attacks on religious freedom?
Laycock is the mosts penetrating so far. Consider this point:
“Religious institutions have provided education and health care for centuries. If government can secularize such institutions as soon as they employ, admit, or minister to non-Catholics (all inevitabilities in our pluralistic society), an important part of religious liberty as it has long existed will be lost. That is the position that has to be defended. The bishops’ statement does not effectively defend that position, . . . ”
He’s right — the right of religious people to serve others in a religious context has been recognized in the West since before the middle ages. This super-secularist attempt to redefine “religious ministry” is a blatant attempt to define religious service straight out of the culture. It would be one more way to remove the presence of religion. Further, if the religious groups are denied the right to serve, the people served will also be the losers — they will have lost a right to be served in a religious context if they so choose.
I don’t want to misrepresent the science here. Here’s a contrasting perspective that explains how the evidence for the abortifacient effect of emergency contraception is stronger than that for the most common form of hormonal birth control: http://www.cedarville.edu/personal/sullivan/bio4710/papers/ocp.pdf
And to make some simple clarifications, abortifacient here means preventing implantation of a fertilized embryo. (And implantation fails naturally approx. 70% of the time.)
It is one thing to treat and prevent medical complications during a pregnancy, to ensure the pregnancy itself is healthy. It is very different to claim pregnancy itself it the disease that “health” says one should prevent, even society wide. And while this latter view is widespread, it is new and threatening for the federal government to mandate that every health insurance plan, purchaser, and participant must act in accordance with it. That contraception is legal, that people can and do treat it as a disease, the bishops have not vigorously campaigned against in terms Laycock says they shouldn’t confuse religious freedom with. This new step, if it too must be conceded, means concession has no end. I don’t think the criticism is sound.
“If government can secularize such institutions as soon as they employ, admit, or minister to non-Catholics (all inevitabilities in our pluralistic society), an important part of religious liberty as it has long existed will be lost.”
What would it even mean for “the government” to “secularize” an institution, and does requiring it to obey civil law protecting the rights of its non-co-religionist employees constitute such unreasonable “secularization?” Would an institution really be less Catholic if, in adherence to a government mandate, it provided access to contraception for its employees? Who decides whether or not it is less Catholic? What does it mean to have a “right to be served in a religious context?” It seems to me that we need an argument for what constitutes the threat of “forced secularization” that we keep hearing about, and what constitutes the right to “free exercise” of religion. Does anything I do “religiously” count as a religious exercise? Does any law that prevents me from doing something “religiously” count as “forced secularization?” Are there cases in which “forced secularization” of institutions is a good thing (e.g. the “forced secularization” of the government)?
“it to obey civil law protecting the rights of its non-co-religionist employees”
A euphemism, meaning “defining a ‘right’ to force other people to pay for your personal sexual expression”. Defining such a right is indeed “secularization” of society, making “rights” into the coercion of other people to help you engage in whatever related to sex you want to do: abortion, contraception, marriage to someone(s) of the same sex, whatever.
“Would an institution really be less Catholic if, in adherence to a government mandate, it provided access to contraception for its employees?”
Obviously it would, since an organization forced to violate what it means to be Catholic is by definition less Catholic.
“Who decides whether or not it is less Catholic?”
Obviously the Catholic Church decides what Catholic means, and in America, the govenment respects religion enough to let individual religionists define what their beliefs are. Until the sexual-revolution-trumps-all attitude took hold.
“It seems to me that we need an argument for what constitutes the threat of “forced secularization” that we keep hearing about”
The government forces citizens to pay for other people’s sexual activities in violation of the paying citizens’ religious beliefs, on the grounds that the secularist exaultation of sexual-activity-paid-for-by-others trumps any claim to existing in society consistent with contrary religious beliefs. That sounds like a good baseline for a forced secularization definition. What we need is an argument how such compulsion is not forced. I don’t see one–I just see a redescription of blatant coercion in the abstract language of “rights” and “access.” That redescription, by the way, is foreign to a Catholic view–it must be rooted in something else.
And it’s extremely inaccurate to describe the HHS mandate as applying to “non-co-religionist” employees. The mandate requires providing objectionable coverage to all employees, regardless of the employer’s objections, and regardless of the employee’s beliefs or objections, and the mandated coverage also goes to objecting employees’ children. It is worse than arbitrary that co-religionist employees have no “rights” in this regard, but “rights” are redefined to include forcing employers to provide objectionable items to non-co-religionists. Of course, regarding non-coreligionists, the idea that they have a right to have their religiously objecting employer provide them with free items to facilitate their sexual activities glosses over the fact that those employees choose to work for an objecting employer. This not only coerces objecting employers to provide objectionable items, it coerces them to hire people who demand government compulsion of such items. There is no scarcity in this circumstance for one to find an argument for what “forced” means.
Eric –
I’d say that a removal of all religious services and symbols would be forced secularization. Catholics would be best to decide what is more or less Catholic. (See Hosanna.) In a Catholic university the forced removal of or less emphasis on Catholic Studies or Catholic theology departments or ecumenical studies would be forced secularization. And, yes, that would be a loss. Democracy does not mean homogeneity.
The contra-HHS mandate rallies are scheduled for this Friday just before noon; locations in many states:
http://standupforreligiousfreedom.com/locations/
Don’t know how that “q” sneaked in. Anyway, here’s the best I can do by way of clarifying what happened in re: the Becker laicization: http://bit.ly/NcPPDn.