A Cherished Accommodation

When the Bishops Surrendered Their Religious Liberty

On April 12, the U.S. Conference of Catholic Bishops published “Our First, Most Cherished Liberty,” its latest statement decrying alleged governmental attacks on religious freedom. Responding to the federal regulations requiring certain religious employers to include contraception coverage in employee health plans, the bishops declared that accommodation is not an option. Even though the Obama administration issued proposed regulations that would shift responsibility for handling such coverage to third parties, the bishops insist that an “accommodation is not to be sought…by resorting to equivocal words and deceptive practices.” When it comes to religious liberty, the bishops argue, there can be no compromise. In statement after statement, the U.S. bishops treat religious freedom as an absolute. Yet they haven’t always seen it that way.

The church in the United States has suffered a real and significant loss of religious liberty over the past ten years, and the bishops have said little about it. In 2002, the Diocese of Manchester, New Hampshire, was put under the supervision of the state’s attorney general when it came to policing its child sexual-abuse policies. The diocese agreed to provide personnel training as specified by the attorney general. It also allowed the attorney general to conduct annual audits, which would include unlimited access to diocesan records. That was a true loss of religious liberty, and the diocese agreed to it in order to avoid conviction under the New Hampshire child-endangerment statute.

In 2003, the Diocese of Phoenix agreed to a government restructuring in order to avoid the criminal prosecution of the bishop. He was required to transfer some of his canonical duties to others. With the government’s input, a “special counsel” was appointed to the diocese—and his advice was not subject to the approval of any other diocesan staff member—including the bishop’s. What’s more, the diocese agreed to participate in a “summit” on sexual abuse with the government—paid for by the diocese, just as it agreed to foot the bill for the expenses incurred by the government’s investigation.

As part of a deal to avoid indictment, the bishop of Kansas City agreed in 2011 to meet with the Clay County prosecutor face-to-face once a month for five years in order report on the steps he was taking to deal with allegations. On the basis of those meetings, the county attorney would decide whether the bishop and diocese were acting properly. The bishop also agreed to visit every parish in the county to explain these new policies. According to the Clay County prosecutor, this would be “a learning experience” for the bishop. No doubt that’s true. But the agreement also entails a loss of religious freedom for the bishop and the diocese.

Imagine a federal judge having the authority to decide what bills a diocese could pay and when, how much it could pay, what counted as its assets, who its legitimate creditors were, where it could keep its funds, and what it could do with them. Most people would consider that a significant intrusion by the state on the religious liberty of the church. After all, without control of the means of worship, how is a church to function freely? Precisely that sort of intrusion has occurred in eight U.S. dioceses over the past decade. It has happened in Tucson, Spokane, Davenport, San Diego, Fairbanks, Wilmington, Milwaukee, and Portland, Oregon. How? Under duress, of course. In response to mounting damages claims, those dioceses declared bankruptcy and placed all their property and financial affairs under the control of the federal courts.

If some bishops consented to give up some religious freedom when threatened with an unacceptable alternative—financial ruin, maybe even jail time—then why is there no room for accommodation to comply with the health-care law now? Why didn’t more bishops speak up in the face of actual, not potential, losses of religious liberty surrounding the sexual-abuse crisis? Maybe because the bishops themselves were largely responsible for putting their dioceses in peril.

Religious liberty is too important a topic for the bishops to be seen as politically biased. So they must do everything possible to avoid the appearance of partisanship. When they defend religious liberty in areas that aid right-wing political causes but pay scant attention to those that don’t, they give the appearance of partisanship. When they decry Obama’s proposed accommodation on contraception funding as an “accounting gimmick,” while their charities happily cash government checks made possible by a similar “gimmick”—preventing federal dollars from sponsoring religious activities—they look partisan. Would an administration that was waging a “war on religion” fund Catholic Charities to the tune of $322 million in 2009 and $361 million in 2010?

The bishops obviously have a lot of fears about the Obama administration. It began with their 2008 campaign against the Freedom of Choice Act. They coordinated an expensive write-in campaign to protest the bill, which, four years later, hasn’t even come up for a vote. And what about their dire warning that the Affordable Care Act would bring federal funding of elective abortions? In 2010, the Department of Health and Human Services learned that Pennsylvania and New Mexico were using Affordable Care Act subsidies to pay for such abortions, and immediately directed the states to cease and desist. Maybe if the bishops spent less time crying wolf and more time making public arguments about legitimate threats to religious liberty, they could salvage their credibility. At this point, that’s a big “if.” In the immortal words of Pogo, when it comes to questions of religious liberty in the United States, the bishops have met the enemy, and it is themselves.


For more coverage of the contraception mandate, click here.

Published in the 2012-06-01 issue: 

Nicholas P. Cafardi is a civil and canon lawyer. He is Dean Emeritus and Professor of Law at Duquesne University School of Law. Cafardi was one of the original members of the USCCB’s National Review Board for the Protection of Children and Youth. His book Before Dallas (Paulist Press) is a history of the clergy child sexual-abuse crisis in the United States.

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