The Bishops & Religious Liberty
William Galston May 30, 2012 - 3:50pm
In April, the Ad Hoc Committee on Religious Liberty of the U.S. Conference of Catholic Bishops released a statement, “Our First, Most Cherished Liberty,” warning against what the bishops consider to be unprecedented threats to religious freedom from various governmental actions. In their statement, the bishops called for a “Fortnight for Freedom” (June 21–July 4), in which Catholics will be asked to study, pray, and take public action in response to the threats described by the bishops. Much of the controversy surrounding the statement concerns the bishops’ rejection of the contraception mandate in the Affordable Care Act and their subsequent refusal to accept the accommodation proposed by the Obama administration. That compromise still required that contraception coverage be made available to employees of some Catholic institutions, but kept nonexempt institutions from having to provide or pay for it. Insurance companies or other third parties will have to cover the costs. In “Our First, Most Cherished Liberty,” the bishops raise other, equally important concerns about threats to religious freedom in areas such as immigration law and adoption services run by religious organizations. Commonweal has editorialized on the contraception mandate and other issues of religious liberty, agreeing with the bishops on some points, but also expressing some dissatisfaction with the USCCB’s rhetoric, arguments, and tactics. In an effort to respond more fully both to the bishops’ statement and the challenges facing religious groups and institutions that seek to be full participants in the public square, we have asked a number of distinguished scholars and commentators for their evaluation of the bishops’ statement and initiative. —The Editors
William A. Galston
The recent statement of the U.S. Catholic bishops on religious liberty warrants sustained reflection sine ira et studio. In so doing, we must decouple our inquiry from the overwrought polemics of our polarized politics. The church is not conducting a “war on women,” and the Obama administration is not waging a “war on religion.” There is instead a genuine disagreement over the respective roles of civil law and faith (even faith informed by reason). There is no guarantee that the requirements of citizenship and faith will prove fully compatible in a religiously diverse and nontheocratic society, and there is also disagreement about what to do when they come into conflict.
I propose to examine “Our First, Most Cherished Liberty” not simply as an intervention in a political debate—though it is that—but as a document that claims to be grounded in history, constitutionalism, and natural law as well as an empirical analysis of the current situation. I write as a political theorist who has defended the principle of “maximum feasible accommodation” for the practices of faith-based organizations, as a critic of the Obama administration’s initial announcement on the coverage of contraceptive services, and as the co-author (along with Melissa Rogers) of a recent Brookings Institution report that sympathetically considers the conscience-based claims of health-care providers. Nonetheless, I find it impossible to agree with most of the bishops’ arguments.
Let me start with Pope Benedict’s January 19 address to the U.S. bishops, which the document under review quotes extensively. The pope cites concerns about “certain attempts being made to limit that most cherished of American freedoms, the freedom of religion.” He expresses worries about “concerted efforts...to deny the right of conscientious objection on the part of Catholic individuals and institutions with regard to cooperation in intrinsically evil practices” and also about a “tendency to reduce religious freedom to mere freedom of worship without guarantees of respect for freedom of conscience.”
As the pope is no doubt aware, while freedom of religion is indeed most cherished in the United States, it is far from absolute—even in core matters of worship. While proposals to limit religious free exercise must discharge a heavy burden of proof, no one doubts the propriety of certain “time, place, and manner” restrictions. Free exercise doesn’t entail the right to conduct a loud revival meeting in a residential neighborhood at 2 a.m. Nor would anyone seriously argue that the claims of religious free exercise extend to human sacrifice (as opposed to animal sacrifice, which does enjoy First Amendment protection). There are some bedrock civil concerns that the law may enforce, regardless of their effects on particular religions.
But the scope of these concerns is a matter of continuing debate. Consider a famous episode in American history. On October 29, 1919, the National Prohibition Act (popularly known as the Volstead Act), which created the legal definition of “intoxicating liquor” and specified penalties for producing it, passed over President Woodrow Wilson’s veto and stood as the law of the land until 1933. The act created a number of exemptions to the Prohibition regime, of which two are especially noteworthy. First, it allowed physicians to prescribe liquor to individuals for medicinal purposes and to employ it pursuant to treatment for alcoholism in certified treatment programs. Second, the act stated that nothing it contained should be construed as applying to “wine for sacramental purposes, or like religious rites,” and it permitted the sale or transfer of wine to rabbis, ministers, priests, or an officer duly authorized by any church or congregation.
Suppose the act had not exempted physicians. The omission would have been subject to criticism on policy grounds, but no one would have suggested that it ran afoul of constitutional norms. If the act had failed to exempt wine for sacramental purposes, however, there would have been both a political firestorm and a First Amendment challenge. Would it have succeeded?
The use of sacramental wine lies at the heart of more than one religion. The Code of Canon Law of the Catholic Church prescribes that “the most holy Sacrifice of the Eucharist must be celebrated in bread, and in wine to which a small quantity of water is to be added.” For its part, Jewish law commands the drinking of wine during the Passover Seder, specifying not only the familiar four cups but also a minimum quantity to be consumed. (There is no maximum.) Comprehensive prohibition without exemptions would have prevented faithful Jews and Catholics from acting as their religion requires.
But when a parallel issue came before the Supreme Court in 1990, Justice Antonin Scalia—a famously staunch Catholic—ruled against the claim that the ceremonial use of peyote in Native American religious rites warranted exemption from drug laws of general application. At the heart of his majority opinion in Employment Division v. Smith was the concern that such accommodation creates a system “in which each conscience is a law unto itself.” The legislature may, if it chooses, write specific accommodations into law. But in the absence of explicit provisions, individuals may not claim exemption from the law as a matter of right. This principle suggests that if the Congress had not included religious exemptions in the Volstead Act, neither Catholics nor Jews would have had a valid First Amendment claim.
I have long argued that Scalia’s opinion was deeply misguided. Nonetheless, the Court has not overruled it in the two decades since it was handed down. The reactions it sparked—not only the Religious Freedom Restoration Act of 1993 and the Religious Land Use and Institutionalized Persons Act of 2000 but also a welter of judicial decisions at various levels of the federal system—testify to the unresolved debate over the limits of conscience-based claims against broad legislation. From that standpoint, it is a mistake for the pope (or anyone else) to speak of “freedom of religion” as a fixed concept in American culture or constitutionalism. The phrase delimits a zone with a contested periphery. The bishops are entitled to argue for their conception of conscientious claims. But they cannot fairly assert that government action based on a different conception breaches a settled understanding.
This brings me to Pope Benedict’s second concern—a “reductive secularism which would delegitimize the church’s participation in public debate about the issues which are determining the fate of American society.” No doubt there are some intellectuals who want to rule religiously based arguments out of bounds in political argument. But that is hardly the dominant tendency in our society. Many people have taken issue with the content of the bishops’ statement, but few have contested their right to issue it or to press their case in both the legislature and the court of public opinion. American political discourse is in no imminent danger of secularization, as the recent Republican presidential nomination contest amply demonstrated.
Pope Benedict cites the need for an “engaged, articulate, and well-formed Catholic laity endowed with a strong critical sense vis-à-vis the dominant culture.” Here at least he has something real to worry about. A recent survey by the Public Religion Research Institute found substantial majorities of Catholics in favor of requiring religiously affiliated social-service agencies, colleges, and hospitals to provide their employees with health-care plans that cover contraception or birth control at no cost. Here, as with same-sex marriage, the shepherds no longer control their flock. There is no reason to believe that this will change anytime soon.
This brings me to the bishops’ statement, which goes well beyond Pope Benedict in a key respect. While the pope focuses on claims of conscience, the bishops emphasize the distinction between conscientious objection and an unjust law: “Conscientious objection permits some relief to those who object to a just law.... An unjust law is ‘no law at all.’ It cannot be obeyed.” They insist that “If we face today the prospect of unjust laws, then Catholics in America...must have the courage not to obey them.”
This is a remarkable argument on several levels. A difficulty lurks at the surface: in our pluralistic society, agreement on what justice is and what it requires is incomplete. Each individual and group is entitled to make a public argument about justice, and there is a place for civil disobedience. But to avoid anarchy, public decisions about justice—embedded in law—are entitled to substantial deference. As far as I can see, the bishops make no effort to understand why their antagonists think that justice requires what the Catholic hierarchy thinks it forbids.
But assume for the sake of argument that agreement on justice were more robust than it is; then what? Most human laws fall short of perfect justice and are in some respects unjust. Are we required to disobey all of them? Surely principled casuistry is essential: we must do our best to weigh the good against the bad, the just against the unjust, to reach an all-things-considered judgment. There are many Catholics who believe that the Republican budget the House of Representatives recently endorsed imposes unacceptable burdens on the poor and violates core principles of social justice. If that budget were to become law, would Catholics be required to disobey it?
This brings us to the most remarkable feature of the bishops’ argument—their insistence that if a law is unjust, we must disobey it. It is easy to accept a less demanding formulation: if a law is unjust, we may disobey it, because we have a moral warrant to do so. But there is a huge gap between “may” and “must.” The principle that we are forbidden to participate in evil is far too broad. We participate in evil to some extent whenever our tax dollars support activities that violate what is just and right. Are we obligated to stop paying taxes? Here again, principled casuistry is needed. We must do our best to determine the degree of participation, its proximity to or remoteness from our agency, and the balance of justice and injustice in the act. It would be easier to sympathize with the bishops’ statement if it displayed some awareness of these moral complexities.
In the spirit of charity, I have saved for last the weakest point in the bishops’ thesis. Civil society and public law do not occupy separate spheres hermetically sealed from one another. Public policy typically shapes the institutions of civil society (for example, the complex laws of tax exemption), and when those institutions encounter the public realm, friction often ensues. The real question is the extent to which, and the basis upon which, law may legitimately constrain civil associations, of which religious associations are a distinctive species enjoying special moral and constitutional claims.
There are two categories of cases to consider. First, religious associations may choose to participate in public programs, which typically come with strings attached. When the church receives Caesar’s money, it does not ipso facto become God’s money. It may well be that Caesar should refrain from attaching conditions to the receipt of public funds and in so doing encourage the widest possible participation in programs that advance the common good. But for better or worse, that is Caesar’s decision. It is then up to the institutions of civil society to decide whether the conditions are too onerous to bear.
In the second category of cases, of which the disputed HHS contraception mandate in an example, religious institutions use only their own resources. In such instances, it is natural to think that government’s regulatory role is at most minimal. That is not always true, however. For example, according to federal law, no agency can refuse to authorize a prospective adoption because it objects to placement across racial or ethnic lines. This is not a condition imposed on the receipt of funds. It is rather a per se civil-rights provision, whether or not money changes hands. Since 1983, moreover, when the Supreme Court handed down its decision in the Bob Jones case, federal law has allowed the IRS to withdraw tax-exempt status from any institution found to be practicing racial discrimination. In its majority decision, signed by eight justices, the Court ruled that institutions—including religious institutions—seeking tax-exempt status must not only serve a public purpose but must do so in ways that are not contrary to established public policy, that serve the public interest, and that are not grossly at odds with the “common community conscience.”
Many religious organizations take the position that opposing same-sex sexual relations, marriage, and adoption cannot be equated with opposing comparable interracial activities, in part because the conscience of the community concerning gays and lesbians remains unsettled. As a matter of fact, that is correct—for now. But some states have already moved to settle the issue in favor of same-sex couples, and more (though not all) are likely to follow as public sentiment continues to change.
There is no guarantee that public opinion will converge on what justice requires. The conscience of the community has often erred and will continue to do so. There are compelling reasons within modern states to carve out a protected space for dissenting moral voices. But in the end, the tension between the laws of the state and the demands of faith cannot be fully resolved. It can only be managed, which means that understanding and goodwill on both sides is essential. These are scarce virtues in our shrill and divided times.
William A. Galston holds the Ezra Zilkha Chair in the Brookings Institution’s Governance Studies Program, where he serves as a senior fellow. He is a former policy adviser to President Bill Clinton and the author of Liberal Purposes, among other books.
Michael P. Moreland
Arguments about religious freedom begin with one of two conflicting sets of assumptions in the background. According to the first, the state possesses plenary authority and subsidiary institutions (churches, corporations of various kinds, and families, for example) are wholly subject to regulation by the state. Even if there are legally enforceable limits on the state’s power to regulate such institutions (as there are in the Constitution), they are themselves a product of political will and self-imposed limits on the state’s authority. The clearest exponent of this view is Thomas Hobbes, arguably the greatest political philosopher in the Anglo-American tradition.
According to the other set of assumptions, groups in civil society (and, in the Catholic understanding, preeminently the church) exist independently of the state. The limits to the state’s ability to regulate such groups are not merely a concession on the part of the state but are the result of a genuine differentiation of jurisdiction between the authority of the state and the authority of subsidiary institutions, even if the boundaries between these different jurisdictions are often confused and have to be worked out on a case-by-case basis. In his essay “Are There Two or One?” in We Hold These Truths (1960), the American Jesuit theologian John Courtney Murray argues for this view, which has deep roots in the Catholic tradition—you can find it in the work of Gelasius I and Robert Bellarmine.
The contemporary American debate over religious freedom reflects this conflict about the authority of the state over the institutions of civil society. The list of examples of threats to religious freedom in “Our First, Most Cherished Liberty” is impressive, and the document is rightly concerned about troubling recent trends regarding religious freedom. Much of the document is markedly liberal (in the classical sense). The opening paragraph is sanguine about the congruence of Catholicism and America: “To be Catholic and American should mean not having to choose one over the other. Our allegiances are distinct, but they need not be contradictory, and should instead be complementary.” This document was probably not the right place to challenge settled American understandings of religious freedom, but a more comprehensive statement would want to consider the reservations about liberalism found in the work of Catholic intellectuals such as Alasdair MacIntyre and Charles Taylor.
The section of “Our First, Most Cherished Liberty” titled “Religious Liberty Is More than Freedom of Worship” is perhaps the most interesting part of the document. There the bishops’ committee tries to mount a challenge to the prevailing individualistic understanding of religious freedom. That understanding—owing to the influence of John Locke’s A Letter on Toleration on the framers of the First Amendment—is primarily concerned with freedom of individual conscience. Indeed, an early draft of the First Amendment substituted “conscience” for “religion.” A distinctly Catholic contribution to the debate over religious freedom should emphasize institutional aspects of religious belief—freedom of the church, not merely freedom of conscience.
The task of vindicating the freedom of the church in contemporary discourse requires recovering some neglected figures in the Christian social tradition. Among those figures are the late-nineteenth- and early-twentieth-century English pluralists, notably the legal historian F. W. Maitland (1850–1906) and the political theorist John Neville Figgis (1866–1919). These English pluralists provide an incisive account of political authority, the history of common-law principles of incorporation, and the place of churches and other corporate bodies in the modern state. “If the law allows men to form permanently organized groups,” wrote Maitland in his essay “Moral Personality and Legal Personality,” “those groups will be for common opinion right-and-duty-bearing units.”
Figgis was an Anglican clergyman who spent most of his adult life as a member of the Community of the Resurrection, an Anglican monastic community in West Yorkshire. He studied under the liberal Catholic historian and politician Lord Acton at Cambridge, and Figgis was the initial editor of many of Acton’s writings. Figgis argued that Hobbes’s account of sovereignty (denying that groups can exist except by concession of the state) was a “venerable superstition” and that it was “as a series of groups that our social life presents itself, all having some of the qualities of public law and most of them showing clear signs of a life of their own, inherent and not derived from the concession of the State.” As Figgis posed the question in his underappreciated classic Churches in the Modern State (1913):
Does the Church exist by some inward living force, with powers of self-development like a person; or is she a mere aggregate, a fortuitous concourse of ecclesiastical atoms, treated it may be as one for purposes of convenience, but with no real claim to a mind or will of her own, except so far as the civil power sees good to invest her for the nonce with a fiction of unity?
According to Figgis, the state can set out requirements for the recognition of societies, “but all this does not and need not imply that corporate personality is the gift of the sovereign, a mere name to be granted or withheld at its pleasure.”
As summarized by David Runciman in his book Pluralism and the Personality of the State (Cambridge, 1997), Figgis’s central concept in Churches in the Modern State was society as a communitas communitatum (a community of communities). “By it,” writes Runciman, “Figgis understood a society made up of self-formed and self-governing associations, each of which co-existed in a broader framework, itself capable of generating a sense of community. This broader community was the state, but although broader, it did not condition the lives of those lesser groups that it contained.” The state cannot interfere with the internal decisions of churches not because the state has granted an exemption from an otherwise generally applicable law but because religious institutions are free and autonomous groups within the state.
The task for those who would defend Figgis’s pluralism and the freedom of the church amid the current debate is to weaken the hold of the Hobbesian picture of sovereignty that holds us in its grip. Figgis and the English pluralists argued against the Hobbesian state by asserting that groups are real and that they possess real personality. “What we actually see in the world,” Figgis claimed, “is not on the one hand the State, and on the other a mass of unrelated individuals; but a vast complex of gathered unions, in which alone we find individuals.”
I read parts of “Our First, Most Cherished Liberty” as a call for a renewed appreciation of the importance of institutional pluralism in a liberal society. The disagreement over such subjects as the HHS contraception mandate is many things—a debate within American constitutional law, a debate within American Catholicism about the legacy of Humanae vitae—but it is, in my view, foremost a debate over whether and how the coercive power of the state should be employed against the institutions of civil society. Catholicism (and especially American Catholicism) is a peculiarly institutional form of religious faith, with social-service agencies, hospitals, and schools at every level. Catholic institutions are, not surprisingly, on the front lines of battles between state regulation and church autonomy.
One’s position in the current debate will vary depending on whether one embraces (in Nancy Rosenblum’s phrase) “the logic of congruence” between public and private ordering or a robust commitment to the freedom of civil society. As Rosenblum and Robert Post put it in the introduction to Civil Society and Government (Princeton, 2002):
Advocates of congruence fear that the multiplication of intermediate institutions does not mediate but balkanizes public life. They are apprehensive that plural associations and groups amplify self-interest, encourage arrant interest-group politics, exaggerate cultural egocentrism, and defy government. What is needed, in their view, is a strong assertion of public values and policies designed to loosen the hold of particular affiliations, so that members will be empowered to look beyond their groups and to identify themselves as members of the larger political community. The “logic of congruence” envisions civil society as reflecting common values and practices “all the way down.”
The debate over religious freedom to which the “Our First, Most Cherished Liberty” contributes is just one part of a larger debate about the scope and scale of government. In the grand tradition of Anglo-American liberalism, limited government is an essential component of genuine freedom—individual liberty of conscience, the freedom of the church, and a free civil society. As the atomism of American life and our disconnectedness from one another and from our religious traditions increases, so does the reach of the state into matters that have long been a matter of private ordering. The logic of congruence is fueled both by overweening regulation and by individualism and atomism. All of this was diagnosed by Tocqueville, who saw that individualism and statism reinforce each other over time, crowding out religious communities and other forms of associational life:
It frequently happens that the members of the community promote the influence of the central power without intending to. Democratic eras are periods of experiment, innovation, and adventure. There is always a multitude of men engaged in difficult or novel undertakings, which they follow by themselves without shackling themselves to their fellows. Such persons will admit, as a general principle, that the public authority ought not to interfere in private concerns; but, by an exception to that rule, each of them craves its assistance in the particular concern on which he is engaged and seeks to draw upon the influence of the government for his own benefit, although he would restrict it on all other occasions. If a large number of men applies this particular exception to a great variety of different purposes, the sphere of the central power extends itself imperceptibly in all directions, although everyone wishes it to be circumscribed.
“Our First, Most Cherished Liberty” was composed in light of some concrete examples of threats to religious freedom that the bishops’ committee wished to address. But if the document and the tumultuous debate within the church about the HHS mandate are to have a lasting legacy, it will be in awakening American Catholics and their fellow citizens to an awareness of the great good of institutional pluralism and the limits of the modern state.
Michael P. Moreland is vice dean and professor of law at Villanova University School of Law.
"Our First, Most Cherished Liberty” reflects the bishops’ deep ambivalence about whether they prefer the protection afforded a religious minority in the United States or whether they want to be an influential force in the moral mainstream. The first option will likely require them to accept some marginalization, while the second exposes them to uncomfortable pushback from opposing forces. Their statement suggests they want to have it both ways, but that outcome seems highly unlikely, at least within the American legal and political framework.
The bishops tend to frame their complaint in terms of religious liberty. Yet most religious-liberty cases involve minority religious groups seeking to be left alone to pursue holiness as they see fit, free from the baleful attention or coercion of the majority. They want to worship as they wish (Church of Lukumi Babalu Aye v. City of Hialeah, 1993) or educate their children as they think faith requires (Wisconsin v. Yoder, 1972). Recognizing themselves as religious and moral minorities, most religious-liberty plaintiffs do not try to influence the broader community. Nor do they attempt to recast American society in their own image.
Of course, unlike the Amish in the Yoder case, the bishops do not want to withdraw into a sectarian corner. As many passages in the bishops’ statement make clear, they want to participate more broadly in American life, and to shape the American ethos in accordance with their own values. For example, the bishops proclaim that “what is at stake is...whether the state alone will determine who gets to contribute to the common good, and how they get to do it.”
This impetus toward public influence seems to be operating in the bishops’ dubious claim that “it is essential to understand the distinction between conscientious objection and an unjust law. Conscientious objection permits some relief to those who object to a just law for reasons of conscience—conscription being the most well-known example. An unjust law is ‘no law at all.’ It cannot be obeyed, and therefore one does not seek relief from it, but rather its repeal.”
It seems to me that this line of reasoning about unjust law is at the heart of the bishops’ stance on the contraception mandate. In February, they flatly rejected the administration’s attempts to insulate Catholic employers from the mandate by requiring third-parties to pay for and provide contraception coverage to employees of nonexempt Catholic institutions. Nor did the bishops propose any accommodations themselves. Instead, they claimed the only moral option is the complete repeal of the mandate. Why is the mandate an unjust law? Because contraception is intrinsically immoral—or so the bishops say. This position is consistent with the Catholic view that the magisterium is the authoritative interpreter of the natural law. But it goes far beyond the American understanding of religious liberty. Of course, there are constitutional limits, but generally in a representative democracy such as ours, the majority has the power to determine through the legislative process what counts as a just and unjust law. The bishops can propose. But it is ultimately up to the voters and their representatives to dispose.
There are other problems with the statement. Several of the examples of religious oppression cited by the bishops do not stand up to close scrutiny. For example, the bishops cite a 2009 bill in the Connecticut legislature that would have forced Catholic parishes to be restructured according to a congregationalist model. What the bishops fail to note is that a chorus of legal experts immediately shot the bill down as flagrantly unconstitutional. It was killed by a unanimous committee vote two weeks after it was proposed.
The bishops note that several states have passed laws that prohibit “harboring” undocumented immigrants, “and what the church deems Christian charity and pastoral care to those immigrants.” They point in particular to Alabama’s 2011 law targeting the undocumented as “perhaps the most egregious.” Yet they fail to inform the reader that the Obama administration immediately challenged the Alabama law on the grounds that it conflicted with federal immigration law, which is far more humane. A federal district court quickly issued a preliminary injunction barring enforcement of those aspects of the statute to which the bishops objected. Why are the bishops providing the faithful with only half the story?
Two other examples are more complicated. The bishops highlight the refusal of several states and municipalities to grant licenses to Catholic adoption agencies that would not place children with same-sex couples. Also mentioned is the decision not to renew the federal contract of the USCCB’s Migration and Refugee Services, because it would not provide or refer for contraceptive or abortion services for victims of human trafficking.
I do not think these are examples of the government infringing on the religious liberty of the Catholic Church. Instead, the bishops are dealing with the difficult problem of finding a modus vivendi with a fast evolving moral consensus that conflicts with traditional Catholic teachings. As a matter of public morality, the country increasingly rejects discrimination on the basis of sexual orientation. Most people understand this to be the logical extension of protections already provided to individuals on the basis of sex, race, and religion. So it is not entirely surprising that Catholic Charities is refused a license because it won’t place a child with same-sex couples. Atheist Charities would be refused a license, too, if it made the same decision—or if it refused to place a child with Catholics, for that matter.
The situation involving the contract for victims of human trafficking also reflects the conflict between Catholic moral teaching and the broader moral consensus. The federal government is using government funds—taxpayer money—to hire someone to act on its behalf in serving a vulnerable population. Contraception and abortion are, in fact, not only legally protected, but constitutionally protected choices. Victims of human trafficking may not have a clear idea about how to access these services on their own; they may not even speak English. Is it really outrageous for the government to give “strong preference” to organizations that will at least offer referrals for the “full range of legally permissible gynecological and obstetric care”?
What about the fact that the bishops’ Migration and Refugee Services has a sterling track record? That fact complicates the picture, but does not settle the question. Consider a hypothetical that raises a mirror-image problem. Suppose the Freedom from Religion Foundation also provided excellent care to victims, but refused to give them information or help finding local churches or religious support groups. Would the bishops be upset if the government ruled them out as a contractor on the grounds that they were hampering the exercise of the victims’ right to freely worship as they see fit? Probably not. But what’s the difference? Catholics need to think hard about what neutral principle the government should apply in making distinctions in cases like these. Frankly, I’m not sure there is one.
Finally, the most striking aspect of the bishops’ claims about religious liberty is the absolute nature of their assertions (they don’t really make arguments). They give the reader virtually no hint that such questions must be assessed in a framework of competing rights and duties, particularly the duty to promote the common good. This is ironic from a theological perspective. Vatican II’s Declaration on Religious Freedom recognizes that there are “due limits” on the exercise of religious freedom, including the need to promote a “just public order,” and preserve the “equality of the citizens before the law.” For years, Catholic moralists and lawyers have railed against the assertion of rights claims without any consideration of relational responsibilities. (See Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse, 1993.)
Nor does the bishops’ rights absolutism make much sense as a legal strategy. American law does not treat religious freedom as an absolute right. The leading case interpreting the Free Exercise Clause, Employment Division v. Smith (1990), holds that the Constitution does not require lawmakers to give religious exemptions to neutral laws of general applicability, provided no other constitutional rights are involved. Even under the stricter, “compelling state interest” test that governed in the pre-Smith era, religious freedom was never an absolute right, but had to be balanced against competing state interests. Moreover, those interests must be assessed from the vantage point of the lawmakers, not the religious objector.
The case that seems most on point with regard to the contraception mandate is United States v. Lee (1982). It was decided under the stricter test that the Religious Freedom Restoration Act still applies to federal regulations such as the mandate. In that instance, the Supreme Court held that it was constitutionally permissible for the federal government to force Amish employers to pay Social Security taxes for their employees, although both the payment and receipt of Social Security taxes violated their religious beliefs, and although the employees in question were Amish themselves.
Why should it be permissible to force Amish employers to pay Social Security taxes but not to force Catholic employers to pay for contraception? I don’t see a compelling distinction between the two cases. In Lee, the Court noted that “the Social Security system in the United States serves the public interest by providing a comprehensive insurance system with a variety of benefits available to all participants, with costs shared by employers and employees.” A similar claim could be made about employer-based health reform.
Moreover, the Court noted that “it would be difficult to accommodate the comprehensive Social Security system with myriad exceptions flowing from a wide variety of religious beliefs.” The administrative difficulty would be even greater with comprehensive health reform, since objections would run not merely to payment, but to various and sundry covered services.
Noting that Congress had made an exemption for self-employed Amish, the Lee Court stated it need not go further by making an accommodation for Amish who employ other Amish, such as the plaintiff. The reasoning is instructive:
When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from Social Security taxes to an employer operates to impose the employer’s religious faith on the employees.
It seems to me that this last point is decisive with respect to the contraception mandate. The vast majority of Americans do not believe that the use of contraception is intrinsically immoral. In fact, they think it is a morally appropriate way to fulfill their responsibilities to themselves and to their families. In this context, granting an exemption to Catholic institutions would effectively impose the Catholic employer’s understanding of morality on the employee just as surely as granting a Social Security tax exemption to Amish employers would.
Congress did eventually grant Social Security tax exemptions to the Amish hiring their coreligionists, since both employer and employee rejected the costs and benefits of Social Security. That exemption was not constitutionally required. It was, however, constitutionally permitted and even constitutionally sensible. I think the same thing could be said about the latest attempt on the part of the Obama administration to accommodate Catholic employers, such as universities and hospitals, which do not meet the strict criteria for the exemption. On the one hand, such employers will not be required to provide or arrange for contraception coverage. On the other, employees will have access to such coverage through insurance companies or third-party administrators. I see no reason to disbelieve the actuaries who say that it is revenue-neutral to do so, since it reduces the rate of unexpected pregnancies across covered populations.
According to Lee, “To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some practices yield to the common good.” The bishops do not agree, of course, that expanding access to contraception will in fact contribute to the common good. And they are free to make that argument in the public square. But just as a member of Peace Church cannot politically demand that the only way to respect his or her religious liberty is to end a war for everyone, so the bishops cannot insist that “the only way to respect our religious liberty is to repeal the contraceptive mandate for everyone.”
It just doesn’t work that way.
Cathleen Kaveny, a Commonweal columnist, teaches law and theology at the University of Notre Dame.
The bishops’ statement on religious liberty is better than many such statements, but it is also a missed opportunity. The statement is not unduly alarmist, but many find it so. And because its fundamental points are more asserted than argued—because it says nothing about any contrary argument or countervailing interest—it can neither persuade those who disagree nor prepare the faithful for further debate.
Some of its examples are well chosen; some are not. It wisely includes the example of state immigration laws that prevent the church from ministering to illegal aliens. This is important both for its own sake and because it shows that serious attacks on religious liberty come from the right as well as the left. The statement says nothing about anti-sharia legislation or widespread opposition to the building of mosques—two more examples of attacks on religious liberty from the right.
Some of the statement’s examples are actually understated. It includes the examples of Hastings Law School excluding the Christian Legal Society and of New York City barring churches from renting worship space in public schools, but it fails to explain that neither of these incidents is isolated. There have been similar disputes across the country.
The statement refers to a 2009 bill in Connecticut to require lay control of Catholic parishes—a bill that drew widespread condemnation and was withdrawn within days of the first public notice. Including an isolated bill that was defeated three years ago inaccurately suggests that all the good examples have already been listed. The dispute over Catholic administration of government programs for victims of human trafficking is a hard case, too complex to explore here, but it is presented in the bishops’ statement as though it were easy.
The statement is oblivious to the likelihood that it will be misused for partisan purposes. Republicans have accused the Obama administration of waging a war on religion—of being the most antireligious administration in history. These charges are nonsense, but they are part of the context in which the statement will be received.
This is why it would have been valuable to include more than one example of attacks on religious liberty from the right, and to state explicitly that attacks on religious liberty come from both directions. And this is why the bishops should have included attacks on religious liberty to which the Obama administration has responded. All over the country, zoning boards and neighborhood associations seek to prevent the building of new churches and synagogues. The Justice Department has responded aggressively to these efforts in both the Bush and Obama administrations. Obama has continued George W. Bush’s faith-based initiative, which seeks to include religious providers of social services in government contracts, and he has resisted intense pressure to deprive participating religious organizations of their existing statutory right to prefer members of their own faith in their hiring decisions.
Most problematic is the statement’s reliance on a distinction between just laws that violate the tenets of a particular faith, for which the solution is an exemption, and unjust laws for which the only solution is repeal. The relevance of this distinction and the scope of its application are left unstated. The apparent implication is that all the examples listed in the bishops’ statement involve laws that are unjust in this sense—a claim that many readers will find absurd.
In attacking all these laws as unjust, the bishops confuse their argument for religious liberty with their arguments on other moral issues. Laws banning sexual-orientation discrimination will not seem unjust to any of the people who need to be persuaded that religious liberty requires an exemption for the church. The bishops are of course free to demand that government and secular social-service agencies exclude gays and lesbians and unmarried straight couples from adopting children or providing foster care. But that is not an argument for religious liberty; it is an argument for regulating secular life.
The contraception example is even worse. 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. And I hope that they will clarify this point in their two weeks of Catholic teaching on religious liberty leading up to July 4.
Let us assume they mean only that the requirement to cover contraception is unjust. The argument for a religious exemption is strong; the claim that the law is so unjust that the only solution is to repeal it will persuade no one. It is not unjust to require Microsoft to cover contraception. The bishops condemn contraception, but few Catholics pay them any mind, and most Americans find the Catholic teaching incomprehensible. Contraception is a paradigmatic example of a practice that violates the idiosyncratic teaching of one faith. The statement quotes Bishop William Lori saying that the issue is not whether contraception may be prohibited, or whether the government may support it, but whether religious institutions may be forced to provide it. Precisely. That is the religious-liberty issue, and that effective point is lost by rhetorical excess about seeking repeal rather than exemptions.
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. Many Americans who view the matter differently might nevertheless agree that those who believe that these pills kill human beings should not be required to pay for them. The claim to conscientious objection to abortion is powerful. But the point is largely lost when the statement expressly rejects conscientious objection in favor of repeal, when it mentions contraception ten times and abortion only four, and when it treats the two interchangeably and gives almost no separate emphasis to the requirement that employers pay for what the bishops believe are abortions.
Much of the current threat to religious liberty flows from these deep disagreements over sexual morality. The difference between exemption and repeal is the difference between seeking religious liberty for Catholic institutions and seeking to impose Catholic moral teaching on the nation. The bishops can argue for either or both, but conflating the two fatally undermines the argument for religious liberty. What the bishops view as seriously sinful, many Americans (in the cases of abortion and same-sex relationships), or most Americans (in the case of contraception), view as fundamental human rights. The bishops cannot base their teachings on opinion polls, but if they intend to argue effectively for religious liberty, they need to acknowledge the difficult ground on which they stand.
The bishops claim liberty for themselves, and for the large institutions they control, while also fighting to restrict the liberty of others with respect to abortion, emergency contraception, and same-sex relationships. Persistent opposition to the liberty of others makes enemies; many Americans on the other side of these issues now view the bishops as a powerful force for evil. Why should anyone who disagrees with the bishops on sexual morality respect their broad claim to religious liberty? That is the challenge that defenders of religious liberty must answer.
There can be no compromise on abortion; the moral imperatives on both sides run too deep. With respect to same-sex relationships, the obvious compromise is for the churches to leave same-sex couples alone and for the gay-rights movement to leave the churches alone. Live and let live may be unacceptable to either side. But if the bishops demand that government discriminate against same-sex couples in adoption and marriage, they can hardly be surprised when the gay-rights movement responds with hostility.
There has been effective compromise on contraception: the bishops teach against it but have not for decades sought to make it illegal. Routine contraception is a legal and political issue only with respect to health insurance. And here, Catholic institutions must be free to live by Catholic teachings. Those who choose to work or study in Catholic institutions will bear some of the costs, but they cannot impose their non-Catholic morality on Catholic institutions.
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, in part because it does not acknowledge the real issues, and in part because it confuses the church’s right to live by its own religious teachings with its desire to have many of those teachings enacted into law.
Douglas Laycock is professor of Constitutional Law at the University of Virginia. He addresses the reasons for the current hostility to religious liberty at greater length in “Sex, Atheism, and the Free Exercise of Religion,” in volume 88 of the University of Detroit Mercy Law Review.
In the latest issue of Communio, David L. Schindler fires a shot across the bow (.pdf) of the USCCB’s campaign against the Obama administration’s contraception-coverage mandate and other perceived assaults on religion liberty in America. Professor of theology at Catholic University’s Pontifical John Paul II Institute for Studies on Marriage and Family as well as editor of Communio, Schindler devotes twenty-five pages to a natural-law critique of the liberal conception of rights—and its use in mounting a defense of religious liberty.
In Schindler’s view, this conception is not simply about providing rules of the road in a pluralistic democratic society. It embodies an idea of human nature that ensures that the rights of rational adults will prevail in any conflict with “differently conceived rights”—such as a right to life asserted on behalf of a fetus.
Schindler grants that, for immediate political ends, those who wish to defend their religious preferences might be justified in wrapping themselves prudentially in the mantle of liberal rights. But he warns that Catholics “need to understand that the issue is not properly conceived as a matter of the consistent application of an idea of rights (as immunities) commonly embraced by the various parties.” If they don’t understand that, they will continue “to aid and abet the dominant liberalism’s hidden logic of repression.”
There can be no question that “Our First, Most Cherished Liberty” is full of commonly embraced rights rhetoric. “What we ask is nothing more than that our God-given right to religious liberty be respected,” say the bishops. “We ask nothing less than that the Constitution and laws of the United States, which recognize that right, be respected.” Indeed, the document is not at all an enunciation of a Catholic understanding of religious liberty but rather an exercise in latter-day Americanism, including what might charitably be termed a prettified account of the church’s historical approach to the subject.
In its third paragraph, for instance, “Our First, Most Cherished Liberty” offers the following example of how “Catholics in America have discharged this duty of guarding freedom admirably for many generations.”
In 1887, when the archbishop of Baltimore, James Gibbons, was made the second American cardinal, he defended the American heritage of religious liberty during his visit to Rome to receive the red hat. Speaking of the great progress the Catholic Church had made in the United States, he attributed it to the “civil liberty we enjoy in our enlightened republic.” Indeed, he made a bolder claim, namely that “in the genial atmosphere of liberty [the church] blossoms like a rose.”
What the document fails to note is that Rome’s response was to anathematize Gibbons’s embrace of his country’s approach to religious liberty as heretical. Two generations would pass before American bishops were again to find their tongues on the subject.
To be sure, the USCCB does say that the church’s religious-liberty record leaves something to be desired: “As Catholics, we know that our history has shadows too in terms of religious liberty, when we did not extend to others the proper respect for this first freedom.” But that scarcely seems like an adequate acknowledgement of the church’s longstanding condemnation of religious liberty, such as in Pius IX’s Syllabus of Errors (Error 77: “In the present day it is no longer expedient that the Catholic religion should be held as the only religion of the State, to the exclusion of all other forms of worship”). And that’s to say nothing of what the Spanish and Portuguese inquisitions did to those condemned as heretics and apostates.
Be that as it may, the Second Vatican Council did manage something of a volte-face for the church, such that the U.S. bishops can now stand up for religious liberty with impunity. In “Our First, Most Cherished Liberty,” they cite seven “concrete examples” of how it is currently “under threat.” Some are local trivialities, like the outlandish 2009 Connecticut bill to reorganize Catholic governance along congregational lines, which was going nowhere and went nowhere. Most of the others involve legal issues of church and state where the bishops have no leg to stand on in court. Thus, they consider it a violation of their religious liberty to be denied public money to carry out their good works on their own terms. No one, however, has a constitutional right to a government contract.
The best constitutional claim the bishops—and other religious leaders—have would appear to be against Alabama, where the state’s new anti-immigration law restricts the ability of churches to offer religious services to illegal immigrants. On that one, I hope they win. But as conservatives have started again acknowledging in the wake of President Barack Obama’s recent criticism of the Supreme Court, the courts are the venue where threats against constitutional rights are handled in America.
“What is at stake,” say the bishops, “is whether America will continue to have a free, creative, and robust civil society—or whether the state alone will determine who gets to contribute to the common good, and how they get to do it.” In fact, the state alone does get to set the ground rules for what groups and individuals may or may not do as they contribute to the common good. If that arm of the state known as the judicial system determines that a law is an unconstitutional violation of the guarantee of Free Exercise or the prohibition of Establishment, then it goes away. That’s how our system of “we, the people” governance works.
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.
Of course, the bishops might have refrained from mentioning Smith because they did not want to be seen to be criticizing its author, Justice Antonin Scalia, a hero of many conservative Catholics. Another possibility, however, is that for all their embrace of rights rhetoric, what the bishops are really interested in is not religious freedom in the liberal juridical sense, but in the kind of state support of majoritarian religion that Scalia and his fellow conservative justices have been promoting in much of their First Amendment jurisprudence. In this, the USCCB’s real agenda would be closer to David Schindler’s, who in his editorial emphasizes the church’s position that “the state has a duty…to recognize religion and to favor conditions that foster its growth.”
Let me conclude with what is unquestionably the oddest part of the bishops’ statement—its apparent simultaneous avowal and disavowal of civil disobedience in the face of threats to religious liberty. This section evidently refers to the bishops’ preoccupation with the contraception-coverage mandate under the health-care law. It seems that the mandate—and thereby the law itself?—is so unjust that no accommodation is acceptable, and so it must not be obeyed. Exactly how a religious employer could conscientiously disobey in this case is not clear, since in its current form there’s nothing the employer can do not to provide the mandated coverage short of doing away with health insurance altogether (as the Franciscan University of Steubenville has done with student coverage). And it’s not against the law to decide not to provide employees with health insurance. You just have to pay a fine.
But then, according to the bishops, conscientious objection can only provide relief from a just law, and since the mandate is unjust, and therefore “no law at all,” one must try to repeal it rather than just seeking an exemption. Apparently, the bishops will use their Fortnight for Freedom to lobby Congress to repeal mandatory contraception coverage. Meanwhile, they will engage in civil disobedience of the mandate—if they can figure out how to do it, and if the Supreme Court has not by then declared the mandate an unconstitutional violation of the right of free exercise.
Mark Silk is director of the Leonard E. Greenberg Center for the Study of Religion in Public Life and Professor of Religion in Public Life at Trinity College. Co-author of One Nation Divisible: How Regional Religious Differences Shape American Politics, he is editor of Religion in the News and blogs for Religion News Service at www.religionnews.com/blogs/mark-silk.
Threats to religious freedom have been a constant in American history. So have alarmist religious appeals that stir public hysteria, serve partisan ends, and degrade religion and politics alike. Eternal vigilance is appropriate in both cases.
Thanks to such vigilance, religious freedom has steadily broadened its embrace over the course of our nation’s history. That it might now be narrowed, however, is not at all impossible.
There is a species of conservatism that wants religious freedom for the Judeo-Christian “us” but would obstruct it for the Islamic or non-believing “others.” There is a species of liberalism that views religion as an irrational and retrograde intruder into public life and to the greatest extent possible would restrict it to the private sphere. This liberalism honors freedom of individual conscience (whether religious or not) and respects freedom of congregational worship but is antagonistic to freedom of the religious community as an institutional actor in allegedly secular space.
The dividing line between exempt and nonexempt religious bodies in the HHS insurance mandates regarding preventative health-care services for women reflects this liberal tendency. Catholic Charities, Catholic health care, and Catholic higher education did not qualify for the religious exemption precisely because of traits that most Catholics, especially since Vatican II, prize—namely, that these institutions did not serve only fellow believers, hire only fellow believers, or engage in catechizing and proselytizing. A New York Times editorial praising the HHS stance inadvertently exposed the absurdity of this dividing line when it described these institutions as the church’s “nonreligious arms.”
The bishops were right to protest this categorization. They were joined by many others across the political spectrum, Catholics and non-Catholics, however much they may have regretted waging this skirmish on the inhospitable terrain of a mandate regarding contraception. The administration has been back-pedaling through various “accommodations,” including a rethinking of the definition of exempt and nonexempt and a declaration that whatever definition emerges will not “set a precedent for any other purpose.”
The bishops have rejected these accommodations as meaningless. Instead, they have subsumed their concerns under a full-throated campaign in defense of religious freedom. Their campaign is poorly conceived and runs a high risk of harming the very causes it would defend.
But it is understandable. Every struggle over religious freedom has a cultural and political context, whether the nativist response to alien Irish papists in mid-nineteenth-century America or the anti-Muslim prejudice prompted by fear of terrorism. The current explosion of episcopal fervor for religious freedom has had a long fuse. It is rooted in the long-standing battle over abortion and in the newer wave of changing attitudes toward same-sex unions. It is rooted in the bishops’ belated realization of their diminished hold over Catholic opinion and Catholic institutions—and in the implausible belief that this diminishment would not be the case if only the clergy had been more assertive in enforcing Catholic teachings, largely about sexuality and gender. Finally, it is rooted in a kind of panic, constantly nurtured by prolife activists and conservative intellectuals, at the election of a Democratic administration marked by prochoice and same-sex sympathies.
The bishops are not wrong to recognize that they are opposing culturally and, for that matter, financially powerful currents regarding abortion and same-sex marriage. Prochoice organizations aim at more than legal access; they want to mainstream abortion as simply one more medical procedure, often unhappy and, like many other medical procedures, unwanted—but certainly not morally problematic. The HHS mandates were widely described as providing “preventive reproductive services.” I can testify that many of my prochoice friends, fellow journalists, and liberal activists deeply and sincerely believe that abortion falls into that category no less than contraception, perhaps even more so. Mainstreaming is also the objective of most advocates of same-sex marriage, who deeply and sincerely believe that nothing but a bigotry as unacceptable as racial bigotry underlies any institutional privileging of heterosexual unions. Both movements, for abortion and for same-sex marriage, seek not only legal rights but moral legitimacy, and they are thus on a collision course with religious institutions that constitute morally credible islands of resistance to this mainstreaming.
So Catholic institutions face any number of skirmishes about conscience clauses, antidiscrimination statutes, hospital mergers, licensing requirements, refusals of funding, tax exemption, insurance policies, and legal mandates. If the bishops had any comprehensive strategy for meeting these challenges, defending religious freedom would certainly be an essential component. Such a strategy would be measured and carefully targeted; it would combine public argument, sensitive pastoral leadership, legal defense, and the political savvy that knows where, in a pluralist society, a line can be drawn, how coalitions are nurtured, and when compromise is appropriate.
What has emerged instead is a series of ad hoc gestures in which assertiveness has become the flip side of defensiveness. This state of mind can be seen in the 2004 controversy about withholding Communion from prochoice Catholic (i.e., mostly Democratic) politicians; in the consequent USCCB declaration on “Catholics in Political Life” barring “awards, honors, or platforms” for such individuals; and in the piling on over President Barack Obama’s commencement address at Notre Dame. This state of mind showed itself in the national postcard campaign the bishops launched in mid-election 2008. That campaign raised a “worst-case” alarm about an until-then marginal Freedom of Choice Act. It foreshadowed the bishops’ “worst case” reading about funding abortion under health-care reform.
Before the Obama administration was one year old, leading bishops began signing onto “The Manhattan Declaration,” an impassioned “Call to Christian Conscience,” drafted by conservative Catholic philosopher and frequent GOP adviser Robert P. George and evangelical scholar Timothy George. The declaration tied the same two issues—abortion and same-sex marriage as the cutting-edge attacks on human dignity—to an ominous scenario of threats to religious liberty and religious institutions.
“The Manhattan Declaration” is a well-crafted document; I would accept some of its arguments about the “cheapening of life” and “erosion of the marriage culture” and reject others. Important for present purposes, however, is its tone: Beleaguered believers are called to close ranks and enlist in an urgent stand against a hostile culture. The soul of our freedoms if not of our civilization hangs in the balance.
The declaration’s message of a shrinking zone of religious freedom is crucial to this appeal. Complicated and contested arguments against abortion and same-sex relations are much more easily advanced under the universally applauded banner of religious freedom. Opponents of abortion and same-sex marriage, so often accused of imposing their views, are in fact imposed upon. They become aggrieved victims, the sine qua non, it seems, of American politics.
This spirit of anxiety and confrontation, assertiveness and defensiveness, has increasingly animated the USCCB’s public stances, especially toward the Obama administration. It has now propelled the bishops into their ill-conceived and potentially self-defeating campaign to defend religious freedom.
The campaign appears unusually well-organized and well-funded. It has exceptional visibility and pride of place on the USCCB’s website and among its activities. It features opening and closing episcopal liturgies in Baltimore and Washington, parish bulletin inserts, and specially composed prayers. “Our First, Most Cherished Liberty,” its charter document, summons up heroic past struggles for liberty and persecuted Christians around the world; it invokes everyone from John Carroll to Pope Benedict, from Lord Baltimore and James Madison to Martin Luther King Jr., to say nothing of Jesus Christ.
But the great battle for “our first, most cherished liberty,” it turns out, pivots on an indirect payment of an insurance premium for health-care coverage that includes contraception. What a comedown!
In reality, most bishops know that contraception is not the best ground on which to take a stand. Fewer bishops—and many laypeople untutored in the plethora of subtle church-state disputes—may realize how unimpressive are the seven examples that purport to demonstrate “religious liberty under attack.” Should Northern Arapaho Native Americans who need bald eagle feathers for religious rituals be exempt from restrictions on hunting those birds off their reservation in Wyoming? Should ultra-Orthodox Jews who believe they cannot report cases of sexual abuse of minors to civil authorities without rabbinical approval be exempt from New York’s reporting laws? Should the growing number of nonbelieving troops in the U.S. military have a counterpart to religious chaplains who would attend to their ethical and familial needs in an appropriately secular or humanist manner? Questions like these, to cite only a few that have come to my attention in the short time since the bishops launched their campaign, are constantly occupying our courts and legislatures. It is to our nation’s credit that we take them seriously, but they are often difficult to resolve and all too easy to construe into one trend or another.
The bishops’ reasoning about religious exemption is similarly wanting. The definition used by Health and Human Services to distinguish exempt from nonexempt religious bodies—and used earlier by California and other states as well as regional offices of the National Labor Relations Board—is indeed objectionable. Unfortunately, the bishops have pushed the idea of exemption far beyond the breaking point. For most people, being exempt on moral or religious grounds from directly taking part in some action, like bearing arms or performing an abortion or eating forbidden foods or undergoing forbidden medical procedures, is quite different from paying taxes or insurance premiums that fund a wide variety of social measures for others, including some measures one finds morally objectionable. Quakers may be exempt on religious grounds from fighting in combat; they are not exempt from paying the taxes that support the Defense Department. Jehovah’s Witnesses may be exempt from participating in the classroom Pledge of Allegiance; they are not exempt from paying school taxes. The bishops are not only blurring this common-sense line in a way that may come back to haunt them, they are also pushing the claim to religious exemption from indirect support beyond that of religious organizations to that of any individual employer or employee with religious objections to contraceptive services. This opens vast problems and actually undermines the USCCB’s original concern about the HHS definition of exempt and nonexempt religious organizations.
So consider: The bishops are mounting a crusade for religious freedom (1) in regard to Catholic educational, health-care, and social services whose religious character (especially of Catholic colleges, universities, and hospitals) church authorities routinely suspect and whose personnel they constantly alienate; (2) in regard to forms of exemption that are hugely expansive and highly debatable; and (3) in regard to church teachings that fewer and fewer Catholics accept. This is not an obvious formula for success.
And failure will have a high cost. Exemption from direct participation in morally objectionable actions is one thing. Exemption from indirectly paying for others people’s morally objectionable actions is another. By appearing to equate the two, the bishops put at risk the former in advancing a very vulnerable case against the latter.
But the most obvious dangers are, first, discrediting the cause of religious liberty itself and, second, discrediting the Catholic Church. Both arise from the direct entanglement of religion and its leaders with partisan politics. Freedom from such direct entanglement, as Tocqueville classically argued, has redounded to the benefit of both religion and politics in the United States.
As Commonweal has editorialized, the bishops will have to take extraordinary care to keep their campaign from appearing like a direct intervention by the church’s leadership in the 2012 presidential election. Having already handed Republican primary candidates the occasion to denounce a “war on religion” and a “war on Catholicism,” the bishops now propose to “focus ‘all the energies the Catholic community can muster’ in a special way this summer.” Perhaps the bishops imagine that their simple disavowal that “this ought not to be a partisan issue” will remove all scent of a standard “wedge issue” calculated to affect just enough Catholic votes in swing states. It will not go unnoticed that this proposal was drafted by an episcopal committee notable for outspoken Obama critics and with the help of lay consultants heavy on GOP appointees, advisers, and stalwarts (at least one Romney adviser, Mary Ann Glendon, as well as Carl Anderson, Supreme Knight of the Knights of Columbus, once a special assistant to President Ronald Reagan and before that an assistant to Jesse Helms).
Perhaps the bishops imagine that the ringing rhetoric and sweeping generalities of “Our First, Most Cherished Liberty” will patch over the cracks in their specific arguments about religious exemption from generally applicable laws. In truth, the melodramatic tone of “Our First, Most Cherished Liberty” and the “Fortnight for Freedom,” which very consciously associates the church’s present situation with the martyrdoms of Thomas More, John the Baptist, Peter and Paul, and the unnamed victims of the Emperor Nero, has quite predictably given rise to apocalyptic speeches and YouTube videos in which the forces of Christ and of freedom are arrayed against those of Obama. Will the Catholic Church become to the First Amendment what the National Rifle Association is to the Second?
That will only do injury to both Catholic faith and religious freedom. Cynicism about political manipulation of religion is already rife. It may well be the leading factor in the massive drift of young people from any religious identification. Thankfully, cynicism about the political manipulation of religious freedom is not so widespread. Give it time. And fodder.
A final irony: The bishops’ believe, accurately I think, that the church’s contribution to the common good depends on the vital religious presence in civil society of Catholic educational, health care, and social service institutions. Yet in the case of institutions that the bishops don’t directly control, primarily in higher education and health care, relations grow increasingly adversarial rather than collaborative. Is this another example of destroying the village in order to save it?
On June 13–15, a week before the “Fortnight for Freedom,” the Catholic bishops will gather for their annual spring meeting. Will any among them raise probing questions about the course on which their leaders have set the church? Will anyone ask exactly what goals it is meant to reach and how likely this current campaign is to attain them? How will it avoid the appearance of partisan politics? How do these actions fit into the larger pastoral needs of the church? What alternatives were considered? Would someone even be bold enough to suggest that the church needs to revisit some of its teachings on sexuality and marriage if it wishes to effectively address topics like contraception and same-sex unions?
Two hours are scheduled to discuss the religious freedom issue. Voices of 99.9 percent of the church—the laity and priests—will be absent. One hopes that the bishops might overcome their usual deference and have a frank and honest exchange of views when so much is at stake.
Peter Steinfels is co-director of the Fordham Center on Religion and Culture, and the author of A People Adrift: The Crisis of the Roman Catholic Church in America.
For more coverage of the contraception mandate, click here.
About the Author
William Galston is Ezra Zilkha Chair and Senior Fellow in Governance Studies at the Brookings Institution. He is the author of Liberal Purposes and Liberal Pluralism, both published by Cambridge University Press. Galston served as deputy assistant for domestic policy under President Bill Clinton, 1993–95.