Published on Commonweal magazine (http://commonwealmagazine.org)
The Bishops & Religious Liberty
Created 05/30/2012 - 3:50pm
Peter Steinfels
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
Peter Steinfels
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.
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