Framing the Religious-Liberty Issue

Published April 16, 2012

National Review Online

“Our First, Most Cherished Liberty,” the Easter Week statement by the Ad Hoc Committee on Religious Liberty of the U.S. Conference of Catholic Bishops, is the most developed statement on current religious-freedom controversies to emerge from the bishops’ deliberations. It also, and just as urgently, defines with considerable precision a major issue in American public life: Will the robust networks of free and voluntary associations that Alexis de Tocqueville admired as the sinews and musculature of American democracy continue to flourish? Or will the United States increasingly resemble Western Europe, where the associational instinct (and, with it, civil society) has atrophied under the heavy weight of the European nanny state?

The bishops, in other words, helpfully frame the religious-freedom issue in its broader context. To be sure, the bishops are very, very concerned about increasing governmental encroachments on religious freedom of recent years. Those encroachments include the HHS “contraceptive mandate” in the implementation of Obamacare, which brought the entire issue to the surface of public life; they also involve state laws that impede the Church’s service to immigrants, attempts by state legislatures to turn religious communities into bureaus of state government, discrimination against Christian students on university campuses, and restrictions on the Church’s capacity to draw on public funds in its service to orphans and victims of human trafficking. This shrinkage in the sphere of religious freedom is bad enough in itself, and deserves to be fought. But as the Ad Hoc Committee points out (in explaining that religious freedom “is not only about our ability to go to Mass on Sunday or pray the Rosary at home”), the issue beneath these issues is the advance of Leviathan, often in the name of imposing the dictatorship of relativism:

What is at stake 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. Religious believers are part of American civil society, which includes neighbors helping each other, community associations, fraternal service clubs, sports leagues, and youth groups. All these Americans make their contribution to our common life, and they do not need the permission of the government to do so. Restrictions on religious liberty are an attack on civil society and the American genius for voluntary associations…[Thus this] is not a Catholic issue. This is not a Jewish issue. This is not an Orthodox, Mormon, or Muslim issue. It is an American issue.

The Ad Hoc Committee’s statement also underscores that what the bishops are seeking to clarify for all Americans is a fundamental issue of social justice, and what they are determined to remedy is a fundamental injustice. The HHS “contraceptive mandate,” the bishops argue, is not a matter on which the Church seeks an accommodation for its own distinct (and, by implication, bizarre) views. Like the state immigration laws that forbid Catholic priests from offering the sacraments to illegal immigrants, the HHS mandate is an unjust law. And as the bishops note, following Martin Luther King Jr.’s exegesis of St. Augustine in King’s Letter from Birmingham Jail, “An unjust law is no law at all.” Nor do the bishops hesitate to draw out the full implications of their analysis:

“It is a sobering thing to contemplate our government enacting an unjust law. An unjust law cannot be obeyed. In the face of an unjust law, an accommodation is not to be sought, especially by resorting to equivocal words and deceptive practices. If we face today the prospect of unjust laws, then Catholics in America, in solidarity with our fellow citizens, must have the courage not to obey them. No American desires this. No Catholic welcomes it. But if it should fall upon us, we must discharge it as a duty of citizenship and an obligation of faith.

Thus the bishops reject the anorexic notion of religious freedom once described by Harvard’s Laurence Tribe as a matter of marginal carve-outs that a benign government makes while enforcing the naked public square, shorn of religiously informed moral arguments and convictions. The bishops are not interested in being accommodated; they are interested in justice. So 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.” The bishops also urge Catholics to stop thinking in Tribal categories, as if we were children asking our nannies for a treat. We are not asking for favors; we are demanding that our rights be acknowledged and protected. And so the bishops have some firm but encouraging words for Catholics on the front lines of the confrontation between the Church and Leviathan:

We recognize that a special responsibility belongs to those Catholics who are responsible for our impressive array of hospitals, clinics, universities, colleges, schools, adoption agencies, overseas development projects, and social service agencies….You do the work that the Gospel mandates that we do. It is you who may be forced to choose between the good works we do by faith, and fidelity to that faith itself. We encourage you to hold firm, to stand fast, and to insist on what belongs to you by right as Catholics and Americans. Our country deserves the best we have to offer, including our resistance to violations of our first freedom.

(All of which prompts a memory that leads to a “What if…?” During the 1980s, John Paul II, asked when the pope would visit Communist Hungary, replied that “the pope will visit Hungary when the cardinal [of Budapest] learns to pound his fist on the table” — the cardinal at the time having been, to put it gently, “accommodating” in his interactions with the Kadar regime. How would the past four months have played out if, analogously, Sister Carol Keehan, president of the Catholic Health Association, had, so to speak, pounded her fist on the table when the HHS “contraceptive mandate” was first floated? Given the administration’s commitments to the legal imposition of the sexual revolution, even this might not have given the Obama White House and the HHS mandarins pause. But it would have made clear that a bright line was being crossed, and it would have indicated that Catholics who had long accommodated themselves to the state’s embrace — often for perfectly good reasons of expanding health care and social services — recognized that such a bright line existed.)

Going forward, the bishops’ Ad Hoc Committee proposes a “Fortnight for Freedom,” a two-week period of prayer for religious freedom and for America between June 21 (vigil of the feast of the martyrs John Fisher and Thomas More) and Independence Day, July 4. The Ad Hoc Committee also suggests that the Solemnity of Christ the King, which Pope Pius XI inaugurated as the shadows of coercive state power were lengthening across Europe, be celebrated this coming November 25 with special homiletic attention to religious freedom — a worthy suggestion no matter what happens on November 6.

The statement of “Our First, Most Cherished Liberty” is not, then, the end of the U.S. bishops’ engagement with the defense of civil society and religious freedom. It might, however, be thought of as the conclusion of the first phase of the campaign, and as a framework for continuing to press the argument for religious freedom in the crucial months ahead. As that campaign continues, it would seem useful to widen the legal focus a bit more than did the Ad Hoc Committee’s statement, which, when it describes necessary legal protections of the fir
st freedom, refers exclusively to constitutional protections.

This appeal to the “first freedom” has a certain rhetorical force, of course, given the iconic character of the First Amendment. But given what many constitutional scholars regard as the overly broad leeway given to governmental interpretations of “free exercise” in the 1990 Supreme Court decision Employment Division v. Smith, it is important to remember, and bring into the forefront of the discussion, the remedy the Congress provided for Smith in the 1993 Religious Freedom Restoration Act (RFRA), which was unanimously passed by the House and overwhelmingly affirmed (97-3) by the Senate before being signed by President Clinton. The bishops’ free-exercise claims, in other words, make the most sense when read through the prism of RFRA.

And as Edward Whelan has pointed out, RFRA also clarifies just how willfully overbearing the administration has been in the matter of the HHS mandate. One can imagine legislators — local, state, or federal — mistakenly encroaching on an obscure religious community’s tenets, or making a free-exercise mistake because the impacts of a proposed law were hard to foresee; these are matters of inadvertence. The Obama administration, by contrast, knew exactly what it was doing with the HHS mandate. As Whelan writes, “Both in advance of its August 2011 interim final rule and before its recent final announcement, the administration received thousands and thousands of comments about the impact that its rule would have on employers who had religious objections to covering contraceptives and abortifacients. The Obama administration’s violation of RFRA is knowing and willful conduct that displays contempt for the religious views of those it seeks to coerce.”

In light of these realities, it was somewhat odd for Catholic supporters of the administration, such as the editors of Commonweal, to fret that the bishops’ statement risked a tilt into “partisan politics.” The HHS mandate did not come from nowhere. It came from an administration that (as the bishops also point out) had signaled a shrinkage in its understanding of “religious freedom” as applied to international human rights policy. It came from an administration that, as Whelan demonstrated, has persistently and willfully ignored the expressed concerns of thoughtful citizens about the coercive path it was treading.

Would that this were not the case. Would that we had two political parties that honored religious freedom in full. But we don’t. And this argument will not be resolved at some mythical 50-yard line where all of us learn to just get along. Someone is going to win this debate over the future of civil society, and someone is going to lose it. And while the HHS mandate will most likely be struck down by the federal judiciary on RFRA grounds, the larger argument over Leviathan vs. civil society will be determined politically. To suggest otherwise is either disingenuous or naïve.

As for the Commonweal editors’ worries about the complexities of religious-freedom issues that require “the careful weighing of competing moral claims,” enough is enough: Sandra Fluke has no “competing moral claim” to have her readily available contraceptives subsidized and provided by fellow citizens, and it is a degradation of both moral argument and political theory to suggest that she does.

George Weigel is distinguished senior fellow of Washington’s Ethics and Public Policy Center, where he holds the William E. Simon Chair in Catholic Studies.

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