The National Catholic Review

I’ve wrestled with the USCCB Religious Liberty campaign for some time. I support its big-picture goals, but so much about its tone, argument, timing, and politics leaves me concerned. None of that seemed worth putting in a post.

Michael Moreland’s helpful, sympathetic engagement with ”Our First, Most Cherished Liberty,” in the current Commonweal, crystalized my concerns by highlighting the larger framework of Catholic understandings of religious freedom in a way that makes the silences and priorities of the document and the campaign stand out in starker contrast.

Moreland contrasts two views on the freedom of subsidiary institutions such as churches vis-à-vis the state. The Hobbesian tradition sees their rights as granted by self-imposed limits on the state, as in our Bill of Rights. In the understanding of Catholic social thought and political pluralists, such groups “exist independently of the state” and thus their freedom results not from “a concession on the part of the state but are the result of a genuine differentiation between the authority of the state and the authority of subsidiary institutions, even if the boundaries between these different jurisdictions is often confused and have to be worked out in a case by case basis.”

This Catholic view of subsidiary organizations is a principle I would like to see more widely applied. It is, alas, not the one that informs our fine Constitution. “Our First, Most Cherished Liberty,” glosses over this conflict. “To be Catholic and American should not mean having to choose one over the other.” “Should not” perhaps, but there are tensions that are, well, Constitutional.   

Our Constitution is built upon the Enlightenment, Hobbes and Locke. Its conception of rights is decidedly individualistic. These traditions see religion as inherently private. John Courtney Murray had to do quite a bit of work to argue for the compatibility of American conceptions of freedom and Catholicism. Such work has and continues to be done, but it cannot be taken for granted as an established consensus.

The bishops quote Cardinal James Gibbon’s letter to Rome, but fail to note that Pope Leo XIII’s response included Testem benevolentiae, which was decidedly suspicious of the individualistic nature of American freedom. It also rejected a few other First Amendment freedoms—of speech, and of the press.

The principles of Subsidiarity and the Rights of the Church have never been completely enacted anywhere. American Federalism is a relationship among levels of the state, not diverse social organizations. The so-called  “pillarization” structure of parallel religious/civil institutions in Belgium and the Netherlands came close, but it is no longer a viable option there, and such could never be enacted in our constitutional setting. India’s constitution explicitly recognizes collective religious rights, but that example shows the problems inherent in such arrangements as much as their value.

So, while I share the document’s desire to move toward such a structuring of state and the civic realm, honesty requires that we note up front that Catholic social thought and the ideas of the pluralist political thinkers such as Maitland and Figgis are significantly out of sync with the political philosophy upon which our government is founded. In this sense, the document resembles the romantic Christianization of the founding fathers common in the Tea Party movement, which the protests planned for the “Fortnight of Freedom” threaten to mimic in Catholic garb. (If FreedomWorks had consulted on this project, what more could it have asked for?)

In this broader context, the tone of the document and its election year “Fortnight for religious freedom” appear in starker relief.  Although it cites several examples of threats, the Obama administration’s HHS mandate for coverage of contraceptive services is the central focus. 

As I’ve argued before, the 4 part test in that mandate is ill conceived (other options already exist in the tax code for making the same distinction), but the definition has relatively minor legal status. It is neither a law nor a legal decision. It is merely a regulatory definition. The administration has stated in writing it has no intention of using it as a precedent for any other decision. Of course it could become part of a legal decision. Indeed, that is one likely outcome of the current lawsuits.

There is, however, another decision regarding religious freedom that is truly epochal in its significance and scope that is completely ignored by the document. The 1990 Supreme Court decision in Employment Division v. Smith replaced the “compelling state interest” measure for state interference in religious freedom with a principle that “generally applicable” laws that incidentally result in the “prohibiting the exercise of religion” do not require religious exemptions under the First Amendment. Thus, as many have noted, if Prohibition were restored, the government would not need to allow for sacramental use of wine for Catholics. 

This opinion was authored by Antonin Scalia—a figure whose aura of Catholic integrity seems never to suffer from the impunity with which he engages the concerns of the Church. As Cathleen Kaveny has noted, it is more than striking that his legal revolution receives no mention in the document.

“Our First, Most Cherished Liberty” would be quite a bit more honest, coherent, and effective if it discussed these other profound obstacles to its goals: the divergent philosophy undergirding the American Constitution and Scalia’s watershed reorientation of the jurisprudence of religious liberty. Prophets must speak to all those complicit—Left, Right and Center.  Absent this, the document is too easily read and used as the bishops' contribution to the Republican election year frame of the administrations “War on Religion.” Because of that, the bishops’ profound concerns are likely to be similarly short lived.

Vincent Miller

 

Comments

Tom Maher | 6/11/2012 - 11:21pm
Rick Fueyo # 12

Excuse me, the Hossana Tabor Supreme Court decision has almost no applicability to this dispute?    Hosanna Tabor decision of  January 2012 is already a Religous Liberty classic. Narrowly interpreted as you do the Spreme Court in a  9 - 0 decision formally recognized a "ministerial exemption"  whcih had been widely recognized by lower courts for many decades.  But key to this decision's wider applicability is the context in which this decision  arouse - a religious school's made the ministerial exemption claim that one of its teachers was a "minister".  The Supreme Court decisively rejected all claims by the governemnt that the Hosanna Tabor religious school was just another employers and therefore could be sued by one of its "ministers" for being dismissed.  This establishes a religious organization context - a Lutheran school - broader than the narrow definition of a church as place of worship only.   

As they say Mr. Fueyo, "Bingo".  The Supreme Court decisively and elaborately  rejecting that a "religious school" is not just another employer as the government extensively argued.  The Hosanna Tabor decision is relevant to the issue that Catholic schools,  hospitals and solcial services agenies are religoious organizations and not just another employers.  In this dispute Cardinal Wuerl calls these religious organizations mististires of the Church.  If a religious organization "ministers" are protected by the First Amendment as they now are than so should their overall ministriies be protected- the schools, hospital and social services agencies.      

All of Supreme Court upholding of Religious Liberties in Hosanna Tabor apply more broadly than just  "ministers".  Of course you have to understand the concept of Religious Liberties to understand the importance and broader applicability of the Hosanna Tabor decision. 
Rick Fueyo | 6/11/2012 - 3:16pm
Left off above was this:


Hosanna Tabor has almost no applicability to this dispute, unless you are contending that every single employee of the Catholic institution functions in a ministerial role.  That had to do with the scope of the ministerial exception, which is not the least bit implicated here.
Rick Fueyo | 6/11/2012 - 3:16pm
 
I realize that gets in the way of talking points, especially when one wants to fire up the invective. 
 
If you are going to make legal arguments, actually understand the legal issues
Tom Maher | 6/10/2012 - 2:32pm
Harry Hartigen # 9

Theologically the Bishops of 2012 in their united stand in support of the federal lawsuit agaisnt the HHS insurance mandate can better determine what the Church's interests are and what the appropriate ressponse is than can the 1960 analysis of John Courtney Murray,  as able as he may have been in his day.  More than fifty years later the nation has changed profoundly and so has the role of Catholics who have an much more widespread and powerful leadership roles in our nation. 

The Bishops are correct to not passivley accept the evil of a unprecendented intrusion by a governemnt regulation (the HHS insurance mandate) into as the Court said in Januanary 2012 in the Hosanna Tbabor decisiton into  "... government interference with an internal church decision that affects the faith and mission of the church itself." where this time the internal decision are the moral ethics of the Catholic Church.  The Church has powerful and ready mens of dealing with this intrustion by the governemnt into the Church religious autonomy. 

The Obama administration is repeating the same legal error it made in the Hossana Tabor Evagelical Lutheran Church and School v EEOC case where the religious school was very erroneously regarded as just another employer with no Religious Liberty clause protections. 

The obvious straight-forward course theologically and otherwise is to correct the evil by asserting politcally and legally the Church's Religious Liberty rights that the Supreme Court just reaffirmed in January that all religious organization can easily enforce.
Tom Maher | 6/10/2012 - 1:23am
The author assumes that the 1990 Smith Supreme Court decision has all-powerful applicability precluding the Bishops claim of Religious Freeedom agaist the HHS insurance mandates on religious organizations.

Tne Hosanna Tabor decision of January 2012 shows as was always the case that the First Amendment protection is always avaiuable religious organization.  The Court decision said the following about the applicability of the 1990 Smith decision: 
It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote.
Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of"physical acts" from its "lendSmith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit.
 
In fact the January Hosanna Tabor decision encourages the Bishops actions by reminding everyone thta the Rekligious Liberty clauses were specififically applicable to all religious organizations as oppossed to other employers.  The Bishops have a very strong case to make in federal court on First Amendment grounds.
Craig McKee | 6/9/2012 - 7:23pm
''Don't tred on OUR (USCCB's) freedom to tell people what to do, nuns what to wear, girl scouts how to think, women how to conceive, GLBTQ people what NOT to do, whom not to love, whom they can't marry, theologians what to write books about....'' and the list goes on and on.
 How DUMB do they think we ''ordinary believers'' -as the CTSA likes to refer to us- really are? Jesus came to FREE us, and we all know what he had to say about the CHURCH PROFESSIONALS of his day....
Rick Fueyo | 6/8/2012 - 11:00am
Professor Garnett:
 
I will concede upfront that I am far less read in Free Exercise jurisprudence than you are.  But  I cannot follow your point with respect to  
But I certainly agree with the criticism that any principled, non-results-oriented application of the holding of  
But the same charge could be made as to those who conspicuously refuse to mention that opinion, but they do not do so for fear of embarrassing Justice Scalia.  I also find it telling that there is not substantial concern that he might vote in  favor of the Administration in this issue would reach the Court, notwithstanding his prior opinion, which, as the above, I believe compels the opposite result.
HAROLD HARTINGER | 6/10/2012 - 10:30am
My posting, No. 6 above, cites a chapter from John Courtney Murray's book "We Hold These Truths." The first paragraph of my posting is my assessment of the Bishops' current public campaign under the flag of "Our First, Most Cherished Liberty."

I disagree with the the Bishops' understanding of the First Amendment as an affirmation of their theologial understanding of the Amendment. The Constitution was drafted by political leaders of their day. It's paternity is the common law of the British sovereign they have repudiated.

I disagree with the Bishops' understanding because I accept the views of Murray as he stated them in in his book.

HARRY
HAROLD T. HARTINGER

HAROLD HARTINGER | 6/8/2012 - 3:00pm
The USCCB Religious Liberty campaign maintains that it is for the Church to decide the scope and application of the First Amendment, not HHS. The Bishops’ campaign reads the First Amendment to be a theological statement for the American relationship between federal and state governments and their citizens.
Professors Moreland and Miller do not contest the Bishops’ ultimate goal; but their uneasiness with their campaign is fully justified:
“The American Catholic is on good ground when he refuses to make an ideological idol out of religious freedom and separation of church and state, when he refuses to ''believe'' in them as articles of faith. He takes the highest ground available in this matter of the relations between religion and government when he asserts that his commitment to the religion clauses of the Constitution is a moral commitment to them as articles of peace in a pluralist society.” John Courtney Murray, S.J., We Hold These Truths: Catholic Reflections on the American Proposition (1960), Chapter 2, Civil Unity and Religious Integrity: The Articles of Peace, pp.45-78, at 78.
HARRY
HAROLD T. HARTINGER  
ed gleason | 6/8/2012 - 2:07pm
My Diocesan paper had a few  articles on the religious liberty issue all basing their argument that contraception pills are causing abortions. 
http://www.nytimes.com/2012/06/06/health/research/morning-after-pills-dont-block-implantation-science-suggests.html
if the science says this is not so the religious liberty issue/argument goes back to outlawing contraception which lost big time in Connecticut almost 50 years ago.
As Dave points out.. the bishops will end up with 'snakes don't bite' crowd..   
David Pasinski | 6/7/2012 - 2:47pm
in our diocesan paper, our own Ordinary rephrased the same arguments about religious freedom and near threats to close Catholic facilities to non-Catholics if this exception is not granted. No news there.

Howwever, in another news story on Huffington, there is a report about the younger generation of serpent handlers in some Appalachian churches that loosely are of the "Signs Following" tradition based on the passage in Mark about "handling serpents." This expression of faith has been banned for some years in all but West Virginia.

If the bishops have invited allies under the "religious fredom" banner, perhaps they should recruit from this tradition. Then they should support their rights to freedom of religious expression which have already been abrogted. Certainly, there is more basis in Scxripture for the claims that this traditon makes about what should be an allowable part of worhip compared to the argumetns that argument the bishops make about contraception.

This would be an alliance worth viewing if Cardinal Dolan, in crimson,attended one of these meeting with a fiery speech defending religious libert, while a snake waved around nearby. What a photo op!
Anne Martin | 6/7/2012 - 3:45pm
Freedom of religion is merely a secular matter. The Church is not a democracy.