Religous Liberty: Big Issue, Narrow Campaign

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