Although the presidential election is 10 months away, some rhetorical fires are already raging. Key issues, as identified by some candidates and by the U.S. Catholic bishops, include abortion, gay marriage and contraception. Rightly or wrongly, many people think no political compromise is possible on these matters. And in this year’s electoral politics, religious freedom is being invoked in ways that have political implications.
Catholic teaching on religious freedom provides a carefully nuanced framework for considering these debates. One element of the tradition requires respect for the church’s right to play an active role in public life. The Catholic understanding of religious freedom stands in sharp contrast to secularizing approaches to public life and privatistic interpretations of the place of religion. The contrast is particularly evident in the way the U.S. bishops have linked their opposition to same-sex relationships and gay marriage to their exercise of religious freedom. They state that the human rights of all persons must be protected, but that this “should be done without sacrificing the bedrock of society that is marriage and the family and without violating the religious liberty of persons and institutions.” This linkage echoes controversies about whether Catholic institutions can be legally required to provide family health care benefits for the partners of employees in same-sex relationships, provide adoption services to gay couples or fund insurance plans that cover contraception.
Civil Law and Moral Values
Argument about the role of the U.S. bishops in public life reached high intensity during the debate over the Affordable Health Care Act enacted in 2010. Though the bishops have been long-time supporters of affordable, universal health care insurance for all Americans, they opposed the health care bill because they concluded that the bill could allow tax dollars to fund abortions. Yet this position was not a matter of moral principle; it was a prudential judgment about consequences they thought might follow were the legislation passed. Whether the bishops were right in their judgment on this complex public policy has been questioned.
Unquestionably, the bishops’ opposition to the Affordable Health Care bill was an exercise of their right to religious freedom. But how does their exercise of religious freedom relate to their other moral concerns, such as the right of all persons to adequate health care? When religious freedom is exercised to advocate legislative policy to enforce certain moral standards, like opposition to abortion or same-sex marriage, the role of civil law in the enforcement of moral norms comes to the fore. When and how is civil legislation an appropriate means for the promotion of the moral norms taught by the church’s magisterium?
These questions, present in the current electoral debates, join two distinct but overlapping issues—moral pluralism among the U.S. population and an increasing politicization of religious issues. In Robert Putnam and David Campbell’s book American Grace: How Religion Divides and Unites Us, two findings are significant. First, largely because post-baby-boomer generations are alienated from Catholic and evangelical leaders’ positions on gay rights and abortion, younger Americans have become increasingly secularized. The percentage of young people who say they have “no religion” increased from 5 percent in the 1970s, ’80s and ’90s to 25 percent today.
Second, there is a notable correlation be-tween being actively engaged in a religious community and supporting the Republican Party; there is a similar link between not being active in any religious community and supporting the Democratic Party. The so-called “God-gap” in American political alignment revolves primarily around the issues of abortion and homosexual relationships. Those who are pro-life and pro-traditional marriage are likely to be believers and Republicans, while those who are pro-choice and pro-gay rights are increasingly secular and Democratic. Abortion and homosexuality overshadow a range of other public issues of moral importance: avoidance of war, discontinuation of the death penalty, promotion of economic justice through jobs and just wages, provision of affordable health care, overcoming racial and gender discrimination, alleviation of global poverty and the promotion of human rights.
Mary Jo Bane, of Harvard University’s Kennedy School of Government, has argued that polarization in politics is making it increasingly difficult for Americans to agree on or to achieve common purposes in national life. Since the Catholic moral tradition sees the promotion of the common good as the principal purpose of law and politics, one can ask whether polarization ought not to be raising serious concerns among Catholics.
Neither the unity of society nor the concerns of those who are religiously active should override all other values as the church determines its pastoral agenda. But some moral questions may have such importance that pursuing them justifies pastoral actions that lead to social conflict and the departure of some people from active involvement in the church. Still, if religio-political polarization threatens efforts to work for the common good and occasions a sharp decline in active participation in the religious community by the younger generation, then careful consideration is called for about how church leaders approach public policies on abortion, contraception and same-sex relationships.
A Modest Approach
Catholic moral tradition has long stressed that civil law should be founded on moral values. But it also stresses that civil law need not seek to abolish all immoral activities in society. For one thing, such a goal is impossible to attain. Since it is very unlikely that a majority of people in a particular society will be fully virtuous, civil law should not try to coerce people to move dramatically beyond the level of virtue they have already attained. Such efforts would likely produce resistance, bringing civil law into disrepute and leading to an outcome that may be worse than pursuing more modest moral goals.
Following this approach, John Courtney Murray, S.J., observed that efforts to promote virtue in sexual matters through civil coercion are particularly unlikely to succeed. In the mid-1960s Father Murray drew on Thomas Aquinas to argue that preventing the use of contraception by civil legislation would likely be unsuccessful. Similarly, Father Murray appealed to Aquinas to argue that the goal of civil law is to promote public morality, which is limited to achieving the common good of the population. Father Murray acknowledged that whether contraception was a matter of public or private morality could be disputed, but he argued that the case for holding it to be a matter of private morality was “sufficiently conclusive.” He argued that the church should not try to keep laws on the books preventing the sale of contraceptives.
Father Murray further noted that using civil law to prohibit the sale of contraceptives was inappropriate, because many people rejected the argument that contraception was immoral, and others, including some religious leaders, held that it could be morally required as a means to responsible parenthood. Although Father Murray did not accept this argument, he argued against seeking to translate the Catholic moral objection to contraception into a civil ban because of the diversity of positions in society. Though the church could teach its members that birth control—among other issues—is morally unacceptable, the moral role of civil law is limited. The church should not ask the state to do what it has not been able to convince its own members to do.
This affirmation of both the reality of pluralism and the moral importance of the religious beliefs of others is directly relevant to our contemporary debates over how a society should frame civil laws on matters about which there is considerable moral and religious disagreement. Should the government use civil legislation and coercive regulation to prevent abortion and same-sex relationships? Or on these matters should the church and other moral educators, like the family, seek to develop the virtue in people that will lead them to do what is right without their being compelled by threat of police action?
Avoiding Confrontation
Regarding the recent requirement from the U.S. Department of Health and Human Services that health insurance must now cover contraception, this policy is a lamentable failure by the administration to take the religious and moral concerns of Catholic leadership as seriously as they should. Still, this failure ought not lead to a church/state confrontation. We would suggest that since the H.H.S. policy mandates insurance coverage of contraception and not its use, Catholic institutions could rightly regard provision of health insurance in line with H.H.S. regulations as a form of “remote or indirect material cooperation” with the contraceptive action the church officially regards as immoral. The harm to the common good of not providing full health insurance to employees at Catholic institutions or of separating these institutions from formal connection with the church could be disproportionate. One need not see the recent H.H.S. ruling as drawing “a line in the sand” or as a direct threat to Catholic religious freedom, as Cardinal Timothy Dolan, president of the U.S. Conference of Catholic Bishops, has argued. Following standard principles of the Catholic moral tradition, some compromise between church and state on this matter can be sought.
The Second Vatican Council’s “Declaration on Religious Freedom” stated that the way government should respond to matters on which there is moral or religious disagreement should be based on a presupposition in favor of freedom. Freedom “is to be respected as far as possible, and curtailed only when and in so far as necessary.” Father Murray added that this means freedom should be limited only so far as necessary to preserve society’s very existence.
Both Father Murray and the council specify when such threats exist and thus when religious freedom can be limited and when it cannot. The criteria are the standards of “public order.” Public order includes three elements: justice, which secures the rights of all citizens; public peace, which itself is grounded in justice; and those standards of public morality on which consensus exists in society. Public order is a moral concept—the minimal level of morality that protects the most basic prerequisites of social life. These prerequisites include protection of the levels of justice and peace required for a civil society to exist at all. When such requirements of public order are endangered, the use of the coercive power of the state is justified, even to limit religious freedom.
Drawing on Father Murray’s analysis, we can conclude that the question to be addressed regarding same-sex relationships, abortion and contraception in the United States today is whether permissive stances toward each threaten social life, and whether the justice and public peace that sustain social life require that each be prohibited by law. Clearly, some religious leaders (including bishops) believe that abortion and same-sex relationships do threaten social life. They hold that civil recognition of same-sex partnerships threatens the family bonds that hold society together, and that abortion is the unjustified taking of innocent human life. The bishops argue that the standards of justice and public morality can be invoked to support the use of coercive governmental power to limit same-sex partnerships and prevent abortion.
A significant number of U.S. citizens do not agree with the bishops; some who disagree do so on religious grounds. One could argue that those who disagree with the bishops are simply in error when they hold that homosexual partnerships based on mutual love and commitment can be morally justifiable, or when they conclude that in some tragic circumstances abortion might, with regrets, be justified. It is appropriate here to recall Vatican II’s rejection of the earlier Catholic position that error has no rights.
To suggest that the government is not the appropriate agent for pursuing the advancement of moral values on homosexuality, abortion or contraception is not an argument that these actions are either morally insignificant or acceptable. It is simply not the role of the government to compel people to hold right beliefs on all moral matters. Similarly, with the moral disagreement and pluralism in the United States today on committed same-sex relationships and on abortions in situations of grave distress, it is not the role of government to resolve these disagreements through legislation. The use of coercive law in these areas is likely to be ineffective and to impede the attainment of the common good. Since the common good is the overriding standard of both social morality and civil law in the Catholic tradition, action that threatens the common good should be taken only when the justification for the action is entirely clear.
The approach to religious freedom presented here will enable the church to contribute to the common good, remain faithful to its own true identity and respect all its fellow citizens.
But once politics enter into the picture, it seems difficult to reason logically from the religious and legal and political points of view.
Confrontation is the result we are just experiencing now. The words accommodation or compromise seem to be bad and heretic words these days.
Thank you for a conceptual based article which takes into account a pluralistic society as ours, as well as a prespective from moral theology.
As I recall it, however, a quarter of a century ago Mario Cuomo tried to explore this same moral tradition as applied to abortion in a speech at Notre Dame. He was severely rebuffed by some bishops for defying church teaching. His closing riposte was the position of Murray cited in this article, "The church should not ask the state to do what it has not been able to convince its own members to do."
The wisdom of Aquinas and Murray aside, I am having trouble seeing how the diffuse reflections in this article do anything but sidestep the most important questions Catholics have been faced with in the last few weeks. What concerns me most directly, though, is that the article’s arguments are premised on a facile and dubious disjunction between two objects of ethical concern: the “right[s] of all persons” and the (mere) “moral norms” proposed by the church. Even if the grounds for such a separation were clarified, it would still remain to be seen how the distinction is relevant to the most important ethical issues of the day, whether war or abortion. For instance, should Catholics view the prohibition of abortion as a mere “moral norm taught by the church’s magisterium,” and not one that pivots on a “right of all persons”—including those in the womb—to life? However we are finally to understand what the Catholic moral tradition means by “natural law,” we can say at least this: that whenever Catholics appeal to natural law, as they frequently do with regard to abortion, they are suggesting that Catholic teaching is rooted in moral insights available in principle to all, independent of religious belief. So, the authors’ implicit distinction between a body of universally agreed-upon rights and a separate set of sectarian norms does not do justice to what the church understands to be the epistemic grounds of its moral teaching.
The authors note the increasing “secularization” of youth, as well as findings on American political alignments related to sex and marriage issues. A number of interesting points and questions are then raised about the common good, polarization, and the alienation of the young from religious practice. Though worthy of discussion, it is again not clear what light these issues shed on the matter at hand. There follows next the more pointed claim that Catholic positions on abortion, contraception, and same-sex relationships "threaten efforts to work for the common good," specifically by virtue of their tendency to polarize and alienate. It is unclear what precisely the authors have in mind, and in any case, what direct difference it makes.
The review of John Courtney Murray’s thoughts on contraception is informative. But why are these questions left to the tentative judgments of Murray, whose sociological perspective, simply in empirical terms, is obviously dated? 50 years since the pill’s introduction, we could ask whether Murray himself would revise his initial conclusion that contraception is simply a “private morality” issue. Some women today, in negotiating the marriage market, or raising a child alone, realize that contraception begets interpersonal consequences and an ethos that most certainly bear on the common good—something not seen through the rose-colored glasses of the 1960s, still sported by some.
For all its prudent insistence on the limits of legislation, this article does not at all consider the complementary point that legislation is one among the many moral educators in civil society. Law is—for youth especially—a witness to a society’s shared values. As such, it is profoundly formative and so, should be of concern to us as one of our most powerful corporate educators. Awareness of this fact, as much as of the moral limits of law, needs to inform our approach to legislation.
What follows, regarding the H.H.S. mandate, fails to discuss the most important problems at hand. Reference is made to “public order”—the “minimal level of morality that protects the most basic prerequisites of social life.” That is precisely what Catholics believe to be under threat when the government mandates free access to abortion-inducing drugs. But the authors seem to have relegated such concerns to the realm of benighted, sectarian “moral norms.”
There is an elephant in the room. In 2009, along with a number of other prominent Catholics, one of the authors of this article publicly endorsed President Obama’s nomination of Kathleen Sebelius. He does nothing in this article to acknowledge, let alone discuss, that very personal and public act of support for politicians who have continued to betray their own disingenuous pledges of concern for conscience rights and for the unborn.
It is true that most Catholics don't follow the Church's teaching on contraception. But it is also true that this bill slips past the contraceptive issue and demands that Church institutions fund abortifacients. This of course is the Obama administration's incremental approach to promote its abortion agenda, gradually sliding it in through the back door. Do the authors agree that most Catholic women and couples practice elective abortions? Should we accommodate there as well, lifting all opposition to elective abortions and funding them as well?
Our authors further suggest that the disconnect between the Church on issues such as gay marriage and abortion in Catholic and evangelical christian circles has a causal relation to the increase of young Amercans who say they have no religion from 5% to 25%. Could they then please account for the fact that the liberal Protestant churches which whole-heartedly approve of abortion and gay marriage and those issues are hemorrhaging membership at a far faster rate than either the US Catholic or evangelical churches, which are by contrast generally holding steady or growing membership?
Finally, our authors state that there is a political agenda involved here as well. I would agree with that. If we attend not to what the Obama administration says, but rather to what it does, we can discover what this administration's political agena is. Its actions, viewed as a whole, add up to an attempt to reduce and cordon off the Church and other religious institutions from participation in civic life, to convert the "wall of separation" between church and state, to a walled-off from the state church. Just consider: despite the immense advantages of parochial school education for the inner city parents who desperately desire the opportunity of choice those vouchers provide to escape generations of poorly performing public schools, Obama has steadfastly opposed providing those vouchers and the greatly enhanced prospects that such students would graduate. In doing so, of course, he denies those funds to the parochial schools, which he likely hopes will continue to dwindle away and deprive more needy children of a decent education, leaving them with diminished educational opportunity and no alternative to poor public schools. Also, consider his latest budget proposal. While he raises taxes on the wealthy, he concurrently proposes to reduce the deductiblity of charitable donations. Again, this would squeeze off the flow of resources to parochial schools, Catholic hospitals, Vincent de Paul soup lines, churches, the Gates foundation, what have you, and further consolidate all resources in the federal bureaucracy, an assault on civic plurality, gradually choking off its lifeblood to the benefit of a federal bureaucracy whose efficacy has proven questionable at best.
We all experienced the benefits of the actions of the previous democratic administration of Bill Clinton, who declared the era of Big Government to be over and acted accordingly, with the growing economy, relatively low unemployment, and elimination of the deficit. With President Obama, the era of Big Government has returned with a vengeance, along with the massive unemployment, struggling economy, and astounding deficts to pay for that same Big Government, which under this administration is now back. And at the expense of the civic plurality that has so benefitted the nation in past years, including the immense contributions of Catholic charities and institutions.
Excellent. It reminded me of a time (in the ‘70’s) when I studied philosophy at my Jesuit Alma Mater. Sadly, however, I doubt very much whether any Bishop will read, let alone comprehend, what you so clearly argued. We have seen the moral obtuseness of so many Bishops when we painfully observed their blatant power-play maneuverings during the height of the priest pedophilia scandals. This is really about their unbridled enthusiasm to engage in power politics, not their concern to engage in prudential political/ethical debate from a Catholic moral tradition.
Excellent. It reminded me of a time (in the ‘70’s) when I studied philosophy at my Jesuit Alma Mater. Sadly, however, I doubt very much whether any Bishop will read, let alone comprehend, what you so clearly argued. We have seen the moral obtuseness of so many Bishops when we painfully observed their blatant power-play maneuverings during the height of the priest pedophilia scandals. This is really about their unbridled enthusiasm to engage in power politics, not their concern to engage in prudential political/ethical debate from a Catholic moral tradition.
The use and recovery of the ethics of Thomas Aquinas, in supporting the Church's teachings is marred in controversy where different theologians and bishops differ on interpretation. The rule of Aquinas has always been that right reason is the true measure of morality. Yet, we have profound disagreements over natural law and practical reason and what is considered "right reason". We truly have a Crisis of Truth and Church divided on these contemporary issues. We also have contradiction and inconsistency between Church teachings and doctrine, and pastoral theology and practices. This is especially prevalent in the teaching about contraception. The Church wants to deny contraceptive coverage to employees of Catholic Institutions, yet they do not deny the Holy Eucharist to married Catholics who practice contraception. Every priest knows that most married Catholics practice contraception, and stand in line each week to receive the Eucharist. Yet, they turn a blind eye and a deaf ear to this obvious truth. The Church is spending millions of dollars to communicate to politicians the legal and moral issues concerning the provision of contraception coverage in Catholic Institutional health plans and the right to religious freedom. Yet, priests rarely, if ever, communicate from the pulpit, or do bishops frequently communicate to the laity, that Catholics must confess contraception as a sin before receiving the Eucharist, or they committ a sacrilege. There is no communication about the role of an informed conscious as well.
At the end of the day, it is the informed conscious that is the ultimate judgment of what is right and wrong, good and evil. We can debate what an informed conscious is or not, but Vatican II asserts that one must never go against the judgment of their informed conscious. An individual conscious can err, but this does not mean that every Magisterial, Papal Teaching is the absolute moral truth as well. We should only look to our Catholic history to know that the truth never changes, but our "understanding" of the truth does change. If in past centuries, sex was only for procreation, sex during mentruation was a mortal sin, sex during pregnancy was forbidden and sex had only "one" licit position. In the recent past, slavery was perfectly moral, the torture of heritics was reasonable and usury was forbidden because it was written in Scripture as Divine Law. Yet, these teachings have been abandoned.
It is because of the many arguments and counter-arguments over the issues of Church versus State, Social versus Sexual Teachings, the Common Good and the Absolute Moral Good, should there be a prudent, reasoned and limited approach to the reach of the Catholic Church into the political and civil legal discourse.
In his 2004 article in Commonweal magazine titled "Catholics, Politics and Abortion: My Argument with Mario Cuomo," religion writer/columnist Kenneth Woodward captured, IMO, the essence of the glaring flaw in Cuomo's ND speech:
"At this point it is worth noting what Cuomo did not say, as well as what he did. Never once did he say that abortion was evil, intrinsically or otherwise. Never once did he say - as the bishops had, as he himself could have - that opposition to abortion as a matter of public morality is a defense of the human rights of the unborn. Never once did he say the abortion dispute is a disagreement over the scope of social justice. He did not say these things, and never has, I believe, because doing so would make his position difficult if not impossible to defend. He did not say these things, and never has, because, as I think his record makes clear, he does not believe them to be true."
I consider myself a pro-life Democrat, yet I am extremely disappointed that Cuomo has provided many Democratic Catholic politicians with cover on the abortion issue. Senators Ted Kennedy and John Kerry, for example, invoked the Cuomo rationale about why they could not impose their religious moral values in a pluralistic society, yet they, too, avoided the secular argument for why abortion is one of the greatest human rights disgraces of our time.
Excellent article. Right on. I applaud the authors and will forward it to my friends. Thank you.
It’s become a societal obsession to salivate over “rights” with little attention to the many “wrongs” afloat. So, borrowing from “A Balancing Act,” offering a modest approach to civil law and moral values, avoiding confrontation, leads me to ask, does one have the “right” to be wrong, on say, abortion, gay marriage, contraception and so much more? If one does have the right to be wrong, affirming as a result the righteousness I suppose to act contrary to the above mentioned fundamentals of human morality, then it seems to me that rendering unto God what is God’s and to Caesar what is his, is purely subjective, a matter of how one sees it, not the way it truly is. We would then have something worse than an abbreviated type of morality, a non-morality in fact, a compromising upside down, quivering mass of sterile monograms, that would become the guiding norm, or perhaps more accurately, a nebulosity devoid of norm, or guide. This would mean that, authentic Christianity, the inherent counter-cultural ideology Divinely generated, would be relegated to an obscure position, effectively non-existent, with no other to be found! This cannot be allowed to continue happening!
However, if one does NOT have the “right” to be wrong, then an unabbreviated morality rooted as it truly is, in the human heart and intellect, would be a straight, but narrow path to unimpeachable veracity, far beyond the need for the simplicity, or complexity, of “remote or indirect material cooperation.” It would be a self-evident truth! Then questions like, “Should the government use civil legislation and coercive regulation to prevent abortion and same-sex relationships?” would be “Yes” for civil legislation especially supportive of traditional family values. And “No!” for “coercive regulation” dictatorial assertiveness never the answer! And “Should the church and other moral educators, like the family, seek to develop the virtue in people that will lead them to do what is right without their being compelled by threat of police action?” should be “Yes!”. It’s not the business of government to enforce religious Belief. Government may, however, promote religious Belief as an antidote to civil disorder. Nor is it the business of government to surpress, or hinder, religious Belief. I think such a protocol would produce what Pope Pius XII called “tranquility of order” meaning overall “peace” and mutual moral productivity beneficial to all.
Is this an impossible ideal, or is it the necessary, fundamental premise, on which a truly workable church/state/religious freedom way of life, can harmoniously co-exist? I think so. But this “chirping sparrow” who writes, must leave affirmation if any is possible, to “soaring eagles!” I mean the respected writers and many subscribers nested on the “high cliffs” of what some mistakenly call “articles and pages” in AMERICA Magazine!
As evidenced by some of the responses, the politics gets in the way of clear thinking about this and other current issues. Hence, we blame the current administration for things that happened before they were elected and then add that list of woes to somehow explain the predicament that we face. Perhaps we should all step back, remind ourselves that "we have met the enemy and they are us" and then see if we can move forward without recrimination and hostility.
One of the Lenten suggestions in your Magazine sugggested that we might start a dialogue with someone with whom we usually disagree and just listen. How about right now?
Heartfelt kudos to AMERICA for the coincidental timeliness of David Hollenbach & Thomas Shannon’s “A Balancing Act” article (March 5) reaching our local mailboxes just when conservative pundit Rush Limbaugh was for three days berating Sandra Fluke and the women of Georgetown University with misogynistic slurs for addressing House Democratic members in favor of requiring all private insurance plans to cover contraception coverage, even religious institutions. She argued that over her three years as a law student at Georgtown University, birth control did cost $3,000 in some cases, like her friend with polycystic ovary syndrome, a condition covered by Georgetown insurance. She continued to argue that the lack of free contraception would induce many low income students to go without contraceptives. ‘Sluts and prostitutes’ Rush Limbaugh called them. Catholic bishops in mental agreement with Ruch Limbaugh’s sentiments would never use such impolite words, of course. Statistics show that many Catholic female Georgetown University students have, in good conscience, been using birth control over the years. “A Balancing Act” reminds us that Fr. John Courtney Murray, S.J. pointed out the fact that many people rejected the argument that contraception was immoral, and others, including some religious leaders, held that it could be morally required as a means of responsible parenthood. Though the church could teach its members that birth control is morally unacceptable, the moral code of civil law is limited. “The church should not ask the state to do what it has not been able to convinced its own members to do.”