Religious Liberty: Theology, Law & Effects on the Church

This was the title of an event that I attended at my parish last Thursday, related to the “Fortnight of Freedom” campaign spearheaded by the US Catholic bishops (most notably the recently appointed Archbishop of Baltimore, William Lori). From the title as it appeared in the bulletin announcement, it looked like a forum that would discuss the theological basis for this campaign. It was sponsored by, and in fact occurred during a meeting of, our local chapter of the Knights of Columbus, and was so identified on the room directory, which confused me and at least a few other people who had arrived to attend the forum. About 25 people attended.

The title as it appeared on the handouts was slightly different: Religious Liberty: Theology, Policy & its Effect on the Church. (I’m not sure of the significance of substituting “policy” for “law,” nor which noun is the antecedent of “its.”) The handouts had what appeared to be the official USCCB “Prayer for the Protection of Religious Liberty” on the front page, adorned with overlapping holy-card style pictures of Jesus, Mary, and…. some man dressed in the style of the Reformation. It’s surely not Luther, which was my first startled thought on seeing the outfit. Maybe St. Thomas More? (Indeed, on closer inspection I can make out the partially-obscured name, and I note that the “Fortnight of Freedom” began on his feastday.) This prayer was not recited: instead, an opening invocation was given by the priest who was present and included the communal recitation of the Lord’s Prayer.

The format was a panel discussion, the panel consisting of one priest (our assistant pastor) and two laywomen who each had both relevant professional expertise, and some status or position associated with the church hierarchy.

Religious Liberty in Catholicism

Interestingly, the priest was tasked to start us off by justifying a Catholic concern for religious liberty, given various and sundry events in church history that would, ahem, not appear to indicate that this was a strong Catholic value! He did a reasonable job given that he had only 20 minutes, discussing events that we now judge odious by framing them in the social context of their time. The weakest point was his assertion that burning heretics was an unremarkable form of capital punishment of the day, execution by the sword being considered an honor and therefore not suitable for heretics. (Better was his reminder that both sides burned heretics as well as heretical books.)

I was disappointed that he grounded his discussion of religious liberty in the Catechism of the Catholic Church, rather than in the Vatican II Decree on Religious Liberty (Dignitatis Humanae). On the other hand, the Catechism does directly quote that document in the relevant section, so perhaps strategically this was a good choice designed to reach those who are suspicious of appeals to Vatican II.

2106 “Nobody may be forced to act against his convictions, nor is anyone to be restrained from acting in accordance with his conscience in religious matters in private or in public, alone or in association with others, within due limits.” [DH 2.1, emphasis mine]

Oddly, his discussion seemed to focus on the expression of religious liberty by Catholics within the church, rather than within civil society. Thus his elaboration of those three key words involved limiting what might be considered legitimate expressions of the Catholic faith, rather than considering the more topical question of whether the HHS mandate or other governmental actions do, or do not, fall “within due limits.”

He does get credit for the best line of the night, delivered in the context of close association between the church and the Roman Empire:

Temporal power + Spiritual power = Weapon of Mass Destruction

A Doctor's View

Next to speak was a doctor who opened by praising the Fortnight of Freedom as a "hymn of prayer" and averred that we should all be "wearing sackcloth and ashes" to "repent for taking our freedom for granted." Her language, and that of a press release from the Catholic Medical Association from which she read, was laden with rhetoric that sounded familiar to me from Republican talking points: Obamacare, too much government power, progressive secularization, and so on. She identified abortion, abortifacients, contraception, and sterilization as "evil," in line with official Catholic teaching, and asserted several times that the HHS mandate would require conscientious Catholics -- not only doctors and hospital employees, but all taxpayers -- to "cooperate with evil."

Now this is a technical term in Catholic moral theology, but one that is usually qualified as either "formal" or "material" cooperation. Formal cooperation with evil is direct involvement in an evil act, and is never morally acceptable; material cooperation with evil is indirect involvement, and may be morally acceptable depending on the circumstances. The examples I was given in school included things like providing nursing care during an abortion (formal) versus working as a janitor at an abortion clinic (material), or robbing a bank (formal) versus driving the getaway car at gunpoint (material).

Of course, by this reasoning, all Catholic taxpayers (and consumers) are inevitably involved with material cooperation with evil all the time, as there are a number of things that our governments (and corporations) do with our money that are evil according to official Catholic teaching, many of which are also considered evil by a broad consensus of ethicists outside the Catholic church. But it's one of the compromises we make for the sake of order in civil society -- those "due limits" from the Catechism. Thus, this seems a weak argument on which to rest a clarion call for activism. Sadly, she did not make this distinction in her talk.

Interestingly, a fair bit of her time and passion was organized around the argument that in her professional opinion, these medications and procedures not only do not qualify as legitimate medical care ("pregnancy is not a disease, fertility is not a medical condition that needs to be managed"), but actually have harmful side effects that are not well publicized, and that making them available to healthy women would violate her Hippocratic oath. (Sadly, she did not address the question of women who are not healthy, for whom pregnancy constitutes a serious health risk.)

Now aside from the "reverse war-on-women" rhetoric, and aside from the question of what the research really shows (I was pretty sure that the link between oral contraceptives and breast cancer has been thoroughly debunked, and I'm not convinced by the anecdata she cited from her personal medical practice), what I find interesting about this tactic is that it moves away from the domain of religious liberty ("the government has no right to force me to violate my conscience") and into the domain of what constitutes legitimate medical care.

One of the points made, either by the panel or in one of the video clips shown of various bishops on some news program, was that in the 1970s, Catholic hospitals did not need any special protection from the government in order to both provide medical care and practice their Catholic faith, but times have changed and now they do. Although the speaker's opinion was that times have changed in that the government has become more intrusive, I think a more salient point is that the standard of well-woman medical care has changed.

Whether or not contraception is evil is a question of conscience. Whether or not contraception and fertility management constitute well-woman medical care is a question of medical and public health expertise. Defending the resistance to the HHS mandate on medical grounds potentially places the Catholic church (or at least its health care institutions) in the same category as the Church of Christ Scientist: rejecting commonly accepted medical care as both evil and unnecessary.

Personally, I do not want my bishops to decide what qualifies as legitimate medical care. They do not have that expertise. If Catholic-identified institutions cannot in good conscience provide medical products and procedures that the medical and public health professions consider legitimate routine care, then Catholic-identified institutions really do need to withdraw from the public practice of medicine and health care. Given the great tradition of Catholic contributions to health care in this country, particularly by vowed religious women who have cared for the poor, the sick, and the dying as corporal works of mercy, this would be very sad; but it is surely within the "due limits" of religious liberty for the state to regulate medical and health care providers.

What's weird about this whole line of argument is that we're not even faced with the government forcing Catholic institutions to prescribe birth control or perform abortions: the HHS mandate requires Catholic institutions to participate in insurance plans that will cover such procedures for their employees. Hardly the same thing at all, I should think! But, a great deal of the rhetoric I heard at the panel, and a common response to critical questions, was the "camel's nose" defense: maybe this particular issue is not such a big infringement of religious liberty, but if they can do this, what will they do next?! And therefore we must stop it now! Thus, it seems reasonable to follow the camel's-nose argument here as well.

It could, of course, be that this doctor's professional opinion is correct, and that these procedures and medications do indeed have negative health consequences that outweigh any good they may do. In which case, the truth will eventually out, and Catholic institutions would then be able to re-enter the sphere of public health, consciences intact and in the gratifying position of having been proved right. (Sure, it might take a while, but if you're thinking like a Catholic rather than an American, that's no big deal. :) )

Public Policy

The final speaker was a public policy expert. She argued that religious liberty was an "inalienable right" given to us by God (this is consistent with the reasoning in DH and the Catechism, though the particular wording is American rather than Catholic) and therefore, not only could we not give it up if we wanted to, it is an "affront" (said very passionately) for HHS to insist that Catholic institutions must provide services that are against the Catholic faith.

She also argued that the religious exemption "redefines church" and that "the ministry of our Lord Himself" would not have qualified under these rules. First, you'd think it was obvious that the government definition of church, and the theological definition of church, are both technical terms that are legitimately different from each other and just happen to be spelled the same way. Heaven knows, the Vatican makes exactly this point when it insists that the "ecclesial communities" of most of our separated sisters and brothers "are not churches in the proper sense" as they lack some element considered essential to the Roman Catholic theological understanding of church. Like "marriage," this is a technical term with a technical meaning that depends on, and is confined to, the technical domain of government or theology. This is how technical language operates. It's not the same thing as colloquial language. ::insert snarky reference to the new translation of the Roman Missal here::

Secondly, I'm not actually sure that the ministry of our Lord Himself would not qualify, as his ministry was indeed primarily devoted to religious instruction, and he did indeed primarily serve his co-religionists! It wasn't until the Holy Spirit was poured out on Cornelius and his family, and our Risen Lord commissioned Paul to preach to the Gentiles, that the gospel was preached to non-Jews.

The latter part of her talk was on general strategies for effective lobbying, using the current issue as an example but really quite broadly applicable. The handouts included a timeline of events pertinent to the HHS mandate, starting March 23, 2010 and with color-coding for actions of the executive, legislative, judicial, and non-governmental entities.

Exemptions?

Although a "wide array of threats to religious liberty" was mentioned in one of the video clips, with a few examples given, essentially all the discussion by the panel concerned the HHS mandate. One of the panelists wondered why this was designated by the government as mandated coverage, rather than, say, antibiotics: surely they were aware that this would be an issue for the Catholic church. She opined that it was most likely selected for partisan political reasons, to appeal to voters on the other side. (I disagree; see the "changing standards of medical care," above.)

Sadly, she also repeated a somewhat misleading statement that "the Amish were exempted from the law because they don't believe in insurance" and then wondered "why couldn't Catholics be given the same exemption?" This statement is not quite correct: per FactCheck.org:

The law does say that some religious groups may be considered exempt from the requirement to have health insurance, and it uses the definition from U.S. Code section 1402(g)(1), which defines the religious groups considered exempt from Social Security payroll taxes. Eligible sects must forbid any payout in the event of death, disability, old age or retirement, including Social Security and Medicare. They must also be approved by the Commissioner for Social Security. The law was originally designed to apply to the Old Order Amish, and we have yet to find any cases in which members of other religious groups were successfully able to claim exemption.

Snopes helpfully quotes from section 1402(g)(1), which lists conditions that must be met in order to qualify for the exemption. These include not only that the 'established teachings' of the sect conscientiously oppose

acceptance of the benefits of any private or public insurance which makes payments in the event of death, disability, old-age, or retirement or makes payments towards the cost of, or provides services for, medical care (including the benefits of any insurance system established by the Social Security Act)

but further requires five additional conditions, one of which is

(D) it is the practice, and has been for a period of time which [the Commissioner of Social Security] deems to be substantial, for members of such sect or division thereof to make provision for their dependent members which in his judgment is reasonable in view of their general level of living

I think this makes it pretty clear that the exemption is not granted on the broad grounds of "conscientious objection to the law" alone, and that neither individual Catholics nor Catholic instititions would remotely qualify for this exemption.

Overview

The panelist's framing of this issue, though, exemplifies the tendency of the discourse around the "Fortnight of Freedom" to lean towards a sense of anti-Catholic persecution, and a good bit of the rhetoric was shaped to elicit an emotional response, rather than to teach or to persuade. I specifically noticed this in some discussion of the Christian martyrs during the pre-Constantinian persecutions (with a not-quite-stated parallel drawn to the current situation), and in the inclusion in the handouts of the famous quote "First they came for the communists..." Frankly I found the inclusion of this quote not only unjustified by the current state of US politics, but absolutely revolting in its implicit claim that what is happening to Catholics in America now resembles in any way, shape, or form what happened to the Jews in Nazi Germany. Really, this was just shameful.

At the end of the presentations, there was some time for questions. Four questions were asked: three were partially or entirely critical of the "Fortnight of Freedom" or of points that had been made by the panel, and one was supportive of church teaching on contraception. Afterwards, several attendees went up to converse with the panelists. The event lasted about an hour and a half.

Overall, this panel did not present a very strong theological case for the campaign's premise that religious liberty, either of Americans in general or of Catholics in particular, is under serious threat. The strongest argument, in my opinion, was mentioned briefly only once: that the dominant understanding of "religion" in America defines it strictly as private belief and public worship. This is a particularly Protestant understanding of religion that can tend to exclude the Catholic understanding (that I believe is also common to Judaism, Islam, and some other non-Christian faiths) that practicing your religion involves what you do, not just what you think and what you say when you pray. And, although both the panelists and the bishops in the video clips asserted that the "Fortnight of Freedom" was not a partisan Republican campaign, this claim was (perhaps unintentionally) undermined by the pervasive use of language and rhetoric that is characteristic of partisan Republican political discourse.

Gracious God, we pray for your holy catholic church.
Fill it with your truth;
Keep it in your peace.
Where it is corrupt, reform it.
Where it is in error, correct it.
Where it is right, defend it.
Where it is in want, provide for it.
Where it is divided, reunite it;
for the sake of your Son, our Savior, Jesus Christ.
Amen.

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6 Responses to Religious Liberty: Theology, Law & Effects on the Church

  1. Thank you. Should Catholic institutions be exempt from the requirement that their employees have health insurance which pays for abortion and birth control? In effect, if they can be, they are enforcing their morality on their employees. To me, the Church should have a teaching role on morality. It should be able to withdraw association, perhaps, from people it deems to have behaved immorally. But using power to prevent an employee from having contraception feels oppressive to me.

    The truths of the Gospel are freely offered to all people, and any may accept the Good News and associate with Christians. The Church then teaches as best it may what is right. For the Church to be able to enforce what it thinks is right on individuals is not religious freedom, but religious oppression.

    • Thanks for your comment, Clare, and for raising the issue of power dynamics, which I think is very important and too infrequently attended to in discussions of moral theology.

      Context and relationship make such a difference when it comes to power. Employers do have power over employees, and there are degrees there too: consider the difference between a doctor who employs one nurse, a hospital that employs 100 people, and the only hospital for 200 miles that employs 300 people.

      I think there’s an unspoken tendency within the Catholic church to think about a “Catholic hospital”, for example, as if it were a few hundred years ago, when a religious order might open and run a hospital as the thing that order did. If everyone who works at the hospital is a member of the religious community, then that is a very different situation than what we have today, where the Catholic hospital might function as a non-profit corporation whose governing board is Catholic. That tension between “Catholic institution” and “institution for public service” hasn’t been thoroughly thought through. Perhaps this is another issue that arises as we come to terms with living in the post-Christendom era.

      You suggest that “[The church] should be able to withdraw association, perhaps, from people it deems to have behaved immorally.” Do you mean that it should be able to fire employees that it deems to have behaved immorally? I’m guessing not, because that would mean the church would be required to provide health insurance for its employees that provide birth control, but would be permitted to fire any employee that actually filled the birth control prescription… seems pretty counter productive!

      I have a stronger view of Church than you do, I think: I don’t see the gospel “out there” in the world, on the shelves of the bookstores, separate from the Church which gathers on Sundays in buildings with steeples. To some extent I believe that the gospel and Christians and the Church are all inseparable. But I do have grave reservations about the Church *enforcing* what it thinks is right.

  2. Theophrastus says:

    Better was his reminder that both sides burned heretics as well as heretical books.

    Really? Perhaps this is true if the “other side” is Protestants or Muslims. It is most definitely not true if the “other side” is, in the words of the traditional prayer, perfidis Judaeis.

    • I beg your pardon, Theophrastus: my mental context for that sentence was the Protestant Reformation, thus the two sides I had in mind were Catholics and Protestants. I see that I failed to get that context out of my head and onto the keyboard.

      • Theophrastus says:

        I must confess that I suspected that your sentence was meant to refer to the Thirty Years War and such. But the bitterness of my comment reflects the difficulty faced by your assistant pastor:

        the priest was tasked to start us off by justifying a Catholic concern for religious liberty, given various and sundry events in church history that would, ahem, not appear to indicate that this was a strong Catholic value

  3. Pingback: Truth, Deception, and Abortion | Gaudete Theology

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