As the bishops of the United States gather for their summer meeting tomorrow, the on-going debate over religious liberty will dominate the proceedings. Better to say, the debate over how to proceed in vindicating religious liberty will dominate the proceedings. All the bishops are vitally concerned about the various encroachments on religious liberty that can be seen in our culture today. Only the editors of the New York Times and a few other fellow travelers of the Obama administration continue to insist this is a “phony” issue.
It seems to me that there are two central questions the bishops must address. First, regarding the HHS mandate for the inclusion of contraception in all preventive care plans, the bishops must decide if they will insist that all employers receive a religious exemption or only those employers that are in some meaningful sense religious institutions. Second, how will the bishops talk about the issue of religious liberty and will their speech try to guarantee that the issue is not misused to achieve partisan ends.
On the first point, the bishops would do well to recall the near unanimity within Catholic circles that existed in January after the President announced he would not expand the narrow exemption contained in the HHS rule. The four-part definition of which religious institutions qualify for the exemption includes the twin stipulations that to qualify for the exemption, a religious institution must primarily serve co-religionists and primarily employ co-religionists. Catholics, especially those Catholics who care deeply about the Church’s social justice ministries, were appalled by this. We view our charitable institutions, our hospitals and our universities as integral to our religion. Here was a fault line with its roots in the Reformation: For Catholics, religion is not merely an individualistic enterprise, nor one that is suspicious of good works nor hostile to human reason. There was also a certain revulsion at the ironic prospect of those liberals who have been intent on erecting a “wall of separation” between church and state, now more than willing to clamor over that wall as fast as they could to tell Notre Dame it had to include contraceptive coverage in its health plan.
In February, three things shattered the near unanimity within the Catholic fold. First, the President announced an accommodation, a profoundly problematic one to be sure, but one which satisfied some Catholics, including some catholic organizations who have long been accustomed to finding “work-arounds” and other types of casuistic solutions to similar difficulties in the past. (My reluctance to embrace the accommodation was rooted in the fact that it left the four-part definition in place, and failed to deal with the subject of self-insured religious organizations, but I applaud a casuistic sensibility in figuring out these kinds of issues.) Second, although the USCCB had long mentioned that it was concerned about the conscience rights of Catholic employers as well as Catholic institutions, the famous “Taco Bell” concern, this issue was now given greater prominence and the administration began to wonder if the bishops were changing the goal posts. Third, Rush Limbaugh called a young woman at Georgetown who approved the HHS mandate “a slut,” and in ways almost impossible to reverse, the issue in the minds of many became less about religious liberty and more about women’s rights.
The challenge for the bishops this week in Atlanta is to try and re-constitute that near-unanimity. There is little they can do about blowhards like Limbaugh. And, the Obama administration appears wedded to the idea that its accommodation, or further accommodations, can be achieved that leave the pernicious four-part definition in place. The bishops must be clear this week: If the four-part definition goes away, they will strike a deal.
I am not allergic to the conscience rights of individuals, but you do not have to be a First Amendment scholar to understand that Notre Dame and Taco Bell should enjoy different levels of First Amendment protection. But, my worry is deeper, and it has less to do with the on-going negotiations with the White House that it does with the relationship of the Catholic Church to American culture. If we highlight individual conscience rights in a culture that means something very different from what the Church means by “conscience,” I fear we are feeding the beast. In this regard, Professor David Schindler’s editorial in Communio  provided the kind of sophisticated theological analysis that is above my paygrade but which makes this point. Schindler writes:
I need hardly add that Schindler cannot be dismissed as an apologist for the Obama administration. There are theological reasons to insist on the rights of the Church and to leave the fight over individual conscience rights to another day, perhaps after we have catechized our Catholic laity about the Catholic meaning of conscience. It is not whim. It is not even individualistic, it can’t be individualistic: For us, conscience is the voice of God, what Newman called the “aboriginal Vicar of Christ,” but in the ambient culture, conscience is often little more than whim, certainly no more than private judgment. Again, the problems here are not that there is a Democrat in the White House, nor that we live in a culture with a penchant for secularism. The problem is rooted in the Reformation and those roots have profoundly shaped American culture, especially at the time of the Founding Fathers.
Increasingly, I fear the fight over religious liberty is in danger of running off the rails, which leads to my second issue: How will the bishops decide to talk about the issue of religious liberty going forward? This last Sunday, at my church, there was a bulletin insert, a pamphlet published by Our Sunday Visitor. It mentioned several threats to religious liberty, including the HHS mandate, the Department of Justice’s brief denying the existence of a ministerial exemption in the Hosanna-Tabor case, and a few others. There was no mention of the Alabama anti-immigration law, which is the law most on-point in comparison to the HHS mandate. There was no mention of Justice Scalia’s problematic opinion in the Employment Division v. Smith case which remains the legal hurdle the Church must find a way to get around if the lawsuits against the mandate are to prosper. The only threats to religious liberty mentioned came from the Obama administration. Such pamphlets make it impossible for the bishops, with a straight face, to insist that this is not a partisan issue. If the bishops want to keep a straight face, and if they truly want to make sure that people understand that our concern for religious liberty really does transcend partisan divisions, we must always and every time mention the Alabama and Arizona anti-immigration laws. We must mention the anti-sharia laws. These, too, are threats to religious liberty, certainly as much of a threat as the DOJ brief in Hosanna-Tabor, a brief that has been thoroughly discredited, rejected by a unanimous Supreme Court ruling.
I am also disturbed when I read Archbishop William Lori insist that “this is not a Catholic issue. This is an American issue.” If it is not a “Catholic issue,” I am not sure why a bishop is addressing it except in a blog post, certainly not from the pulpit. But, the concern is deeper. There is a sort of idolatry of the First Amendment at work in some of the statements and some of the literature surrounding this issue that makes me profoundly uncomfortable. As someone who works for a newspaper, I am quite fond of the First Amendment. But, as we approach the Fortnight for Freedom, I think the bishops would do well to ask themselves these questions: Is it our role, as successors of the apostles, to be catechizing about the First Amendment? Should we be preaching about Mark, Matthew, Luke and John, or about James Madison? In what ways do our people need to understand how what the Founding Fathers meant by “freedom” is different from the “freedom of the children of God” about which St. Paul wrote? Do our people understand what conscience is in Catholic terms? Can we acknowledge the tensions within Dignitatis Humanae, Vatican II’s Decree on Religious Liberty, and have we encouraged our theologians to explore those tensions? Many American Catholic grew up with the understanding that “freedom’s just another word for nothing left to lose,” but Janis Joplin’s lyrics are not the stuff of Catholic theology. Nor is the idea at the heart of the First Amendment, the idea that freedom is an essentially negative right, a freedom from, something easily compatible with Catholic ideas about freedom. As Pope Benedict XVI has articulated time and again, in what is certainly one of the leitmotifs of his pontificate, freedom un-tethered from ideas about truth can become oppressive. In the First Amendment, freedom is un-tethered from ideas about truth, and nothing out of the Ethics and Public Policy Center can make it otherwise.
The Fortnight for Freedom will go on. The events are scheduled. But, I implore the bishops to think, and think deeply, about the content of what will be said during those two weeks. I encourage them not to simply repeat some of the agitprop coming from certain Catholic neo-cons who have been trying to baptize Americanism for decades and who appear unable or unwilling to confront the truly profound issues raised by Professor Schindler and other Communio theologians about the difficulties in superficially embracing the First Amendment theologically. (You know who you are!) As a prudential matter, with a casuistic sensibility, we can work with the First Amendment, and we can conclude that it works remarkably well. But we cannot, we must not, see it as something to be catechized about. The Gospel of Jesus Christ was proclaimed on this earth for some 1800 years before Mr. Madison set quill to scroll.
Finally the bishops must ask themselves how they are to conduct themselves as a group. It strikes many of us as strange that Bishop Stephen Blaire was expected to qualify his remarks about the different approaches to this issue but no such qualification was expected of Bishop Daniel Jenky to qualify his remarks comparing the Obama administration to the regimes of Hitler and Stalin. It strikes many of us as strange when an archiepiscopal installation homily mentions the scriptures only in passing, and the rite not at all, and instead wears the visage of a candidate accepting the nomination of his political party at a convention. It strikes many of us as strange to see no bishop, so far, willing to address the complicity of Justice Scalia in this mess, even while many bishops discuss the HHS mandate with precision in every other regard. It strikes many of us as strange to see the invocation of St. Thomas More and the Cristeros by men and women who seem to lack More’s understanding that these issues of conscience and law are complicated, not given to easy solutions, certainly not to political propaganda, and that however wrong-headed the HHS mandate is, it does not amount to persecution and comparing it to what the Cristeros faced is absurd.
This is a critical moment for the Church. Trenchant and tendentious rhetoric is not the way to proceed in a debate that is ultimately about how in our pluralistic society we can all learn to accommodate one another. This past weekend, I was at a friend’s birthday party. My friend is Jewish and he does not keep strict kosher, but some of his friends do. I overheard his wife speaking to some newly arrived guests and assuring them that the wine was kosher. When I entertain, if I had a friend who does not drink alcohol, I always try and come up with some interesting non-alcoholic beverages, so that my guest does not fell left out in anyway. We all make accommodations with each other all the time. In years past, the Church negotiated concordats with different regimes, and it rarely got all it wanted from those agreements. If, on the other hand, the bishops want to rely on the advice of those whose primary aim is to demonize the President and defeat him in November, then we will have more acrimony in the months ahead.
My plea to the bishops assembling in Atlanta is a simple one: Please agree to use the Fortnight for Freedom wisely. The issue of religious liberty is a vitally important one as I have argued in these pages since last August when the HHS rule was first announced. It should not, it must not, be used for partisan ends and the bishops can help prevent such a misuse by adopting measured language and an even-handed treatment of the issue. Nor, should the focus on religious liberty be allowed to obscure other important issues, both political and ecclesiastical. The bishops need to be outspoken about the need for immigration reform. The bishops need to defend the rights of labor when those rights are under attack. The bishops need to continue to speak out against threats to human life from abortion to euthanasia to war. As well, the Holy Father has called the Church to embark upon a “Year of Faith” as part of the New Evangelization, to recall the Second Vatican Council and continue the process of receiving the teachings of that Council. I have not seen any bulletin inserts on the New Evangelization in a long time. I am not one of those leftie Catholics who dismiss what the bishops say. Quite the contrary. I understand and accept their unique role as authentic teachers of the faith. But, that faith is faith in Christ crucified, not faith in the U.S. Constitution. Indulging in the coarse American exceptionalism so often found in some non-Catholic pulpits is a thing to be avoided.
The relationship of church and state will never be free from tension this side of the eschaton. It is often recalled that King Charles II famously said that Presbyterianism was no religion for a gentleman, but less often recalled that he also said that Anglicanism was no religion for a Christian. There is a distinction to be drawn between accommodation to the world and complicity with the world, there is a middle ground between truculent detachment from the world and inadequate discernment of the dangers of the world. The Church, too, has misused its political power in the past. The current debate over religious liberty is important, it is not exhaustive. The bishops are well advised to commit to toning down the rhetoric, continuing to seek solutions, and reminding all Catholics in the U.S. that while we celebrate the freedoms our country has traditionally furnished, we Christians are called to a different type of freedom as well, the freedom that comes from surrendering ourselves to God.