Report on Religious Freedom Event

Just back from an event sponsored by the Ethics and Public Policy Center on religious freedom. It was not exactly “fair and balanced” anymore than Fox News is, although Bill Galston from Brookings was given the microphone and, unsurprisingly, gave the most nuanced of this morning’s presentations. At least the organizers were candid that the day’s proceedings were not just about learning, they were about action. This was the religious right’s highly educated cohort, getting their marching orders and their battleplans.

The avalanche of criticism against, variously, the Obama administration, secularization, gay and lesbian activists, etc., began with Tom Farr of Georgetown who said that in his 2009 address at Notre Dame, President Barack Obama asserted a “lack of rational content” in religion. The relevant words of Mr. Obama’s were: “It's beyond our capacity as human beings to know with certainty what God has planned for us or what He asks of us. And those of us who believe must trust that His wisdom is greater than our own.” Now, as I recall, I found Obama’s comments strange in a speech at a Catholic university dedicated to the pursuit of faith and reason.

But, I also recognized that he was trying to mimic President Lincoln’s observations about the relationship of Providence to our mundane, and partial, points of view. In both cases, the sentiments are more Protestant than Catholic, but as evidence of a secularizing agenda, not so much. (Unless, of course, you see the Reformation as the wellspring of secularization, which I most assuredly do, but that is not the kind of thing they wish to point out at the Ethics and Public Policy Center, and not with Rev. Land soon to take the stage.)

Then came Professor Robert George. He started with a joke about a convict getting 41% of the vote in the Democratic primary in West Virginia, which drew laughter from the crowd. Of course, in George’s mind, that datum tells us something about President Obama and I suspect that datum tells us more about the nice people of West Virginia.

George said he wanted to provide a “theoretical anchor” to the day’s events and proposed a comparison between two great nineteenth century intellectual giants, John Stuart Mill and John Henry Newman. He contrasted Mill’s utilitarianism with Newman’s views on freedom and conscience. Here, too, there was a bit of trimming. George allowed that Newman held forth his views on conscience as distinct from what Newman called the “counterfeit” of conscience, and quoted from the Letter to the Duke of Norfolk in which Newman attacked, forthrightly, the idea that conscience is little different from whim. Fair enough.

But, Newman also contrasted his view of conscience with the Protestant idea of private judgment. Certainly, it is hard to imagine a Protestant of Newman’s time, or a Protestant today, saying of conscience, approvingly, that it is the “aboriginal Vicar of Christ.” Professor George, of course, mentioned not this inconvenient aspect of Newman’s Letter to the Duke. I would not go so far as to call the omission dishonest, but it was a bit too convenient for my tastes, permitting George to evade one of the central difficulties (we RCs really must think about these issues differently) in the interest of forming a political alliance dedicated to defeating Barack Obama.

Next up was a panel assessing the “Unprecedented Threats to American Religious Freedom and Rights of Conscience.” As the title indicates, this, too, was a little slanted. First up was Hannah Smith of the Becket Fund who gave a good summation on what she deemed the three most pressing threats to religious freedom: The HHS mandate, the autonomy of religious institutions to govern themselves, and the threat to the conscience rights of individuals. The value of these conferences is that you always learn something, and the first thing I learned was that one of the ironies of the HHS mandate debate is that the administration has still not come up with a solution for self-insured religious organizations and that many of those self-insured religious organizations became self-insured precisely as a means to avoid state-level contraception mandates. I had not made that connection before and it certainly could explain some of the exasperation felt by such religious organizations.

Smith's second concern seems less of worry post-Hosanna-Tabor v. EEOC, which by a 9-0 vote upheld the ministerial exemption despite the Dept. of Justice’s brief denying such an exemption. I suppose that the DOJ brief is worrisome at some level but the fact that it got so thoroughly spanked at the Supreme Court makes me think very few lawyers will walk down that road again anytime soon. Smith’s third point is the most difficult: Do individuals have a private right to not act against their conscience? Yes. But, what are the allowable limits for the exercise of that right? For example, I do not think that a pharmacist should be made to carry a product, like an abortifacient, that she thinks is immoral. But, does a county clerk have a conscience right not to issue a marriage license to a same-sex couple if the laws of the state permit same-sex marriage? I don’t think so. I the latter case, that is the person’s job, to issue licenses. In the former case, a pharmacist makes a variety of decisions about which products to carry and which not. Many pharmacies have magazine racks but they don’t have to carry Playboy or the soft-porn exercise magazines either.

Smith’s presentation was fine, lucid, and engaging, but it was frankly shocking that she did not mention the anti-immigrant laws in Alabama and Arizona among her top three religious liberty threats today. Is a thoroughly repudiated DOJ brief more of a threat than a still-on-the-books Alabama law?

Dr. Donald Landry talked about the intersection of religious liberty issues with the medical community. He claimed that whole swaths of the medical community, such as Ob-Gyn practitioners, have adopted what he termed “liberal, secular values” and that in such an atmosphere, even the claim to conscientious objection is viewed with suspicion. He said the medical profession is reaching “a crescendo of a long process,” but he did not readily explain how to combat this process. It is obvious that there are religious liberty concerns in this field, and that some of them are urgent. It is also obvious that there are competing claims, and that sometimes the religious values’ spokespeople do not get the issue right the first time. In 2005, the Connecticut Catholic Conference fought a measure that would require Catholic hospitals to dispense emergency contraception to rape victims. Once the law passed and was signed by the Governor, a Republican, the bishops of Connecticut said they could live with the law after all.

Richard Land is not my favorite person. It is wrong to feel this way, and certainly wrong to blame Rev. Land for the feeling, and I acknowledge I will need to go to confession for this, but I nonetheless must be honest: After four years of research about Jerry Falwell, I think I have earned the right not to consider the rantings of Southern Baptists for at least a few months. But, when Land says that the HHS mandate displays “either a hostility or a complete ignorance of the First Amendment,” and fails to recognize that the First Amendment is a more complicated thing since Justice Scalia wrote his decision in Employment Division v. Smith and, as well, that there are different ways of reading the First Amendment, well, it is difficult to continue listening to Rev. Land.

Land is relentlessly on message and a master of soundbites: “This is not a Catholic issue…This is about conscience not contraception…freedom of religion goes way beyond freedom of worship.” But, when he warns about a “secular theocracy” my eyes glaze over. Theocrats, remember, value consistency. The Obama administration, like most modern administrations, is a catch-as-catch can affair.

Nathan Daiment, who directs Public Policy for the Union of Orthodox Jewish Congregations of America, was up next. Intentionally or not – and someone afterwards told me his remarks were so intended – Daiment was responding to my article this week that focused on Employment Division v. Smith as the truly “unprecedented” attack on religious liberty in the past few decades. He pointed out that in the wake of that decision, Congress by overwhelming bipartisan majorities passed the Religious Freedom Restoration Act which was signed into law by President Clinton in 1993.

But, after the Court threw out part of RFRA in its City of Boerne v. Flores decision, congressional efforts to restore religious liberty concerns were severely circumscribed, and advocates of religious liberty were only able to pass a law that restored the “compelling interest/least restrictive” standard to issues involving land-use and institutional persons. He noted that women’s groups and gay rights activists had come to oppose the kind of sweeping legislative approach that had only a few years been non-controversial when RFRA was passed. This is a concern, and perhaps if religious groups did a better job reaching out to women’s groups and gay rights groups, and vice-versa, progress could be made. Certainly, it seems to me a simple argument to make: Our entire society benefits from avoiding a homogenization of our social fabric and constricting the rights of churches to govern themselves as they see fit.

It should surprise no one that I thought Bill Galston gave the strongest presentation. Galston was the point man for the Clinton White House on RFRA and he stated clearly that he agreed with the Notre Dame lawsuit filed Monday that the HHS mandate is a prima facie affront to RFRA. All of those who spent Monday and Tuesday dumping on Fr. Jenkins should send a note of apology – their narrative that Jenkins "caved” to the bishops is implausible unless they are willing to also suggest that Galston “caved” to the bishops.

Taking a frontal attack on Employment Division v. Smith, Galston pointed out that the Volstead Act banned the sale of spirits, but permitted the use and sale of sacramental wine. But, in Smith, the peyote was also used for sacramental practices. In short, had the Volstead Act not included an exemption for sacramental wine, would Scalia have argued that Catholics and Jews had no actionable claim against Prohibition? It is a fine point. Free exercise is never absolute. There are “bedrock civil concerns” Galston stated. Such reasoning, careful, attentive to circumstances as well as principles, will not resolve all differences but, as Galston suggested, what we see in the HHS mandate debate is not a war by the bishops against women, nor a war by Obama against religion, but an honest disagreement.

Galston also spoke about what he called the “remarkable argument” in the bishops statement on religious liberty that unjust laws must never be obeyed. “Most laws fall short of full justice” he pointed out and require “principled casuistry” in their application. Here, he was pointing the Church to its own finest traditions. The USCCB, after all, has stated clearly that the Ryan budget fails the moral standards the bishops have articulated. If it were to pass, should Catholics refuse to pay taxes? Galston argued that there are similar complications when the government provides funding to religious social service providers. “When the Church gets Caesar’s money, it does not automatically become God’s money,” Galston said.

It is against the law for any agency funded by the state to refuse to place a child in an adoptive home for reasons of race, why should it be lawful to refuse to place a child in a home on account of the sexual preferences of the parents? Would the equation change if, tomorrow, a scientist discovered the genetic marker for sexual preference? In the end, Galston argued convincingly, the tensions between the laws of the state and the religious traditions of citizens is a tension that will never be resolved, only managed and it will always require a sense of proportion to manage that tension, one that shies away from too easily using words like “unprecedented.”

What depresses me about such events as this is that it is hard to miss the partisan agenda at work, even if the cause is a good one. Very few of the speakers gave any sense of understanding to those of opposite views, or at least an acknowledgement that those of opposing views are sincere and, in any event, whether they hate the Church or not, are exercising their constitutional rights. I was disappointed, too, that no one wanted to acknowledge that Baptists have a history of defending the conscience rights of individuals, that their history is tied in with their theology, and that both that theology and its political consequences are different, very different, for Catholics. This was the Manhattan Declaration crowd, and they care more about political unity than theological depth. I do not.