Wednesday, June 27, 2012


The HHS mandate illustrates three liberal ideological commitments that treat religious freedom as an afterthought.

What do the University of Notre Dame, EWTN, and the Archdiocese of New York have in common?

More than you probably think. Each is a Catholic institution, of course. Each is also suing the Obama Administration over the HHS “contraception” mandate. Each is going to be spared the Hobson’s choice between complying with the mandate and betraying its mission if any one of four possible scenarios comes to pass. Each nonetheless continues to stand in grave peril of institutional martyrdom.

The first scenario will play out by June 29, the last day of the current Supreme Court term. If the Court throws out the whole Patient Protection and Affordable Care Act (PPACA), the mandate will go with it. The reason is not that the pending decision is about contraception or religious liberty. It is that the mandate depends entirely for its force upon the survival of PPACA.

The second scenario will go down on November 6. If Mitt Romney is then elected our next president, you can be sure that he will soon thereafter announce his intention to rescind the mandate.

The chances that one of these two scenarios will occur are pretty high. The chances that the Obama administration will fare poorly in the pending lawsuits (by Cardinal Dolan, et al.) are pretty high, too. When those dim prospects become apparent to the administration, it is likely—and this is the third scenario—to invite the complaining Catholic institutions to the bargaining table, to significantly expand the current wafer-thin exemption from the mandate. But if the administration imprudently digs in its heels, some time in 2014 the Supreme Court is likely to rule that the exemption must be expanded in order to comply with the Religious Freedom Restoration Act. That would be scenario number four.

Because it is almost certain that at least one of these possibilities will come to be, the day of reckoning for Notre Dame, Mother Angelica, and Cardinal Dolan will be postponed.

I say “postponed,” and not “canceled,” advisedly. The ideological commitments that have emboldened the Obama administration about contraception are deeply held. They are held to be very important. They are resilient. They are not limited to the reproductive rights supposedly protected by access to contraception, even when contraception is broadly defined to include abortifacient drugs. These deep convictions about liberty and equality and religion entail trouble for religious liberty, no matter which exit route the present mandate takes.

I say “entail” advisedly, too. Religious liberty in the new dispensation is derivative of these deeper moral and (as we shall see) epistemological commitments. Religious liberty is, from this point of view, an afterthought, a residue which is unfortunately too vaporous to protect Catholic institutions from existential crises.

What are these ideological commitments? There are three of special note.

The first is dedication to advancing the ideology of “equal sexual liberty.” This powerful complex of ideas comes in both straight and “gay” versions.

When President Obama announced his phony “compromise” about the mandate on February 10, he plainly stated what the mandate was for: “Every woman should be in control of the decisions which affect her health. Period.” Given the context of these remarks, Obama meant, specifically, what is usually called “reproductive health.” His overriding commitment to this reproductive health—evidenced by, for example, the “contraception” mandate—presupposes that women will and should have lots more sexual intercourse than they have interest in conceiving children. According to this widespread view, sexual license should never impede a woman’s lifestyle, at least no more than it does a man’s. Marking the most recent anniversary of Roe v. Wade, the President said that “our daughters must have the same opportunities as our sons.” Obama’s notion of equal opportunity extends to the bedroom as well as to the boardroom.

Catholic Charities in Boston and Washington, D.C., already have been martyred by the “gay” version of “equal sexual liberty.” They were obliged to abandon their adoption charities when public authority refused to accommodate their objections to same-sex “marriage.” Right now, Catholic schools in Ontario are being bullied by an “anti-bullying” law that compels parochial schools to set up “Gay-Straight Alliances.” These clubs would contradict the sexual morality that every Catholic institution is obliged before God and the Church to teach, by word and by deed. Were they to comply with this “bullying” law, Ontario’s Catholic schools could not give the perspicuous witness to the faith that is their raison d’etre, just as America’s Catholic schools could not, were they to comply with the Obama Administration’s “contraception” mandate.

This far into the Age of Aquarius, no more needs to be said about the meaning and seductive appeal of “equal sexual liberty.” It is the emerging public orthodoxy about where sexual satisfaction, expression, and identity fit into the good life, and about the government’s responsibilities to establish conditions that make this life achievable for all with ease. This orthodoxy commands the cultural heights and has achieved ascendancy in the academy. We are in the midst of a high-stakes fight over its grip on our law. The outcome of this battle is in doubt.

It is easy to see already that “equal sexual liberty” is a natural predator of Catholic institutions, which are standing contradictions of almost all that the new orthodoxy proposes. What is not so apparent, however, is why the new orthodoxy has so totally eclipsed considerations of conscience, tolerance, and liberty in the thinking of self-identifying liberals such as Barack Obama. It is scarcely surprising that he and other like-minded officials are beguiled by “equal sexual liberty.” It is nonetheless curious that they should so remorselessly subordinate religious liberty to the new ideological colossus. One would think that our cherished “first freedom” would have a bit more staying power.

Looking at what Obama and like-minded folks think about religion dispels the curiosity. I do not mean here to consider their opinion about the value of religion, which value Obama (for example) affirms to be very high. I refer instead to their understanding of religion’s relationship to certain strategic moral propositions, and to the truth-value of religious claims as such.

Hence, the second ideological commitment is to treat the moral propositions that undergird the conservative alternative to “equal sexual liberty” as subjective religious beliefs incapable of rational defense. These include the propositions that people begin at fertilization; that marriage is strictly limited to the union of man and woman; and that the norms of sexual morality are many and that they are rooted in the marital relation. These propositions combine to refute the emerging orthodoxy of “equal sexual liberty.” Being propositions about morality, moreover, they are asserted by their adherents as truths of reason, albeit truths that are confirmed by religious authorities and by revelation.

Promoters of the new orthodoxy nonetheless boldly declare these claims to be “religious beliefs,” tout court. They just as boldly declare that, because they are “religious beliefs,” these claims are rationally indefensible. They may be held by the faithful as if they are genuine truths. But in reality these putative truths are subjective projections, verbal formulae which may function as the ligaments of a community, as so many fallible and revisable expressions of the ineffable depths of spiritual experience. They are badges of individual or religious communal identity. Because they are rationally indefensible, they are to be perceived and to be treated by outsiders as prejudice. Religious “doctrine” is thus a species of bias. So, the Church’s moral condemnation of sodomy and opposition to same-sex “marriage” amount to hallowed homophobia.

The third commitment is to identify the public value of institutional ministries, such as Catholic Charities and Saint-Somebody Hospital, entirely with the “secular” services they offer.
Adherents of the new orthodoxy can and often do recognize the value of these organizations’ religious identity—to the religious people who staff them. Anyone can see that religion supplies added motivation, enthusiasm, and meaning to many of those working in these ministries. But these peculiar satisfactions are construed by the new orthodox to be private; they are personal delights that do not register as any sort of public good. The public value of these ministries is comprised of just so many hot lunches prepared, heart bypasses performed, and reading competency tests passed. Viewed from the public square, then, these organizations’ religious character is invisible. Being invisible, it cannot have measurable value. Having no detectable value, it cannot serve to justify any allowance that would impair the government’s provision of conditions conducive to “equal sexual liberty.” So, exempting Catholic Charities from placing kids with a “gay” couple is a concession to private bias that is productive only of public mischief, insult, net loss.

An English Law Lord recently expressed this sum of the three orthodox commitments, in a case where he denied relief to a relationship counselor who could not in good conscience endorse the sexual activities of same-sex couples. Lord Justice Laws declared that any exemption would be “unprincipled,” for it would not “advance the general good on objective grounds, but … give effect to the force of subjective opinion.” How so? Laws asserted that it “must be so, since in the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may of course be true; but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society.” Against the demands of “equal sexual liberty” for homosexuals and lesbians, solicitude for the opaque commitments of the religious subject count for nothing.

It is natural, and right, to say that the HHS mandate undermines religious liberty. But it is important to add that this argument about religious liberty is more about the adjective than it is the noun. It is chiefly an argument about whether religion is about reality, truth, the way the cosmos is really structured, or whether it is about the byways of an individual’s psyche.

Originally appeared in Public Discourse: Ethics, Law, and the Common Good, the online journal of the Witherspoon Institute of Princeton, NJ.


William Meyer said...

It has become apparent to me that Obama lies as easily as he breathes, and perhaps nearly as often. There is no point, then, in considering what he may or may not do, as he will lie about his intent, and about the supposed authority under which he does it. Until the Supreme Court acts, or our elected Congress finds its collective spine and morals, Obama can continue to do as he will.

I think your analysis is correct, especially the contention that the day of reckoning is merely postponed.

The future of the Republic depends now on the outcome of the coming election. To repair the damage done, we must elect supermajorities in both houses. Romney's stated intentions are of no use if Congress is divided, or otherwise will not act.

All self-identified Catholics must finally understand that they cannot vote for Obama and pretend to actually be Catholic. And that includes the bishops.

Further, if the Church in America is to have a chance at making things right, the bishops need to focus. They have been charging off in all directions at once, and thus have been their own undoing. Using the notion of "social justice" as an excuse to overlook little things such as doctrine simple cannot be supported. Moreover, they must recognize that when you lie with pigs, you will arise dirty.

I am increasingly persuaded that the mythical separation of Church and State may be essential to the Church. It does not exist in the Constitution, nor otherwise in law, but the Church can itself turn away from involvement with the State, and must, as the State clearly cannot be trusted in moral matters.

We must all stand proud and determined. We must take such opportunities as arise to persuade our friends, neighbors, and even our enemies. With a poor outcome, the coming election may be our last.

rcg said...

Laws' comments are weak because they assume his preconceived notions to be true; and is therefore exactly what he criticised in the religious believer. In UK it is currently a litmus test to determine if a person is a religious believer, or really, a Christian. This makes all other positions of the person assailable as tainted by the faulty intellect of the believer. This makes the Catholic who believes the sky is blue at best lucky in one of 9 possible choices, not an objective observer.

This is also a pair of very old tactics. The second tactic being that a social or economic theory must be true because it does not fail in front of your eyes at the moment of implementation. Therefore, socialism must work, because some countries have managed to eke along for fifty years or more using it, or homosexuality is a perfectly acceptable choice because 'no one is hurt'. This is comparable to redefining rape to assault with a friendly weapon.

There appears to be a vast social psychosis infecting our planet that refuses to accept responsibility for anything. It seems to stem from agnostic attitudes toward the soul and desires to test all actions that give value to life by replacing them with anal/oral stimulus. We self actualise like infants, but instead of innocence, we knowingly place personal satisfaction above everything in a pact that lets you touch mine if I can touch yours. This theory is most apparent in our economics, but is rapidly being inserted in to our very bodies and souls. That no one is struck down by an angry God for his sin is used to prove there is no God. How ironic that instant destruction is needed to prove the error of instant gratification, that a slow, lonely, death, occupied by anguish, is held against God rather than viewed as an opportunity for reconciliation.

We are bound by our faith to not only resist this evil, but attempt to save the perpetrators of it. But we will often hold back action focusing on the tentative salvation of the sinner while allowing the sin to continue. This is what we did with the clergy involved in the sex abuse crisis. We were not showing mercy or charity, we were testing God, and we still are.

Anonymous 2 said...

According to the article the three “orthodox commitments” in question are summed up by Lord Justice Laws:

Lord Justice Laws declared that any exemption would be “unprincipled,” for it would not “advance the general good on objective grounds, but … give effect to the force of subjective opinion.” How so? Laws asserted that it “must be so, since in the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may of course be true; but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society.”

This sort of ignorant statement seems to me to be vulnerable on several grounds:

(1) Perhaps religious beliefs are not susceptible of the_same kind_ of “proof or evidence” as a scientific theory is, but that does not mean religious faith is “necessarily subjective.” The alleged opposition between “subjective” and “objective” is arguably yet another false dichotomy that asserts a clear and distinct binary opposition between two categories that lie at opposite poles of a continuum and ignore the excluded middle range.

(2) Even if religious beliefs_were_entirely subjective, surely one can make an “objective” argument that it is “reasonable” to allow religious voices to be part of the conversation shaping laws, certainly on the process grounds that the common good is served by broadening and deepening the conversation in this way, and perhaps even on substantive grounds because religiously based rhetoric in the public square may, as one of my colleagues David Gushee puts it, “unsettl[e] fixed patterns of discourse” and thus help the participants “think in a fresh way about the issues” (his particular example was torture).

(3) It is just not the case that there are no non-religiously based reasons that can be offered to support many of the positions that also happen to be taught by the Catholic Church as part of Catholic morality. Perfectly respectable and sound natural law reasons can be offered without any appeal to religious authority at all, although those reasons, of course, can be and often are, also offered in combination with such religiously-based reasons. Perhaps the leading work on this is John Finnis’s classic “Natural Law and Natural Rights” (1980).

Moreover, it is not necessary to be Catholic or any kind of religious believer at all to see the force of these points. Nor is it necessary to agree with the merits on any particular substantive issue, such as contraception, abortion, gay marriage, or care for the poor. It_is_necessary not to be a secular fundamentalist and to be willing to have a “reasonable” conversation (i.e., one in which we share our most deeply held reasons for believing one way or the other about a certain issue) with other people of good faith, whether they are religious believers or not.