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Must-Read Commentaries on The Bishops & Religious Liberty

June 3, 2012

Much of what I have had to say about the HHS mandate debate on this blog is captured and eloquently expanded upon in this series of responses at Commonweal to the Catholic bishops’ recent statement on religious liberty. I really don’t know how to comment on the responses other than to quote each in its entirety–which is, I suppose, why God made links! Nevertheless, what follows is a brief summary and a few remarks on Cathleen Kaveny’s especially powerful critique of the statement.

I have repeatedly criticized Catholic critics of the mandate for adopting libertarian rhetoric at odds with the overall tenor of Catholic social teaching. What I didn’t fully appreciate until reading Cathleen Kaveny’s response is the bishops’ “deep ambivalence about whether they prefer the protection afforded a religious minority in the United States or whether they want to be an influential force in the moral mainstream.” The bishops’ claim that the HHS mandate infringes upon their religious liberty sits uneasily side-by-side with their claim that it is an unjust law, which therefore cannot in good conscience be obeyed.

Why is the mandate unjust? From the bishops’ standpoint, because it is immoral. But there’s the rub. As Kaveny explains, the bishops’ position is

consistent with the Catholic view that the magisterium is the authoritative interpreter of the natural law. But it goes far beyond the American understanding of religious liberty. Of course, there are constitutional limits, but generally in a representative democracy such as ours, the majority has the power to determine through the legislative process what counts as a just and unjust law. The bishops can propose. But it is ultimately up to the voters and their representatives to dispose.

Now, obviously the majority could be wrong. It is possible for a majority to deem a law “just” which is in a broader sense unjust, as in the case of, say, the Fugitive Slave Act. Still, the question of the justice of HHS mandate is not at all the same as the question as to whether or not Catholic institutions should be granted an exemption. Likewise, it is one thing for a pacifist to cite religious beliefs to avoid conscription and another for the pacifist to demand an end to war. While rooted in the same underlying conviction, the two demands are quite dissimilar from a political and legal standpoint.

Kaveny goes on to discuss other examples the bishops cite as violations of religious freedom–most of which turn out to be misleading. The bishops cite a 2009 law that would have imposed a Congregationalist model on Catholic parishes, but it turns out that the law was immediately shot down by “a chorus of legal experts” as “fragrantly unconstitutional.” This bishops cite a 2011 Alabama law that would prohibit the harboring of undocumented immigrants, but it turns out a federal district court “quickly issued a preliminary injunction barring enforcement of those aspects of the statute to which the bishops objected.”

And then there is the matter of government contracts. Apparently, Catholic adoption agencies have been denied contracts due to their refusal to place children with same sex couples, while USCCB’s Migration and Refugees Services was denied contracts due to its refusal to provide contraception and abortion-related referrals. As Kaveny points out, these are not really examples of government infringing upon religious liberty, so much examples of the bishops’ “difficult problem of finding a modus Vivendi with a fast evolving moral consensus that conflicts with traditional Catholic teachings.”

The Roman Statesman Cato the Elder is said to have concluded all of his speeches with the phrase “Carthago delenda est” (“Carthage must be destroyed”). At the risk of indulging in a similar repetition, let me conclude by saying that what matters in the HHS mandate and similar debates is not ultimately tolerance, but truth. If the bishops are harping on their right to religious liberty while leaving the immorality of contraception as an unstated assumption, it is tempting to conclude that they are doing so because the logic behind Church teaching on contraception is hazy. Certainly, it has not been made clear to the majority of Catholics, let alone to the general public.

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