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Bishops Rock Religious Liberty

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Credit: By Basilica1 at en.wikipedia [Public domain], from Wikimedia Commons

To say that "Our First, Most Cherished Liberty" is tendentious does not do justice to the latest missive from the USCCB. There's just so much to savor. In the third graph, for instance, it offers the following example of how "Catholics in America have discharged this duty of guarding freedom admirably for many generations."

In 1887, when the archbishop of Baltimore, James Gibbons, was made the second American cardinal, he defended the American heritage of religious liberty during his visit to Rome to receive the red hat. Speaking of the great progress the Catholic Church had made in the United States, he attributed it to the “civil liberty we enjoy in our enlightened republic.” Indeed, he made a bolder claim, namely that “in the genial atmosphere of liberty [the Church] blossoms like a rose.”

What "Our First" fails to note is that Rome's response was to anathematize Gibbons' embrace of his country's approach to religious liberty as the heresy of "Americanism." Two generations would pass before American hierarchs, in the wake of Vatican II, were again to find their tongues on the subject.

To be sure, the USCCB does acknowledge that the Church's religious liberty record leaves something to be desired. As they elegantly put it, "As Catholics, we know that our history has shadows too in terms of religious liberty, when we did not extend to others the proper respect for this first freedom." That would include, I guess, those pesky autos-da-fé, wherein the Spanish and Portuguese Inquisitions barbecued those they judged heretics and apostates. Somewhere, Spinoza's head is exploding.

But OK, the American bishops now have the backing of Rome to stand up for religious liberty, and so they proceed to cite seven "concrete examples" of how it is currently "under threat." Some are local trivialities, like the outlandish 2009 Connecticut bill to reorganize Catholic governance on congregational lines, which was going nowhere and went nowhere. Most of the others involve legal issues of church and state where the bishops have no leg to stand on. Thus, they consider it a violation of their religious liberty to be denied public money to carry out their good works the way they want to, such as being free to deny same-sex couples access to their adoption services. No one, however, has a constitutional right to a government contract.

The best constitutional claim the bishops--and other religious leaders--have would appear to be against the state of Alabama, where the new anti-immigration law restricts the ability of churches to offer religious services to illegal immigrants. And I hope they win. But as conservatives are again acknowledging in the wake of President Obama's criticism of the Supreme Court, the courts are the venue where threats against constitutional rights are handled in America. "What is at stake, say the bishops, "is whether America will continue to have a free, creative, and robust civil society—or whether the state alone will determine who gets to contribute to the common good, and how they get to do it." In fact, the state alone does get to set the rules for who gets to contribute to the public good, and how. If that arm of the state known as the judicial system determines that a law is an unconstitutional violation of the guarantee of Free Exercise or the prohibition of Establishment, then it goes away. That's how our system of "we, the people" governance works. 

Which brings us to the oddest part of "Our First"--its apparent simultaneous avowal and disavowal of civil disobedience:

It is a sobering thing to contemplate our government enacting an unjust law. An unjust law cannot be obeyed. In the face of an unjust law, an accommodation is not to be sought, especially by resorting to equivocal words and deceptive practices. If we face today the prospect of unjust laws, then Catholics in America, in solidarity with our fellow citizens, must have the courage not to obey them. No American desires this. No Catholic welcomes it. But if it should fall upon us, we must discharge it as a duty of citizenship and an obligation of faith.

It is essential to understand the distinction between conscientious objection and an unjust law. Conscientious objection permits some relief to those who object to a just law for reasons of conscience—conscription being the most well-known example. An unjust law is “no law at all.” It cannot be obeyed, and therefore one does not seek relief from it, but rather its repeal.

These paragraphs evidently refer especially to the bishops' central preoccupation these days: the Obama Administration's contraception coverage mandate under the health care law. It seems that the mandate--and thereby the law itself?--is so unjust that there can be no acceptable accommodation (take that, Mr. President!), and also must not be obeyed. Exactly how a religious employer is to conscientiously disobey in this case is not clear, since in its current form there's nothing short of doing away with health insurance altogether that would enable the employer not to provide the mandated coverage. And it's not against the law to decide not to provide employees with health insurance.

But then, according to the bishops, consciencious objection can only provide relief from a just law, and therefore, evidently, is not an option. Since the mandate is unjust, and therefore "no law at all," you're supposed to seek not relief from it but its repeal. Well, sure, go ahead and try to get Congress to repeal mandatory contraception coverage. And meanwhile, engage in un-conscientious disobedience of the mandate, if you can figure out how to do it.

Tags: usccb


  1. Mark, tell us what you really think!! Just kidding, I appreciate the candor and forthright criticism. I am not as negative about the document, but I definitely value the points you have made about Gibbons, the seeming incoherence with the “un-conscientious disobedience” call, and the importance of the judiciary. I am less convinced by your statement that “the state alone does get to set the rules for who gets to contribute to the public good, and how”. I guess at some ultimate level that might be true, but the way you say it seems to dismissive of the complex, interconnected nature of mediatining institutions and civil society. Anyway, I am glad to see you providing feedback and I do worry that you are correct in sensing a Neuhausian tone of tendentiousness and condescension in the document. I have said something similar here:

    I wonder if you have seen what Commonweal said about the glaring silence of the bishops with regard to anti-Sharia laws? I expanded on their point here:

    I would love your feedback.

  2. “These paragraphs evidently refer especially to the bishops’ central preoccupation these days: the Obama Administration’s contraception coverage mandate”  Mark Silk must have access to information the rest of us do not have.

    “Most of the others involve legal issues of church and state where the bishops have no leg to stand on. Thus, they consider it a violation of their religious liberty to be denied public money to carry out their good works the way they want to, such as being free to deny same-sex couples access to their adoption services. No one, however, has a constitutional right to a government contract.”

    Some of the issues they might have a legal leg to stand on, especially considering RFRA.

    As to the others, it makes no difference whether they have a legal case.  The point of the document - and the issue that has raised public concern - is how did respect for religious liberty diminish to such a degree that public officials would even think of requiring adoption agencies to place children in homes against their religious beliefs or require a religious entity to cover procedures against their conscience and so on.

    Gregmetzger: With rare exceptions, the USCCB does not speak out on state issues, which is where these anti-Sharia laws have cropped up.  In those cases, state Catholic conferences and diocesan attorneys have spoke out against them.

  3. ctdkite—Really? The Alabama immigration law they state is clearly a state law, the Connecticut example they cite is a state legislature action, and the issues they raise about adoption are all from state laws. The fact that the anti-Sharia laws are state laws can not possibly be the reason for why they have chosen to ignore them in there statement, and instead focus on other examples (the New York churches issue is not even a state issue, it is a city issue.)

  4. ctdkite—anyone who’s been following the bishops’ public utterances is aware that the contraception mandate is their central collective preoccupation these days. To Greg Metzger’s citations of the array of sub-national issues that figure in the letter, I’d just that that only in the New York City case (and not perhaps entirely there) does the letter give an example that does not engage specifically Catholic concerns. As a Catholic priest I know put it to me in an email, “t would be nice if they were angry about something that didn’t affect Catholics.  When Jesus gets angry it’s on behalf of others, not himself.  I often wonder whether we’d be so into immigration if all the immigrants were Mormons.” However one slices it, anti-Sharia legislation represents a more direct threat to religious liberty than any of the examples cited by the USCCB. I’ll take up the issue of mediating institutions and civil society in a separate post.

  5. Mark, I am very impressed with your article and further responses.  What bothers me is that our bishops are so quiet about issues that effect poor people.  Where is the outrage at the Ryan Budget?  Our cities are still crumbling and racism and poverty abound.  I pray for our bishops.  I hope that maybe just one of them will speak up for the majority of us Catholics and begin addressing issues like the “abortion of the born” where we allow babies and their mothers to languish in poverty as our country continues to cut vital services for them.

  6. Father Carl, Last night I saw for the second time—and helped lead a student discussion of—Of God and Men, the film about the Trappist monks who were murdered after choosing to stay in their priory in Algeria during the civil war in 1996. Quite a contrast to the huffing and puffing of bishops.

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