Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, March 12, 2012

Misunderstanding (or misrepresenting) the concern for religious freedom

My resolve, in the wake of its recent decision to run an ignorant, nasty, and bigoted advertisement, not to engage New York Times pieces on this blog was, it appears, pretty weak.  (That said, I hope all of you are cancelling your subscriptions, and urging any Catholic institutions with which you are affiliated to do the same.) 

In this piece ("Leaps of Faith"), Molly Worthen charges that the recent expressions of concern about the Obama Administration's insensitivity to, and undervaluing of, religious freedom are really part of a strategy to deny or question the President's own faith, to paint him as a "faker on religious freedom," as part of the "ongoing attack on his legitimacy."

Groan.  This is nonsense.  This Administration has said and done a number of things that, taken together, more than justify the concern that it does not value religious freedom -- and does not appreciate the constraints that a meaningful commitment to religious freedom puts on governments -- to the extent it should.  It is entirely reasonable to worry, given what the Administration has done, that it does not value, to the extent it should, a rich and pluralistic civil society when it comes to religious social-welfare institutions and their distinctive character.  Ah, but -- like a clever detective in a Dan Brown or Umberto Eco novel -- Molly Worthen sees what is really going on:

[Religious liberty] is a code phrase alternately benign and sinister, much like that other clever cloak for bigotry, “states’ rights.” In the context of the 2012 race, the charge that Obama subverts religious freedom is a code meant to label the president as an impostor, a blasphemer of the American gospel who adheres to another religion entirely.

No, Ms. Worthen, it isn't.  And, just a note:  Charging that concern for religious freedom is really sinister (racist?) code-talk is hardly the kind of "civil discourse" that our President -- whose "legitimacy" I do not question, even if I regret his election -- says (even if not consistently) our politics is lacking.


Garnett, Rick | Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference Misunderstanding (or misrepresenting) the concern for religious freedom:


Feed You can follow this conversation by subscribing to the comment feed for this post.

It is truly astonishing that the guardians of reason continually resort to what are nothing more than ad hominem attacks. Even if those who criticize the administration have impure motives (and I don't believe they do), it would not follow that their arguments are bad. Suppose, for example, it turned out that Sandra Fluke harbored deep anti-Catholic bigotries. That would have no wit of relevance to whether her case for government coercion is justified or unjustified.

What Worthen is doing in this piece is both anti-intellectual and anti-democratic. To nurture bad habits of reasoning--as she is most certainly doing--is an injustice against the intellectual powers of her readers. And it is indeed a strange litmus test of democratic participation that entire swaths of citizens ought to be excluded from the public conversation because of speculations of their inner lives based on absolutely no empirical evidence whatsoever.

A while back I was bowled over by an equally offensive piece Worthen published in Christianity Today. I found myself defending southern Baptists with whom I would ordinarily disagree. Click my name to read my blog post.

Posted by: Francis J. Beckwith | Mar 12, 2012 6:26:07 PM

I understand the concerns about religious liberty. What I find bizarre are conspiracy theories that Obama is deliberately plotting against the Catholic Church, and that the real purpose of the contraceptive mandate is to divide, weaken, and eventually totally marginalize Catholics.

Regarding the offensive ad, I have seen more than a few "conservative" Catholics suggest that they are in agreement with FFRF in one respect—they both think "liberal" and "nominal" Catholics ought to leave the Church. That seems offensive to me—arguably more so than the ad itself.

Posted by: David Nickol | Mar 12, 2012 7:34:43 PM

The conspiracy theory of the sort that David refers to has been pushed by Andrew Sullivan, the ultra-liberal Catholic blogger. Mr. Sullivan posits that the Obama administration set a contraception "trap" for "the religious right" and that the "religious right" fell for it.


Mr. Sullivan pushes many theories that are bizarre but this one I think has some plausibility. At a sort of micro-political level I do think that there has been a conscious effort by the Obama administration (and the press) to exploit the HHS mandate controversy for political gain. But there is of course much more going on. This is a fight that has resulted from the deep antithesis between Catholicism on the one hand and, on the other hand, the (generally feminist) ideologies that are premised on the use of contraception and legalized abortion. Each side is struggling against the other in an existential clash. The being of the Church is such that it cannot participate in the distribution of contraception; meanwhile the supporters of the HHS mandate seek through the mandate universal approbation of contraception -- something that requires exclusion of the Catholic vision from the scene. The Obama administration and its pro-legalized abortion supporters claim this is about access to contraception. This claim however is belied by their claim that 99% of women use contraception. Although the 99% figure might be slight exaggerated, the point is well taken: there already is massive access to, and use of, contraception. Further, in terms of access, we are only talking about whether a very tiny percentage of women (those employed by Catholic institutions) must pay for their own contraception. Clearly then this is not about access. What this is about is the HHS mandate supporters' keenly felt need for formal and universal approbation of contraception, and the stumbling block that the Church constitutes with regard to that need.

Posted by: Dan | Mar 12, 2012 9:08:16 PM

Rick, I put up a post critical of Worthen's piece a while back, so you know I agree with you in general terms. But there's a sense in this post that's almost as if someone tells you, "Your choices in natural disasters today are floods tornados -- pick one." A reasonable reply is: "Why not both?" Worthen's piece isn't wrong because she accuses some people of using this controversy to attack the President's legitimacy, question his faith, win a political race, raise money (one she didn't really mention, but that seems pertinent), or anything else. There *are* people doing all these things. It's wrong because she accuses the controversy of being about nothing else, and fails to give adequate recognition to the many people for whom the controversy is genuine and the President's actions genuinely wrong.

Understanding that are a lot of people out there (including some, like me, who are strictly interested in the religious freedom issues and don't necessarily share the Church's views on contraception) who genuinely and in good faith think the President is wrong on this issue shouldn't preclude the understanding that there are also people out there who will use any occasion to gin up headlines, raise money, launch attacks against the President that are as much about politics as about the issue of the moment, and so on. I don't understand religious individuals to be immune from cynicism, an unhealthy focus on electoral politics over deeper issues, greed for donations, or outright dishonesty. To the contrary, to think of them in terms that whitewashed away these flaws would, for me, be to strip them of equal dignity. And that's just the religious individuals; surely others who have helped make this the cause du jour care more about having a cause than about the cause itself. (Similarly, today's Times story about the Obama administration planning on using a liberal version of women's issues as a wedge issue in the election, in part because of their perception of some public support on the contraception mandate issue, can probably be read as a sign of both real values and real political cynicism on the part of the administration or its campaign arm.) Call me a cock-eyed optimist, but I would like to believe that the cause of religious freedom, in this and other cases, is, like most causes, both righteous and justified, and an occasion for cynics to act cynically. Cheers, Paul

Posted by: Paul Horwitz | Mar 12, 2012 9:12:16 PM

David: What I find "bizarre" is that you find it "bizarre" that many people believe what the evidence tends to establish, namely, that the Administration has, as at least one of its goals with respect to its (transparently political) almost-exceptionless mandate, the marginalization and institutional weakening of the Catholic Church and the increased separation between lay Catholics and their bishops.

Posted by: Rick Garnett | Mar 13, 2012 9:39:40 AM

Paul: As always, what you say is reasonable. And yet, perhaps only to be obstinate, I'm going to insist that, in this particular dispute, I do not think that a significant role is being played by the kind of people Worthen draws, i.e., people who deny the President's "legitimacy" and who are criticizing his Administration's inadequate regard for religious freedom cynically, and merely in service of their "birther" or "he's a Muslim!" manias. That's not what I see. Overwhelmingly, it seems to me, people who do not share the Church's vision of human sexuality are (even if they articulate it differently) sensing that the Administration's view of government's prerogatives as so dramatically outweighing religious commitments is off-base. Yes, you are right: this side of Heaven, religious believers, like everyone else, will be cynics and knaves. But in this particular dispute, I think the "good guys" are (relatively) easy to spot.

Posted by: Rick Garnett | Mar 13, 2012 9:45:42 AM


I can certainly understand why people could believe Obama, in deciding on a narrow exemption for the contraceptive mandate, would make a political calculation that many Catholics would support the mandate and not the bishops. But that seems to me quite different from Obama inventing the whole idea of the contraceptive mandate to weaken the Church. The recommendations on which HHS based the mandate came from a report by the Institute of Medicine. Obama didn't say, "Let's see. What can I do to weaken the Catholic Church? Let's require everyone to cover contraception!" The argument many seem to make (or imply) is that requiring employers to provide insurance that covers contraception is so clearly without justification that it really can't be for the sake of contraception itself. It must be a plot against the Catholic Church.

I have no doubt whatsoever that the Institute of Medicine, Kathleen Sebelius, and Barack Obama genuinely believe that as a matter of public health and women's health, contraception should be made as widely available as possible. Obama may well be making political calculations as to how he can implement the mandate as broadly as possible. But—call me naive—I can't believe he is plotting to bring down the Catholic Church.

Some people seem to be of the opinion that there is nothing good whatsoever about contraception. It is a moral evil to use it. It causes cancer. Not only doesn't it prevent unwanted pregnancies, it increases them (and thus increases abortions). Contraception and abortion are genocidal plots against black people. Humanae Vitae said the world would go into a downward spiral if contraception was used, and he has been proven correct. For those who see contraception as an unmitigated evil, and can't see any reason for anyone to use it, I suppose they have to come up with *some* reason why anyone would propose the contraceptive mandate, and perhaps the destruction of the Catholic Church is the only thing they can think of. But most people, and even most Catholics, see contraception as something beneficial.

Somewhat the same thing happens with same-sex marriage. We have seen commenters propound a conspiracy theory right here on Mirror of Justice. Same-sex marriage is not *really* about gay people getting married. They really don't even *want* to get married. They just want a weapon to use against the Church, and eventually those who speak out against homosexuality will be put in reeducation camps.

The contraceptive mandate certainly raises a real issue of religious liberty, but I think the reaction of *some* Catholics (and Evangelicals) has been to react strongly in part because they see that their political power and authority over their own members has deteriorated rather dramatically over the past several decades. So it's not just the contraceptive mandate that alarms them. It's that they have a lot less support in opposing it than they would like to have and would once have had.

Posted by: David Nickol | Mar 13, 2012 10:32:30 AM

David, I did not say, and do not think, that *the* explanation for including contraception and abortion-causing drugs in the preventative-services mandate is the Administration's "plot[] to bring down the Catholic Church." (Just as, contra E.J. Dionne, Cardinal George did not say that the mandate is part of a communist plot.) And, it is certainly the case, as you say, that the President, and the Secretary, believe that it is a good thing -- it is good policy -- for contraception to be made as widely available as possible.

That said, I think we need to focus on a particular decision -- i.e., the refusal to include, in the relevant regulations, a meaningful religious-employer exemption, of the kind that religious organizations like the USCCB, the Catholic Health Association, and the University of Notre Dame requested. This *particular* decision -- considered against the background fact that the vast majority of employers *already* (i.e., without the mandate) provide coverage for contraception, and considered against the background fact that it would have been relatively easy to secure increased "access" to the (very) few institutions and employers that would take advantage of a meaningful religious-employer exemption -- seems to me to reflect, as much as anything else, a political calculation that (i) getting Republican primary candidates talking about contraception would be useful; (ii) being perceived as resisting an (imagined) "war against women" would be politically useful; and (iii) separating the Catholic bishops from the majority of Catholics (who think this is a debate about the morality of contraception rather than about the integrity and character of Catholic institutions) would be politically useful. And, why should it be so surprising that, as a general matter, a "liberal" administration would think it, all things considered, to the good to marginalize (not to "bring down", etc., but just to privatize) the Catholic Church and its institutions? It would hardly be a new thought -- ecrasez l'infame, and all that . . .

Posted by: Rick Garnett | Mar 13, 2012 10:56:11 AM

Rick writes: "As always, what you say is reasonable. And yet, perhaps only to be obstinate, I'm going to insist that, in this particular dispute, I do not think that a significant role is being played by the kind of people Worthen draws, i.e., people who deny the President's "legitimacy" and who are criticizing his Administration's inadequate regard for religious freedom cynically, and merely in service of their "birther" or "he's a Muslim!" manias. That's not what I see."

Because it's not there.

Anytime an argument is ignored and the character of the arguer or apparent arguer becomes the focus, that means that the critic has no good reasons to reject the argument. Remember, so many of these younger writers like Ms. Worthen who have earned their degrees at elite institutions have been schooled in looking for "false consciousness," "hypocrisy," "irony," etc. rather than arguments and reasons. And since an attendant notion is that reason plays no role in social progress, they see arguments as pretexts for irrational prejudices embraced by the dissenters to social progress. Thus, Worthen et al are very much like the phantom fundamentalists they loathe: they have a theory that is literally unfalsifiable. Any arguments against their position are not seriously entertained because they arise from tainted actors. They live in a closed epistemic bubble.

Posted by: Francis J. Beckwith | Mar 13, 2012 1:41:13 PM


You say: "David, I did not say, and do not think, that *the* explanation for including contraception and abortion-causing drugs in the preventative-services mandate is the Administration's "plot[] to bring down the Catholic Church."

And what I said was, "What I find bizarre are conspiracy theories that Obama is deliberately plotting against the Catholic Church, and that the real purpose of the contraceptive mandate is to divide, weaken, and eventually totally marginalize Catholics." I did not say this was your position, and it clearly isn't. Yours is more complex and less of a conspiracy theory than what I said I found bizarre. There really are people who believe Obama pulled a contraceptive mandate out of thin air, that it has nothing at all to do with women's health, and that Obama's true goal is not to expand contraceptive coverage for women, but to marginalize and eventually defeat the Catholic Church. I find it bizarre that people actually believe that.

Posted by: David Nickol | Mar 13, 2012 3:05:05 PM

Hi everyone,

Professor Garnett, I agree with you that religious institutions should have broad examptions in matters such as these and I can well understand the USCCB's point of view on this issue. However, I have to respectfully disagree with you that the USCCB's stand is entirely pure, either. First of all, I think the USCCB decided that they just didn't approve of this president when the kept up the drumbeat on the Freedom of Choice Acin in 2008, which was an act that was never going to see the floor of Congress. However, the USCCB chose to criticize him on it anyway and then kept it up with Notre Dame and I think it's gotten to the point where they'll criticize this president for blowing his nose. I realize the Administrtation prompted this latest fight but I think they were only too glad to take it.

I also base this on the Blunt Amendment, which is not just to protect religious insittuiotns but is also designed to extend this to secular employers who have nothing to do with religious institutions. That's a differeent ballgame, don't you think? I saw Mr. Picarillo (sp?) from the USCCB acknowledge this on the PBS Newshour a couple of week ago.

Professor Beckwith, I've never been to Baylor. But it seems to me that you could say that it too is an elite institution, but just going the other way. That doesn't lessen my thoughts on Baylor (I hate that my Lions won't have a shot at RGIII and I have the hoop team losing to UK in the Elite Eight) but let's not pretend that the elitism doesn't cut both ways.

Professor Garnett, I read your blog partly because it is one of the few sources on the web where one can find prncipled criticism of the Obama Administration. And that's important to me as both a Catholic and as an Obama voter in both 2008 and soon to be 2012. I just hope that the USCCB goes after the premptive war with Iran that the GOP candiate (Mr. Romney and certainly Mr. Santorum) would start with the same energy they've given to this issue.

Posted by: Edward Dougherty | Mar 13, 2012 4:31:55 PM

Edward Dougherty brings up an important point:

That was no consolation to Catholic leaders. The White House is "all talk, no action" on moving toward compromise, said Anthony Picarello, general counsel for the U.S. Conference of Catholic Bishops. "There has been a lot of talk in the last couple days about compromise, but it sounds to us like a way to turn down the heat, to placate people without doing anything in particular," Picarello said. "We're not going to do anything until this is fixed."

That means removing the provision from the health care law altogether, he said, not simply changing it for Catholic employers and their insurers. He cited the problem that would create for "good Catholic business people who can't in good conscience cooperate with this."

"If I quit this job and opened a Taco Bell, I'd be covered by the mandate," Picarello said.

Posted by: David Nickol | Mar 13, 2012 5:12:11 PM

Ed, the USCCB and the Holy Father criticized the war in Iraq. So, I would bet they will do the same in the event the United States goes to war in Iran or Syria (or so I hope).

As to FOCA, the presented promised to support it and sign it into law: "The first thing I’d do as president is, is sign the Freedom of Choice Act. That’s the first thing that I’d do."

I don't see why you criticize the bishops for taking Obama at his word.

With regard to the Blunt amendment, I am a Catholic who subscribes to the Church's teaching on contraception. If I should one day start my own law practice, I don't want the government telling me I have to pay for it through my employee's insurance plans. According to the Obama administration, I am not even entitled to the polite fiction of the accommodation. How come I don't have religious freedom? Am I not religious enough? Do I lose my First Amendment protections when I start a business?

Posted by: Catholic Law Student | Mar 13, 2012 8:16:14 PM

Heres the FOCA reference: http://sites.google.com/site/lauraetch/barackobamabeforeplannedparenthoodaction

Posted by: Catholic Law Student | Mar 13, 2012 8:16:43 PM

like Edward, i voted and will vote for Obama
and i also like reading this site as i find here more like-minded people than in any other blog (they may disagree, i understand),
in spite of this confusing (to me) contraceptive mandate

i see the mandate's purpose as a public health issue only and i am not clear what studies lead to it; i saw no cases around me when this mandate would have truly helped and i know many cases when people struggle to pay for life saving medications;
but if it is true, if there exists a women's health problem that the mandate is aiming to solve, it, of course, is connected to societal (some will say religious) problems that the mandate will neither aggravate nor alleviate;
as the Pope reminded a couple days ago (addressing the United States Conference of Catholic Bishops), talking about "the contemporary crisis of marriage and the family, and, more generally, of the Christian vision of human sexuality. It is in fact increasingly evident that a weakened appreciation of the indissolubility of the marriage covenant, and the widespread rejection of a responsible, mature sexual ethic grounded in the practice of chastity, have led to grave societal problems bearing an immense human and economic cost".

i think, Obama would wholeheartedly agree with those words

Posted by: elena | Mar 14, 2012 12:18:03 AM

Catholic Law Student,

How was Obama going to sign a bill that had not been passed and in fact on which no action had been taken at all since the first of three versions was introduced in 2004?

Posted by: David Nickol | Mar 14, 2012 10:23:03 AM


That is irrelevant.

The fact is, Obama pledged his support for FOCA in no uncertain terms. He made this position public and used this position to butress his support among certain interest groups. I do not see how the bishops overreacted by drawing the public's attention to this fact.

Posted by: Catholic Law Student | Mar 14, 2012 11:07:38 AM

Hi Catholic Law Student,

Sorry I'm so late in responding. Regarding your freedom of religion as a potential secular employer, I would ask you where that line should stop? Would you support a Jehovah's Witness business owner refusing to cover blood transfusions for their employees? If your business isn't affiliated with a formal religious organization, then I think some compromises should be made on personal freedom of religion to make our current system of insurance work.

As for FOCA, there's an old saying that we should pick our battles wisely. By picking FOCA, I think the USCCB got their relationship with the president off to a bad footing and it has never really recovered. When a dispute has run this long, then both sides do share some of the blame but I wouldn't blame the Administration for thinking that nothing they did on this would make the USCCB happy.

As for criticizing a potential war with Iran, the USCCB did do a letter to Secretary Clinton this week but it is hidden in the International Justice and Peace tab, instead of being front and center on the home page,which is where I think is should be.

Posted by: Edward Dougherty | Mar 15, 2012 11:47:41 AM


I do think that an employer who is a Jehovah's Witness should not be forced by the government to contract for services to which they object on religious grounds.

I would like to point out several things: 1. Absent government regulation, an employer and employee can come to any contractual arrangement to which the parties mutually assent. 2. Government intervention forcing the employer to contract for services to which the employer objects on religious grounds implicates the First Amendment (and RFRA). 3. The government is free to change the tax structure that incentivizes employers to cover employee health insurance in lieu of higher wages. 4. The government is also free to directly provide any service which it believes is necessary for the health and well being of its citizens without co-opting religious objectors.

With regard to FOCA, President Obama promised to support and sign it. It was President Obama who vocalized his support for it on the campaign trail. The bishops were not making up Obama's support for this measure.

With regard to Iran, a statement on Middle East Peace is the second item on the "news" list on the USCCB home page right underneath the HHS Reg statement.

Posted by: Catholic Law Student | Mar 15, 2012 9:05:34 PM

Catholic Law Student,

I'll respond in order to each of your points.

1. The government, like it or not, is involved in health care and has been ever since we told ERs that they couldn't turn away uninsured folks. Add to the fact that employer based health care is ground into our culture and you have two things that we simply can't wish away. I'm sure that you and I could lock ourselves into a room and come up with health insurance delivery that's better than the system we have today and that would allow you to tailor the coverage that you would offer to your religious wishes. But I can tell you on experince (not saying that I'm an expert) that allowing secular (and note that I'm not including religious)employers to remove provisions due to religious reasons (mammograms and vaccines come to mind) would wreak chaos upon the pooling mechanisms of our current system, imperfect as it is.

2. RFRA is only applicable at the federal level, due to Boerne vs. San Antonio, is it not? Therefore, the Employment Division versus Smith standard of laws of netural applicabilty (which trumps free exercise) still holds at the state level and would, I imagine, trump the federal claim. I'm not a lawyer and never was a law student so I may be wrong on this.

3. Employers already receive such tax treatment for providing health insurance, although the House would have removed this last year for plans that covered abortion, even for secular employers, with the USCCB's blessing.

4. See all the objections that came to the ACA. And the fight between thepro life and pro choice groups on these issues will never get resolved and will prevent any further reforms that would move us away from the employer based system. Overwhelming force, meet immovable object.

I never said that the USCCB made up Obama's support for FOCA. But they knew that was going nowhere in Congress and they chose to heavily criticize him on it, anyway. If you criticize someone or something enough and keep it up, then I think I have a reason to eventually wonder if the USCCB's criticism on this issue doesn't just involve religious freedom but a desire to defeat President Obama, even though they would never say that.

That's not the statement I'm referening. Go look at the letter from Bishop Pates to Secretary Clinton under the International Justice and Peace tab that actually mentions the Iran situtaion. It is an outstanding letter and that's the one that should be on the front page, no matter how much it may irritate the George Weigels and the folks over at First Things. The letter you reference, while a nice letter, doesn't mention the Iran situation.

Posted by: Edward Dougherty | Mar 16, 2012 10:29:36 AM