Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, April 18, 2012

Does nonpartisanship require silence?

Folks can disagree about the tone or content of the bishops' statement on religious liberty.  I was struck, though, by this component of the "partisan" charge (noted more broadly by Mike Moreland a few days ago) from the Commonweal editors:

Religious freedom “ought not to be a partisan issue,” the bishops declare. They are absolutely right. If defending religious freedom becomes a partisan issue or, worse, an electoral ploy, it will engender enormous cynicism in an electorate in which a significant majority of voters already think religion is too politicized. Unfortunately, the bishops’ statement and proposal for public action are likely to increase that possibility. This initiative is being launched during an election year in which one party has assumed the mantle of faith and charges the other with attacking religion. The bishops need to do much more to prevent their national campaign from becoming a not-very-covert rallying point for the Republican Party and its candidates. If that happens, it is the church and the cause of religious freedom that will suffer.  

I'm pretty sure that the bishops would have preferred that 2012 not be a year that has seen the erosion of religious liberty on several distinct fronts.  The fact that this is an election year is beside the point, and the fact that one party may have more aggressively claimed the mantle of faith (for good or for ill) does not change the facts on the ground regarding religious liberty.  If the bishops take a partisan tone, that's fair game for criticism -- and I agree with the editors that the bishops' failure to flag the recent spate of anti-Sharia initiatives is a regrettable oversight -- but the fact that they saw fit to issue a statement in the same year as a presidential election is a strange objection to raise.  Unless legislatures and government agencies are going to avoid actions that encroach on religious liberty in an election year, defenders of religious liberty can't take the year off.  If there are specific assertions in the statement that can be construed as partisan, let's talk about them and not rely on vague references to timing as the source of a heightened -- perhaps insurmountable? -- standard for proving nonpartisanship.


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I think, unfortunately, that the bishops give the impression that they are not merely fighting a battle for religious liberty, but they are fighting a battle against Obama, personally. Going back to the 2008 election, certain outspoken conservative bishops basically made a case that Catholic voters could not justify voting for Obama. It was an argument happily made also by many conservative Catholic Republicans. It certainly gave the impression of partisanship when McCain supporters made the case against Obama. The anti-FOCA postcard campaign was bewildering to many people (including me) because there was no bill for Obama to sign, and nobody expected there to be one. The campaign was at best quixotic. I would say also that comparing Obama to Hitler and Stalin goes beyond battling for religious liberty or taking a strong pro-life stand. Perhaps what some people perceive is not really partisanship, but Obama hatred. I know that certain pro-life Catholics I have discussions with truly hate Obama (although I suppose they would say they "hate the sin and love the sinner"). They believe he is evil and anti-religious. They accuse him not only of being pro-abortion but being in favor of infanticide. I think it appears to many people that the bishops have taken on Obama as an enemy, and there's something personal about it. No doubt they would feel the same way about him if he switched parties, so partisanship is the wrong word.

Posted by: David Nickol | Apr 18, 2012 5:41:47 PM

It sure looks to me like the Bishops are blowing on a Karl-Rove-issue dog whistle when their statement includes lots of heavy-handing references to "threats" and "frontal attacks" and ominously recalls when "Discriminatory laws, including the loss of political rights, were enacted against those who refused to conform. Catholic chapels were closed, and Catholics were restricted to practicing their faith in their homes. The Catholic community lived under these conditions until the American Revolution."

The Bishops' statement even prominently features a reference to "the Solemnity of Christ the King—a feast born out of resistance to totalitarian incursions against religious liberty".

Really? Is there really any threat that Catholic chapels will be closed and Catholics forced to worship in secret? If not, what's the point of that 200 year old history? Do we really face a "totalitarian incursion" here?

Given the Bishops' rhetoric of imminent totalitarianism, did Bishop Jenky misunderstand the Church's "non-partisan" position -- or did he just commit the gaffe of speaking too clearly?

Posted by: william brennan | Apr 18, 2012 6:17:40 PM

William Brennan (great name, btw, even if it's no Thurgood Marshall ;)):

That's a little over the top, isn't it? Their point is stated in the first sentence of the paragraph you're freaking out about: "Maryland’s early history teaches us that, like any freedom, religious liberty requires constant vigilance and protection, or it will disappear." I don't think they're warning, suggesting, or even remotely hinting that anything like what you mention is going to happen here. They're simply recounting (1) that religious tolerance and accommodation has a long history in the United States and (2) that religious liberty, if not vigilantly defended, can be, has been, and will be encroached upon.

Posted by: Anonsters | Apr 18, 2012 7:55:47 PM

The real problem with the bishops' statement is this:

"While Catholics and Protestants were killing each other in Europe, Lord Baltimore imagined Maryland as a society where people of different faiths could live together peacefully. This vision was soon codified in Maryland’s 1649 Act Concerning Religion (also called the 'Toleration Act'), which was the first law in our nation’s history to protect an individual’s right to freedom of conscience."

The "Toleration Act" made it a capital crime to say anything suggesting disbelief in the Trinity. So much for the individual's right to freedom of conscience, eh?

Posted by: Anonsters | Apr 18, 2012 7:56:50 PM


The Toleration Act , despite that flaw, was pretty major for the time. Though in a sense of tragic irony, Protestants used that toleration what they became the majority to persecute Catholics.

As to the capital crime aspect it should be noted that it appears that a charge was only BROUGHT once and was later dismissed. Which shows perhaps the spirit of that law as to a practical effect negated that provision

Posted by: jh | Apr 19, 2012 10:06:48 AM

I hope I'm not freaking out; I was going for coolly incisive.

But I still think there is legitmate cause to criticize the Bishops’ use of the Maryland example as a subtle effort to bolster a -- grossly unfair -- theme of creeping totalitarianism that tracks the current far right’s anti-Obama hysteria.

I'm no historian (so feel free to correct me), but as I understand it, if the Bishops wanted to cite an example of early American religious toleration, they had two leading choices: (1) the example of Roger Williams in Rhode Island protecting religious freedom through the separation of Church and state, and (2) the later example of Maryland's Toleration Act. The Roger Williams example, however, would seem like the much more obvious choice since (a) it preceded the Toleration Act; (b) the Toleration Act was morally odious as it was egregiously intolerant of non-Trinitarian Christians (good catch by you, I had not known that); (c) its achievement of toleration through the separation of church and state is much more like our present-day set-up; and (d) Rhode Island's scheme was successful, persisting until religious toleration was protected nationally by the First Amendment.

Instead, the Bishops' statement went with the Maryland example and claimed that it showed that “religious liberty requires constant vigilance and protection”. This explanation seems implausible or at least quite strained. First, the protections of the (intolerant) Toleration Act were not lost due to lack of vigilance, but because the Catholics lost a pitched battle and a civil war (http://en.wikipedia.org/wiki/Province_of_Maryland#Maryland_and_the_English_Civil_War)). So using the Maryland example appears to suggest that Catholics should be prepared for a civil war! C'mon!

Second, while the Bishops statement cites the First Amendment’s protection of religious freedom, they don’t acknowledge that there is precisely zero chance that the First Amendment as understood by the Obama administration would permit any of the anti-Catholic measures instituted by the victorious Puritans in 1689. So why is it used as an example if not to offer coded support to the anti-Obama paranoid far right?

Bishop Jenky certainly understood the Bishops’ statement to be war talk:

“As Christians we must love our enemies and pray for those who persecute us, but as Christians we must also stand up for what we believe and always be ready to fight for the Faith. The days in which we live now require heroic Catholicism, not casual Catholicism. We can no longer be Catholics by accident, but instead be Catholics by conviction.
In our own families, in our parishes, where we live and where we work – like that very first apostolic generation – we must be bold witnesses to the Lordship of Jesus Christ. We must be a fearless army of Catholic men, ready to give everything we have for the Lord, who gave everything for our salvation

Now things have come to such a pass in America that this is a battle that we could lose, but before the awesome judgment seat of Almighty God this is not a war where any believing Catholic may remain neutral.

The Risen Christ is our Eternal Lord; the Head of his Body, the Church; our High Priest; our Teacher; our Captain in the well-fought fight.
We have nothing to fear, but we have a world to win for him. We have nothing to fear, for we have an eternal destiny in heaven. We have nothing to fear, though the earth may quake, kingdoms may rise and fall, demons may rage, but St. Michael the Archangel, and all the hosts of heaven, fight on our behalf.
No matter what happens in this passing moment, at the end of time and history, our God is God and Jesus is Lord, forever and ever.
Christus vincit! Christus regnat! Christus imperat!
Christ wins! Christ reigns! Christ commands!”

Posted by: william brennan | Apr 19, 2012 10:52:34 AM