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February 21, 2013

A response to Marty Lederman

Michael Perry has directed readers' attention to a discussion by Marty Lederman of the HHS mandate and, in particular, of a proposed bulletin insert which observes, among other things, that the mandate (in its current form and, it appears, in whatever form it eventually takes) would “force the employees of Catholic agencies to accept coverage for themselves and their children that violates their Church’s teaching on respect for human life.”  

In the course of explaining why he thinks this emphasis on the "employees" (and their children) is misguided, Marty writes that the "claim of an alleged 'substantial' religious burden based on such a complicity-with-evil rationale was tenuous from the start."  Now, let's put aside the important fact that an alleged burden can, under RFRA, be "substantial" even if some people believe the theological premises of the claims about that burden are unsound or unorthodox.  I think the RFRA argument against the mandate (in its current form) is strong -- indeed, it presents what should be an easy case -- but I think it's important to remember that the "complicity-with-evil rationale" is not, and has not been, the only argument in play.  See, for example, my colleague Dan Philpott's excellent essay, here.  Dan writes:

The debate over cooperation with evil, however, misses what is most at stake for Christians organizations in the HHS mandate, which is much the same as what has been most at stake for the Christian church in its relationship with the state over many centuries, which in turn is what is most at stake for the church in religious freedom: their right to give witness to the truths that they believe. . . .

Following the Catholic tradition, I regard the criterion of cooperation with evil as a valid one for a wide range of moral dilemmas, including the one at hand. The debate over cooperation with evil, however, whose every thrust and parry grows increasingly complex in its distinctions regarding intentionality, causality, and directness, obscures the larger, more important issue of whether Christian organizations enjoy the freedom to give witness to their professed truths.

To witness means to proclaim or to give testimony for a truth that the proclaimer believes is maximally important. To witness is to communicate a message – in the Christian’s case, that of God’s salvation of the world through Jesus Christ. For a Catholic, this salvation is embodied in, and its meaning for the Christian believer is manifested through, the teachings of the Catholic Church, including its teachings about contraception and the sanctity of life. Many Protestant churches make parallel claims, with due variations, about the role of the church in salvation. For (many) Christians, then, salvation is achieved through corporate entities as well as the faith of individuals. Consonant with this mission, churches and their affiliated universities, schools, hospitals, and orphanages share a duty not simply to avoid cooperating with what is false but to proclaim loudly what is true. . . 

Marty also suggests that "the . . . government has gone much further than was necessary in order to accommodate religious objections" and characterizes this going-further as "generous."  As I see it, though, (a) the government has not, in fact, gone as far as RFRA actually requires in order to accommodate religious objections (e.g., the sincere objections of for-profit employers), (b) a better proposal would have been to exempt entirely religious employers, broadly understood (including hospitals, universities, and social-welfare agencies), and (c) the movement we have seen (or, more precisely, that has been proposed for consideration) -- some of which, in my view, represents a genuine improvement -- is better regarded as a grudging and belated effort to avoid possible bad results in litigation, and to re-connect with some political allies, than as "very generous[]."

Posted by Rick Garnett on February 21, 2013 at 01:11 PM in Garnett, Rick | Permalink

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