Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, November 22, 2011

"At peace with religious freedom"?

Doug Kmiec writes, in NCR, that "Obama cannot be at war with Catholics if he is at peace with religious freedom."  It suppose that's right; that is, if the President correctly understands the content, foundations, and implications of religious freedom, he is not likely to be "at war with Catholics."  But, I am afraid I do not see the evidence that he does, and I do worry about the evidence -- for example, the government's brief in the Hosanna-Tabor case -- that he (or, at least, his Administration) does not.  Kmiec believes, I understand, that the President is a man of admirably deep religious faith.  But, this does not mean that he actually understands and embraces the constraints that a meaningful commitment to religious freedom places on government policy and power.

In the middle section of the piece, I read Kmiec as suggesting that it does not necessarily violate religious freedom for the public authority to allow people to make wrong choices.  ("To think that an authorizing statute or executive decision violates principles of religious liberty or free exercise merely because it allows a choice contrary to faith is to misunderstand the nature of democracy and individual freedom.").  This is generally true (though it could well be unjust to allow people to make some wrong choices, e.g., the choice to cause the death of a vulnerable person).  But, no one -- certainly not those who are opposing the HHS contraception-coverage mandate -- is suggesting otherwise.

At least one of the commenters on Kmiec's piece reads Kmiec as pushing back against the view of the Catholic bishops (including Archbishop Dolan, whom Kmiec cites on the question of the concerns of the middle class) that religious freedom is under attack, and by the present Administration, and against the decision to emphasize this matter by (among other things) creating a new Ad Hoc Committee on Religious Liberty (which I serve as a consultant).  But, Kmiec himself acknowledges that the religious-employer exemption in the proposed interim rule (regarding the contraceptive-coverage mandate) is too narrow and intrusive, and so I have to hope that, notwithstanding his continued enthusiasm for the President himself, he understands that the President's administration has not (so far) been one that understands well or is appropriately protective of religious freedom (which includes, as Kmiec and I agree, more than the freedom of individuals to believe). 


Garnett, Rick | Permalink

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With all due respect to Doug Kmiec, only someone who does not recognize that our inherent Right to Life, to Liberty, and to The Pursuit of Happiness is grounded in respect for the Sanctity of every human individual who has been created in God's Image, equal in Dignity, while being complementary as male and female, would suggest that President Obama's Administration is not at war with The Catholic Church, or with the fundamental principles and purpose upon which our Constitution was created.

Posted by: Nancy D. | Nov 22, 2011 3:19:37 PM

The argument seems to be a reverse ad hominem. President Obama is a good and decent religious man, who understands religious liberty. Therefore, he would not support a policy hostile to religious freedom. Therefore, the HHS policies do not threaten religious freedom.

I'm sure some critics of the policy might go overboard in their rhetoric, but that does not make to policy correct. Good, decent people are capable of great mistakes.

Posted by: JohnMcG | Nov 22, 2011 4:20:39 PM