Tuesday, November 22, 2011
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).