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, February 14, 2012

More on material cooperation and the HHS mandate

We are grateful to Marty Lederman for his reply to our Public Discourse article on the HHS mandate. We’re afraid, however, that its concerns stem from a misunderstanding of what we argued. Professor Lederman writes:

If I understand Robert George's new column, he is rejecting altogether the distinction between proximate and remote material cooperation in cases where they both foreseeably lead to the disfavored conduct by others. He writes…

He has, as he thought he perhaps had, misunderstood. In the passage that Lederman goes on to cite, and at other points in the piece, we explain that whether cooperation makes others’ immoral actions likelier is just one factor to consider. Other factors include (as we put it in the passage) “the false beliefs about right and wrong that people infer” from one’s cooperation, as well as one’s witness to the moral truths violated by the wrongdoer. (Regarding the latter, we wrote, the mandate would “dramatically compromise the mission of religiously affiliated institutions to give witness to the moral teachings of their faith.” It is true that they would remain free to express opposition to those practices. But their teaching would be taken less seriously, especially where its cooperation is with what it regards as grave injustices, like abortion.)

Again, we think most of Professor Lederman’s further concerns stem from this misunderstanding. First, he wonders whether it isn’t simply false to say, as we do, that “material cooperation often has worse effects as a result of being more immediate.” But by “effects” of one’s cooperation we included damage to one’s personal witness to moral truths, and other people’s adoption (or rationalization) of false moral beliefs. It can also include one’s emotional habituation to the wrongs in question. Properly understood, then, we believe the claim is quite plausible: the closer one is, the worse these effects—in general.

It is also clear (as we also pointed out in the piece) that the correlation doesn’t always hold. Thus, for example, if your own involvement is the most socially salient link in a chain leading to immorality (e.g., you’re a CEO or a football coach who fails to stop morally evil practices by subordinates), then the extent of the scandal given and the damage done to your witness won’t depend on how long the causal chain to wrongdoing is (unless, perhaps, its length is also very well-known).

It is true that some Catholic manualists treated the proximity of one’s cooperation as having moral significance in itself. We think that this was a mistake (and certainly no part of definitive Church teaching), but a mistake that can be explained easily enough by the general correlation between how closely one cooperates, and how much damage one’s cooperation does.

Second, Professor Lederman suggests that religious employers’ involvement will not lead to more acts of the conduct condemned as immoral. We agree that most people who would have used their employers’ plans to pay for contraceptives will obtain them otherwise. But if (especially large) employers who currently don’t offer such plans begin to do so, this will likely lead at least some to form the belief that their church’s teaching against contraception was not so serious after all, and rationalize using it when they would not have otherwise. Ditto, of course, for abortion drugs.

Third, Lederman asks whether our argument wouldn’t have the dubious implication that it is immoral cooperation with evil to (a) pay taxes that subsidize immoral practices, or (b) fail to forbid your employees to spend their salaries on products or activities the employer regards as morally bad. But if the signaling effects of material cooperation matter morally, then the concern about these examples essentially dissolves.

Thus, it is hard to believe that unless a small-business owner fires all employees who spend their salaries incompatibly with Catholic moral teachings, people would question his commitment to those teachings. Nor, again, does the employer’s role in the employee’s immoral spending risk eroding the employer’s emotional repugnance at those immoralities.

Similarly, though we should oppose the use of taxpayer funds for immoral practices and seek legislation to end it, paying taxes is (in most cases) many orders of magnitude less likely to be taken by others as an endorsement of all the government’s ends. (It’s also relevant that each individual’s taxes make a nearly infinitesimal causal contribution to any particular act of wrongdoing.) So you are (ordinarily) much less likely to give scandal or undermine your witness to certain moral principles merely by paying taxes, than Catholic Charities or the University of Notre Dame is by obtaining for its employees insurance policies by which they can cover abortion drugs. This is only more apparent in light of the fact that people (rightly) hold religious entities to higher standards of authenticity, and take deviation from their own teachings (especially the demanding ones) as especially strong evidence of unseriousness about them.

Furthermore, as we took for granted, any judgment about whether to accept certain side effects of a choice will depend on the side effects of the available alternative choices. The side effects of a general policy of firing anyone who ever uses his salary for ends an employer considers immoral—from buying lottery tickets to contributing to the Republicans (or Democrats) to eating meat—would, for many reasons, be disastrous. -- Sherif Girgis and Robert George


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