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.

Thursday, April 19, 2012

More on religious freedom, the Bishops, politics, and the Commonweal editorial

I like and respect Paul Baumann, and it is in part because of this respect that I find the editorial response to the Bishops' religious-freedom statement by our friends at Commonweal to be disappointing.  As I noted earlier, I believe that the charge that the statement is or is reasonably be perceived "partisan" misses the mark.  (For more on this point, see Rob Vischer's recent post.)  I also note -- by way of disclosure, and not as a claim to any authority -- that I serve as a lay consultant to the Committee that produced the statement.

Let's start with common ground:  The cause of religious freedom, and the Bishops' efforts to stir Americans generally, and Catholic specifically, to a renewed appreciation for the importance of that cause, are not well-served -- they are undermined -- if the cause or these efforts are perceived as merely partisan, or as election-season ploys to help one "side" in the election.  So, those who are committed to this cause, including the Bishops', should take special care to avoid saying or doing things that could, in the minds of reasonable people of good will, feed such a perception.  In my view, the Statement does take appropriate and commendable care in this regard.  It emphasizes that the cause of religious freedom should not be, and should not be regarded as, a partisan issue; it cites examples of threats to religious freedom coming from both the "right" and the "left; and it insists that -- in accord with the Council's Declaration -- religious freedom is the dignity-based right of all human persons, because they are persons.  Suggestions that Muslims or others are omitted from the Statement's concern are not plausible (even though it seems fair to note that the Statement could have been improved by noting the troubling interest, in some jurisdictions, in "anti-Sharia" laws.  Rob Vischer's recent First Things essay on these laws is important.)

In Paul's view, my impression that the critical reactions to the Statement seem more "partisan" than the Statement itself reflects a "tiresome rhetorical tactic."  While, because of my respect for him, I regret being tiresome to him, I continue to believe that at least some of the accusations that the Bishops' religious-freedom efforts, and the Statement in particular, are "partisan" reflect something of a double-standard, and a selective concern about the Bishops' interventions in public-policy matters.  As Rob suggests, it does not seem right or fair to say that the Bishops' responsibility to avoid diluting their witness and voice by engaging, or even appearing to engage, in (low) politics requires them to avoid addressing matters they otherwise would and should address simply because of the timing (i.e., it's an election year) or because the matter in question is associated (at the moment) with one political party.  The Bishops are not criticizing the Administration because they oppose President Obama generally (and certainly not because they have any particular loyalty to or affection for Republicans) but beacuse it was this Administration that, for example, filed the extremely troubling brief in Hosanna-Tabor.  Paul (and Doug Laycock) are right, of course, that (a) Republicans and other Administrations and actors have sometimes infringed on the freedom of religion and (b) Democrats and this Administration have done some things that respect and support this freedom.  But, and again, the Statement did not, in my view, suggest otherwise.  The Statement is not rendered partisan, in my view, by the fact that (at present) the policies and proposals of one party pose more of a threat to religious freedom than do the policies and proposals of the other (and to point out this fact is, of course, not to pretend that the other party is immune from criticism on any number of fronts).    

The editoral says that "[t]he bishops’ description of the various threats to religious freedom conflates a number of disparate federal, state, and judicial actions into an allegedly unified and urgent peril" and that their "argument is hyperbolic."  I don't think it is.  As I read the statement, it reasonably used a number of distinct examples -- of distinct "federal, state, and judicial actions" -- to illustrate the point that it is religious freedom of all, and not just the particular interests of a few particular people in an occasional, discrete case, that seems to be increasingly undervalued.  It is the case, in my view, that there is a general move toward (a) the view that religious freedom does not extend much beyond the freedom to believe and worship, in the "private" sphere; (b) the view that an expansive understanding of the antidiscrimination norm outweighs the religious-freedom rights of persons and institutions (see my "Confusion About Discrimination", here); and (c) the view that a condition of religious communities' activities in the "public" sphere, or of their cooperation with government on social-welfare projects, should be compliance with the norms that (appropriately) are observed by government actors.  This general move is, I believe, a threat to religious freedom, it is manifesting itself in many ways and at many levels, and the bishops are right to be concerned about it.

Now, I agree almost entirely with the Commonweal editorial's concluding paragraph:

For their effort to be effective, the bishops’ campaign must be seen to be nonsectarian and independent of electoral politics. Adding anti-Islamic prejudice to their list of concerns would help in that regard. The “grand campaign” should also begin and end with a frank admission about the complexity of church-state relations. No government can accommodate every conceivable religious practice or belief, nor does the Catholic Church have a strong record of supporting accommodation of other religious communities. In their simplistic rhetoric, the bishops sound more like politicians than pastors. As Campbell and Putnam warn, if religious freedom becomes a partisan issue, its future is sure to grow dimmer.

I say "almost entirely" because I think the Church's record (in modern times) of supporting accommodation of other religious communities is "strong" (consider, for example, the Religious Freedom Restoration Act) and also because I think it is wrong and unfair to say that "[i]n their simplistic rhetoric, the bishops sound more like politicians than pastors."  Religious freedom should not be a "partisan issue," but it is a very important one, and it is increasingly vulnerable.  The Bishops are right to focus closely on the crucial, very pastoral, task of reminding Catholics (and all of us) of, or perhaps awakening us to, the importance, content, threats to, and yes limits of religious freedom.  No one denies -- certainly I don't, and I have worked quite a bit on, and know a fair bit about -- the "complexity" or church-state relations or imagines that all religious objections can always be accommodated. 

I hope that Paul and my other friends at Commonweal do not share the view expressed by some of the commenters on the site that my efforts in this area, including my willingness to (in what I know is a very small way) help the Bishops' efforts in this area, are merely political, partisan, or self-interested.  I believe strongly in the Declaration on Religious Freedom and in the Catholic moral anthropology that animates it; I think that (for the most part) the American constitutional experiment in religious freedom through law has been a success and should be cherished; and I also think that, at present, this experiment is under stress, threats, and even attack.  I do not think these things because I imagine that, by thinking them I might somehow help the Republican Party. 


Garnett, Rick | Permalink

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Articulate, but Idon't think it refutes the Commonweal editorial and the remarks of Bishop Jerzy and others are going to be multiplied until the bishops bombast creates the de facto schism they are attempting to prevent.

Posted by: Dave Pasinski | Apr 19, 2012 1:17:54 PM

Bp. Stephen Blaire and the USCCB committee on Domestic Justice and Human Development blasted the Republican budget as hurting "hungry children, poor families, vulnerable seniors and workers who cannot find employment." The statement could have been accompanied by the video of grandma being pushed over a cliff in a wheelchair. Will Commonweal admonish the bishops for that, too?

Posted by: Patrick | Apr 19, 2012 4:16:21 PM

Mr. Garnett--I am really glad that you took the time to thoughtfully respond to Commonweal. Seeing someone of your caliber and perspective positive about the document is encouraging to me.

Posted by: Greg Metzger | Apr 19, 2012 8:12:17 PM

Rick says:
"Religious freedom should not be a "partisan issue," but it is a very important one, and it is increasingly vulnerable. The Bishops are right to focus closely on the crucial, very pastoral, task of reminding Catholics (and all of us) of, or perhaps awakening us to, the importance, content, threats to, and yes limits of religious freedom."

I've already commented earlier on the, to me, covertly partisan nature of the Bishops' rhetoric of looming totalitarianism.

But I find it hard to fathom how religious freedom can be said to be "increasingly vulnerable." From my (inexpert) position, I'd say that religious freedom is net more secure now than ever before. The Catholic Church and some other conservative beliefs may find it uncomfortable that a few of their previously unquestioned privileges have been curtailed as the general public moves away from them on some issues, but overall, my sense is that a much wider range of religious beliefs are being better accomodated in our society's public space than ever before. For example, the US military is authorizing Wiccan ceremonies on its bases -- that's an exercise of religious freedom that would have been unthinkable not long ago, right? So when was religious freedom more secure overall in this country than it is nowadays?

Also, I agree that the issue of the proper limits on a civil society's accommodation of religiously based objections to generally applicable laws is important and complex. But where in their statement do the Bishops' acknowledge the need for limits on religious freedom? Where do the Bishops' acknowledge that line-drawing in these areas is complex and reasonable folks might disagree? As far as I can tell, the Bishops' position is: any law that contradicts our teaching is unjust and "cannot be obeyed." Now THAT can't be a position you support.

Posted by: william brennan | Apr 20, 2012 5:04:58 PM

William -- I guess I do think, for the reasons (a)-(c) given in the fourth paragraph, that religious freedom is increasingly vulnerable (which is not to say that it is dead, or that we have not made progress on many fronts). The Bishops' position, I think, is the one stated clearly in Dignitatis -- religious exercise is a right constrained by the requirements of public order and the like.

Posted by: Rick Garnett | Apr 20, 2012 5:07:55 PM