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, April 3, 2012

More thoughts on the HHS mandate, religious freedom, and commerce

I came across this post, by Matt Bowman, in which he is critical of the "Catholic Left" for "defend[ing] President Obama’s rule coercing Christian businesses to offer coverage of abortion-inducing drugs, contraception and sterilization."  I agree with Bowman that neither the Catholic Left, Right, nor Center should defend this rule, because it is a bad rule. 

Bowman's more specific criticism is directed at those who, as he sees it, have drawn an unjustified line between the religious-conscience rights of religious institutions, on the one hand, and those of commercial-business employers, on the other.  As he points out, Catholic teaching is that -- as the Pontifical Council for Justice and Peace puts it -- "lay business leaders must 'integrate the gifts of the spiritual life, the virtues and ethical social principles into their life and work[.]'" 

Bowman does not provide links to the writings of those whom he criticizes, but he does "name names," and I think he has in mind, inter alia, this post by Michael Sean Winters, at Distinctly Catholic.  Winters wrote, discussing the Bishops' recent Statement on Religious Freedom and the HHS Mandate: 

[T]he bishops’ position is muddied by their continued call for an individual exemption to the mandate, not just for religiously affiliated employers but for secular employers who invoke a religious justification for their exemption claim. This is the worst part of the document, and so I will quote it in full: 

    A violation of personal civil rights. The HHS mandate creates still a third class, those with no conscience protection at all: individuals who, in their daily lives, strive constantly to act in accordance with their faith and moral values. They, too, face a government mandate to aid in providing "services" contrary to those values -- whether in their sponsoring of, and payment for, insurance as employers; their payment of insurance premiums as employees; or as insurers themselves -- without even the semblance of an exemption. This, too, is unprecedented in federal law, which has long been generous in protecting the rights of individuals not to act against their religious beliefs or moral convictions. We have consistently supported these rights, particularly in the area of protecting the dignity of all human life, and we continue to do so. 

    This is frankly shocking. Were the drafters of this task unaware that these words could be used -- actually such arguments were used! -– by segregationists? They cited the biblical story of Ham to justify their stance, and I suppose a biblical citation counts as a religious claim.

I've corresponded privately with both Matt and Michael Sean, setting out my questions about (and disagreements with aspects of) both posts.  As I told Matt, I think it is a misreading of commentators on the "Catholic Left" to characterize their views in this way (as Matt does):  "[W]e know they couldn’t care less about business ethics. They insist business women and men have no conscience, that the government is justified in coercing them, and that the Bishops are heretics for defending those consciences. It is nonsensical to speak of business ethics and deny that business people have consciences."  I am, I admit, very frustrated with those who seem unjustifiably invested in denying, or even doubting, what I think is clearly established, namely, that the current Administration is insufficiently sensitive to, and appreciative of, religious-freedom.  (In some cases -- for me, the Hosanna-Tabor brief and the attacks on the D.C. school-voucher bill stand out -- this insufficient sensitivity looks disturbingly like hostility.)  And, I am tired of partisan-seeming accusations that critics of the HHS mandate are merely partisan.  Still, I do not think that the people Matt mentions in his post are actually saying what he says, above, they are. 

Matt also writes, "Commonweal’s spokespersons almost daily ridicule the Bishops’ defense of business ethics as a 'Taco Bell exemption' that is unworthy of Catholic support. Their sneer smacks not only of elitism but racism, as if food service from an ethic background is unworthy of a true Christian calling."  I agree that it is quite wrong to dismiss the Bishops' (or anyone else's) principled defense of broader religious-freedom exemptions in this way, but I do not think it is fair, or helpful, to suggest that misguided dismissals are racist.  There are way too many misplaced accusations of racism in our politics as it is. 

Michael Sean's statement that the Bishops' emphasis on the dignity of individuals' religious consciences (as well as the institutional integrity of religious institutions" is "frankly shocking" is well off the mark, too (and so is dissonant with the many solid posts he has done in recent months on religious-freedom matters), and I think it is bad form (and wrong) to associate this emphasis with the arguments of segregationists.  (Yes, of course it's true that, throughout history, bad people have misused good arguments and misappropriated sound principles for bad ends.)  The Bishops are entirely right -- and entirely in the spirit of Dignitatis humanae, to remind readers that the right to religious liberty belongs to all, and always -- even when persons are engaged in "non-religious" activities like doing business and buying insurance.  This is not misguided individualism, it's a Declaration of the Second Vatican Council.

It is one thing to say -- I think it isn't contrary to Catholic teachings on business ethics and economic justice to say -- that, as a matter of tactics and political realities, the best course for defenders of religious freedom, in the present moment, is to focus on exemptions for religious employers and institutions (where "freedom of the church" questions, scandal questions, and institutional-witness questions are in play).  It's another to say, and it's wrong to say (but I don't think Winters or the Commonweal bloggers really mean to say) that, as a matter of principle, employers or individuals engaged in commercial enterprises may not or should not seek religiously-grounded exemptions from otherwise generally applicable laws.  To be sure, some of these employers or individuals will lose, and will have their requests denied -- but Dignitatis humanae does not say that the human-dignity-based right to religious freedom, which every person enjoys, will always warrant an exemption from a general law.  Whether an exemption is required, or justified, depends on the extent to which the law in question actually serves the common good, and the extent to which an exemption would undermine it. 

One problem, in the context of the current debate, is that the HHS preventive-services mandate is unjust.  It does not serve the common good, and so concern for the common good does, it seems to me, not justify denying exemptions to individuals or to non-religious entities.  We can imagine cases, though, where the general law in question is not unjust, and in such a case, the public authority might be justified, all things considered, in giving an exemption to some (say, religious employers) and not others (say, commercial employers).  This would not be because, as a theological matter, business and ethics are somehow separate, but instead because not all requests for exemptions can be granted. 

Anyway, like I said, I've been talking about these matters with both Winters and Bowman, and I'm sure each will disagree with some of what I've said here.          


Garnett, Rick | Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference More thoughts on the HHS mandate, religious freedom, and commerce :


                                                        Feed You can follow this conversation by subscribing to the comment feed for this post.

Taco Bell, racist? I thought it was the name of the Mexican Telephone Company.

Posted by: Thomas Aquinas | Apr 3, 2012 5:21:40 PM

I just want to send a quick note of appreciation to you, Rick, for your exceptional work of building bridges, reaching out, and showing such consistent good faith in navigating these complex issues. mj

Posted by: Mary Jean Dolan | Apr 4, 2012 2:08:32 AM

I am rather late to this discussion, but it seems that there are two separate notions of religious liberty under discussion in the MSW, Garnett, Bowman exchange:

1. The liberty that religious groups are owed under the First Amendment and the positive law, e.g. RFRA.

2. The liberty that religious groups desire/need in order to live out their respective faiths.

1 and 2 likely overlap to a great extent, but are not co-extensive. In Smith, for instance, smoking Peyote was not a religious liberty issue for purposes of 1, but it was (at least to members of the Native American Church) a religious liberty issue for purposes of 2.

MSW seems to miss this distinction when he claims that the Church's defense of the right of business owners to opt-out of the mandate is "not so clearly one of religious liberty."

MSW's claim seems to be that the individual business owner's right to opt out is not "one of religious liberty" for purposes of category 1. He may be right about this, though he may be wrong. I tend to think he is wrong via RFRA.

But, if MSW is arguing that this is not a religious liberty issue for purposes of category 2, I think he is way off the mark. The Catholic business owner who is forced to contract for these services certainly believes he is not fully able to live out his faith (completely apart from whether or not his rights under the Constitution or RFRA are being violated). So, this is a violation of his religious liberty under category 2, if not under category 1 as well.

Whether or not this is a liberty interest serious enough for the bishops to go to bat s is one of prudential judgment. But, It seems to me incorrect to say that it is not a religious liberty issue.

Posted by: Catholic Law Student | Apr 9, 2012 4:43:17 PM