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, May 24, 2012

A quick response to Winters on conscience and Smith

Michael Sean Winters has been blogging a lot, in recent days, at Distinctly Catholic, about the mandate, the lawsuits, and religious liberty.  In this post -- which is about many things, including the remarks by Bishop Blaire that some are trying to frame as revealing deep partisan divisions on the bishops -- he makes (among other things) two claims that, in my view, are not quite right.

First, there is the claim -- which, I admit, is widely accepted, and accepted by many I respect -- that it is the Smith case, and not the recent acts and decisions of the current administration, that should be regarded as an unprecedented and dangerous assault on religious freedom.  Some make this claim because they believe that Smith represents a wrong interpretation of the First Amendment, I know, but I think that some make it just because it's kind of fun to put Justice Scalia in the religious-freedom-villain hot-seat.  Still, as I''ve probably said too many times, the claim is wrong.  (For an elaboration of my view, go here.)  Smith was contestible, but I think correct, interpretation of a piece of positive law -- one that returned the Court's doctrine to where it had been for most of the previous century -- that, certainly, makes it possible for elected officials to harm religious liberty, but also authorizes and encourages those officials  elected officials to respect and accommodate religious liberty, to the extent possible.  Smith is a "who decides?" case (ed.:  aren't they all?  RG: yes, yes, I know . . . .), not a "religious freedom should lose to state interests" case.

Winters also criticizes calls for respecting and accommodating individual conscience (as opposed to institutions' religious freedom and the freedom of the church).  He writes:

You can cherry pick a couple of sentences out of Dignitatis Humanae, the Second Vatican Council’s Decree on Religious Liberty, to justify such a stance, but my fear . . . is that by emphasizing the right to individual conscience rights, in a culture which understands conscience differently from the way Catholics understand it, the USCCB was unintentionally “feeding the beast” of libertarianism in a political culture where libertarianism is the cancer that most afflicts our Catholic understanding of the Common Good. For us, conscience is the voice of God speaking to us about our moral obligations in the concrete circumstances of our lives. In the ambient culture, conscience is private judgment. Why would the USCCB support an argument that sides with the sixteenth century Reformers on the central issue of their day and our day: Is truth someone we discern and discover, and always together, or is it something we manufacture on our own?

Certainly, I'm a big fan of the Freedom of the Church (Read this.)  And, Winters is right that most in contemporary America -- including, remember, many Catholics who invoke "conscience" as authorization to act not in accord with certain Church teachings -- have an unsound, purely privatized understanding of "conscience."  And, I even agree with Winters that there will, in some cases, be good, "politics is the art of the possible" reasons to distinguish, when crafting religious-liberty accommodations, between exemptions-for-institutions and exemptions-for-individuals.  All that said, it is not "cherry picking" to find in Dignitatis Humanae -- it's right there! -- a clear affirmation of the right of every person to religious liberty:  "This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits." 

In saying this, the Declaration is not endorsing the private-judgment view of conscience; instead, it is proclaiming that it is an implication of the human dignity of every person that, even when he or she is wrong in religious matters, he is not to be forced "to act in a manner contrary to his own beliefs . . . within due limits."  Winters does not need, I think, to downgrade or link with libertarian and Protestant errors the religious-liberty rights of individuals.  I think it's enough for him to simply remind us that "within due limits" does important work. 


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"Within due limits" does no work for the HHS mandate against lay religious objectors. And it does no work to relegate to second class status the religious liberty of lay Catholics whose consciences agree with Church teaching. Pope Benedict told the U.S. Bishops in January to defend the consciences of Catholic "individuals" and institutions both. He expressed no subjugation of the former to the latter. Exactly to the contrary, the Pope said the bishops' most important job is to enable the laity to witness to Church teaching by *living it.* The HHS Mandate penalizes such living witness. The idea that the religious freedom of magisterial institutions is prioritized to the undermining or neglect of faithful laity is foreign to Catholic social teaching. This is because when the laity act in faithfulness within their own spheres, they *are* the Church, so Her religious freedom and theirs is one and the same. Thankfully the U.S. bishops have listened to the Pope.

Posted by: Matt Bowman | May 24, 2012 10:13:32 PM

What needs to be recognized is that while Dignitatis Humanae affirms in section 2 "the right of all men" to religious freedom even if they are wrong, it also fully affirmed in section 1 the freedom of the Church. But in section 13, consistent with the rest of the Council's view that the faithful laity *are* the Church, DH explained that the faithful laity are not possessors of the mere right of all men to religious liberty--they possess the religious freedom of the Church "for herself in her character as a society of men who have the right to live in society in accordance with the precepts of the Christian faith." A harmony exists between the rights of the Church-including-the-faithful-laity, and the right of all men. But it is a mistake to view the faithful laity's right to religious freedom as being nothing more than the right of all men subject to "due limits." That severs the laity and the magisterium into two bodies of Christ and imposes limits on the faithful laity's religious freedom that DH never asserts. As Pius XII declared, the faithful laity "ought to have an ever-clearer consciousness not only of belonging to the Church, but of being the Church." When the laity conform their consciences and lives to the teaching of the magisterium, "these are the Church." It is not possible to then claim the Church's rights under DH do not belong to the faithful laity, leaving them with nothing but the religious freedom belonging to the general rights of man that is prioritized lower than that of magisterial institutions.

Posted by: Matt Bowman | May 25, 2012 8:18:09 AM


So, in other words, Catholics have a stronger claim to religious liberty than people of other religions or of no religion? Is the US government supposed to accept that? And presumably, all things being equal, Catholic religious liberty trumps "the religious freedom belonging to the rights of man." It sounds like all have religious freedom, but some have more religious freedom than others. If I understand you correctly, this makes sense if you are Catholic (or perhaps a Catholic first and an American second), but if you are not Catholic, it does not seem to be consistent with the American idea of religious freedom. And if there are Catholic politicians running for political office who believe this, it would seem to me that non-Catholics would be justified in voting against them without being guilty of religious bigotry, since non-Catholics would have "nothing but the religious freedom belonging to the general rights of man that is prioritized lower than that of magisterial institutions."

Posted by: David Nickol | May 25, 2012 9:47:42 AM

As someone who has worked for 18 years in the private sector, I've come across many co-workers and managers who are people of faith. They are also people who realize that we're here to do a job, have a career and support our families at places where we are not expected to discuss moral truths. That doesn't mean that we don't use our values in ethical business practices (we certainly do) but we also realize that there is a line that has to be drawn between religious liberty and business practice. There would be chaos in our workplace if that line didn't exist and business is tough enough these days.

I would also point out that the support for individual conscience, as was done in the Blount/Rubio amendment, draws support away from the issue of freedom for religious institute and was an ill advised overreach by the USCCB.

Complete religious freedom in the private workplace would lead to folks not wanting to pay taxes (wish I'd had that option before the invasion of Iraq in 2003) for things they wouldn't agree with and that's an impossible obligation to meet.

Posted by: Edward Dougherty | May 25, 2012 12:43:11 PM

DN, according to Catholic teaching there is no "due limit" that justifies coercing someone's conscience to make them do something wrong. How do we determine what is wrong? Obviously the Church believes that what it believes is right is right, and what it believes is wrong is wrong, and Catholics should be involved in the political process so that laws reflect that moral order. Therefore, lay Catholics acting faithfully are by definition conformed to the moral order, so no "due limit" can be imposed to coerce them to violate that moral order. Notably, anyone else who also happens to be correct in their judgment is to some extent participating in that faithfulness. Thus, non-Catholics objecting to the mandate to facilitate abortifacients, etc., also are not subject to any "due limit" in that objection. They are in conformity with the moral order. All of that precedes and is presupposed by the Second Vatican Council's additional teaching that there is also a human right of religious freedom to seek and obey God even if one might reach a wrong conclusion. The character of that right is discussed in more detail in Dignitatis Humanae, which you can google. On this right there can be only "due limits," which means not all that much, of course excepting the "human sacrifice" kinds of hypotheticals people level against religious freedom. But "due limits" never, in the Church's view, can be imposed to coerce someone to do something wrong.

Posted by: Matt Bowman | May 25, 2012 1:18:58 PM

It is not discrimination to recognize what Dignitatis Humanae explicitly says: that the Church, including the laity living faithfully in society, cannot be coerced in its conscience; and, there is also religious freedom for all mankind subject to due limits. This leads not to a ceiling on public policy but a floor. A Catholic cannot, consistent with Church teaching, abandon the faithful laity to a government mandate in violation of their conscience, in exchange for just projecting magisterial institutions. That violates the Second Vatican Council and all the recent Popes' teaching that the faithful laity ARE the Church. The bishops can call for more conscientious protection, so that other religions fare no worse than the lay faithful. But they cannot call for less.

Posted by: Matt Bowman | May 25, 2012 3:09:05 PM

Some factors I don't see discussed much are that the purchase of insurance does not :

oblige the insured to purchase any particular goods or services with it, nor

enable the insured to purchase goods or services any more than did paying a salary to the insured.

We apparently have a situation in which a majority of Catholic couples make use of artificial birth control, as well, with or without applicable insurance. Thus paying for a policy which covers such things at little or no marginal premium expense, hardly seems such an earth-shaking thing.

Finally, as the Church is entitled to Constitutional protections, so also the government has Constitutional authorities. It is not for the Church alone to define its rights, because a Church is certainly able to overreach in the direction of Church control of government. Hence the 'bargaining' of the boundary under particular circumstances is indeed a proper topic for conversation and negotiation.

Posted by: W8kwses | May 25, 2012 3:27:46 PM

By the way, is the statement found today at Distinctly Catholic, that lay Catholics who are engaged in business such as running a restaurant are not engaged in the witness of the Church, is that statement possibly reconcilable with the Second Vatican Council and papal teaching to this day on the status of the laity as the body of Christ, on the dignity of labor, and on the notion that Catholics are ethical actors in business? Is it possibly compatible with the Pontifical Council for Justice and Peace's recent statement on business ethics and integrity?

Posted by: Matt Bowman | May 25, 2012 3:35:10 PM

Sure it is, Mr. Bowman. Every liberty has limits. One can recognize this and still be an ethical actor.

Posted by: Edward Dougherty | May 25, 2012 3:43:52 PM

From the internal perspective of those documents, I fail to see the compatibility, or anyone who has tried to demonstrate it.

Posted by: Matt Bowman | May 25, 2012 4:26:36 PM

When you require contraception coverage for all employees, they have a conscience right not to use it (if they follow the bishops' teachings) and a conscience right to use if if they disagree. If you don't require it. If you don't require it, than the Church is forcing the choice on women who would use it - which is the overwhelming majority.

Posted by: Michael Bindner | May 26, 2012 12:21:40 AM

What an absurd twisting of the word "force," that if someone else refuses to PAY FOR YOU to do something, they are FORCING you not to do it. You are right now forcing me not to send my kids to college.

Posted by: Matt Bowman | May 26, 2012 10:06:09 AM


If I understand your clarification, the principle is that if you *believe* you are right (the way non-Catholic religions do) you are entitled to a certain limited amount of religious liberty. However, if, like Catholics, you *know* you are right, your religious liberty is absolute.

Posted by: David Nickol | May 26, 2012 3:24:03 PM

I have not spoken in those terms at all. I am saying that as a matter of Catholic teaching, Catholics are not permitted to contend that the government may coerce the consciences of faithful lay Catholics any more than it may coerce the consciences of faithful magisterial institutions. Both are the Church, and to say otherwise is to reject the Second Vatican Council. Catholics are permitted, as a policy matter, to protect conscience even more broadly, and the bishops in this particular controversy have followed extensive bipartisan American tradition in doing exactly that. What is not permitted is the position Winters defends, that it is ill advised and even wrong to protect the consciences of the "99%" of the Church, because they aren't really the body of Christ acting in every aspect of life, they are just selling tacos.

Posted by: Matt Bowman | May 26, 2012 9:04:35 PM

In his article this morning Winters has decided that he will not argue or explain his point, or describe from actual Church teaching how it is that magisterial institutions have religious freedom but faithful lay Catholics and even the Knights of Columbus do not. He just baldly asserts, again, with no citation at all to a Church document justifying his distinction, that faithful lay Catholics "are in no sense a part of the Church." He even contends that a Knights of Columbus hall falls into this category and should not be defended against such things as renting to pro-abortion events. This is a breathtaking position, and Winters apparently has decided once and for all to assert it based on only his own internal position and not on any explanation from specific Church teaching how he has expelled most of the Church from the Church.

Posted by: Matt Bowman | May 29, 2012 8:34:20 AM