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.