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, May 15, 2012

Getting the Bishops' religious-liberty efforts wrong

In recent months, I've encountered a number of times the charge that the Bishops' emphasis in recent months on the importance of religious freedom, and on the reality of present-day threats to it, is really just an effort to re-brand their (that is, the Catholic Church's) opposition, on the merits, to legal abortion, same-sex marriage, contraception, etc.  The charge is, I'm afraid, effective -- at least in some quarters -- but it's also quite wrong.  So, I was sorry to see it endorsed, over at Commonweal, in this post by Lisa Fullam, who writes:

Gee, let’s see: when the bishops’ “religious liberty” initiative was seen for what it was–an attack on contraception that appeared to lots of folks to be an attack on women, the GOP got suddenly quiet. We’ll see how many high-ranking republicans stand next to bishops in their “Fortnight of Freedom.” And the public credibility of the USCCB takes another blow.

No, that's not what it was, or is, and no "scare quotes" are needed around religious freedom.  This is not about contraception (though I know that some conservative critics of the Bishops' religious-freedom efforts think it should be) but about the integrity, character, and appropriate independence of religious institutions.  The notion that the recent impositions and attacks (and "attack" is the right word for the Administration's efforts in the Hosanna-Tabor case) are regarded by the Bishops as simply convenient occasions to pursue an anti-contraception agenda strikes me as implausible, to say the least.


Garnett, Rick | Permalink

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I'm afraid the problem with your analysis is the part you have in parentheses "(and "attack" is the right word for the Administration's efforts in the Hosanna-Tabor case)", suggesting it is an accepted proposition, should be the headline because it simply is not accepted by the folks at America and Commonweal and the majority of their readers. They don't see an "attack" by the Administration, but rather a disappointing, but largely accidental, set of individual actions, and are explicit about seeing the Bishops' rhetoric re: religious freedom as a proxy war for opposition to Obamacare and an alliance with the GOP (a Catholic version of the so-called "Southern strategy" of dividing Catholic whites with implicit appeals to cultural topics). Whenever the Administration takes an action with adverse consequences for religious liberty, they may criticize it, but its always in terms of "regrettable" or "lamentable" or "dismaying."

So rhetorical, I think it's time to remove the parentheses and press the case more directly for why the Obama Administration's actions amount to more than just a series of independent, lamentable but ultimately harmless actions.

Posted by: Josh | May 15, 2012 11:32:27 AM

Hi Professor Garnett,

Well, certainly the debate over the HHS mandate is a religious freedom issue. However, if this debate is being framed as one over contraception and not religious freedon, then it might behoove the USCCB and it's allies to do more to show where they support religious freedom in areas besides contraception. Immigration is a great example but unless you follow the USCCB's website and other sites (such as this fine blog) you wouldn't know the religious liberty concerns on that issue. And most folks don't follow these issues that closely.

A couple of weeks ago, I actually watched Bill O'Reilly's show where he interviewed Cardinal Dolan. The only subjects discussed were the HHS mandate and how awful President Obama is (and that was provided by Mr. O'Reilly). I know that Cardinal Dolan doesn't control what Fox airs but he could have included the immigration/Arizona law issue and I doubt that Fox would have cut him off on that (but with them, you never know). And if Fox won't air that, then Cardinal Dolan needs to go on whatever the MSNBC shows (I don't watch cable news because it's garbage and because it interrupts my sports watching) are and tell folks that religious liberty means more than contraception.

In the last couple of weeks, the collection of wackos and yahoos that is otherwise known as the Michigan House GOP caucus introduced a law banning the recogniztion of "foreign laws" in Michigan. It's an anti-sharia law, of course, but voices for the Church back here in Michigan have pointed out that canon law could be outlawed under this bill in Michigan and it made the radio news back here. That's how you expand the knowledge of what the religious liberty fight is about and if the USCCB won't do that, then shame on them.

Posted by: Edward Dougherty | May 15, 2012 12:56:06 PM


As someone who has often found the analysis by America and Commonweal to provide a useful “balance” and to provide a broader perspective than the view provided by the USCCB, I agree with you that the tone at Commonweal, and even more so at NCR, has lately taken a snarky tone that has been dismissive, if not hostile, toward the Bishops’ motives.
I would make three comments on the subject of statements by the USCCB on religious liberty.
First, some of the criticism the Bishops face is the result of their own ineffective communications. In many of their public statements, the USCCB has failed to articulate clearly that religious liberty is a broader concept than just the HHS mandate/contraception issues. An important exception to this was the April 12th statement on religious liberty where the Bishops did an admirable job of showing that the good work done by Catholic social service agencies might also threatened by governmental policies. For many Catholics, like myself, who view a concern for Church’s social teachings as being an important component of the Catholic worldview, this aspect of religious liberty has been sorely missing from the Bishops’ pronouncements -- which have tended to focus almost exclusively on the so-called personal morality issues. This narrow focus, combined with some unfortunate events occurring in the broader religious environment – e.g., the CDF announcement on LCWR, the Sanda Fluke furor, and the so-called Girl Scouts investigation – have provided easy fodder for the Bishops’ feminist critics that may be suspicious of their motives.
Second, the USCCB also needs to articulate more clearly is whether the concept of “freedom of conscience” that Bishops are supporting, is focused primarily on maintaining the institutional integrity and independence of the American Catholic church against governmental intervention in matters of church governance, or are focusing on protecting the individual conscience of a particular religious believer. While these two items are certainly not mutually exclusive, my own view is that the USCCB would be better served by focusing on institutional integrity, rather than advocating for a rule that would permit individual believer exemptions, and which might prove problematic to implement in practice for a governmental agency.
Third, the proverbial elephant in the room that the Bishops seem to want to ignore in their public pronouncements is the issue of remote material cooperation. They have failed to articulate an adequate explanation about why the so-called Obama “accommodation” presents an objectionable situation that is qualitatively different than many other governmental programs that people might find personally morally objectionable which they also indirectly support through their tax dollars. Their failure to address this issue also tends to open the Bishops up to charges that they may have partisan motivations.


Posted by: Jim D. | May 15, 2012 1:32:40 PM

For Commonweal, this is about contraception, because the sexual revolution is far more important to them than religious freedom. Their defense of "conscience" going back to Humanae Vitae can now, in Fullam's words, be "seen for what it was–a [defense of] contraception" uber alles. No liberal Catholic now, with the half-hearted exception of Michael Sean Winters, is on the side of religious freedom--all have aligned themselves against it and instead with their partisan political champion to force even objecting Christians to promote the mandated sexual revolution. America, Commonweal, NCReporter, Kmiec, Keehan, Dionne, Gibson, Kaveny, everyone everyone accepts the "accomodation" that still mandates a violation of religious beleifs--everyone has betrayed their alleged commitment to Dignitatis Humanae, religious freedom, conscience and the laity. There is no liberal Catholic stance for religious freedom or conscience anymore. No dissent is accepted within the Catholic left. They are far more doctrinaire than the CDF ever was.

Posted by: Matt Bowman | May 15, 2012 1:52:04 PM

"There is no liberal Catholic stance for religious freedom or conscience anymore. No dissent is accepted within the Catholic left. They are far more doctrinaire than the CDF ever was."

This is either totally awesome satire or a completely self-refuting argument. In either case, well done.

Posted by: WmBrennan | May 15, 2012 2:54:59 PM

In order to understand our inherent Right to Religious Liberty, one must understand that this inherent Right could only be endowed to us from The True God, and thus the purpose of our inherent Right to Religious Liberty, is grounded in the inherent Right of all persons to come to know, Love, and serve The True God, and thus be with God forever in Heaven.

Only The True God, Who Is a Perfect Communion of Love, could endow us with a Free Will and Intellect, for Love is not coercive, nor is it possessive, nor does it serve to manipulate. Love is a Gift given freely from the heart.

Posted by: N.D. | May 15, 2012 4:48:03 PM

Hi WmBrennan,

Sorry I'm getting back to the thread so late but I just wanted to tell you that your post caused my morning Mountain Dew to end up on my computer. You'll help me clean it up, right (smile)?

Posted by: Edward Dougherty | May 16, 2012 7:49:23 AM