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.

Saturday, August 11, 2012

A response to Morning's Minion on the Bishops' Religious Freedom efforts

A recent post of mine led to some correspondence between Morning's Minion, of the Vox Nova blog, and me about the work of the Bishops' Ad Hoc Committee on Religious Liberty (which I serve as a consultant).  He called my attention to a post of his, from a few weeks back, in which he outlines his "concerns" with that work, and asked for my thoughts.  With his permission, I'm posting an edited version of my response to his request:

. . . With respect to your [concern that the Bishops' statements have been too nationalistic]:  On the one hand, I do think there are some aspects of American constitutionalism that are distinctively good, and my sense is that the Church has recognized as much.  (In various documents, for example, our separation-of-powers and checks-and-balances structures are praised.)  And, I think that the teaching in Dignitatis Humanae owes a lot to the American experience with religious freedom, warts and all.  That said, and obviously, religious freedom is a human right, not an American right; it is a gift from God, not from James Madison.  Still, I think it’s fine for a document, written by American bishops and addressed to Americans primarily, to highlight the centrality in the American experience – at least in its aspirations – of religious liberty.  True, in an academic paper, one would want to complicate the narrative, but the basic point is sound, and worth emphasizing:  Religious freedom is protected by modern democracies, true, but it was (at least aspirationally) protected here, first.  This something that we can celebrate, and try to live up to.

Your second concern, namely, that the Bishops' campaign sounds too much in a not-really-Catholic individualism is one that several more liberal Catholic bloggers have also voiced.  I agree that the Church’s religious-freedom teaching cannot be reduced simply to “conscience."  Still, it is clear to me that Dignitatis endorses, *at least for purposes of the juridical order*, the idea that the public authority should respect (to the extent possible, given the needs of public order) the religious conscience of all persons, because they are persons.  True, there is more to freedom than negative liberty, but I think Murray was right (and right in his understanding of DH) that, for the *limited* purposes of the juridical order, it is appropriate to “operationalize” religious freedom (in an incomplete way) through negative, constitutional restrictions on state actions that burden religious freedom.   I share concerns about excessive or un-situated individualism but, again, would insist that the freedom of the individual’s religious conscience is – even if it’s not the whole story – to be protected in law.  Can it be overcome by the needs of the public order and the common good?  Of course.  But the Bishops and the HHS-lawsuit plaintiffs never suggest otherwise.

You are right that the religious-freedom claims of religious institutions are meaningfully different from those of individuals, or of non-religious entities.  (The latter sound in "church autonomy" and "separation", for one thing.)  But, it does not follow from this that individuals and non-religious entities don't have religious-freedom rights, or that they should lose if they sue to vindicate those rights.  I think the way to think about it is that (a) the nature of the burden is different, when it is imposed on a religious institution, (b) but there can still be a burden in the case of an individual or a non-religious entity, (c) the strength of the *government* interest – the public-order, “compelling interest” interest – might be stronger in the case of a burden applied to an individual or a non-religious entity, and (d) the ease-of-accommodation will almost certainly be different.

So, as you say, the government cannot be expected to  give everyone a religion-based-conscience exemption from general taxation duties.  We agree.  But, the HHS case is different.  The mandate is NOT a generally applicable law (there are – to use a technical term – gabillions of exemptions) and it is NOT the extraction of money into the general government coffers. . . .

Finally, with respect to your third concern, i.e., that the campaign risks making the Bishops look partisan.  In my view, it just cannot be right that the Church, to avoid looking partisan, has to stand quiet on issues that are politically salient.  It is not the Church’s fault that it is Sec. Sebelius, and not Sec. Thompson, who is doing this.  (Nor is it the Church's fault that it tends to be Republicans who call for wrongheadedly severe immigration policies.) 


Garnett, Rick | Permalink

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