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.

Wednesday, May 29, 2013

"Progressive Arguments for Religious Organizational Freedom"

I've posted an article with that title on SSRN, here (subtitled "Reflections on thr HHS Mandate").  As some of you know, I think that one of the most severe threats to religious freedom today--especially the freedom of religious organizations--is the prospect of it becoming a value of which political progressives are skeptical in principle, and which is associated only with conservatives.  I therefore think it's vital at this juncture to make arguments for religious freedom that aim to reach people in the center and center-left.  This piece, written for an excellent roundtable on "Freedom of the Church" sponsored by the University of San Diego Law School, is a first journal-article effort at doing so.  I don't underestimate the depth of tension between a wide scope of freedom for religious organizations and certain features of political progressivism, but I also think it's crucial to appeal to as many common grounds as possible--and I believe there are important ones--as part of the overall case for religious freedom.  (The project also has a personal element for me, as some will know, since I have a fundamental commitment to religious freedom and also myself in the center-left on a lot of issues and principles.)  Abstract:

The Health and Human Services (HHS) mandate to cover contraception is the latest in a series of disputes that have made conflicts between politically progressive laws and traditionalist religious beliefs a pervasive feature of the American religious-freedom landscape. This article examines the foundations of the conflict and argues that progressives should support significant protections for faith-based service organizations such as social services and schools. There are sharp ironies when progressives exclude faith-based service organizations from religious-freedom protection, as the HHS mandate originally did. Service to others lies at the core of religious exercise; progressives more than anyone should affirm this; and accommodating such organizations meaningfully both preserves civil liberty and recognizes the overall contributions they make to progressive social goals, such as assisting the needy, even if they conflict with progressive positions on some deeply-felt issues. On the other side, traditionalists have sometimes failed to respect others' liberties, and that has hampered their ability to claim protection from government imposition as a matter of reciprocity, which would otherwise be a strong argument.


Berg, Thomas | Permalink


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Thanks, Tom, and hear hear. Seems to me that progressive alignment with the core values of justice and caritas extolled by most faith traditions of which I'm aware is a natural, as is progressive Lockean 'toleration' qua equal respect. The Religious Left Law weblog is predicated on that proposition. I think it borders on 'tragic,' in something like the classical Greek sense, that the actions of some of the more aggressive fringe of some faith traditions can mislead some progressives into thinking these groups intolerant tout court. Perhaps some of those progressives thus mislead fall under Rahnerian categories - 'anonymous [name faith tradition here]s.'

Thanks again,

Posted by: Robert Hockett | May 29, 2013 10:50:43 PM

As Bob says, hear hear.

Posted by: Chris Lund | May 30, 2013 9:46:26 AM

I apologize that other things lead me not to have the time at the moment to read the 62 pages at this time but will briefly state my position here. I have made it before so I will try to stick to one comment on this thread.

I agree that "progressives should support significant protections for faith-based service organizations such as social services and schools" and think they have. The matter is not theoretical for me in part since there are local colleges (including one for whom someone I know is an employee) for which this would apply.

So, e.g., I don't think such and such a college needs to promote by PSAs or otherwise contraception. They need (I'll make it easy - at the very least, if it is readily available nearby) not provide them to unmarried students, e.g., at the health center for birth control purposes. They need not be required to allow ministerial employees to even use them. Extra time should be given for them to adapt to new laws of this sort that might affect them.

OTOH, if they hire janitors or secretaries at the HR office or library clerks at the library of various faiths, these people should have general health benefits, including benefits that independent health experts find is essential to preventive health. Such benefits aid the ability of each employee to freely choose their own faith as does their ability to use their salary for tithes.

I admit to be a bit tired about "progressives," who often are MORE supportive for religious liberty (see, e.g., the dissent in Oregon v. Smith) implied to be not protective of religious liberty because of an at best debatable application of a general health law. I realize the nuances of the law are complicated. But, the bottom line is the progressives ARE (I'd use italics but hasn't worked) concerned about organizational freedom. They have not "excluded" them from freedoms. Some argued the lines were not crossed in this particular case.

Posted by: Joe | May 30, 2013 11:01:36 AM

I agree with Joe's remarks.

sean s.

Posted by: sean samis | May 30, 2013 1:07:57 PM

Joe, it's a long piece I know. I take some of your points, and the article recognizes some of them. It recognizes that progressives have been strong, often, on individual religious freedom: sometimes better than traditionalists. But you hear increasing skepticism from progressives about any kind of freedom for organizations: the individual's ability to access should more and more trump organization's ability to refuse, and the former should have state power behind it.

I get that you see the HHS coverage mandate as distinct and think that religious organizations should have certain other protections. But the main point of the piece is that the original HHS mandate excluded faith-based service organizations altogether from protection, defining them as outside the scope of "religious organizations." Along with this was rhetoric from progressive groups such as Emily's List, which dismissed them as "so-called religious organizations." The logic of many progressives denies accommodation far more broadly than it appears you would. The article also acknowledges that the administration has expanded the accommodation meaningfully--but it also argues that the issue remains relevant, because the attempt to exclude faith-based service organizations appears in other contexts too, such as same-sex marriage and antidiscrimination. It's an uphill battle to get protection for religious organizations in that situation for anything other than the church and the marriage ceremony itself. And the votes for extending protection further have come mostly from Republicans and moderate Democrats (the latter is the group of "pragmatic progressives" that the article defines as the main audience and seeks to solidify).

Finally, the article criticizes traditionalists as well and calls for reciprocity in protecting rights of both sides.

Posted by: Tom Berg | May 30, 2013 1:08:18 PM

... including the part about not having time to read a 62 page article at this time!

sean s.

Posted by: sean samis | May 30, 2013 1:08:50 PM

For the record, I'm of course sympathetic to Joe's remarks as well, which I presume my interventions here in re the second iteration of the Mandate, over February and March of last year, make plain. Let me also take this occasion, while at it, to note yet again that had we gone the TRUE progressive - and just - route on health insurance reform in 2010 - that would be SINGLE PAYER - none of these 'Mandate' contortions would have been necessary. Much the same holds true of what would have been the true progressive compromise - the 'public option.' As a progressive, I continue to carry a chip of disgust on the shoulder over President Obama's and, especially, Senator Baucus's preemptive compromise on single payer and subsequent sellout on the public option.

Posted by: Robert Hockett | May 30, 2013 3:37:27 PM

Robert, I agree completely. Some kind of Universal Health Care, some single payer system is the way to go

However, I sincerely believe that the GOP would never have accepted the creation of another “gumint” agency. The blame should be widely spread.

sean s.

Posted by: sean samis | May 30, 2013 5:49:58 PM

Bob and Sean, I agree with you that single-payer would be better.

Posted by: Tom Berg | May 30, 2013 6:37:53 PM

This is an intriguing article. A couple of initial points as I am reading through it.

Though you call it outside the article's scope, I think it is a vitally important exploration of the compatibility of progressivism and religious freedom (or of progressivism and anything else) that you say that the first principle of progressivism is "equal freedom for all, especially for individuals and groups that have been unfairly disadvantaged or that are particularly vulnerable on important matters," but the second principle of progressivism supports abortion as part of opposition to "traditionalist sexual morality." You note in footnote 30 that you disagree with fellow progressives about whether abortion advances equal freedom for all including the disadvantaged and vulnerable. But that's a bit of an understatement. This point potentially blows up the entire project of reconciling progressivism with other principles. If progressivism can exclude some human beings from the class of who counts as the "all" that deserves "equal freedom," then the foundation of progressivism is arbitrary and power-based. I don't know how such a system can be reconciled to religious freedom or to any other principle, if "equality" and everything else takes second chair to whatever it is that progressive government planners define to be "progress."

Second, you suggest on page 20 that the freedom of a religious "organization" must be balanced against the state's interests, and moreover that this principle is supported in Vatican II’s Declaration on Religious Freedom which "recognizes “due limits” on the exercise of religious freedom, including the need to promote a “just public order” and preserve “equality of the citizens before the law.”" But this takes the Declaration out of context. "Due limits" are not, in the Declaration, used as a qualifier of the Church's own freedom. Paragraph 1 makes it clear that this document does nothing at all to scale back on the traditional teaching about the Church's freedom. Due limits are instead a qualifier on religious freedom generically. Moreover, paragraph 13 makes it clear that when the document speaks of the Church's freedom, which is not subject to due limits, the document MEANS by "Church" what the rest of Vatican II means by "Church": the LAY Christian faithful ARE the Church when they follow Christian moral teaching in their daily life in society. So the Church's religious freedom, which is not subject to generic "due limits," includes the Church's "character as a society of men who have the right to live in society in accordance with the precepts of the Christian faith." Any distinction giving "the Church" religious freedom only in its institutions and not in its laity following its precepts would not be consistent with the Declaration, or with the central theme of Vatican II that the Church IS the people of God. This latter idea, one would think, is an issue that progressives should agree on, at least if they are Catholic progressives, since it is a point they have been emphasizing for almost 50 years, until it became inconsistent with the president's implementation of Obamacare, at which point the laity were no longer the Church in the analysis of people such as Cathy Kaveny whom you cite in footnote 70 for this point.

Posted by: Matt Bowman | May 31, 2013 11:27:58 AM

Following up on my first point, you argue that if traditionalist religious believers oppose same-sex civil marriage it "undercuts their arguments for reciprocity of rights; . . . lowering the level of opposition would help" preserve their religious freedom. Nothing in progressive "principle" prevents this same argument from being used for abortion: traditional religious believers ought to tone down their opposition to abortion if they don't want to be forced to participate. But toning down opposition to abortion means seeking less "equal freedom for all especially the vulnerable." If progressivism itself suppresses its own first principle of equal freedom for all, then it's not a principle in the first place. And in that case, there's no reason to believe that if religious believers stop fighting for the unborn, progressivism will respect the religious believers' own rights in exchange. That same progressivism is actively suppressing the rights of the vulnerable--why on earth would the vulnerable religious believer have reason to trust progressivism not to later define the believer as no longer having any rights just as progressivism previously defined other human beings as having no rights? The bargain is a classic example of Niemoller's warning: first they came for the socialists....

Posted by: Matt Bowman | May 31, 2013 11:56:34 AM

I appreciate the other replies and think perhaps the abortion matter might warrant another thread. I have skimmed the article and found myself reacting the same way as I did in the past. So, will leave my comment above be except to note that I think single payer (along with a few other things) was not politically possible. So, we are left with an imperfect law, which factors into proper balancing.

Posted by: Joe | May 31, 2013 3:56:10 PM