The U.S. Bishops' ad hoc committee sets the terms of debate.
The bishops, in other words, helpfully frame the religious-freedom issue in its broader context. To be sure, the bishops are very, very concerned about increasing governmental encroachments on religious freedom of recent years. Those encroachments include the HHS "contraceptive mandate" in the implementation of Obamacare, which brought the entire issue to the surface of public life; they also involve state laws that impede the Church's service to immigrants, attempts by state legislatures to turn religious communities into bureaus of state government, discrimination against Christian students on university campuses, and restrictions on the Church's capacity to draw on public funds in its service to orphans and victims of human trafficking. This shrinkage in the sphere of religious freedom is bad enough in itself, and deserves to be fought. But as the Ad Hoc Committee points out (in explaining that religious freedom "is not only about our ability to go to Mass on Sunday or pray the Rosary at home"), the issue beneath these issues is the advance of Leviathan, often in the name of imposing the dictatorship of relativism:
The Ad Hoc Committee's statement also underscores that what the bishops are seeking to clarify for all Americans is a fundamental issue of social justice, and what they are determined to remedy is a fundamental injustice. The HHS "contraceptive mandate," the bishops argue, is not a matter on which the Church seeks an accommodation for its own distinct (and, by implication, bizarre) views. Like the state immigration laws that forbid Catholic priests from offering the sacraments to illegal immigrants, the HHS mandate is an unjust law. And as the bishops note, following Martin Luther King Jr.'s exegesis of St. Augustine in King's Letter from Birmingham Jail, "An unjust law is no law at all." Nor do the bishops hesitate to draw out the full implications of their analysis:
(All of which prompts a memory that leads to a "What if . . . ?" During the 1980s, John Paul II, asked when the pope would visit Communist Hungary, replied that "the pope will visit Hungary when the cardinal [of Budapest] learns to pound his fist on the table" — the cardinal at the time having been, to put it gently, "accommodating" in his interactions with the Kadar regime. How would the past four months have played out if, analogously, Sister Carol Keehan, president of the Catholic Health Association, had, so to speak, pounded her fist on the table when the HHS "contraceptive mandate" was first floated? Given the administration's commitments to the legal imposition of the sexual revolution, even this might not have given the Obama White House and the HHS mandarins pause. But it would have made clear that a bright line was being crossed, and it would have indicated that Catholics who had long accommodated themselves to the state's embrace — often for perfectly good reasons of expanding health care and social services — recognized that such a bright line existed.)
Going forward, the bishops' Ad Hoc Committee proposes a "Fortnight for Freedom," a two-week period of prayer for religious freedom and for America between June 21 (vigil of the feast of the martyrs John Fisher and Thomas More) and Independence Day, July 4. The Ad Hoc Committee also suggests that the Solemnity of Christ the King, which Pope Pius XI inaugurated as the shadows of coercive state power were lengthening across Europe, be celebrated this coming November 25 with special homiletic attention to religious freedom — a worthy suggestion no matter what happens on November 6.
The statement of "Our First, Most Cherished Liberty" is not, then, the end of the U.S. bishops' engagement with the defense of civil society and religious freedom. It might, however, be thought of as the conclusion of the first phase of the campaign, and as a framework for continuing to press the argument for religious freedom in the crucial months ahead. As that campaign continues, it would seem useful to widen the legal focus a bit more than did the Ad Hoc Committee's statement, which, when it describes necessary legal protections of the first freedom, refers exclusively to constitutional protections.
This appeal to the "first freedom" has a certain rhetorical force, of course, given the iconic character of the First Amendment. But given what many constitutional scholars regard as the overly broad leeway given to governmental interpretations of "free exercise" in the 1990 Supreme Court decision Employment Division v. Smith, it is important to remember, and bring into the forefront of the discussion, the remedy the Congress provided for Smith in the 1993 Religious Freedom Restoration Act (RFRA), which was unanimously passed by the House and overwhelmingly affirmed (97-3) by the Senate before being signed by President Clinton. The bishops' free-exercise claims, in other words, make the most sense when read through the prism of RFRA.
And as Edward Whelan has pointed out, RFRA also clarifies just how willfully overbearing the administration has been in the matter of the HHS mandate. One can imagine legislators — local, state, or federal — mistakenly encroaching on an obscure religious community's tenets, or making a free-exercise mistake because the impacts of a proposed law were hard to foresee; these are matters of inadvertence. The Obama administration, by contrast, knew exactly what it was doing with the HHS mandate. As Whelan writes, "Both in advance of its August 2011 interim final rule and before its recent final announcement, the administration received thousands and thousands of comments about the impact that its rule would have on employers who had religious objections to covering contraceptives and abortifacients. The Obama administration's violation of RFRA is knowing and willful conduct that displays contempt for the religious views of those it seeks to coerce."
In light of these realities, it was somewhat odd for Catholic supporters of the administration, such as the editors of Commonweal, to fret that the bishops' statement risked a tilt into "partisan politics." The HHS mandate did not come from nowhere. It came from an administration that (as the bishops also point out) had signaled a shrinkage in its understanding of "religious freedom" as applied to international human rights policy. It came from an administration that, as Whelan demonstrated, has persistently and willfully ignored the expressed concerns of thoughtful citizens about the coercive path it was treading.
Would that this were not the case. Would that we had two political parties that honored religious freedom in full. But we don't. And this argument will not be resolved at some mythical 50-yard line where all of us learn to just get along. Someone is going to win this debate over the future of civil society, and someone is going to lose it. And while the HHS mandate will most likely be struck down by the federal judiciary on RFRA grounds, the larger argument over Leviathan vs. civil society will be determined politically. To suggest otherwise is either disingenuous or naïve.
As for the Commonweal editors' worries about the complexities of religious-freedom issues that require "the careful weighing of competing moral claims," enough is enough: Sandra Fluke has no "competing moral claim" to have her readily available contraceptives subsidized and provided by fellow citizens, and it is a degradation of both moral argument and political theory to suggest that she does.
George Weigel. "Framing the Religious-Liberty Issue." National Review Online (April 16, 2012).
Reprinted with permission of National Review Online. The original article on NRO is here.
George Weigel, a Senior Fellow of the Ethics and Public Policy Center, is a Roman Catholic theologian and one of America's leading commentators on issues of religion and public life. Weigel is the author or editor of The End and the Beginning: John Paul II – The Victory of Freedom, the Last Years, the Legacy, Against the Grain: Christianity and Democracy, War and Peace, Faith, Reason, and the War Against Jihadism: A Call to Action, God's Choice: Pope Benedict XVI and the Future of the Catholic Church, The Cube and the Cathedral: Europe, America, and Politics Without God, Letters to a Young Catholic: The Art of Mentoring, The Courage to Be Catholic: Crisis, Reform, and the Future of the Church, and The Truth of Catholicism: Ten Controversies Explore.
George Weigel's major study of the life, thought, and action of Pope John Paul II, Witness to Hope: The Biography of Pope John Paul II (Harper Collins, 1999) was published to international acclaim in 1999, and translated into French, Italian, Spanish, Polish, Portuguese, Slovak, Czech, Slovenian, Russian, and German. The 2001 documentary film based on the book won numerous prizes. George Weigel is a consultant on Vatican affairs for NBC News, and his weekly column, "The Catholic Difference," is syndicated to more than fifty newspapers around the United States.
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