“Our First, Most Cherished Liberty” and the State

Powerful assertions of state power lead to renewed thinking about the relationships  among the state, free markets, civil society, and the common good.       

Those who have learned about the Catholic position on church and state only from the study of European history or from Enlightenment commentaries upon it may surprised to read—and wary to accept—the assertion that “American Catholics have been advocates for religious liberty” from the earliest days of the country’s European settlement.  But this claim, which introduces the recently released statement of the United States Conference of Catholic Bishops’ Ad Hoc Committee for Religious Liberty, “Our First, Most Cherished Liberty,” can indeed be documented, both by the 1649 Toleration Act in Maryland, which the bishops cite, and the published writings of the first Catholic bishop in the United States, John Carroll, who complained about remaining religious establishments in 1789 that “the constitutions of some of the States continue to entrench on the sacred rights of conscience; and men who have bled and opened their purses as freely in the cause of liberty and independence, as any other citizen, are most unjustly excluded from the advantages which they contributed to establish.”[i]

Catholics’ insistence is not in the first place for exemptions from generally applicable law or “conscience clauses” that allow individuals to stand aloof from common practice on religious grounds—allowing nurses who object to abortion, for example, from having to assist in the procedure, and allowing doctors to forego abortion training as part of medical school—though they will accept such exceptions when they lose the policy debate.  The Church, after all, treats the Christian conscience not as autonomous voices but as a shared inheritance, making the formation of consciences one of the central tasks of her ministry.  At stake for Catholics is the ability to live the faith freely in the midst of society, not only in worship, but in business, sport, education, entertainment, politics, and everything else.  “That is the teaching of our Catholic faith,” the bishops write, “which obliges us to work together with fellow citizens for the common good of all who live in this land.  That is the vision of our founding and our Constitution, which guarantees citizens of all religious faiths the right to contribute to the common good together.”[ii]

The bishops sound alarm—they call their statement an “urgent summons”—because of several developments across the political spectrum, and they feature two in particular which, as they are associated with opposite political parties, might insulate their complaint from charges of partisanship.  On the one hand, they object to the recently promulgated mandate of the Department Health and Human Services which would require all employers under the Affordable Care Act to offer health plans that cover contraception and sterilization, with only a narrow exception for churches but not church-affiliated institutions like hospitals or universities.  On the other hand, they decry the Alabama Immigration Act, which, in criminalizing most activities that aid illegal aliens, “makes it illegal for a Catholic priest to baptize, hear the confession of, celebrate the anointing of the sick with, or preach the word of God to, an undocumented immigrant,” in the words of the local archbishop.[iii]   Five other grievances are mentioned, too, from removing Catholic Charities from adoption and foster care for their refusal to place children in gay households, to the University of California’s Hastings Law College’s denial of student organization status to the Christian Legal Society.  In every instance, the bishops allege, the state is forcing citizens to act against their consciences under penalty of law or denying them the legal right to act or organize in accordance with the tenets of their faith.  To reiterate, they are not, or not merely, asking for a “conscience clause” or an accommodation: They say flatly that these are unjust laws, and citing Martin Luther King Jr., who in turn quoted Sts. Augustine and Aquinas, they explain, “An unjust law cannot be obeyed.

            These are strong words to come from bishops, who tend to weigh their pronouncements with caution and care, and one wants to know more precisely what the bishops have in mind for Catholics to do.  Since what the bishops advocate generally is exhortation, catechesis, prayer, and fasting, it makes sense to look more closely at their chief cases to discern what political actions they have in mind.  Regarding the HHS mandate, the bishops themselves have spoken up in opposition, rejecting as an accounting trick the administration’s supposed accommodation that would require companies to provide contraception to employees of Church institutions without explicit charge or employer notification.  Will the government back down, or delay until after the election, and if so, what will the bishops then recommend if the same administration is in place and no longer worried about an upcoming vote?  Setting up their own insurance company or vetting acceptable companies is precisely what such an arrangement would not allow Catholics to do to evade the mandate, since every company will be required to conform.

And that raises the question, hardly hinted at in the Statement, of what faithful Catholics in business and other institutions are to do whose consciences are similarly offended at being forced to buy immoral products: If Catholic universities deserve exemption, why not Catholic CEO’s?  It might be too much to expect the bishops, who for years have advocated that the federal government establish a comprehensive scheme to pay for healthcare as a basic human right,[iv] now to voice doubts about the wisdom of expanding government regulation if the likely consequence is expanded pressure from forces known to be unfriendly to Catholic moral teaching.  Perhaps their silence on the matter is enough to signal that a serious reconsideration is at hand.  At any rate, the whole controversy shows the complexity of the question of conscience and common good: Concern for the latter has involved the Church in promoting healthcare policy, not to mention in establishing hospitals that provide about one-sixth of the care available in the United States, but the political institutions in which Catholics were willing players have decided against them on several crucial points.  And it is more complex yet, since many of the Catholic politicians who provided the margin of victory for the recent reform appear to dissent from the Church’s teaching on the very claims of conscience now at stake.

The controversy over immigration law is neither simple in itself nor entirely unrelated to the healthcare controversy: One of the bishops’ concerns leading up to the passage of healthcare legislation was whether immigrants of doubtful status would be covered under the plan.  More generally, some churches have been active for decades providing sanctuary for illegal immigrants, and for generations Catholic parishes have helped all immigrants adjust to their adopted homes.  The bishops’ Statement quoted Archbishop Rodi’s dramatic indictment of the Alabama law, but did not note that his federal lawsuit was successful in enjoining the part of the law that caused concern; in fact, the Alabama legislature is scheduled to vote this week to amend the law to clarify that “Nothing in this section would prevent a church or church-affiliated organization, or an agent or officer of a church or church-affiliated organization, from ministering to or providing material goods or services to all individuals, regardless of immigration status.”[v]   Moreover, the careful Catholic observer will note the absence of the sacrament of matrimony from the list of sacraments at risk, and for good reason: Canon law already forbids, without the bishop’s permission, “a marriage which cannot be recognized or celebrated according to the norm of civil law.”[vi]

Where is the issue of common good in the legal determination of citizenship status and the power of a country to control its borders?  It is an important matter that bears discussion, and religious liberty is hardly irrelevant to it, as the bishops suggest in a brief acknowledgment of threats to religious liberty abroad, which show that “the age of martyrdom has not passed.”  Without making light of the plight of immigrants in the United States, however, the Alabama example does not show an equal and imminent threat to the religious liberty of those who minister to them, since legal and political processes seem able to address their grievance.  Perhaps with regard to the contraception mandate—with a constitutional challenge to the Affordable Care Act now pending before the Supreme Court and a presidential election imminent—it is simply too soon to tell whether the same can be said.

And that returns me to the question of what the bishops are really asking and intending.  If the Statement signals a willingness on their part to entertain a thoroughgoing reconsideration of the presumption that the central state is the agent of the common good—if it is a call to lay Catholics to rethink the relation to free markets to moral responsibility, without supposing that the state is somehow above the incentives of the market and equal to moral commands—then it bodes well for the future, as does its confident call to the Catholic laity to bring Catholic principles into political life.  The bishops praise America’s “free, creative, and robust civil society” and make clear of their call for enhanced religious freedom: “This is not a Catholic issue.  This is not a Jewish issue.  This is not an Orthodox, Mormon, or Muslim issue.  It is an American issue.”  The rhetoric is welcome, and not unfair, since the gravamen of the Statement is the right of believers to enter the political fray, not feel pressured to withdraw from it.  They would readily acknowledge, however, that their Statement is especially addressed to Catholics, many of whom need to be reminded or convinced that in voting their consciences they are bound by their faith.  To the extent that the bishops’ Statement comes to be echoed by analogous statements from the other traditions they mention, the bishops themselves would certainly be pleased.

If the promotion of a free society is the happier “take-away,” the more ominous one is the threat of disobedience.  “An unjust law is no law at all,” the bishops remind us, but they omit the qualification that Aquinas introduces concerning laws the injustice of which may be real but may not be so clear as to contradict a divine command: Such laws do not bind in conscience “except perhaps in order to avoid scandal or disturbance, for which cause a man should even yield his right.”[vii]  In the American context, I think, the scandal would be abandonment of our constitutionalism, our commitment to work out our differences in a political process that respects majority rule while it allows political competition, that protects basic rights from majority infringement, that amply diffuses authority so as to permit ways of resisting injustice without rejecting legal authority per se.

If the apparent entrenchment of abortion rights has made Catholics distrustful of the Constitution, or at least of all that is asserted in its name, they might take heart in the recognition that after almost forty years those purported rights are retained by the slimmest of margins on the Supreme Court.  Indeed, the bishops quote with approval a statement about the original intent of religious liberty made by Chief Justice John Roberts in a recent case whose unanimous outcome—upholding a broad interpretation of the ministerial exemption from employment law—the bishops certainly applaud.  Without denying that religious liberty is threatened in America today, I wonder whether the crisis the bishops identify has one of its roots in a crisis of religious obedience within their own congregations, and thus whether encouragement of civil disobedience, if that is what they mean to do, is the best way to address it.  Nor do I mean to deny that there may be a kind of political issue even in religious obedience—though it is one internal to the workings of faith.



[i] Thomas O’Brien Hanley, S.J., ed., The John Carroll Papers (Notre Dame, IN: University of Notre Dame Press, 1976), I: 368.

[ii] United States Conference of Catholic Bishops Ad Hoc Committee for Religious Liberty, “Our First, Most Cherished Liberty: A Statement on Religious Liberty” (Washington, DC, 2012)  < http://www.usccb.org/issues-and-action/religious-liberty/upload/Our_First_Most_Cherished_Liberty.pdf >

[iii] Quoted in ibid.  The original statement of Abp. Rodi on August 1, 2011, is available on-line here: http://www.mobilearchdiocese.org/temp/Immigration.cfm

[iv] See, for example, the bishops’ letter to U.S. Senators on September 30, 2009, while the Affordable Care Act was before Congress.  Accessed at  http://old.usccb.org/sdwp/national/2009-09-30-healthcare-letter-senate.pdf.

[v] See http://www.immigrationalabamalaw.com/ (accessed April 29, 2012).

[vi] Code of Canon Law, Canon 1071, sect. 1. http://www.vatican.va/archive/ENG1104/__P3W.HTM

[vii] Summa Theologica, I-II, q. 96, a. 4. http://www.newadvent.org/summa/2096.htm

 

Professor James R. Stoner, Jr. (Ph.D., Harvard University, 1987) is the author of Common-Law Liberty: Rethinking American Constitutionalism (Kansas, 2003) and Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Kansas, 1992), and is currently working on a project tentatively titled "Resisting Judicial Supremacy," with Richard Morgan of Bowdoin College. He has taught at LSU since 1988 and has chaired the Department of Political Science since 2007.

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