The Immanent Frame is weighing in on the HHS mandate: “We’ve invited a small handful of scholars to comment on how the debate highlights enduring and nascent issues involving claims to multiple rights made in the context of American public life.” The group includes professors and attorneys from Catholic University, Marquette, the University’s of Alabama, Tennessee, Hawaii at Manoa, Illinois at Chicago, and Columbus School of Law. From the first contributor, Finbarr Curtis:
The Catholic Church’s rhetoric in the recent contraception controversy pits public health policy against private constitutional rights. But what is unclear is exactly whose rights are violated. No Catholics would be forced to take contraception. Rather, the Church’s claim is that its liberty is violated if it has to affirm the religious liberty of its employees, who may be Catholics as well as people with no religious affiliation or with different religious affiliations. In other words, “religious liberty” does not protect individual freedom (whatever that may be) but allows organizations to police the religious convictions of their employees. What is remarkable, at least politically, is that employees could include many conservative Evangelicals for whom contraception within marriage is fine. This means that, say, a married Southern Baptist who takes a job at a Catholic university would have her healthcare choices influenced by Papal teachings with which she does not agree. For much of American history, this kind of ecclesiastical assertiveness would have ignited anti-Catholic fury. But drawing historical parallels is tricky here because the Church now insists that it has jurisdiction over the consciences of non-Catholics, which is a long way from earlier defenses of American Catholic freedom. Yet many conservative Protestant groups have come to the defense of the Church in a way that demonstrates a shared investment in expanding the power of private institutions. This vision of religious freedom confirms Winnifred Sullivan’s post on the Hosanna-Tabor decision, in which a “church” has first amendment rights. One could note an analogy between this language of religious freedom and the Citizens United ruling that grants corporate entities the rights of persons. In both cases, the rhetoric of freedom works to expand the power of private institutions acting beyond the scope of democratic deliberation and accountability.
Read the rest of Curtis and the other five here
February 27th, 2012 | 11:20 am
This group is varied only with respect to how much contempt they have for the Catholic Church. I would say that Dan Maguire seems to be the winner in that battle. Well done, sir.
February 27th, 2012 | 11:43 am
With one exception, I saw not much in the way of variance, in the perspectives of the participants. I find it interesting that many of the participants accepted the argument (sometimes implicit, sometimes explicit) that “the church” is not thing that can therefore rights, as do individuals. (None of the participants would have accepted the argument that individuals should be forced to pay for services with which they disagree, as far as I could make out).
This rejection of the church as a thing-as a “body”- as it were, rejects the church’s understanding of itself, and so more or less elides a rather critical “first thing” that needs discussion prior to the points the participants wanted to make.
In short, I find it dubious at best, that most of the discussants premise their rejection of the bishops’ rejection on the argument that whatever the church is, it isn’t what it says it is.
Also worrisome (to me, anyway), is that this line of logic dismantles yet another barrier between the individual and the power of the state. Philip Rieff argued that there is no individual freedom with interdicts, and without the socio-cultural institutions that hand them down.
If “the church” makes mistakes, I’d rather live with those, rather than with the mistakes a secular government will inevitably make.
February 27th, 2012 | 12:10 pm
I find fascinating the imagined conflict of “reproductive rights” with “religious conscience”. Unless one is willing to claim that all contraceptives should be free by right (dubious at best), the conflict is non-existent. It is a conflict of power, but of the state against religion not of women against religion.
I must admit, I was disappointed by these “thinkers” who appear to confuse their personal beliefs with reality. That is, at best. At worst, the disingenuousness is pervasive. One “thinker” claims to speak for Galileo, who, to my knowledge, had nothing to say about contraception.
February 27th, 2012 | 12:23 pm
Not much support for the Catholic Bishops here. Even one of the two Catholics is not on their side.
February 27th, 2012 | 12:46 pm
It seems to me Mr. Curtis misses the Catholic Church’s true argument.
The Church does not wish “to police the religious convictions of their employees [,]” rather it refuses to cooperate in what it deems an intrinsic evil; and it is speaking out for the rights of Catholic institutions to also refuse.
Catholic institutions aren’t comfortable offering healthcare services through their insurance policies which are clearly banned at Catholic Health Care facilities for moral reasons. To do so would be to participate in (through subsidy or facilitation) those immoral services.
Also, to sympathize with a theoretical Southern Baptist working at a Catholic university because her access to contraceptives is “influenced by Papal teachings” is to ignore the reality that contraceptives are widely and cheaply available to anyone employed at all.
Digging into that theoretical exposes the entire mandate of free contraceptives for what it is. The US taxpaying public subsidizing sexual activity without consequences. Now not even the cost of the pill will stand in the way of the promiscuous.
February 27th, 2012 | 2:11 pm
I sit here with mouth gaping open after reading the quote from Curtis. So, the ability of free institutions to exercise autonomy over their own property consistent with their own end or purpose is, according to Curtis, inconsistent with democratic liberalism. And it stands to reason that churches qua churches ought not to have first amendment rights. I guess we should be thankful that someone was candid enough to simply come out and defend tyranny. Yet, it is still shocking to actually see it in print. I’m still trying to get my mind around the idea that the first amendment that implies the separation of church and state requires that we believe that the church’s liberty is not protected by that amendment. Surreal. Just surreal.
February 27th, 2012 | 2:51 pm
So say the editors of The Immanent Frame: “We’ve invited a small handful of scholars to comment on how the debate highlights enduring and nascent issues involving claims to multiple rights made in the context of American public life.”
At most, Curtis and Karchner actually carry out this supposed task. Schultz feigns an attempt but really only balances “rights” with reasonable “compromises” that don’t actually involve rights. Hulsether, Maguire and Sands reject the very premise of the question and deny the Catholic Church has any rights or reasonable arguments worth acknowledging at all.
Bravo, editors — you really did capture an “off the cuff” set of remarks.
February 27th, 2012 | 3:49 pm
Dave, you sound almost giddy. Who’d a thought, Catholics disagreeing with their Bishops. The only question I have is why didn’t they include abortion in the mandate, after all it is understood by many to be healthcare and womans healthcare at that and all of the points the professors made about contraception could be made about abortion. I’m not sure what it was but there was a political calculation in this by the President.
Regardless, what should the Bishops have done; tried to change the Churches position, got out of the business or just agreed that it is the governments role to set all policy in private,religious institutions.
February 27th, 2012 | 4:11 pm
I must say I am surprised by the editors’ choice of commentators. One would think that on an issue of rights, liberties, and constitutional and statutory law — and the HHS mandate surely is such an issue in significant part — those who selected the contributors would have chosen at least a few people who know something about law. But so far as I could see, the only person with a law degree is Mr. Karchner, who comes out against the mandate. But even he says almost nothing about the current state of the law. The only other reference to law is made obliquely by the first commenter, who talks about something Professor Winnifred Sullivan said about the Hosanna-Tabor case — a case with virtually no application at all to this issue.
Of course it’s perfectly fine to select commentators who want to discuss the mandate from a non-legal perspective. But it is truly strange that a number of the commentators specifically mention religious liberty or “free exercise” dismissively and/or derisively (I count Professors Sands, Maguire, Hulsether, and Curtis in this group), without saying anything about what these words actually mean as a legal matter.
February 27th, 2012 | 4:44 pm
“No Catholic would have to take contraception”
It seems they are the ones pushing their beliefs on others, because they are saying that they are willing to grant that Catholics have the right to refrain from birth control, but Catholics do not have the right to believe it is equally sinful to purchase contraception for others.
The Church says that helping or leading others to sin is equally a sin (right up there with doing the bad thing yourself). But they are saying, no, you aren’t allowed to believe that, or you aren’t supposed to believe that.
They are saying, in effect, we will tell you which of your beliefs are permitted and which ones are just obviously ridiculous.
And why are some beliefs okay while others are obviously ridiculous? Because refraining from birth control yourself is not in conflict with their beliefs, but refusing to pay for theirs – now that is in conflict with what they want, and we’re just supposed to accept as self-evident that when Catholics and humanists want incompatible things, why, of course the humanist beliefs should be privileged.
They are willing to humor people who think they have a right to the “wrong” belief – but only when no conflict is present. That is their view of “religious freedom”. They think their own faith-based beliefs are not rightfully classed as religious, “because they’re the truth” (or is that the Truth?).
February 27th, 2012 | 4:54 pm
I stand corrected. Upon closer reading, I see that Professor Sands does say something about law. She says this:
“It [the argument for religious liberty] discounts Catholic women (most of whom use contraception) and the Catholic Health Association, which accepted the Obama compromise. It discounts the vast majority of all American women, for whom the decision to use contraception is a matter of conscience. “Religious liberty” won’t help them if they work for a Catholic employer and, in fact, will deny them a benefit to which they’re legally entitled. Indeed, this “religious liberty” contradicts current jurisprudence, which clearly states that the Constitution does not provide “religious exemptions” to generally applicable laws.”
I’ll just stick to the legal claim made in this paragraph, which is wrong. “[C]urrent jurisprudence,” in fact, does provide “religious exemptions” from “generally applicable laws.” That is because “current jurisprudence” includes statutory law, both state and federal, which grants such rights provided certain conditions are met. The claim that “the Constitution” does not “provide” such exemptions may or may not be correct, depending on what Professor Sands means. If she means that the Constitution does not permit such exemptions, she is wrong. If she means that the Constitution does not require such exemptions, she is correct, but only provided that the law is truly neutral and generally applicable. If that condition is not satisfied, and constitutional litigators are making this claim currently, then, again, “current jurisprudence” most certainly does provide for exemptions from generally applicable laws, again provided that the religious claimant can show that the the law creates a substantial burden for its religious practice, and the state cannot show that it has a compelling interest in enforcing the law and that it has chosen the least restrictive means of implementing it.
February 27th, 2012 | 5:40 pm
I have a kid with diabetes. She’s five, she’s had it for four years. The health care reforms in place and to come have pushed insurance companies to economize. This means some of the folks I know now have to pay out of pocket if they want the insulin that works better for their kid instead of the one that the insurance company is contracted with, unless they can beg the insurance company into making an exception. It means the state high risk pool that we buy our insurance through (not Medicaid) will probably disappear if the reforms go through, leaving my family (very low income) with the choice of finding insurance through a new employer or going on Medicaid (we will be too low income to qualify for federal subsidies for the private insurance we now buy out of pocket and which will increase drastically in cost in 2014, so it’s Medicaid or employer-purchased insurance for us).
Our choices in real health care — real, my child will die without it health care, not I want to be able to have sex without fear of pregnancy fake health care — are being dramatically limited by these reforms. To think these guys are getting paid to write long winded drek about how the Church is telling people what to do because it doesn’t want to buy the contraceptives FOR them just makes me physically ill.
February 27th, 2012 | 8:56 pm
That was depressing reading. Yet what astounds me in all the chatter over the mandate is just how few conservatives have pointed out this is not only an attack on the right of conscience and religious liberty, but on the relative autonomy of civil society itself. The Church must be *made* to do this. Made to in spite of a free labor market; made to in spite of the fact that the great majority of circumstances under which one uses contraception are completely voluntary. Such institutions must be broken to the saddle of the State all in the name of rights individuals already have the right to exercise. The practical logic of what this administration has done is deeply unsettling. If this stands we will not be as free a country as we were; not merely because of the specific rights violated, but the enhanced ability of the State to control how other institutions organize and govern themselves. In the end I think they expect churches to be not much more than a club.
February 27th, 2012 | 10:22 pm
Quite frankly, it doesn’t matter whether contraceptives cost pennies or billions. The Church and the institutions she sponsors have the right, under our Constitution (today, at least) to refuse to pay for, subsidize, or otherwise participate in activities that violate her moral and ethical precepts.
February 27th, 2012 | 10:39 pm
Think that is too broad a statement to be accurate.
February 27th, 2012 | 10:40 pm
I find these comments more illuminating than the original opinions in the article.
The real issue is this: does the Constitution protect ‘freedom of religion’ or ‘freedom of worship’? This not so subtle shift has been taking place within academic circles for some time (see Professor Tribe from Harvard among others). However, the Obama administration has been touting this from the very beginning [The President has made the shift in speeches as well as Secretary of State Clinton]
Who has the right to define what a religion is, what it believes, practices etc? Is it not the religion? Is this not exactly the point of the First Amendment?
The Catholic Church has three main foci:
Word Eucharist-(sacraments)-worship- and Diakonia-Service. Right now the only one of the three that is not questioned by ‘the State’ is ‘worship’. However the other two are just as fundamental.
One may say, “wait, the State does not question ‘the Word’” However, what of the word that states ‘each human life needs to be respected and protected from the moment of conception to natural death’? OR ‘Marriage is between man and woman’? There are others as well. Are we that far away from ‘the State” saying that a statement such as ‘marriage is between a man and a woman’ is hate speech?
As for the Diakonia? Two fundamental areas in which the Church has traditionally been involved are education (At all levels) and health care. Is it not obvious that there is a conscious effort to divorce these two major aspects of ‘our religion’ from ‘the Church’ and leave ‘the Church’ simply in the sanctuary?
There is another point however that is not even being touched (yet!). WHat is meant by the separation of Church and State when the lay person (at least I will speak of the Catholic laity) are considered to be the “Church in the world”-in the home, work place, voters, every level of government etc. Popes, bishops and priests are not allowed to get into political office etc [their role is to teach]. It is the laity who are ‘the Church in the world’-or is “the State’ going to demand they ‘leave their faith in the sanctuary’?
February 28th, 2012 | 5:34 am
Finbarr Curtis’s comments are of interest, for they are very much in the liberal tradition, in its hostility to corporate identity or “group rights.”
One recalls that, during the French Revolution, one of the first acts of the Constituent Assembly was to dissolve all corporations and, in consequence, to declare Church property ownerless, and the property of the nation. In France, this hoary doctrine was reaffirmed in the 19th century laws against congrgantes and in the Law of 9 December 1905 on the Separation of Church and State which, once again, treated Church property as “les biens nationaux”
This leads to religious freedom being characterised as the individual’s “freedom of conscience,” and, emphatically, not the freedom of groups and associations (and thus of churches and religious communities).
it is deeply rooted in European political culture, going back at least to Rousseau’s suspicion of particular interests that undermined the general will.
February 28th, 2012 | 9:08 am
Thank you, Michael PS, for bringing up the example of France. I do believe that the goal of Obama’s most liberal supporters (e.g. Sebelius, Pelosi, The Immanent Frame, etc.) is to reproduce French laïcité in the United States. Such a form of secularism is wholly foreign to our traditions as well as to the traditions of nearly every European country, yet nonetheless is consistent with (the radical fringe of) liberal thought regarding religion.
February 28th, 2012 | 10:11 am
“it is deeply rooted in European political culture, going back at least to Rousseau’s suspicion of particular interests that undermined the general will.”
Precisely. For those who would like to see where the Obama Administration would love to end up in Church-State relations, take a look at the various secularizing laws passed by various European countries throughout the 1800s. Organized religion is to have no influence in public life, outside of the display of useful idiots like Sr. Keehan who support the Administration’s policies.
February 29th, 2012 | 4:23 am
Laïcité was much discussed around the time of “L’affaire du foulard” – The headscarf business. Americans can find this debate very instructive.
Maurice Barbier’s remarks sum up the Radical Republican position: “On the one hand, the secularism of state schools is not restricted, in the case of pupils, to respect for their freedom of conscience: it essentially consists in excluding religion from state schools and it therefore imposes a duty of restraint on pupils in their behaviour, since they find themselves in a place pertaining to the public sphere. On the other hand, pupils’ freedom of conscience, which is an internal freedom, in no way gives them ‘the right to express and manifest their religious beliefs’ in educational institutions, for that involves external acts which improperly introduce religion into the public domain of the school.”
And again, “this prohibition concerns the religious beliefs of individuals, not in order to restrict them, but in order to exclude their intervention in, or impact on, the relations between private individuals and public authorities.”
Particularly instructive is this frank acknowledgement: “this prohibition aims to oblige individuals to respect common rules in these relations that they cannot exempt themselves from them for religious reasons – which comes down to asserting the primacy of these rules over personal beliefs.”
February 29th, 2012 | 3:15 pm
Michael PS,
I find that extremely instructive.
Is there something in the language that notes what the “common rules” then are based on? Merely consensus? Expressed through local legislation or simply administrative policies?
March 1st, 2012 | 3:54 am
Marie
This harks back to the Declaration of the Rights of Man and the Citizen (the French equivalent of the Bill of Rights) – “Article 6 Law is the expression of the general will. Every citizen has a right to participate personally, or through his representative, in its foundation. It must be the same for all, whether it protects or punishes..”
This is qualified by Article 5 “Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law.”
March 2nd, 2012 | 10:44 am
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