In their April 12 statement on religious freedom, Our First, Most Cherished Liberty, the U.S. Catholic bishops “address an urgent summons to our fellow Catholics and fellow Americans to be on guard, for religious liberty is under attack.” Among the bishops’ critics is Nicholas Cafardi, former dean of Duquesne Law School, who wrote a particularly skewed account of the bishops’ statement. In a June 1 article, Cafardi all but called the bishops hypocrites for claiming that religious freedom was absolute when it came to the HHS mandate and other “right-wing political causes,” while compromising that freedom when it came to remedies for their mishandling of clergy abuse. Cafardi asks: “If some bishops consented to give up some religious freedom when threatened with an unacceptable alternative—financial ruin, maybe even jail time—then why is there no room for accommodation to comply with the healthcare law now?”
But the bishops did not claim that religious freedom is absolute. What they said is that “An unjust law cannot be obeyed. In the face of an unjust law, an accommodation is not to be sought.”
The bishops believe that the HHS mandate is an unjust law because, even if costs for contraceptives are not passed on, a religious employer’s contract with a health care plan will ensure that employees and their dependents receive ongoing coverage for services the bishops have consistently taught are immoral. Thus, the mandate will compel employers’ cooperation with a practice considered evil. Since coverage of contraceptives is automatic, objecting employees will have no choice whether their health plan includes such services. Further, since the privacy of participants and their dependents who use contraceptives is protected, the mandate will enable teens to obtain sterilizations, potential abortifacients, and other FDA-approved contraceptives without charge or their parents’ knowledge and consent.
The bishops also highlighted the Alabama law that makes criminal the harboring of undocumented aliens. Because it prohibits the Church from offering these people the sacramental and pastoral care that is its core mission to provide, the bishops consider this law unjust.
The bishops further condemned the Connecticut plan to alter dioceses from a hierarchical to a congregational structure. Had it passed, the legislation would have compelled the Church to disregard core theological doctrine, the headship of Christ over His Church, in establishing its ecclesial structure.
These are not right-wing political causes. Bowing to pressure would involve culpable cooperation with evil, abandonment of the Church’s core mission, and alteration of its fundamental structure. In contrast, submitting to a measure of supervision as protection against clergy abuse and declaring bankruptcy to preserve assets to finance church ministries, the examples of “compromise” Cafardi offers, are not in themselves cooperation with evil or in violation of core church values.
The bishops list other examples of government action they consider unjust. In several locales, Catholic Charities lost its license or government contract to provide foster care and adoption services because it refused to place children with same-sex or unmarried opposite-sex couples. Further, the federal government changed its contract specifications for agencies administering to victims of human trafficking, requiring provision of or referral for contraceptive and abortions services, thus ending years of participation by the U.S. Catholic Conference.
The bishops’ concerns are not limited to wrongs against the Church. For example, the Hastings College of Law, part of the California University system, denied the Christian Legal Society funds and use of school facilities offered other student groups because CLS required that its members be Christian and abstain from all pre-marital sex, including homosexual conduct.
These examples, the bishops fear, are part of a calculated scheme to exclude religion from the public square and cabin it in the home and the sanctuary, restricting religious liberty to freedom of worship, thus in effect endorsing “faith without works” as the orthodox course. As Justice Scalia once quipped, religion is then treated as “some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one’s room.”
They say that truth is the first casualty of war. The bishops should expect further misstatements of their positions as the battle for religious freedom proceeds. I have confidence such distortions will not deter them from speaking the truth, even when the shots against them come from behind.
Stephen L. Mikochik is professor emeritus, Temple University School of Law, and visiting professor, Ave Maria School of Law.
Become a fan of First Things on Facebook, subscribe to First Things via RSS, and follow First Things on Twitter.
Comments:
The proper formulation is that a law whose obeidiance would be immoral cannot be obeyed.
Employers do not have to provide insurance to their employees. True, they will have to pay a tax/fine of $2000 per employee, but this is cheaper than providing insurance. So no one is being forced into providing contraceptive coverage. One can certainly argue that religious organizations should not be put in a position where they have to stop providing insurance coverage for their employees, but they do have a choice here.
Stephen L. Mikochik says: "Thus, the mandate will compel employers’ cooperation with a practice considered evil."
This, it seems to me, is debatable. The employer will not choose an insurance policy that covers contraception. The insurance company, independent of the employer, will offer the coverage to employees. Some argue that this is a distinction without a difference, but clearly it does make a difference. In complex moral reasoning, a distinction of this magnitude can make all the difference in the world. For example, the rationale used to permit the ending of an ectopic pregnancy depends on distinctions considerably more fine.
Stephen L. Mikochik says: "Since coverage of contraceptives is automatic, objecting employees will have no choice whether their health plan includes such services."
What is there to object to? No one will be forced to take advantage of the coverage! And of course most workers covered by employer-provided insurance already have coverage of contraception (and in many cases, abortion). Many with employer-provided insurance pay part of the cost of that insurance, and so employees are often paying directly for a plan that offers both abortion and contraception. So these people (which constitute a majority of the insured) really *are* contributing to the cost of their fellow employees' contraception and abortion. And yet if it has ever been suggested that a Catholic employee must turn down employer-provided insurance that contains coverage of abortion and contraception, I have never heard it.
Stephen L. Mikochik says: "Further, since the privacy of participants and their dependents who use contraceptives is protected, the mandate will enable teens to obtain sterilizations, potential abortifacients, and other FDA-approved contraceptives without charge or their parents’ knowledge and consent."
This is factually incorrect. While there are certain medical services teens can consent to without parental approval, when a dependent child uses family insurance, and explanation of benefits (EOB) goes to the primary beneficiary of the insurance policy. So a teen who wants medical privacy must find some way to pay for medical care other than using his or her parents' insurance.
"Employers do not have to provide insurance to their employees. True, they will have to pay a tax/fine of $2000 per employee, but this is cheaper than providing insurance. So no one is being forced into providing contraceptive coverage. One can certainly argue that religious organizations should not be put in a position where they have to stop providing insurance coverage for their employees, but they do have a choice here."
Isn't this a sophistry? Yes, employers don't have to provide insurance, but if they don't, they pay a fine and their employees have to obtain insurance in the private market, likely at a higher cost. So, the employees are the ones who are punished most by this mandate, employees who would have had employer provided health insurance but for the HHS mandate requiring the employer to obey God (as they see it -- I'm not Catholic and my religious-affiliated employer has covered contraceptives for some time) rather than man. Of course, this isn't feed Christians to the lions, but it is an act that is designed to cause some religious-based entities to choose between providing good benefits for their employees and adhering to their religious beliefs. And it seems to particularly target a faith, Catholicism, which more than perhaps any other has met the needs of the poor, the ill, and the homeless. What sense does this make?
Create a conscience exception and mandate that insurers offer a low cost contraceptive rider which employees can purchase out-of-pack with a 100%, refundable tax credit. The insurance companies can probably offer the rider for next to nothing as we keep hearing that the cost of health care actually is less if women use contraceptives. If that is true, why wouldn't my proposal solve the problem? This is easily solved, it seems to me, but for the politics of pandering to a particular segment of the Democratic party base.
Begging the question.
How do we know a law is unjust?
The only point that is potetially impacts religious freedom is the insurance requirement for insurance coverage of contraceptives.
"Thus, the mandate will compel employers’ cooperation with a practice considered evil."
That's not the measure of an unjust law. Catholics cooperate with evil all the time and it is not unjust do do. "Formal" of "material cooperation" is prohibited. Remote cooperation is not sinful.
The Bishops gloss over this distinction and have not made their case that either formal or material cooperation is implicated. In fact, imposition of a legal obligation (i.e., payment of taxes to fund unjust war) tends to support "remote" non-sinful cooperation. See almost all national healthcare sytems in other countries.
"They say that truth is the first casualty of war."
The Bishops' recent handling of matters that have required their truthfulness have left so much to be desired that I would be careful in using "truth" and "Bishop" in the same article.
I think an unjust law would be a mandate to all women to USE contraceptives not having to pay for your employee's health insurance.
That is forcing your religious views/dogma on others. who may or may not share your religious views
My taxes help pay for war, which I find evil and morally reprehensible.
At least "provid[ing] for the common defense" constitutional in our federal republic.
By the way, it sounds as if you are a pacifist. Have you also sworn off calling the police if someone is attacking you or breaking into your home, since it is possible the police may use deadly force?
But more to the point, which you appear to be missing, the Obama administration is forcing its secular humanistic religious views/dogma on us. We are just playing defense.
Your quote sounds positvely Satrean (We are condemed to be free!).But, taking your answer at face value, organizations like Notre Dame, EWTN, or Georgetown can simply tell their employees, "You're on your own, people. This is ObamaCare in action! Rejoice!" And when the employees go down to the Medicaid offices to enroll thier families in Medicaid, they will find out that they are not eligible. And when they ask about the insurance exchanges, the bureaucrats will tell them that that is up to the states (fewer than half of the states are even complying). But, don't worry; federal insurance exchanges are just around the corner - like 2019.
And so, by 2013 an estimated 15 million Americans will lose their health insurance and have no where to go.
As well they should.
A secular society protects the free expression of all beliefs, faith-based or not.
Except when it doesn't. As in Canada, France, Germany Turkey and most every country in between. A secular government set in a godless culture is toxic to freedom. Please read some of the First Things archives about the "naked public square" by a fellow Richard J. Neuhaus for more perspective on this crucial question.
Except when it doesn't? Let's use your rather algorithmic response when considering a different set of facts shall we?
Firefighter: smoke detectors save lives. You: except when they don't.
Jurist: gradated punishments for law breakers save lives. You: except when they don't.
Educator: parental involvement in a child's studies helps. You: except when it doesn't.
I support not a few secular US-based organizations. Protection of thought is paramount in a secular society. Can the same be said of theocracy? Of course not.
As for "godless culture," that's a straw man here. It's unfortunate you recommended Neuhaus to me in the context of your post. I will have to be especially careful to read him objectively now.
