Michael Kinsley’s recent Bloomberg View column, which appeared in the Philadelphia Inquirer as “Bishops are not exactly oppressed” (Nov. 23), makes a number of basic mistakes concerning law as it relates to religious freedom that we, as lawyers and law professors, wish to correct.
Kinsley begins by usefully calling attention to the recent warnings by Archbishop Timothy Dolan of New York and Archbishop Charles Chaput of Philadelphia that there is a drive by some to marginalize religion. Honest observers can no longer blink what Dolan, Chaput, and other religious voices have warned against for years: our law and culture are increasingly hostile to the possibility of living out one’s faith. Civil authority is finding more and more excuses to interfere in the life of believing communities.
As Archbishop Chaput recently observed, in a speech from which Kinsley quotes: “In the years ahead, . . .we’ll . . . also see less and less unchallenged space for religious institutions to carry out their work in the public square. It’s already happening with state pressure on Catholic hospitals and adoption agencies, in lawsuits attacking the scope of religious liberty, federal restrictions on conscience protections, attacks on charitable tax deductions and religious tax-exempt status, and interference in the hiring practices of organizations like Catholic Charities.” There is less religious liberty today, not more. There is no honestly denying it. The alternatives are to ignore it or to justify it. Kinsley tries to do both.
Kinsley’s first move is to counsel, “Don’t worry.” The presence of six Catholic Justices on the United States Supreme Court, he suggests, will surely guarantee the rights of Catholics and others to religious freedom. Catholics are not so crafty and lawless as Kinsley suggests, however. In a 1990 case, Employment Division v. Smith, the Supreme Court, in a majority opinion written by Justice Antonin Scalia, an ardent Catholic, held that the Court had little or no jurisdiction to create First Amendment-based exemptions to neutral laws of general applicability that might in practice burden or bar religious practice. In sum, our Constitution as currently interpreted leaves it almost entirely to the political process—to Congress and state legislatures—to determine the scope of religious liberty, and legislatures are increasingly stingy when it comes to freedom of religion. Kinsley’s first error of law, then, amounts to the demonstrably false claim that Catholics on the Supreme Court will be reliable judicial activists on behalf of religious liberty.
Kinsley’s second error is more subtle and insidious. Kinsley writes that the “spheres [of church and state] aren’t separate and needn’t be.” From this it follows, according to Kinsley, that “the church, like any citizen or institution,” has a right to take positions on law and politics, and use its persuasive power to influence public officials and the electorate as vigorously as possible. And from this it follows finally, according to Kinsley, that when the Church fails to persuade, “the Church cannot then complain”—it had its chance, and failed.
The error in this is the idea that laws are valid, indeed beyond reproach, when they emerge from democratic processes and a marketplace of ideas. But everyone’s having had a “voice” in lawmaking does not guarantee good law. Majorities sometimes make laws that deny basic and important freedoms, and American history is replete with examples of this point.
What Kinsley refers to as the Church’s “complaining” is, more realistically, the Church’s contemporary witness to the widening failure, including on the part of the U.S. Supreme Court, to require or even allow law to be based on adequate moral reasoning and respect for religious views. Kinsley closes with a rhetorical ploy that reveals his hand: “One of the social developments that the bishops are most upset about is gay marriage. . . . on gay marriage, the church could have gone either way.” Those who understand the Christian moral tradition won’t have so easy a time of it as Kinsley does.
But Kinsley does have something of an unfortunate legal anchor here. As long as our fundamental enacted law confers a constitutionally enforceable right to a revisable and plastic self and a constitutionally permitted marginalization of religion, Catholics and others will have good ground to call for better law. And so they will. What Pope Benedict XVI said to a group of American bishops in Rome recently establishes that the issue is not complaining bishops, it is the Catholic witness: “The seriousness of the challenges which the Church in America, under your leadership, is called to confront in the near future cannot be underestimated. The obstacles to Christian faith and practice raised by a secularized culture also affect believers.” The issue is, instead, the witness of Catholics and other Christians to a culture whose laws increasingly threaten the possibility of religious belief.
Patrick McKinley Brennan is the Associate Dean and John F. Scarpa Chair in Catholic Legal Studies and Michael P. Moreland is Associate Professor of Law at the Villanova University School of Law.
Michael Kinsley, Bishops are not exactly oppressed
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