Rights - Not the Whole Enchilada

by Michael Sean Winters

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Mark Silk raises a good point regarding the on-going debate over religious liberty in a post at his blog “Spiritual Politics” over at RNS. “[C]hanging civil norms always pose new challenges for weighing free exercise rights against others that are also constitutionally guaranteed.” There is always a balancing act when adjudicating rights within a constitutional framework and no rights, including our First Amendment right to freedom of religious expression, are absolute.

The USCCB statement on religious liberty, issued last week, included this paragraph:

What is at stake is whether America will continue to have a free, creative, and robust civil society—or whether the state alone will determine who gets to contribute to the common good, and how they get to do it. Religious believers are part of American civil society, which includes neighbors helping each other, community associations, fraternal service clubs, sports leagues, and youth groups. All these Americans make their contribution to our common life, and they do not need the permission of the government to do so. Restrictions on religious liberty are an attack on civil society and the American genius for voluntary associations.

Of course, the rub comes when other “community organizations” or “youth groups” or “neighbors helping each other” wish to do so in ways that the Catholic Church disagrees with. One of the examples the bishops cite as an infringement of religious liberty is the recent successful attempts in several states to put the Catholic Church out of the adoption business because our agencies will not place children in the homes of same-sex couples. As I have indicated before, I think the Church’s stance on this is misguided. I think there is a case to be made that placing a child with a traditional family is preferable but there is also a case to be made that placing a child with a same-sex couple is preferable to keeping a child in foster care. Additionally, cases like this give the lie to the phrase “all things being equal.” I am sure there are some same-sex couples who, for a variety of reasons, might be better suited to care for a particular child than the other available traditional couples, because “all things” are never equal. For example, a child may have special needs that require expensive medical treatments and a particular same-sex couple may be better able to shoulder that burden. Human life witnesses few absolutes, and in adopting public policies, drawing absolute lines is not always helpful.

One of the most disturbing parts of the debate about religious liberty has been the indifference shown by many liberals to a traditional liberal concern: recognizing and appreciating diversity. Diversity must cut both ways. If traditionalists must, and should, become more accepting of gay men and women, just so traditionalists should be allowed a little leeway to be traditionalists. Not every battle over rights should become so fierce, so much of a zero sum game, that our society and government cannot make room for variety. In the case of same-sex adoptions, does it really infringe on the rights of same-sex couples to be denied the services of a Catholic agency, provided there is a non-Catholic or government agency to meet their needs? Is absolute conformity a price we should be willing to pay to achieve a putative equality of rights in each and every avenue of social life?

Rights are important, to be sure. But no doctrine of rights can exist that will completely meet the various needs of social life and political governance. We need other considerations, such as the common good, the importance of public order, the deliberative (such as it is!) quality of democratic elections, all are integral to crafting a polity that meets the tasks both our Constitution and our Catholic social teaching assign to government. I have told this story before but it remains on point. In 2004, I was working on a political campaign in Connecticut and, on behalf of my candidate, attended a meeting organized by a group of gay and lesbian activists concerned to secure same sex marriage through the state legislature. The woman who spoke to the group began by saying, “What is marriage? Marriage is 463 [I do not recall the precise number] different items in the federal code.” I turned to the person next to me and said, “That’s funny. I thought marriage was the old ball and chain.”

Let us take another example from the current HHS mandate controversy. Under the rule, Catholic colleges and universities are not exempt. Ms. Fluke made a forceful, if unconvincing, case that her decision to attend Georgetown should not keep her from accessing the same free contraceptive services women at other colleges and universities have. But, the operative word there is “decision.” Ms. Fluke may have a right to free contraception, but she has no right to attend Georgetown and it was a poverty of policy imaginativeness on the part of the Obama administration that they did not find a different vehicle for getting women at catholic colleges and universities the services the administration thinks are so important. But, shouldn’t Catholic colleges and universities be allowed to be different in significant ways from their secular counterparts? Shouldn’t they be allowed, for example, to hire and enroll Catholics in some kind of preferential way, because you can’t have a Catholic university – or a Methodist one – without Catholics – or Methodists. If you find such preferential treatment for Catholics – treatment that would be completely objectionable at a public university – how do you feel about the role of historically black colleges and universities? Should they not be able to recruit primarily among black high school students? Should they not be able to give preferential hiring to black applicants for professorships?

Rights, even though they come from God as the USCCB document points out, manifest themselves within a political community. There, rights must be balanced with the common good, the need for public order, and the biblically endorsed requirement to show deference to civil authorities. This is Catholic political theory 101. But, in a strange way, some of the more forceful advocates for religious liberty these days seem to be mimicking the tactics of gay rights advocates, reducing all political equations to a battle over rights. I do not wish to minimize the importance of rights, but think it important not to lose sight of other important social obligations. Rights, and they way we conceive them and protect them, tell us much about ourselves and the kind of society we desire, but they do not tell us all.

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