USCCB's New Doc on Religious Freedom

by Michael Sean Winters

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The USCCB this morning released the text of a new document from its ad hoc Committee on Religious Liberty. The document, entitled, “Our First, Most Cherished Liberty,” takes the recent debate over the HHS mandates and brings the discussion to the 35,000 foot level, surveying the landscape more broadly and making the case that the issue of religious liberty is urgent and warrants the attention of both the Church and the nation.

There is much to commend in the document. There is none of the histrionic “war on religion,” language that has been spewing from some, including from some bishops. Most importantly, the document cites a series of issues, not just the HHS mandate, as sources of concern, including the Alabama anti-immigrant law that would force Catholic school teachers and workers at Catholic hospitals to ascertain the legal status of those they serve. The Alabama law, which has been endorsed by the Republican Party’s apparent nominee, Mitt Romney, raises the exact same issues of religious liberty as the HHS mandates and I look forward to watching Mr. Romney squirm when an enterprising reporter asks him to explain how he squares his stated concern about religious liberty with his support for the Alabama law.

Raising the Alabama law, which was unmentioned by Archbishop-elect William Lori when he testified before Congress, and also unmentioned in several recent statements from the USCCB, is vital not only on the merits but because it will hopefully remind the bishops of the value of avoiding a too-close identification with any partisan platform. It robs the issue of religious liberty of its partisan currency. This is a good thing. The bishops believe, and liberals should certainly agree, that concern for First Amendment rights has a transcendent character, not a partisan one. Besides, the bishops are well advised to recognize the wisdom of ethics rules that insist officials not only avoid conflicts of interest but, as well, the appearance of such a conflict of interest. To the extent the USCCB is seen as a partisan arm of either party, the bishops’ role in our Church and in our culture is diminished significantly. It is unfortunate, indeed, that the kind of balanced statement the bishops have now produced did not guide all of their statements over the past three months.

The new document also focuses on the most troubling part of the HHS mandate, the distinction drawn between churches, which are exempt, and Catholic organizations like social service agencies and Catholic colleges and universities, which are not exempt. The Obama administration has been trying to find ways to grant exemptions to the latter category, without changing the underlying rule, and for the life of me I do not know why. This is the part of the HHS rule that should most trouble progressive Catholics who surely can grasp how integral our Catholic charities and schools are to our faith. “Religious liberty is not only about our ability to go to Mass on Sunday or pray the Rosary at home,” the document. States. “It is about whether we can make our contribution to the common good of all Americans. Can we do the good works our faith calls us to do, without having to compromise that very same faith?” This should garner a strong “Amen” from the liberal Catholic amen corner, of which this blog is a proud member.

There are problems with the document. It gives a quick review of the history of religious liberty in this country, from the Catholic-inspired Act of Toleration in colonial Maryland, to the noble sentiments of some of the Founders, to Cardinal Gibbons’ magnificent sermon upon taking possession of his titular church, Santa Maria in Trastevere, to the recent majority opinion in Hosanna-Tabor. But, that is only half the history. It is pleasant to recall Thomas Jefferson’s letter to the Ursulines in New Orleans, assuring them that their religious liberty would be honored, but it is worthwhile to recall that the Ursulines in Massachusetts had their convent burned three decades later. There is no mention of the campaign against “Rum, Romanism and Rebellion” in the latter half of the nineteenth century. There is no mention of the 1928 campaign against Al Smith, a campaign marked by the most coarse forms of anti-Catholic bigotry. There is no mention of the anti-Catholic roots of the Temperance Movement. There is no mention of the opposition to the establishment of diplomatic relations with the Vatican, an opposition that persisted until the Reagan years. Yes, there are threats to the religious liberties of Catholics in our day, but the view that such threats are “unprecedented” is only permitted to those who see America’s past through rose-colored glasses.

I also wish the document had focused more on the role of the judiciary in creating the current climate of hostility to religious freedom. In reporting on this story for the past year, it has become obvious to me that if there is a “war on religion” in this country, it has been conducted mostly in the courts. Your average Catholic citizen, who is not a lawyer, can be forgiven for being a bit puzzled when told there is a “war on religion” because it is doubtful they have experienced any molestation of their conscience in their daily lives. But, over the past several decades, there has been a disturbing trend within the courts to read the establishment clause powerfully and to read the free exercise clause as a kind of adjunct to the free speech and free assembly clauses. No one is more to blame for this disastrous turn in our jurisprudence than that noted anti-Catholic, liberal jurist Antonin Scalia, whose opinion in Employment Division v. Smith is the high-water mark of bad First Amendment jurisprudence.

It is odder still that the document includes this paragraph:

More comprehensively, a theologically rich and politically prudent declaration from Evangelicals and Catholics Together made a powerful case for greater vigilance in defense of religious freedom, precisely as a united witness animated by the Gospel of Jesus Christ. Their declaration makes it clear that as Christians of various traditions we object to a “naked public square,” stripped of religious arguments and religious believers. We do not seek a “sacred public square” either, which gives special privileges and benefits to religious citizens. Rather, we seek a civil public square, where all citizens can make their contribution to the common good. At our best, we might call this an American public square.

Hmmmm. The “naked public square” has been a concern of conservative Catholics and evangelicals for come time. The late Fr. Richard John Neuhaus coined the phrase. But, where is this “naked public square”? Why did this concern make its way into this document? I am perplexed. This document was issued in the same week that both Cardinal Dolan and Archbishop-elect Lori appeared on prime, national network news shows. It came the same week that Cong. Paul Ryan defended his budget in explicitly religious terms and that same budget was attacked in explicitly religious terms. (In fact, most of the early objections to Ryan’s budget have come from religious groups and leaders making moral and religious arguments, not economic analyses!) The document comes one week after the President of the United States held his third annual Easter Prayer Breakfast and spoke explicitly about his belief in the risen Christ. The document came in the same week that the GOP nominating process came to an effective close, a process that has been drowning in religious language and debate. Religious voices are everywhere in our public square. In fact, you would be hard pressed to find another moment in the history of the Republic when religious voices were so prominent. The inclusion of this paragraph is troubling, then, because it betrays a prior narrative that is not only false, but slanted. More on that tomorrow.

The document, unlike Lori’s testimony before Congress, contains some theology at long last, most of it delivered via the Rev. Martin Luther King Jr.’s “Letter from Birmingham Jail.” But, this section deserved greater elaboration. There is a reason we Catholics should be especially mindful of the need to value religious freedom, and that reason is not because it happens to be listed first in the First Amendment. It is because we believe the religious dimension of humankind is what makes us human in the first place. We all have the right to free speech, but some men and women choose to be silent, and they do not diminish their humanity by their silence. The freedom of the press is, understandably, near and dear to my heart, but not everyone is a journalist. But, insofar as we close ourselves off from the divine, we risk dehumanizing ourselves.

The biggest concern with the document, however, is the call for a “fortnight for freedom,” two weeks of prayer and fasting on behalf of religious freedom. I think the bishops are right to be concerned about religious freedom, and right, too, to encourage all of us to share their concern. But, it is not the only concern and such actions as they propose make it appear as if the issue of religious liberty is the only thing that Catholics should be focused on. In June, the bishops will hold their annual summer meeting. Is it too much to hope for that some bishop, let alone all of them, would suggest a fortnight of prayer and fasting to defend programs that protect the poor? Or perhaps a fortnight for the freedom and dignity of undocumented workers?

Tomorrow, I will look less at this text itself and, instead, focus on the narratives that have emerged around this issue. One side continues to insist that the whole religious liberty issue is phony, a plan to gin up the Catholic vote against Obama. The other side sees a vast anti-religious conspiracy on the part of secular liberals. I do not think either narrative withstands scrutiny, and will discuss why tomorrow. But, for now, it is enough to commend the new document, which is more balanced than what we have been hearing lately, and to hope that everyone will read it without the blinders of a pre-ordained, politically driven narrative. The issues raised are important, and here they are dealt with in a considered and mostly balanced way.

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