The USCCB's Statement on Religious LIberty

The Administrative Committee of the USCCB, at the close of a two day meeting yesterday, issued a statement on the much-debated subject of HHS mandates and how those mandates are applied to religiously affiliated institutions.

The good news is that there was no extended metaphor about a ham sandwich. I do not say in this jest, although you are permitted to chuckle. The most relevant point of comparison for the statement issued yesterday is with the congressional testimony of Bishop Lori on this subject in the past few weeks. Certainly, the statement issued yesterday is an improvement, although it still has too much political and legal analysis and too little theology for my taste. And, its promise of continued negotiation with the White House, the lack of harsh “war on Catholicism” rhetoric, is all to the good.

Bishop Lori’s ham sandwich metaphor, which was akin to one I used in a previous blog post, missed the mark in part because I am a blogger and he is a bishop. As I noted at the time, it was somewhat shocking that Bishop Lori, speaking as a bishop and representing the bishops of the Catholic Church in the U.S., failed to mention God, although he did find the time to mention a longish and somewhat confused attack on contemporary liberalism. The USCCB statement specifically states that the bishops are speaking as pastors charged with the care of souls and that the ministries subject to the mandate are ministries conducted in conformity with the Lord’s command to love one another.

The best section of the statement comes where the bishops indicate their continued opposition to any accommodation that leaves in place the four-part criterion in the federal rule as to what is, and is not, a religiously exempt institution. That four-part criterion required that an exempt organization must primarily or exclusively employ and serve co-religionists, drawing a distinction between a house of worship and a ministry of the Church. This distinction is nonsensical to Catholics who remember the Reformation debates about the relationship of faith and works and of faith and reason. The Eucharist is not the same thing as a homeless shelter, but our participation in the Lord’s Supper leads us to care for the poor. The Eucharist is the source of our faith, but serving the poor is part, an integral part, of the content of our faith that is rooted in the Eucharist. The same is true for our colleges and universities. For Catholics, opening an intellectual door is opening a spiritual door, and opening a spiritual door is opening an intellectual door: Truth, Being, Beauty & Love are, for us, but four different names of the same reality, an all-loving God who created us and calls us, through baptism, to share in the divine life of the Trinity. In one way or another, our colleges and universities all set themselves the task of explicating our intellectual understand of this reality.

The bishops are also correct to warn that letting the four-part criterion stand will set a precedent in federal law that is very troublesome. I suppose that the Obama Administration could say that the rule is not to be understood as a precedent, just as the Supreme Court stated in its Bush v. Gore decision that their ruling should not be considered a precedent, except of course it was, and if similar circumstances arise again, a future Supreme Court will undoubtedly feel free to enter the fray.

But, other parts of the statement suffer from a tone-deafness that undermines the case the bishops are trying to make. For example, the bishops state: “we wish to clarify what this debate is -- and is not -- about. This is not about access to contraception, which is ubiquitous and inexpensive, even when it is not provided by the Church's hand and with the Church's funds.” Surely, bishops understand that this debate has taken on a symbolic quality and while people will not fight to the death for a policy, they will for a symbol. In this case, many women perceive the effort to rollback the mandates regarding coverage of preventive services as an assault on their long-cherished, and thoroughly just, concern to see greater equality in access to health care between the genders.

Some also, believe that women’s control over their own reproductive decisions is a kind of modern dogma. I do not agree with that view, of course, but I can understand why women feel that way. The bishops would be well served to acknowledge that they, too, understand why women feel that way and consequently invite a conversation rather than a political battle.

Relatedly, the bishops’ position is muddied by their continued call for an individual exemption to the mandate, not just for religiously affiliated employers but for secular employers who invoke a religious justification for their exemption claim. This is the worst part of the document, and so I will quote it in full:

A violation of personal civil rights. The HHS mandate creates still a third class, those with no conscience protection at all: individuals who, in their daily lives, strive constantly to act in accordance with their faith and moral values. They, too, face a government mandate to aid in providing "services" contrary to those values -- whether in their sponsoring of, and payment for, insurance as employers; their payment of insurance premiums as employees; or as insurers themselves -- without even the semblance of an exemption. This, too, is unprecedented in federal law, which has long been generous in protecting the rights of individuals not to act against their religious beliefs or moral convictions. We have consistently supported these rights, particularly in the area of protecting the dignity of all human life, and we continue to do so.

This is frankly shocking. Were the drafters of this task unaware that these words could be used -- actually such arguments were used! -– by segregationists? They cited the biblical story of Ham to justify their stance, and I suppose a biblical citation counts as a religious claim.

Monday, I invoked the memory of Cardinal Gibbons, but perhaps I invoked the wrong cardinal. Before they fly back to their home dioceses, the administrative committee should head down to St. Matthew’s and pray for guidance at the tomb of Cardinal Patrick O’Boyle who not only stood on the steps of the Lincoln Memorial and gave the invocation on the day of Dr. King’s “I Have a Dream” speech, but strongly supported civil rights legislation that, well, coerced the consciences of segregationists. Addressing himself to the subject of fair housing legislation, O’Boyle told the Montgomery County Council that while the Church recognized the right to private property , that right was “not absolute and unconditional and could not be exercised to the detriment of the common good.” Now, we can posit that we do not believe contraception is for the common good, whereas equal housing laws were, but that is not a religious liberty argument is it?

The statement points to a forthcoming document from the ad hoc committee on religious liberty. I am told that this document will actually be quite good and that, among other things, it will focus not only on the HHS mandate, but also point out other threats to religious liberty, such as the anti-immigration law in Alabama. Will Sean Hannity be as keen on the religious liberty when it cuts both ways? I am taking bets.

I also hope that document will explain how we got here. It is important to note that planning for the document began well before the January 20th announcement by the White House regarding the HHS rule, a fact that defeats the argument of those who think this whole issue of religious liberty was devised secretly by Republican operatives as an effort to swing the Catholic vote away from Obama. The first time I recall a religious liberty concern raised was in 2006 when Cardinal Mahony raised it in the context of an anti-immigrant bill pending in Congress. Then we confronted it in Massachusetts when Catholic Charities was ordered to provide adoption services for same-sex couples. We do not need a fortune-teller to perceive that in the near future, the “right” to physician-assisted suicide will put Catholic health care providers and doctors in a difficult spot. The religious liberty issue is not an election year ploy. Better to see the HHS mandate as a tipping point in Catholic consciousness. I have also learned in the past few months that the nation’s First Amendment jurisprudence is a hash, and I will leave it to others to figure out what to do about that!

In this morning’s Washington Post, the spokesperson for the USCCB, Sr. Mary Ann Walsh (full disclosure – I consider Sr. Mary Ann a friend), stated that the bishops were promising a “full court press” on the issue. That is fine with me provided that press is balanced, not overly partisan, without the often hateful and histrionic rhetoric. But, I would warn the conference that sometimes when you apply a full court press, a player for the other side gets free down court and is able to score an easy basket.

If the religious liberty issue is so important, and I believe it is, the bishops need to consult widely about how to address it and think deeply about not just the politics but the theological implications of their statements.

The country needs to think deeply about this issue too, and I think the bishops are to be praised for raising it. Now it is everyone’s task to stop hurling eggs at the other side and start listening, discussing and doing the things a democracy does to achieve consensus on the kind of society we want and how our vibrant Catholic institutions can participate in fashioning the common good for all Americans while remaining true to our own Catholic identity.

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