Friday, July 6, 2012

Whose Freedom of Religion/Conscience?

I received a comment from a reader, which is posted on the preceding blog comments. Occasionally, I post a response as a blog, because I believe the comment contains sentiments/ideas that touch on general interest.

Dear Silias,

In regard to your statement,

“Actually, democracies have THE WORSE [worst] record of protecting minority rights of all types of governments, historically speaking.”

I would very strongly disagree with your assertion. You need merely consider the Twentieth Century to realize the absurdity of such a claim. The Third Reich under Hitler, the Soviet Union under Joseph Stalin and the People’s Republic of China under Mao Zedong (all totalitarian regimes) together arguably murdered more people than all other governments combined in all previously recorded history. Incidentally, democracies constitute a small sliver of all forms of human government throughout history, the overwhelming majority have been authoritarian governments in which the common people have had little or no voice in decisions directly affecting their daily lives such as the subject at hand, their health care.

I agree with your sentiments regarding minority rights in the face of majority rule; in fact, I have argued that very point in previous articles. The Fourteenth Amendment to the Constitution and the courts exist to protect minority rights (admittedly imperfectly) against majority tyranny.

That stated I think you have misunderstood the thrust and main point of my article.
I think it prudent, as my old philosophy professor used to say, to begin by clearly defining our terms. Specifically, what is meant by the expression “Freedom of Religion/Conscience.” Black’s Law dictionary, Seventh edition, defines Freedom of Religion as,

“The right to adhere to any form of religion or none, to practice or abstain from practicing religious beliefs, and to be free from governmental interference with or promotion of religion, as guaranteed by the First Amendment and Article VI, Section 3 of the U. S. Constitution.”

Since laws are the codified values of a people, Black’s definition provides us with definition that represents both the legal, and culturally normative understanding of the term Freedom of Religion/Conscience in the USA. Reading that definition it becomes apparent that this right is primarily conferred upon individual citizens and secondarily upon associations of like-minded people (including religious organizations).

The bishops claim that a mandate that Catholic institutions (e.g. universities, charitable agencies) provide insurance coverage (such coverage normatively includes reproductive services/procedures) to employees, students and their dependents violates Catholic’s Freedom of Religion/Conscience.

The bishops are attempting to redefine Freedom of Religion/Conscience as being primarily, or at the very least equally, accorded to institutions (e.g. the Catholic hierarchy) and secondarily, or at most only equally, to citizens. The NCCB seeks to interpret a special right/privilege that they will first, use to effectively impose their views/beliefs and practices upon subordinated people (i.e. employees, students, staff, and their dependents). Second, to carve out and enshrine a special legal status for the National Conference of Catholic Bishops (NCCB) within American society.

Ironically, the practical effect of their demands will involuntarily impose NCCB beliefs/values/practices on citizens, who happened to be their employees/students/and dependents thereof, regardless of the beliefs, values and practices of these subordinated people. In effect, the NCCB will trample on the Freedom of Religion/Conscience of individual citizens (employees/students/and the dependents thereof) through raw economic coercion. If you work for us, or attend one of our universities, we will involuntarily exclude you from normative health care insurance benefits that contradict the employer’s religion, regardless of your religious beliefs or practices.

An employee, student, etc of a Catholic institution would have their conscience effectively overruled by the bishops; unless they could afford to pay for these services/medications/procedures out of pocket and many cannot. This has the practical effect of violating the Freedom of Religion/Conscience of employees, students and their dependents.

The fact that a majority of Catholics find no moral issue with disregarding the bishop’s prohibition of contraception, unmasks that this is NOT about the issue of Freedom of Religion/Conscience, as it has been historically understood. Nor is this per se about contraception. This is about power and control by the bishops of American law and society, period.

This is not an attack on Catholics by the government; in fact, it is the government protecting the Freedom of Religion/Conscience of all its citizens (including Catholics) against a powerful elite attempting to force its very narrow interpretation of Catholicism involuntarily on others by redefining Freedom of Religion/Conscience and attempting to intimidate elected officials.

The most succinct and insightful statement on the hierarchy I’ve yet heard was voiced by the Prime Minister of Ireland, a historically Catholic nation, when he said to the Parliament of that nation,

Prime Minister Enda Kenny denounced to lawmakers last week what he called "the dysfunction, disconnection, elitism – and the narcissism – that dominate the culture of the Vatican to this day."

P.S.: More "Special Rights" for Catholic institutions.


colkoch said...

Your second to last paragraph gets to the truth of the matter as far as Catholic women are concerned. This is the government protecting our individual right to make our own decision about our families against the idiocy of celibate bishops.

A couple of other points. The USCCB might just as well start demanding employees not use their salaries to buy birth control because insurance is part of our salaries. Second, I am breathlessly waiting for our bishops to include ED drugs prescribed for single men. I think my conscience is developing a problem with being remotely complicit in this type of medical prescription.

Tal said...

Fr. Geoff, please forgive the length of this post, but Mr. Botwin's misguided arguments got me thinking. Fundamentally, the hierarchy misconstrues the Establishment Clause, and ignores Congress' power to regulate those institutions it funds.

I believe Agostini v. Felton, 521 U. S. 203 (1997) likely recites the issue the Supreme Court would consider: "whether the government acted with the purpose of advancing or inhibiting religion [and] whether the aid [or here, coverage requirement] has the 'effect' of advancing or inhibiting religion." (Cits. omitted.)

The applicable case law supports the Affordable Care Act's imposition of certain coverage requirements on Catholic affiliated institutions, like hospitals and service organizations, including: Bradfield v. Roberts, 175 U.S. 291 (1899) (holding constitutional public funding of Catholic hospital because it was a secular corporation, even though founded and run by the Sisters of Charity); Bowen v. Kendrick, 487 U.S. 589 (1988) (holding the Adolescent Family Life Act constitutional because "there is no reason to assume that the religious organizations which may receive grants are 'pervasively sectarian' [...] [and thus there is] no reason to fear that [...] the Government [...] [will] intrude unduly in the day-to-day operation of the religiously affiliated AFLA grantees"); and Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (holding school voucher program constitutional because any intersection with religion arose "only as a result of the genuine and independent choices of private individuals").

The hierarchy and Mr. Botwin are thus wrong for several reasons. First, Catholic affiliated institutions accept taxpayer funds because they are admittedly secular and not religious, which makes them no different to any other business. Second, the Act is clearly of general applicability, and is a constitutional exercise of Congressional power and authority. Federation of Ind. Businesses v. Sebelius, ___ U.S. ___ (2012). Third, benefits are electable by the employee and not at the direction of Congress (Congress merely ensured the employee had the benefit if desired). Fourth—as conceded by Notre Dame in its case against the HHS—the coverage is employee compensation, and not Church property. Fifth, benefited employees need not be conservative practicing Catholics. Last, by exempting the Church and its immediate subdivisions, the Act avoids undue entanglement.

Based on these factors, the Act satisfies the tests applicable to the Establishment Clause, including Lemon v. Kurtzman, 403 U.S. 602 (1971) (holding that to be constitutional, "[f]irst, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion [...]; finally, the statute must not foster 'an excessive government entanglement with religion'").

In response, the hierarchy posits that it alone has the power to define the wall between Church and State, an argument I find legally odious. It would constitute the Church a political power, and vest in it the powers and prerogatives of the State—something the Establishment Clause clearly prohibits.

The United States is not theocracy. The Catechism is not the Constitution. The Conference of Catholic Bishops is not Congress. The Pontifex Maximus is not President. The hierarchy should tend to its own dilapidated house and try keeping quiet for a change. It would be … refreshing.

I am far from a fan of the Affordable Care Act, which I believe is a complicated, expensive, ill-considered boondoggle. But the Act is constitutional, for the reasons stated in Chief Justice Roberts' considered majority opinion. Congress has the power and authority to enforce it.

Silas Botwin said...

Father Geoff,

I was not expecting a reply to my comment (I was unsure if you would even allow it to be posted), and I definitely was not expecting an entire article in response so I am a bit surprised at being thrust into the limelight. Your response was...imperfect (just like my comment), but unquestionably intelligent, thoughtful, insightful, wise, and most importantly "in scope". Your comment brought of some legitimate issues, points, and concerns, especially about the parts about philosophy and the need for vocabulary definition and clarity. I also appreciated your questioning of whether or not I correctly interpreted the point of your article - which I thought was a fair statement of possibility. Unlike the article I originally commented on, your response displayed the intellect and thoughtfullness that first attracted me to your blog.

I always am intrigued by and hold immense respect for (and admittedly a little drawn towards) anyone who can challenge, stump, defeat, or humble me - which you did in more than one respect. Your response was notably more articulate and polished than my comment was, and I was generally rather impressed by it. Furthermore, it also had a sense of restraint and distinct lack of the pointed condescension that characterized my commentary, which maked me feel rather diffident at being of a weaker and inferior character than you are.

I will need sometime to formulate my thoughts and contemplate more deeply what you have mentioned - to point out my disagreements, admit my mistakes, and to give you points where you are due. However, I am very short on time at present, so it may be abbreviated and I hope that I will not be too long before getting back to you.

Gary (NJ) said...

Off topic:
here is a link to an article on the Daily Episcopalian that many readers of this blog will appreciate.