Congress’s Committee on Oversight and Government Reform is currently holding a hearing on the Administration’s HHS contraception and abortifacient mandate. The title of the hearing is, “Lines Crossed: Separation of Church and State. Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience?” The hearing is being live-streamed at the attached link.
An Uncertain Development in the HHS Mandate
As Mark reports below, President Obama announced this afternoon that the Administration is reversing the decision to require religious employers to pay for health plans which cover contraceptives and abortifacients. The insurers will instead be required to cover them for free. [UPDATE: I have amended the title of this post and stricken out the material above because at this point, given the first question that I raise below, I am deeply uncertain exactly what this change means. More soon.] There remains the issue of what the religious institutions will be required to tell their employees about the availability of these products and services.
ADDENDUM: Some additional questions beyond the issue of what religious institutions will need to say to their employees about the availability of contraceptives through their insurer: (1) Won’t the insurer simply pass the cost of the products and services which it is being compelled provide onto the insureds, including the religious institutions?; (2) What happens when a religious institution is self-insured?; (3) Exactly who qualifies for exemption under the rule?
Contraceptives and the Complexities of American Catholicism
There’s word this morning that the Obama Administration plans to announce a compromise on the new HHS regs that require religiously-affiliated entities to cover contraceptives, sterilization, and abortifacients in employee health insurance plans. (When stories start to leak about how the Vice President opposed the regs, you know the White House is in political trouble). It’s not clear what the compromise is, exactly, or whether it will satisfy religious leaders.
For the moment, though, I’d like to focus on something this crisis reveals about American Catholicism. Some proponents of the HHS regs have been shocked at the negative reaction from many American Catholics, large numbers of whom use artificial birth control. Surely Catholics who use artificial birth control should have rallied to the Administration’s side. As Ross Douthat points out in an insightful column, however, religious belief and practice are rarely so clear-cut. One should not, he says,
gloss[] over the complexities of religious faith and practice, which ensure that many Catholics’ relationship to the teachings of their Church is more complicated than a simple “agree or disagree.” There are Catholics who accept the Church’s view on contraception but simply don’t live up to it. There are Catholics who respect the general point of the teaching while questioning its application to every individual case…. There are many American Catholics, as Daniel McCarthy noted in a perceptive interview recently, who are neither devout nor dissidents — Catholics who practice their faith intermittently, drifting away and then being tugged back, without having any particular desire to see its teachings changed to suit their lifestyles. And then there are Catholics (and this is a large category) who do explicitly dissent from Church teaching, but who also don’t want to see secular governments set the rules for what Catholic institutions can and cannot do…. If this issue a matter of conscience only for the “formal hierarchy of the Catholic Church,” then why is the White House taking so much criticism from Catholics with a reputation for disagreeing with the hierarchy — from Commonweal Catholics and National Catholic Reporter Catholics, from famous Catholic liberals like E.J. Dionne and Chris Matthews, Catholic Democrats like Tim Kaine and Bob Casey, Jr., and so on? The answer can’t be that they’re all afraid of the bishops, since we’ve just established that most Catholics don’t agree with the bishops on this issue. Something else is going on here.
“Neither devout nor dissident” — that phrase probably captures the way most people feel, most of the time, about their faith traditions. It surely describes many American Catholics today. When one takes into account the complex social reality of American Catholicism, and the still-profound sense Americans have that government should not interfere with religious conscience, the reaction to the new HHS regs is not too surprising, after all.
Fiddes on the Roots of Religious Freedom
Paul S. Fiddes (University of Oxford) has posted The Root of Religious Freedom: Interpreting Some Muslim and Christian Sacred Texts. The abstract follows.
A comparison of a recent Open Letter from Islamic scholars entitled A Common Word Between Us and You (2007) with an earlier Christian text, A Short Declaration of the Mistery of Iniquity by Thomas Helwys (1612), shows that both locate a claim for religious freedom in a theological appeal to the sovereignty of God. Both also state or imply a claim for freedom of conscience with the same theological grounding. A Common Word proffers an exegesis of the Qur’anic text Aal ‘Imran 64 in which the phrase ‘that none of us should take others for lords besides God’ is understood as a defence of religious liberty. Three reasons are offered for this interpretation: consistency with the commentary tradition, the situational need for religious co-existence and a hermeneutic in which love is predominant. The Mistery of Iniquity proffers an exegesis of New Testament texts, and especially John 18:36 (‘My kingdom is not of this world’), which similarly roots religious freedom in the sovereign claims of God over human life. This ‘theological’ approach seems to have resonance with an unease about the anthropocentric nature of ‘human rights’ as expressed recently in some Christian theology. However, there are gains in setting a theological approach alongside an appeal to human rights rather than allowing one to suppress the other. Comparison of the two texts under consideration, and of the reasons why they adopt the hermeneutic they do, allows us to understand how an assertion of religious freedom might be framed in terms that carry conviction within different religious communities.
The Rhetoric and the Reality of Employment Division v. Smith
This column by Linda Greenhouse offering a defense of the HHS contraception mandate begins mistakenly, in my opinion, when it claims that the “obvious starting point” in considering the question of the claims of conscience being made against the mandate is “the 98 percent of sexually active Catholic women who, just like other American women, have exercised their own consciences and availed themselves of birth control at some point in their reproductive lives.” I think that is not the right place to begin, but it’s territory that has been covered at length elsewhere.
The more interesting point that Greenhouse makes is that Employment Division v. Smith demonstrates that the claim made by those who are opposed to the contraception mandate — a claim “to conscience that trumps law” — is one which the Supreme Court emphatically rejected in Smith. “[T]hat,” Greenhouse writes, “is not a principle that our legal system embraces.”
Both the way of posing the proposition and the conclusion seem, again, mistaken to me, but let’s concede the former and explore the latter. Suppose it is really true that we are dealing with a claim that “conscience trumps law.” “Our legal system,” in fact, “embraces” just this claim in a great variety of situations. If it did not, the Roman Catholic Church would be compelled to appoint female priests; it would be forbidden from offering sacramental wine to children; religious communities would be compelled to hire those who don’t share their religious commitments. Moreover, as Greenhouse recognizes later, “our legal system” responded to Smith by passing some statutes which make it highly likely that in some situations, “conscience trumps law.” So it simply is not true that “our legal system” does not make any room for the protection of conscience when it conflicts with law.
Greenhouse’s praise for Smith also represents, I think, a widespread misconception about Smith. The misconception is that Smith is an iron rule with no exceptions — that any law which appears “neutral” when considered in some sort of antiseptic laboratory (i.e., neutral by the plain meaning of the text) is permissible. But in fact, that isn’t at all what Smith held. As I have discussed here, Smith’s exceptions are, or are rapidly becoming, at least as important as its rule. The rhetorical appeal of Smith’s hard-edged language has given people the misimpression that “our legal system” admits of no exceptions for religious conscience, ever. And this, from my point of view, is another problem with Smith. It confuses the discourse about religious liberty — it warps it by suggesting a hard, exceptionless rule as somehow constitutive of “our” political and legal traditions. But that rule — and the values which underwrite it — have never, in fact, represented our approach to religious liberty.
Kapai on Freedom of Conscience in Hong Kong
Puja Kapai (University of Hong Kong – Centre for Comparative and Public Law) has posted Freedom of Conscience and Religious Belief. The abstract follows.
Although the freedom of religion is a constitutionally guaranteed right in numerous jurisdictions around the world, ambiguities surrounding the content of the right continue to baffle courts as well as religious subjects seeking protection pursuant to the right the world over. The conceptual underpinnings of the right continue to prove elusive. This paper traces the journey of Hong Kong courts in the elaboration of various aspects of this right through an examination of local jurisprudence to determine the scope and limits of the protections as enshrined in the Basic Law of the Hong Kong Special Administrative Region (HKSAR). An examination of the jurisprudence indicates the need for a sophisticated approach towards the construction of religion. Given the limitations inherent in any attempt to comprehensively categorize social and psychological phenomena, particularly in light of the importance of the liberty of conscience, the task becomes increasingly challenging given the amorphous nature of the right and the likely ramifications if it is over-extended.
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