The President, Faith, and Same-Sex Marriage

An interesting point that may be overlooked in President Obama’s announcement yesterday that he supports same-sex marriage. According to the President, his faith as a Christian helped lead him to this position. Referring to his wife, First Lady Michelle Obama, he said:

This is something that, you know, we’ve talked about over the years and she, you know, she feels the same way, she feels the same way that I do. And that is that, in the end the values that I care most deeply about and she cares most deeply about is how we treat other people and, I, you know, we are both practicing Christians and obviously this position may be considered to put us at odds with the views of others.

But, you know, when we think about our faith, the thing at root that we think about is, not only Christ sacrificing himself on our behalf, but it’s also the Golden Rule, you know, treat others the way you would want to be treated. And I think that’s what we try to impart to our kids and that’s what motivates me as president and I figure the most consistent I can be in being true to those precepts, the better I’ll be as a as a dad and a husband and hopefully the better I’ll be as president.

Of course, as the President suggested, not everyone agrees with his assessment of what Christianity requires in this respect — the US Conference of Catholic Bishops, for example. Still, in stating that his religious faith helped determine his position, the President is well within the American tradition of political leaders who explain their policies in religious terms.

Paul Ryan and the Catholic Bishops

When the US Conference of Catholic Bishops issued its statement on religious freedom this month, critics complained the bishops were being inappropriately partisan. The bishops’ statement portrayed the Obama Administration’s contraceptives mandate as a major threat to religious freedom. Critics argued that the bishops shouldn’t have taken sides in an election year.

This week, there was evidence that Catholic social teaching cuts both ways. Yesterday, House Budget Committee Chairman Paul Ryan (R-Wisconsin) gave a speech at Georgetown University. Ryan is famous, of course, for proposing a budget that cuts the growth in federal benefits programs, like Medicare and Medicaid. Earlier this month, the Bishops Conference wrote Congress to oppose the proposal. The  Ryan budget inappropriately burdens the poorest Americans, the bishops argued, and fails to meet “moral criteria.” At Georgetown, where 90 faculty members and priests signed a letter admonishing him for misunderstanding Catholic social teaching, Ryan defended himself on religious grounds. “I suppose that there are some Catholics who for a long time thought they had a monopoly of sorts, not exactly on heaven, but on the social teaching of our Church,” he said. (Ryan was perhaps referring to the Catholic bishops). “There can be differences among faithful Catholics on this.”

As an outsider, I’m not in the best position to evaluate whether Ryan is correct in suggesting that Catholic social teaching allows more room for debate about how best to assist the poor than about the need to avoid cooperation with the distribution of contraceptives. I’ve certainly heard people make that argument. For me, the interesting thing is how quickly the rhetorical positions switch. Politically liberal Catholics often argue that  Church teaching, properly understood, allows latitude for dissent on sexuality; politically conservative Catholics argue that Church teaching allows latitude on economics. What this indicates, perhaps, is that Catholicism, like other traditional Christian confessions, represents a political third way: conservative on social issues, especially sexuality, but liberal on fiscal issues. Given contemporary American politics, that doesn’t seem a winning combination.

Commonweal on the Bishops’ Religious Freedom Statement

Over the past week, I’ve written about criticism from the Catholic right of the U.S. Conference of Catholic Bishops’ recent statement on religious freedom. Of course, there’s also been criticism from the Catholic left. This week, Commonweal has a negative editorial about the bishops’ statement. More in sorrow than in anger, Commonweal maintains that the statement veers into political partisanship. The  bishops’ simplistic, one-sided language, the editorial complains, makes them sound more like Republican party operatives than pastors. Young people already are turning away from organized religion because it seems too political and conservative on social issues. Surely the bishops do not want to exacerbate that trend?

I wonder about this criticism. It’s true that the bishops’ statement highlights the Obama Administration’s contraceptives mandate. The mandate is the first on the list of threats to religious freedom the bishops identify, and surely served as the prime motivation for their statement. But the second item on the list is state anti-immigration laws, like the recent Alabama measure forbidding assistance to undocumented immigrants. In criticizing these laws, the bishops are hardly mouthing GOP talking points. Republican politicians often favor such measures, while the Obama Administration has filed a lawsuit challenging the Alabama law.

Even with respect to the contraceptives mandate, the bishops could be forgiven for saying that they didn’t start this fight. The bishops surely knew that objecting to the HHS mandate would have the effect of highlighting the Church’s position on contraception, and that this position is unpopular, particularly with Millennials. But what choice was there? It was the Obama Administration that issued the mandate during an election year. For that matter, it was the Obama Administration that argued this Term in Hosanna-Tabor that the religion clauses did not even apply to a church’s decision to fire a minister, a position that a unanimous Court characterized as “remarkable.” If it’s inappropriately partisan for religious organizations to respond when government takes steps like these, then religious organizations can never defend themselves in public debate. That may be a good thing from a spiritual point of view, but I don’t think it’s a result Commonweal would approve.

Outflanking the Bishops Conference on the Right

Last week, we noted  a report from the U.S. Conference of Catholic Bishops on the importance of religious freedom in America, Our First, Most Cherished Liberty: A Statement on Religious Liberty. Most of the time, one hears about dissents from the Catholic Left, which disagrees with the bishops on issues like abortion and homosexuality. Last week, though, there was a reminder that dissenters also exist on the Catholic Right.

The Society for Saint Pius X is a traditionalist Catholic body, formed around opposition to Vatican II, with an ambiguous relationship to the Church. Pope John Paul II excommunicated the society’s founder, and the society lacks canonical status, but recently the Vatican and the SSPX have been negotiating a formalization of the society’s place within the Church. It’s noteworthy, therefore, that the SSPX has responded to Our First, Most Cherished Liberty with a statement of its own. The SSPX is not impressed. In fact, it views the bishops’ statement as another example of an Americanist compromise that dilutes the Catholic faith. “Liberty,” the society asserts, is a matter of freely following the will of God, as that will is expressed in the Catholic Church; it has nothing to do with the American notion — strongly influenced, the SSPX argues, by heretical Calvinist theology — of personal freedom. It is precisely this American idea of personal freedom, the society maintains, that has led to things like the HHS contraceptives mandate. The SSPX calls on the bishops to abandon the principles of the Church’s “opponents” and return to the Church’s own.

As Rick Garnett points out over at Mirror of Justice, this argument was settled at Vatican II itself, in the Church’s Declaration on Religious Freedom, Dignitatis Humanae. I don’t know how large a movement the SSPX represents within Catholicism, though I suspect it’s fairly small. Still, it’s interesting to think of the bishops as reflecting a middle-of-the-road position — within the Catholic Church, that is.

The USCCB Statement on Religious Freedom and Widespread Misunderstanding About the State of Free Exercise

Unlike some, I find much to praise in the recent statement by the USCCB Ad Hoc Committee for Religious Liberty, which Mark noted here.  This being a legal blog, however, I want to respond specifically to a claim being advanced on some blogs about the state of constitutional free exercise in this country.  It’s one that I’ve encountered many times before, but the response to it needs much more ventilation, as the media in various sorts of fora are just not getting it.  The misunderstanding leads commentators, even law professors, to make grossly incomplete, and unintentionally misleading, statements about whether the Free Exercise Clause may be invoked for infringements of religious liberty.  I’ll focus some of these comments on the HHS mandate, though I do not think the point is limited to that context.  The bottom line, in my view, is that it is very unclear whether the Free Exercise Clause is a viable legal possibility.  If I were a betting man in the mandate context, I’d put the odds somewhere around 60-40 for upholding the mandate.

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The Catholic Bishops in the Roberts Court: Track Record as Amicus Curiae

In the first six years of the Roberts Court (OT05-OT10), the United States Conference of Catholic Bishops filed seven amicus curiae briefs. Four dealt with religious liberty  (Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal, CLS v. Martinez, Arizona School Tuition Organization v. Winn, and Hosanna-Tabor v. EEOC), two addressed abortion (Ayotte v. Planned Parenthood and Gonzales v. Carhart), and one dealt with assisted suicide (Gonzales v. Oregon). The table below compares the Justices by whether they voted for the same party supported by the Bishops’ Conference as amicus curiae.

Justice Name

Agreement with Bishops’ Conference as Percentage of Cases

Agreement with Bishops’ Conference as Fraction of Cases

Chief Justice Roberts (Catholic)



Justice Scalia (Catholic)



Justice Thomas (Catholic)



Justice Alito (Catholic)



Justice Kennedy (Catholic)



Justice Stevens



Justice Souter



Justice O’Connor



Justice Ginsburg



Justice Breyer



Justice Sotomayor (Catholic)



Justice Kagan



These statistics reveal a stark division between the Catholic and the non-Catholic Justices, a division that is likely to shape up more and more as one between the Republican appointees (all Catholic) and the Democratic appointees (one of whom is Catholic). The three cases in which the party supported by the Bishops’ Conference garnered the votes of the non-Catholic Justices were all unanimous decisions (Hosanna-Tabor v. EEOC, Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal, and Ayotte v. Planned Parenthood). The party supported by the Bishops’ Conference did not attract the votes of a single non-Catholic Justice in any split decision.

As noted in connection with the earlier chart showing the same measure in the Rehnquist Court, the point of this measurement is not to demonstrate influence, but rather to define the universe of cases in which the Bishops have an interest in the outcome and to see how hospitable various Justices have been to the claims advanced by the parties supported by the Bishops’ Conference amicus curiae briefs.



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