Abortion & Conscience

  • Michael Sean Winters* | . . . We are called to conform ourselves to the moral law and so form our consciences that this conformity is understood, properly, as a genuine liberation, a freeing of one’s capacity to choose so that we choose the good. In short, our exercise of conscience is not just a legal claim of immunity. . .
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J’ACCUSE! Why Obama is wrong on the HHS conscience regulations

National Catholic Reporter
Distinctly Catholic

21 January, 2012

Reprinted by permission of National Catholic Reporter,
115 E Armour Blvd, Kansas City, MO 64111

Michael Sean Winters*

The fact that there is much to defend in the President’s record does not mean that anyone need defend everything in that record, especially something as indefensible as this decision. And, it is a mistake of analysis to see this as a decision about contraception. The issue here is conscience.

President Barack Obama lost my vote yesterday when he declined to expand the exceedingly narrow conscience exemptions proposed by the Department of Health and Human Services. The issue of conscience protections is so foundational, I do not see how I ever could, in good conscience, vote for this man again.

I do not come at this issue as a Catholic special pleader, who wants only to protect my own, although it was a little bracing to realize that the president’s decision yesterday essentially told us, as Catholics, that there is no room in this great country of ours for the institutions our Church has built over the years to be Catholic in ways that are important to us. Nor, frankly, do I come at the issue as an anti-contraception zealot: I understand that many people, and good Catholics too, reach different conclusions on the matter although I must say that Humanae Vitae in its entirety reads better, and more presciently, every year.

No, I come at this issue as a liberal and a Democrat and as someone who, until yesterday, generally supported the President, as someone who saw in his vision of America a greater concern for each other, a less mean-spirited culture, someone who could, and did, remind the nation that we are our brothers’ keeper, that liberalism has a long vocation in this country of promoting freedom and protecting the interests of the average person against the combined power of the rich, and that we should learn how to disagree without being disagreeable. I defended the University of Notre Dame for honoring this man, and my heart was warmed when President Obama said at Notre Dame: “we must find a way to reconcile our ever-shrinking world with its ever-growing diversity — diversity of thought, diversity of culture, and diversity of belief. In short, we must find a way to live together as one human family.”

To borrow from Emile Zola: J’Accuse!

I accuse you, Mr. President, of dishonoring your own vision by this shameful decision.

I accuse you, Mr. President, of failing to live out the respect for diversity that you so properly and beautifully proclaimed as a cardinal virtue at Notre Dame. Or, are we to believe that diversity is only to be lauded when it advances the interests of those with whom we agree? That’s not diversity. That’s misuse of a noble principle for ignoble ends.

I accuse you, Mr. President, of betraying philosophic liberalism, which began, lest we forget, as a defense of the rights of conscience. As Catholics, we need to be honest and admit that, three hundred years ago, the defense of conscience was not high on the agenda of Holy Mother Church. But, we Catholics learned to embrace the idea that the coercion of conscience is a violation of human dignity. This is a lesson, Mr. President, that you and too many of your fellow liberals have apparently unlearned.

I accuse you, Mr. President, who argued that your experience as a constitutional scholar commended you for the high office you hold, of ignoring the Constitution. Perhaps you were busy last week, but the Supreme Court, on a 9-0 vote, said that the First Amendment still means something and that it trumps even desirable governmental objectives when the two come into conflict. Did you miss the concurring opinion, joined by your own most recent appointment to the court, Justice Kagan, which stated:

“Throughout our Nation’s history, religious bodies have been the preeminent example of private associations that have ‘act[ed] as critical buffers between the individual and the power of the State.’ Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984). In a case like the one now before us—where the goal of the civil law in question, the elimination of discrimination against persons with disabilities, is so worthy—it is easy to forget that the autonomy of religious groups, both here in the United States and abroad, has often served as a shield against oppressive civil laws. To safeguard this crucial autonomy, we have long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs. The Constitution guarantees religious bodies ‘independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.’ Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116 (1952).”

Pray, do tell, Mr. President, what part of that paragraph did you consider when making this decision? Or, do you like having your Justice Department having its hat handed to it at the Supreme Court?

I accuse you, Mr. President, as leader of the Democratic Party, the primary vehicle for historic political liberalism in this country, of risking all the many achievements of political liberalism, from environmental protection to Social Security to Medicare and Medicaid, by committing a politically stupid act. Do you really think your friends at Planned Parenthood and NARAL were going to support the candidacy of Mr. Romney or Mr. Gingrich? How does this decision affect the prospects of Democrats winning back the House in districts like Pennsylvania’s Third or Ohio’s First or Virginia’s Fifth districts? How do your chances look today among Catholic swing voters in Scranton and the suburbs of Cincinnati and along the I-4 corridor in Florida? I suppose that there are campaign contributions to consider, but really, sacrificing one’s conscience, or the conscience rights of others, was not worth Wales, was it worth a few extra dollars in your campaign coffers?

I accuse you, Mr. President, of failing to know your history. In 1978, the IRS proposed a rule change affecting the tax exempt status of private Christian schools. The rule would change the way school verified their desegregation policies, putting the burden of proof on the school, not the IRS. By 1978, many of those schools were already desegregated, even though they had first been founded as a means to avoid desegregation of the public schools. But evangelical Christians did not look kindly on the government’s interference in schools they had built themselves and, even though the IRS rescinded the rule change, the original decision was the straw the broke the camel’s back for those who wished to separate themselves from mainstream culture. They formed the Moral Majority, entered that mainstream culture, and helped the Republican Party win the next three presidential elections. You, Mr. President, have struck that same nerve. Catholics built their colleges and universities and hospitals. They did so out of religious conviction and, as often as not, because mainstream institutions did not welcome Catholics. It is one thing to support a policy with which the Catholic Church disagrees but it is quite another to start telling Catholics how to run their own institutions.

I accuse you, Mr. President, of treating shamefully those Catholics who went out on a limb to support you. Do tell, Mr. President, how many bullets have the people at Planned Parenthood taken for you? Sr. Carol Keehan, Father Larry Snyder, Father John Jenkins, these people have scars to show for their willingness to work with you, to support you on your tough political fights. Is this the way you treat people who went to the mat for you?

Zola, of course, wrote his famous essay in response to the Dreyfuss affair. Then, the source of injustice was anti-Semitic bigotry. Today, while I cannot believe that the President himself is an anti-Catholic bigot, he has caved to those who are. In politics, as in life, we are often known by the company we keep. Hmmmm. Sr. Carol Keehan, a woman who has dedicated her life and her ministry to help the ill and the aged or the fundraisers and the lobbyists at NARAL? Is that really a tough call? I have not joined the chorus of those who believe that this administration is “at war” with the Catholic Church. Yet, I must confess, when I first learned the new yesterday, an image came into my head, of Glenn Close and John Malkovich in “Dangerous Liaisons” when Ms. Close looks at Mr. Malkovich and says, “War!” That said, while not wishing to detract one iota from the gravity of this decision, the bishops are well advised not to read more into this than is there. It is a shameful decision to be sure, but it is not the end of the world and war is a thing to be avoided whenever and however possible.

Some Catholics have sought to defend the President, to hope that there might be some silver lining in the decision, to argue that because many Catholics use contraception, or because some states already mandate this kind of coverage, this decision is really no big deal. The fact that there is much to defend in the President’s record does not mean that anyone need defend everything in that record, especially something as indefensible as this decision. And, it is a mistake of analysis to see this as a decision about contraception. The issue here is conscience.

Some commentators, including those in the comment section on my post yesterday, have charged that people like me, Catholics who have been generally supportive of the President, were duped, that we should confess our sins of political apostasy, and go rushing into the arms of a waiting GOP. I respectfully decline the indictment and, even more, the remedy. Nothing that happened yesterday made the contemporary GOP less mean-spirited, or more inclined to support the rights of our immigrant brothers and sisters, or less bellicose in their approach to foreign affairs, or more concerned about the how the government can and should alleviate poverty. It is also worth noting that the night before the decision, Mr. Gingrich said that he would halt the U.S. Justice Department’s suit against the State of Alabama regarding that state’s new anti-immigration law, a law that raises exactly the same kind of issues of religious liberty and the rights of conscience as are raised by the HHS decision. Religious liberty cuts both ways. Nor, is religious liberty the only issue. Voters should still consider how candidates for the presidency are likely to address a host of issues. As for myself, I could not, in good conscience, vote for any of the current Republicans seeking the presidency.

But, yesterday, as soon as I learned of this decision, I knew instantly that I also could not, in good conscience, ever vote for Mr. Obama again. I once had great faith in Mr. Obama’s judgment and leadership. I do not retract a single word I have written supporting him on issues like health care reform, or bringing the troops home from Iraq, or taking aggressive steps to halt the recession and turn the economy around. I will continue to advocate for those policies. But, I can never convince myself that a person capable of making such a dreadful decision is worthy of my respect or my vote.

Conscience Exemptions and the Press

National Catholic Reporter
Distinctly Catholic

21 December, 2011

Reprinted by permission of National Catholic Reporter,
115 E Armour Blvd, Kansas City, MO 64111

Michael Sean Winters*

I do not believe the President has any personal hostility to religion generally or to Catholicism specifically. I do think he and most of his advisors come from an intellectual milieu that is only accepting of religion when it adopts the political agenda of the New York Times editorial page.

Some of the remarks in the combox, and conversations at holiday parties, have suggested that virtually no one is going to vote for or against President Obama based on his upcoming decision regarding conscience exemptions for Catholic and other religious organizations from certain mandates under the new health care reform law. This is only half true, and the half that is true is damning. The other half has to do with how our media culture frames issues and how issues and events feed a media narrative.

It is true that very few people who generally support the President’s policies are as riled up about the conscience exemption issue as I am. Frequently, I hear Catholics who have grown suspicious of the hierarchy on other grounds transferring their suspicions to the bishops’ motives on this issue, seeing the entire religious liberty issue as a smokescreen for further aligning the USCCB with the GOP. Yes, there are some bishops who see the Democrats as the “party of death” but it is not the majority of bishops and such extremist sensibilities are voiced not only by the loudest bishops but by the most unhinged. It is another issue, and a very frustrating one, that so few self-described liberals are not more concerned about the issue on LIBERAL grounds. Apart from the casual disregard for the foundational roots of liberalism, you would think that after years of holding up diversity as an important value, the liberal zeitgeist might find room for Catholic institutions to be different.

As I say, however frustrating or not, the assertion is half true that not many voters will change their opinion of the President based on this one decision. But, what about the other half of the proposition that is not true?

The President’s political dilemma is that some have framed the discussion as a debate about contraception not conscience, and polls indicate the overwhelming majority of Catholics do not agree with their bishops about contraception. But, if President Obama decides not to expand the conscience exemption, he will feed the narrative that Democrats are hostile to religion, a narrative that has stalked the Democrats for a long time and one the Obama campaign in 2008 was keen to overcome. I need hardly point out that if President Obama does decide to expand the conscience exemption, there is little possibility that a counter-narrative will emerge that Obama is hostile to women. A few extremist websites and advocacy groups may try to fan those flames but that narrative is a dog that won’t hunt.

The narrative that Obama is hostile to religion has become a staple in certain right wing circles. If you watch Fox News, you would think the fact that the President did not mention the Deity in his Thanksgiving Day remarks was an intentional swipe at religion and the most important story that week. But, the Fox News aficiondos are never going to vote for Obama anyway. His worry, here, is that a series of stories, mostly local in nature, will have the effect of making the “Dems are hostile to religion” meme more plausible to voters who do not watch Fox.

Several Catholic institutions have made it clear that if the conscience exemption is not broadened, they will stop offering health insurance to their employees or, if a college to their students, rather than bow to the pressure to subsidize insurance coverage for procedures they fund morally objectionable. Even someone as generally progressive as Bishop Lynch of St. Petersburg, Florida has said as much. If a local diocese or Catholic college or Catholic hospital stops offering its employees insurance, that will be big news in the local press. There will be interviews with employees worrying about what they are going to do. There will be statements from the Catholic institutions saying they were “forced” to do this, that the Obama administration changed the rules of the game and caved to pressure from pro-choice advocates. These stories will not appear all at once. They will not even merit a mention in the New York Times. But, Joe “swing voter,” who reads his local paper the way my Dad reads his local paper – obituaries first, local stories second – will take note and if Joe “swing voter” is already thinking he is unhappy about the economy, but is unenthusiastic about the Republicans, and is looking for something to push him one way or the other, the thought of those nice nurses who helped his wife when she was in Holy Cross Hospital not getting insurance anymore, that may be just the thing to push him from blue to red.

On the other hand, what will be the media coverage of a decision to broaden the exemption? The President will get two or three days of bad press in the Post and the Times. The same people who chastised Obama for his decision not to make Plan B available to 11-year olds will get interviewed for the news pages. The head of Planned Parenthood will write an op-ed. Cong. DeGette will go on the “Rachel Maddow Show.” But, the story has no “legs” if the President insists on maintaining the kinds of exemptions that are currently found in the federal employee benefit package or in the tax code. It is never “news” when nothing changes. Notre Dame will not be forced to endure a story about the first student to use her new contraception coverage or about how its staff is struggling now that they no longer get health insurance through the university. And, while I am sure that some pro-choicers may be less inclined to write a check for the President’s re-election campaign, I doubt they are going to rush to embrace the candidacy of Mitt Romney or Newt Gingrich.

So, I concede that very few people see this issue as decisive the way I see it as decisive. But, I think the President and his political people need to carefully examine the fallout more broadly, especially how it will play out in the media. I have just gotten up to Connecticut and I can virtually guarantee that if the President expands the exemption, it will not merit a mention, certainly no more than a line or two, in the local newspapers. But, if the staff at our extraordinary Catholic schools can no longer get insurance through their employer, that will be on the front page for weeks with interviews of really upset people. Some of those people will blame the bishops, to be sure. But, some will also blame the President and his health care reform.

I do not believe the President has any personal hostility to religion generally or to Catholicism specifically. I do think he and most of his advisors come from an intellectual milieu that is only accepting of religion when it adopts the political agenda of the New York Times editorial page. We know the President, in his own biography, credits the Catholic Church and her many and varied social service programs for inspiring him early in his career, but he clearly does not see how those social service programs are linked, integrally, to the Church’s pro-life position. I do not fault him for that. In my book Left at the Altar, I detailed the sordid history by which the traditional political allegiance of Catholics with Democrats was rent asunder, all of which came before Obama entered the White House.

But, if the President wants to stay in the White House he needs to think about Catholic swing voters in Ohio and Pennsylvania and Florida. They care more about the economy than they do about conscience exemptions to be sure. If the President is lucky, the economy will be murky come November. (If unlucky, the economy will be in the tank and then there is nothing to be done about his re-election prospects.) They will admire him for his decision to go after bin Laden. They likely support the decision to end our involvement in Iraq. But, they will be really upset if their local Catholic college or hospital was forced to stop offering its employees insurance because the government mandated that the institution violate the Church’s moral teachings. Even those who don’t agree with the teaching on contraception are likely to get upset. There is a bullying aspect to a mandate. On the other hand, does anyone think that a card-carrying member of NARAL is going to vote for Romney? C’mon. That is why I think that anyone who says “no one cares about this issue except the bishops” misunderstands how an issue like this can play out. There is no reason for Obama to feed the narrative that the Democrats are hostile to religion. He has every reason to rob his opponents of that charge.

Catholic Pride and Conscience Exemptions

National Catholic Reporter
Distinctly Catholic

1 December, 2011

Reprinted by permission of National Catholic Reporter,
115 E Armour Blvd, Kansas City, MO 64111

Michael Sean Winters*

. . . even those Catholics who do not agree with all the Church’s teachings know that the mission of the Church, expressed in educational, medical and social justice organizations, is something integral, something in the DNA of those institutions, and that we don’t want the government mucking around in our Church.

One of the more interesting developments in the debate about whether or not to expand the conscience exemptions regarding mandated insurance coverage for procedures the Catholic Church finds morally objectionable, such as contraception, sterilization and some drugs the Church considers abortifacients, is the fact that so many Catholics who do not share those moral objections are nonetheless vociferous in urging a broader exemption. Friends who denounce the bishops as naïve or willing tools of the GOP, who think that contraception is fine, or who otherwise seldom miss the opportunity to trash the hierarchy, nonetheless find themselves disturbed by the idea that the federal government would force Catholic institutions to abide by rules that conflict with the dictates of the Church.

Some of this concern manifests an understandable awareness that if the government can mandate contraception today, it might mandate abortion coverage tomorrow. Many Catholics who are not morally troubled by contraception remain morally troubled by abortion. Some also perceive the essential religious liberty issues at stake. Unlike those champions of the “wall of separation” like the ACLU, who now can’t climb over that wall fast enough in order to tell Notre Dame or Catholic Charities what insurance plans they must buy, these Catholics recognize that the government should be wary of intruding into the religious sphere.

But, there is a yet deeper issue, and one that I suspect has not occurred to the people at the White House advising the President. It has to do with Catholic pride. There was a time when Catholics had to build their own schools because mainstream schools like Harvard did not welcome Catholics and public schools forced Catholic students to pray with Protestant texts like the King James Bible. The vast array of Catholic social service agencies often began as a ministry to immigrant co-religionists who faced all manner of hostility and little succor from the government. To the great credit of the Church, those ministries continued even when they were no longer primarily serving Catholics.

Those institutions were built by our ancestors, who often had only their pennies to contribute. They are “ours” not only in a legal sense but in a cultural sense. And, Catholics do not take kindly to institutions their forbears built because the mainstream culture would not admit them to their institutions, now being ordered to change their ways by the same people whose forbears kept Catholics out in the first place.

The current episode recalls the 1978 attempt by the IRS to change the rules governing the tax-exempt status of private Christian schools. Many of those schools had been created by southern Protestants in response to Brown v. Board of Education, the 1954 Supreme Court decision that ordered an end to segregation in the public schools. In 1969, the Lawyers’ Committee for Civil Rights filed a suit seeking to strip these schools of their tax-exempt status and won. The Nixon administration issued a rule that only required the schools to insert a non-discrimination pledge into their bylaws, but organizations continued to sue. On August 22, 1978, the IRS issued a rule that required the schools to prove they did not discriminate rather than, as previously, forcing the IRS to prove that they did.

The backlash was immediate and intense. Robert Billings, who would become the first executive director of the Moral Majority the following year, launched a campaign to turn back the rule. The IRS received some 126,000 letters of protest. The calls to Congress were so many, they overwhelmed the switchboard. Richard Viguerie, one of the found fathers of the modern religious right, believed that the IRS backlash was decisive in driving conservative evangelical Christians into politics. “It kicked the sleeping dog,” Viguerie said. “It galvanized the religious right.”

It should be noted that by 1978 most private Christian academies had a few black students. But, these church-run schools were predominantly white in part because the churches they attended were predominantly white. It has been well said that Sunday morning remains one of the most segregated of times in American life. Students whose parents belonged to the church might receive discounted tuition, and those students whose parents went elsewhere might not be able to afford the full tuition. In short, you can explain the disproportionate lack of black students at the schools without recognizing explicit racism as the cause. Additionally, by 1978, Christian academies were often founded not to avoid segregation but to avoid sex education in the public schools. Having built these schools to escape what they believed were pernicious secular influences in the public schools, they did not take kindly to an assault on them from the government.

The Obama administration should be very careful in making its decision. Polls may indicate that many Catholics do not agree with the teaching of their bishops about contraception, but those same Catholics will not take kindly to any efforts to tell them how to run their schools, hospitals and social service agencies.

Most of all, Catholics understand that our schools and our hospitals and our social service agencies grow out of our faith. Unlike Luther, we have always put a high value on good works. Catholics take seriously Jesus’ words, found in the 25th Chapter of the Gospel of St. Matthew – whatever you do for one of these the least of my brethren, you do for me. Catholics grow up learning the corporal works of mercy – feed the hungry, clothe the naked, visit the imprisoned, etc. – and that list is drawn from that same Bible passage. These institutions are expressions of our self-identity as Catholics. And even those Catholics who do not agree with all the Church’s teachings know that the mission of the Church, expressed in educational, medical and social justice organizations, is something integral, something in the DNA of those institutions, and that we don’t want the government mucking around in our Church.

As noted earlier, President Obama is struggling with white, working class voters in Pennsylvania. Many of those voters are Catholics. They care about the economy, to be sure, but that is not the only thing they care about. Picking a fight with Catholics is one thing he should avoid. Pricking their pride is just plain dumb.

Conscience Rights, Nurses & Abortion

National Catholic Reporter
Distinctly Catholic
29 November, 2011

Reprinted by permission of National Catholic Reporter,
115 E Armour Blvd, Kansas City, MO 64111

Michael Sean Winters*

I take second place to no one in my championing of the cause of religious liberty, both in the context of the HHS mandates and in denouncing attacks on Gov. Mitt Romney’s Mormonism. But, there are circumstances in which the issue of religious liberty can be invoked in ways that cloud the issue or, worse from my point of view, misunderstand what religion calls us to do. The facts of a case matter.

Yesterday, the Washington Post reported on a group of nurses at a public hospital in New Jersey who are suing the hospital because it has decided they must participate in caring for women who are going to have an abortion and women who have just undergone one. Federal and state law guarantees the right of hospital workers not to participate in an abortion. President Obama’s administration re-wrote the conscience rules it inherited from President Bush, but the new rules drew a bright red line on the issue of abortion: No one can be forced to participate in one against their conscience.

The Post’s article was not clear exactly what was expected of the nurses in question. Certainly, there are no religious grounds I can think of for declining to care for a woman who has procured an abortion. If that were so, why would we have Project Rachel, the Catholic Church-run program that specifically tries to minister to women who have procured abortions. Indeed, at the recent USCCB meeting, several bishops spoke about the need to expand the efforts and activities of this wonderful program which brings the mercy of God to women who desperately need it. On the other hand, if a nurse is expected to discard the aborted child after the procedure, or otherwise deal with the immediate effects of the surgical operation, I think that would cross the line into participation in the act itself.

We need to keep the bright red line around abortion, not only because individual consciences are at stake, but because it is vital, really vital, that we in the pro-life movement continue to insist that abortion is not health care. I have said it before and will say it again: The medical profession exists to prevent disease and to heal wounds. Disease, wound, baby. Which one is not like the others? The didactic value of insisting on the differentness of abortion is important to our on-going efforts to change the culture.

But, we also need to treat people as adults. Some of the comments by pro-choice activists seeking to narrow the conscience exemption regarding mandated insurance coverage of contraception have been demeaning to those women who choose to attend or work at a Catholic institution. Those women choose a Catholic university over a secular one for a variety of reasons, but they know what they are signing up for. The same goes for nurses. They should be able to decline, on conscience grounds, to participate in an abortion, but they should not have carte blanche to eliminate those parts of their job description they don’t like. They, too, knew what they were signing up for when they applied to work at a hospital.

The cause of religious liberty will not be advanced by instances of overreaching.

Obama’s Choice

National Catholic Reporter
Distinctly Catholic

21 November, 2011

Reprinted by permission of National Catholic Reporter,
115 E Armour Blvd, Kansas City, MO 64111

Michael Sean Winters*

. . . no one is proposing to “take away” any benefit from anyone. It is the pro-choice groups that are trying to change the status quo. More importantly, the effort to narrow the conscience exemption, in fact, is likely to end up in less access to all health care, because some religious organizations will decline to offer any health care coverage rather than violate their conscience.

President Obama has returned from his trip to Asia and he faces a major decision, actually two of them. The first decision is the more easily grasped: He must decide whether or not to enlarge the conscience exemption for religiously based organizations regarding mandated coverage for contraception, sterilization and abortifacients under the Affordable Care Act.

An article in yesterday’s New York Times reported that a group of congressional Democrats had two conference calls last week with highly placed White House staffers. The congressional Democrats urged the White House not to enlarge the exemption. According to the Times,

Senator Jeanne Shaheen, Democrat of New Hampshire, said: “It just doesn’t make sense to take this benefit away from millions of women. Americans of all religious faiths overwhelmingly support broad access to birth control.”

First of all, the women in question may or may not “support board access to birth control” but few women are as univocal in their concerns as Sen. Shaheen suggests. We know one thing about a woman who attends Notre Dame or works at a Catholic hospital: She choose to go there and, presumably, knew what she was signing up for. You do not go to work at a Jewish hospital, or attend Yeshiva University, and then complain that the cafeteria does not serve ribs. The women who decided to go to a Catholic school or work at a Catholic social service provider may be inspired by their faith or they may not. They may agree with the teachings of the Church, or they may not. But, when faced with a secular or non-Catholic option, and the University of Indiana is a fine school and I was happily born at Mt. Sinai Hospital, these women chose a Catholic school or hospital for their studies or their employment. There is something a little demeaning in the way Shaheen reduces the many urgings of the human heart to a singular concern to have free birth control.

Second, no one is proposing to “take away” any benefit from anyone. It is the pro-choice groups that are trying to change the status quo. More importantly, the effort to narrow the conscience exemption, in fact, is likely to end up in less access to all health care, because some religious organizations will decline to offer any health care coverage rather than violate their conscience. That might strike some people as an extreme consequence, but it is a foreseeable one. People get touchy about conscience rights, as liberals of all people should understand.

I noted last week that there is something more than a little ironic about these liberal champions, the type of people who normally celebrate the “wall of separation” between Church and State, now clamoring over that wall as fast as they can to tell Notre Dame and Providence Hospital what they can and cannot do. Ironic, too, that liberalism which was founded on the principle of conscience rights, and at a time when the Catholic Church was unalert or hostile to the idea of conscience rights, has grown so indifferent to them while it is the Catholic Church today that champions them. But, irony is the coldest of comforts.

The second decision facing the President is intimately linked to the first. He must decide whether he is going to throw away years of effort by the Democratic Party to reach out to moderate Catholic swing voters. In the wake of John Kerry’s defeat in 2004, groups such as Catholics in Alliance for the Common Good and Catholics United have worked closely with the progressive political community to close what my colleague Amy Sullivan termed “the God gap,” the disproportionate association of religiously motivated voters with the Republican Party. These groups have sought both to make the Democratic Party more receptive to the concerns of moderate Catholics and to make Catholics more attuned to the dire consequences for a host of social justice concerns if Republicans win. The fact that Obama won the Catholic vote in 2008 after Kerry had lost it in 2004 is a monument to the success of those efforts.

If Obama decides not to enlarge the conscience exemption, he can forget about Catholic outreach in 2012 and beyond. I cannot think of a single decision he could make that would more certainly feed the GOP-inspired narrative that the Democrats are hostile to religion. I do not believe the President is hostile to religion, but if he fails to expand the conscience exemption, I could not make the case with a straight face. Democrats who hope to be running for office next year or in 2016 should be calling the White House now and urging the White House not to undo the years of effort to build bridges to moderate Catholics who are, according to all the polls, the quintessential swing voters.

One person who was not involved in those political efforts, but who found herself in the midst of navigating the same terrain, is Sister Carol Keehan, head of the Catholic Health Association. Sr. Carol, joined by other religious women like Sr. Simone Campbell, helped to carry the Affordable Care Act across the finish line. Indeed, it is commonly understood that without the nuns, the bill would have failed. It is a strange way to thank them for their help to now hang them out to dry. Rep. Diana DeGette and the other members of the Pro-Choice caucus may represent “safe” districts, but Sr. Carol does not. She has taken more hits on behalf of President Obama than any other Catholic with the possible exception of Father John Jenkins, President of Notre Dame, and both of them would be severely jammed up if the President does not extend the conscience exemption.

Another person who should be profoundly concerned about the President’s decision is Minority Leader Nancy Pelosi. Shortly after the 2012 midterm elections, a friend of mine who is normally very smart said something very stupid: “Well, at least we don’t have to deal with the Blue Dogs anymore.” That’s right – a large number of moderate to conservative Democrats lost their seats to the GOP in 2010 and, as a consequence, Pelosi is now the Minority Leader rather than the Speaker. But, Rep. DeGette’s pro-choice friends, you will pardon the expression, don’t stand a prayer of winning back those districts the Democrats need to secure if they ever want to reclaim the majority. In Pennsylvania’s Third Congressional District, or Ohio’s First, or Virginia’s Fifth, anyone adopting the position articulated by Shaheen and DeGette would get clobbered.

Last month, I was meeting with a friend who works at a progressive political organization in town and the subject of the conscience exemptions came up. My friend said that women’s groups were still smarting from their defeat on abortion coverage in health care reform. I pointed out that the U.S. Catholic bishops did not think they had “won” on health care reform either. To their credit, however, the USCCB has refused, repeatedly, to endorse efforts to repeal the ACA. They want to fix the parts they do not like, to be sure, but they have not advocated repealing the entire law. I can assure you that there are plenty of conservatives urging the bishops: if we lose on the conscience exemption, they should support repeal.

But, my friend’s comment bothered me for a deeper reason than its asymmetry. The passage of the Affordable Care Act was a huge accomplishment for liberals. Where Truman and Johnson and Clinton had failed, Obama and the Democrats in Congress passed universal health care coverage. Was the bill perfect? Of course not. But, to somehow suggest that it was a “defeat” in any way, because it failed to cover abortions, is to miss the forest for the trees. And, the ACA could not have been passed except with the support of pro-life Catholic members of Congress. Last week, discussing the Republicans, Michael Gerson wrote, “Many political activists have adopted a form a fundamentalism: the belief that a return to power can be achieved only by a return to purity…this approach makes for bad politics. There is a reason that the purest candidates are often not the strongest candidates.” The pro-choice caucus would like to impress its own fundamentalism upon the President and the Democratic Party and that is a program that may prevent members of the pro-choice caucus from facing a primary challenger to their left. It is not a program that will help Obama with Catholic swing voters in Florida, Ohio or Wisconsin, nor will it help Pelosi become Speaker again. The Democrats must choose: Big Tent or Minority Status.

It would be difficult to overstate the anxiety swirling around those Catholic Democrats in the wake of yesterday’s article in the Times. They have tried to build bridges. They have tried to establish communications. They have been accosted as “bad Catholics” by some and as “bad Democrats” by others. This weekend, there was a palpable unease that all their efforts could come a cropper in an instant, that some in Congress and some in the White House might not grasp the devotion Catholics have to these cultural institutions our Church has built, from our vast network of hospitals, to our great universities, to our extensive and effective social service ministries, how these organizations flow from our faith – as we were reminded at Mass yesterday, listening to the Gospel reading from Matthew 25 – and that we will not take kindly to being forced against our conscience to do what our Church proscribes. At a personal level, I highly doubt that in his three years in office, President Obama has ever encountered a more authentic soul than Sr. Carol – if he throws her under the bus, shame on him.

I do not know what the President will decide. I hope and pray he will carefully consider not only the merits of the issue, but the consequences. DeGette and Shaheen may not like the idea of broader conscience exemptions, but I suspect they will like the idea of a Republican president overturning the ACA even less.

Conscience, MSNBC & Commonweal

National Catholic Reporter
Distinctly Catholic

18 November, 2011

Reprinted by permission of National Catholic Reporter,
115 E Armour Blvd, Kansas City, MO 64111

Michael Sean Winters*

Polling data notwithstanding, and whatever Catholics in the pews think of contraception, enacting a broad religious exemption to mandated coverage of contraception does not coerce anyone to do or not do anything. But, as I have noted before, some “liberals” gave up on liberalism, if liberalism has anything to do with protecting the rights of conscience, and stopped reading their Locke, some time ago.

If anyone has doubts that the Church has enemies, last night’s appearance on the Rachel Maddow Show by Rep. Diana DeGette (D-CO), chair of the pro-choice caucus on Capitol Hill, should have dispelled them. Congresswoman DeGette thinks it is outrageous that Catholic institutions should seek an exemption from an interim rule requiring all health insurance plans to cover contraception, sterilization and some drugs that are abortifacients. To make her case, she cited polling data that indicates many, if not most, Catholics do not agree with the hierarchy about such matters. Needless to say, Maddow piled on as well: She called such an exemption for Catholic organizations a “scaling back” of the mandated care, failing to recognize that it is the pro-choicers who are trying to change the rules of the game and coerce Catholics hospitals and universities to provide coverage for procedures those institutions find morally objectionable.

You would think such committed “liberals” would be a least a little bit more shy about rushing over the “wall of separation” to tell the Catholic Church what it should do (adopt the ambient culture’s sexual mores) and how (hey, check the polling data), but DeGette is not shy and, as for Maddow, of course it is hard to be shy and also a cable news show host. You would think, too, that “liberals” would be more attuned to the danger of coercing the consciences of others. Polling data notwithstanding, and whatever Catholics in the pews think of contraception, enacting a broad religious exemption to mandated coverage of contraception does not coerce anyone to do or not do anything. But, as I have noted before, some “liberals” gave up on liberalism, if liberalism has anything to do with protecting the rights of conscience, and stopped reading their Locke, some time ago.

These pro-choice fundamentalists have also, apparently, abandoned another one of liberalism’s virtues, a high regard for diversity. Must all colleges and universities be like all other colleges and universities? Yes, we want all of them to provide a good education and to meet certain minimum standards towards that end, but must they all abide by the same mores and methods as the rest? Is it really an assault on others’ rights to permit Catholic colleges, or hospitals, or social service agencies, to be distinctly Catholic? It is almost comic to see liberals championing the Dalai Lama, whose cause is a theocratic one, however humane it may be, while demeaning the Catholic hierarchy as a threat to liberalism. Is it the saffron robes?

Sadly, similar confusion has seeped into Catholic circles too. I warned about this last week, predicting that certain liberal Catholics would chide the bishops for raising the cause of conscience rights while, it is charged, failing to extend the rights of conscience within the Church. And, here comes Paul Moses, whose essays I usually enjoy, at Commonweal, writing, “In the public arena, certain bishops would cease trying to limit the freedom of individual Catholics to make decisions in conscience when it comes to voting. A comment newly added to the Faithful Citizenship guidelines for voting reflects the influence of this rather large number of bishops. It says the document ‘applies Catholic moral principles to a range of important issues and warns against misguided appeals to “conscience” to ignore fundamental moral claims.’”

I will grant that some bishops have over-stated the case, but can Moses really doubt that there have been misguided appeals to a false sense of conscience to justify political stances at odds with Catholic teaching? Can he not see that such misguided appeals are found on both left and right? I can find Mr. Moses plenty of Catholics who would not have found DeGette and Maddow’s exchange shallow and wrong-headed as well as many Catholics who blithely ignore the whole tenor and tone and content of Catholic social teaching in their rush to embrace the anti-Christian doctrines of Hayek and von Mises.

Conscience may mean many different things to many different people, but there is really no excuse for an American Catholic to be loose in speaking of conscience when the greatest Christian mind in the English-speaking world has written so clearly and precisely on the subject. In his Letter to the Duke of Norfolk, John Henry Newman recalls the teaching of Augustine and Aquinas and the magnificent dictum of the Fourth Lateran Council (“Quidquid fit contra conscientiam, ædificat ad gehennam.”), before stating his high view of conscience:

The rule and measure of duty is not utility, nor expedience, nor the happiness of the greatest number, nor State convenience, nor fitness, order, and the pulchrum. Conscience is not a long-sighted selfishness, nor a desire to be consistent with oneself; but it is a messenger from Him, who, both in nature and in grace, speaks to us behind a veil, and teaches and rules us by His representatives. Conscience is the aboriginal Vicar of Christ, a prophet in its informations, a monarch in its peremptoriness, a priest in its blessings and anathemas, and, even though the eternal priesthood throughout the Church could cease to be, in it the sacerdotal principle would remain and would have a sway.

I can scarcely think of a more exalted view of conscience than this – “aboriginal Vicar of Christ.” But, Newman understood, too, that the Catholic notion of conscience as the voice of God within the human soul, was not the notion of conscience gaining ground in elite intellectual or popular circles. He continues:

Words such as these are idle empty verbiage to the great world of philosophy now. All through my day there has been a resolute warfare, I had almost said conspiracy against the rights of conscience, as I have described it. Literature and science have been embodied in great institutions in order to put it down. Noble buildings have been reared as fortresses against that spiritual, invisible influence which is too subtle for science and too profound for literature. Chairs in Universities have been made the seats of an antagonist tradition. Public writers, day after day, have indoctrinated the minds of innumerable readers with theories subversive of its claims. As in Roman times, and in the middle age, its supremacy was assailed by the arm of physical force, so now the intellect is put in operation to sap the foundations of a power which the sword could not destroy. We are told that conscience is but a twist in primitive and untutored man; that its dictate is an imagination; that the very notion of guiltiness, which that dictate enforces, is simply irrational, for how can there possibly be freedom of will, how can there be consequent responsibility, in that infinite eternal network of cause and effect, in which we helplessly lie? and what retribution have we to fear, when we have had no real choice to do good or evil?

So much for philosophers; now let us see what is the notion of conscience in this day in the popular mind. There, no more than in the intellectual world, does “conscience” retain the old, true, Catholic meaning of the word. There too the idea, the presence of a Moral Governor is far away from the use of it, frequent and emphatic as that use of it is. When men advocate the rights of conscience, they in no sense mean the rights of the Creator, nor the duty to Him, in thought and deed, of the creature; but the right of thinking, speaking, writing, and acting, according to their judgment or their humour, without any thought of God at all. They do not even pretend to go by any moral rule, but they demand, what they think is an Englishman’s prerogative, for each to be his own master in all things, and to profess what he pleases, asking no one’s leave, and accounting priest or preacher, speaker or writer, unutterably impertinent, who dares to say a word against his going to perdition, if he like it, in his own way. Conscience has rights because it has duties; but in this age, with a large portion of the public, it is the very right and freedom of conscience to dispense with conscience, to ignore a Lawgiver and Judge, to be independent of unseen obligations. It becomes a licence to take up any or no religion, to take up this or that and let it go again, to go to church, to go to chapel, to boast of being above all religions and to be an impartial critic of each of them. Conscience is a stern monitor, but in this century it has been superseded by a counterfeit, which the eighteen centuries prior to it never heard of, and could not have mistaken for it, if they had. It is the right of self-will.

Too many Catholic intellectuals breezily quote the celebrated words with which Newman concludes his Letter to the Duke of Norfolk, “I add one remark. Certainly, if I am obliged to bring religion into after-dinner toasts, (which indeed does not seem quite the thing) I shall drink—to the Pope, if you please,—still, to Conscience first, and to the Pope afterwards.” But, they seem not to bother with all that preceded this admittedly delicious closing line. As I said last week, in the spiritual life, at least in this sinner’s spiritual life, the voice of conscience is most often encountered as a call to conversion of heart, a call to turn away from sin and cling to the truth, not an open invitation to exercise our private judgment whenever and however we might wish.

Private judgment, or self-will, instead of conscience, may suit the tastes of the gentlelady from Colorado, and the host and producers at MSNBC. Private judgment may be the first, and last, ecclesiological principle of Protestantism. It may even find itself confused with conscience in the pages of Commonweal. But, for a Catholic, conscience means something different from private judgment and it is intellectual laziness not to note the difference.

Religious Liberty: The Culture & the Church

National Catholic Reporter
Distinctly Catholic)

4 November, 2011

Reprinted by permission of National Catholic Reporter,
115 E Armour Blvd, Kansas City, MO 64111

Michael Sean Winters*

Maybe I just have too many sins, but it seems to me that in the spiritual life, conscience is not experienced as a right: It is experienced as a call to obedience and to turn away from sin and cling to the truth. Conscience is the voice of God within us, and it is usually calling us to free ourselves from sin, not from government encroachments on our liberty interests. Indeed, I am deeply, profoundly suspicious of rights language within the Church. The Church lives by grace and gift and service, not self-assertion and rights.

Our culture is drowning in rights. Everyone thinks they have a right to everything and some take rights they do enjoy to excuse truly abhorrent behavior. Women have a right to free contraception. Bar customers claim a right to drink one too many. Wall Street sharks, take the right to private property that is justly theirs, and turn it into an excuse to rig the game and rip off the economy and the taxpayer. A customer spills his coffee on himself and thinks he has a right to sue McDonald’s for producing too-hot coffee. And, of course, once the Supreme Court went mucking around in the penumbra of the Constitution, they found constitutional rights that, for some reason, had never occurred to the authors of that document.

Those authors did not delineate sets of corresponding responsibilities to accompany those rights. In a sense, they did not think they had to. While it is true that the founders had an essentially pessimistic view of human nature, and thought the only effective way to guarantee liberty was to pit diverse interests against one another, those same founders could scarcely imagine that one day, our day, would dawn in which morality would be viewed as somehow alien to our political system, that there would be no confidence about the power of human reason to ascertain the rightness or wrongness of certain acts, that the nation they helped birth would enjoy not only a free market economy but a free market of moralities, all running into each other. This collapse of a shared moral language is, as the Holy Father has suggested, one of the principal civilizational challenges facing the West today. But, that is not our focus today.

The first right listed in the First Amendment is the right to freedom of worship. There is no evidence that the founders were trying to prioritize it above the other enumerated rights, but it clearly was central to their concerns. Several of the colonies – Massachusetts, Connecticut, Rhode Island, Maryland and Pennsylvania – were first settled by those who left the Old World specifically to seek freedom of worship in the New. (In the case of Connecticut and Rhode Island, they left Massachusetts to seek religious freedom. Turns out those early Puritans claimed religious liberty but were not keen on extending it to others.)

Pope Benedict XVI has said that freedom of religion deserves primacy of place because it is the only right that points to the transcendent vocation of man. This is a profound insight. It reiterates what has been, in fact, the historical vocation of the Catholic faith in the public square: To defend the transcendent dimension of the human person against all efforts at reductionism, to insist that at the core of the human person is the invitation to participate in the divine life of the Trinity. To those who seek to reduce man to his status as a consumer or a producer, to his status as a subject of the state or a member of the party, a proletarian or a kulak, the Church has said: “No, man is a child of God, the only creature made in the image and likeness of God.” This is especially important today when, sadly and somewhat ironically, persons in the most free societies in the history of humankind seem so willing to abandon their transcendent calling to mere pleasures of the flesh, when conformity, not to the moral law, but to the easy slavery of consumer expectations is so rampant, and when the pathetic worship of the self has replaced devotion to Him who alone is holy.

The current debate on religious liberty has arisen in the specific context of a discussion about conscience rights, and there is a danger here to our cultural understandings. Fellow leftie Catholics, please take note. The rights of conscience in the civic sphere do not correspond to any rights to conscience within the Church. In the movie “The Shoes of the Fisherman,” Anthony Quinn plays a newly elected Russian Pope whose priest-secretary’s latest book has been condemned by the Holy Office. The fictional cardinal who led the investigation gives the fictional new Pope the news of the condemnation, and Pope Kiril responds, “Did not the Second Vatican Council reaffirm the rights of conscience in the clearest of terms?” Wrong question. Maybe I just have too many sins, but it seems to me that in the spiritual life, conscience is not experienced as a right: It is experienced as a call to obedience and to turn away from sin and cling to the truth. Conscience is the voice of God within us, and it is usually calling us to free ourselves from sin, not from government encroachments on our liberty interests. Indeed, I am deeply, profoundly suspicious of rights language within the Church. The Church lives by grace and gift and service, not self-assertion and rights. But, sure as the day follows the night, you can anticipate that the call of bishops to defend the conscience rights of Catholic institutions will be met with misplaced calls for conscience rights within the Church.

There is another danger, however, in the way this debate is manifesting itself and here my warning goes out to my conservative friends. One of those friends, who is very conservative and very smart, emailed me an objection to my essay on Wednesday about religious liberty and the legal culture [3]. He took issue with this paragraph:

There is a passage in the plurality decision in the Supreme Court case Planned Parenthood v. Casey that has always caused me agita. “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” My difficulty is with the verb “define.” As a Catholic, indeed as any believer in a religion built upon a divine revelation, I would prefer the word “discover” or “discern.” There is something protean in the way the Court states the essence of liberty that I find obnoxious and, more importantly, untrue to human experience, certainly untrue to the experience of most Americans. For these legal scholars, and we are not talking about a few outlier profs at an Ivy League law school, as these words are drawn from a Supreme Court ruling, everything really is up for grabs. The worldview conveyed is the worldview of Dewey…on steroids. That is not my worldview and it is certainly not the worldview of most Americans, which is one of the reasons there has emerged such a disconnect between the courts and the political life of the nation.

My friend responded, “I wonder . . . I guess I think that something like this is the worldview of most Americans; genial nonjudgmentalism combined with ethical flexibility and relativism (shot through with a few strange absolutes, like the moral imperative to recycle . .. ). Actualization! I gotta be me! Find your truth! Etc. etc.” My conservative friend is on to something, no doubt, and such corrosive attitudes in our culture are not primarily the fault of the work of a few legal scholars who have drunk too deeply at the wells of protean secularism dug by Dewey or Rawls. I recall this passage from a too-little noticed document by the USCCB entitled, The Hispanic Presence in the New Evangelization in the United States:

In our country, the modern, technological, functional mentality creates a world of replaceable individuals incapable of authentic solidarity. In its place, society is grouped by artificial arrangements created by powerful interests. The common ground is an increasingly dull, sterile, consumer conformism – visible especially among so many of our young people – created by artificial needs promoted by the media to support powerful economic interests. Pope John Paul II has called this a ‘culture of death.’

That bracing, trenchant critique of the culture is spot-on, and it rightly suggests that the “culture of death” will not be overcome only by joining the National-Right-to-Life Committee. Indeed, I fear that that people and politicians in our culture who will tend to support the Catholic Church on the narrow issue of conscience exemptions from government mandates, are the same people and politicians who could not begin to get their head (or their heart) around this critique. Too busy defending the free market and American exceptionalism. On the other hand, those on the left who do tend to embrace what my friend called “a few strange absolutes, like the moral imperative to recycle,” are those who are at least willing to entertain the proposition that there are moral claims upon our property rights and ethical implications to our economic behavior. These are, sadly, the same people who will likely not find their way to defend the Church on the issue of conscience exemptions.

What to do? No regular reader will be surprised to discover that I place what hope I can muster in the face of such difficult cultural challenges in the New Evangelization and the demographic influx of Latinos into the Church and the nation. I believe that only if we can re-ignite within our Church the sense that in the person of Jesus Christ we find our true and only liberation, and that such liberation entails binding ourselves completely to the person of Jesus, only then can we truly evangelize our culture. So, the first step towards a true sense of religious liberty (or a true sense of anything else for that matter) is to listen to the Lord.

But, this time, the Lord is speaking Spanish. I believe that our Latino brothers and sisters bring with them a worldview that is not drenched in Calvinism and capitalism, that still values family and faith above material gain or self-assertive personal autonomy. I believe that the more of them come to the U.S., the better chance our culture has of not spinning out of control and the better chance our Church has of re-evangelizing itself. My immigration policy? Let them all come! We need them more than they need us.

One of the tasks of the New Evangelization, and indeed of contemporary theology more generally, is to rescue the achievements of modernity. These achievements are undoubted and not just in our scientific discoveries and modern wonders, but, for example, in the central place that human rights has come to play in our legal cultures and in our foreign policies. But, modernity brought its own acids too, views of human nature and of the voluntaristic nature of ecclesial communities that are, to use Cardinal Newman’s preferred derogatory adjective, “unreal.” No one can live the atomized anthropology that has come to dominate modern views – on both the left and the right. The Church and her theologians must address this task. It is far beyond my pay grade. How do we rescue modernity from its shoddy anthropology? That, in the final analysis, is what this debate about religious liberty is about.

One last thought. I hope the USCCB’s new ad hoc committee on religious liberty will not confine itself to the narrow issue of conscience exemptions for Catholic institutions. One of the threats to religious liberty in our day is religious bigotry, mostly targeted against Muslims and Mormons. I would welcome a statement from the new committee championing the rights of Muslims to build their mosques and of Mormons to seek high political office. We RCs know something about the ugliness of religious bigotry and we should proudly stand with those who are its object today.

HHS and Religious Liberty

National Catholic Reporter
Distinctly Catholic

1 November, 2011

Reprinted by permission of National Catholic Reporter,
115 E Armour Blvd, Kansas City, MO 64111

Michael Sean Winters*

In this case, according to the Post story, career staff, that is non-political appointees, at HHS strongly urged the grant be renewed because the USCCB did a better job than other agencies in caring for the victims of human trafficking, but they were over-ruled by political appointees who wanted to insist that the contracts only be awarded to those organizations that would provide access to contraception and abortion services.

The issue of religious liberty is fast becoming a central concern among the nation’s bishops. The proposed interim rule from the Department of Health and Human Services regarding mandated coverage for contraception and sterilization in insurance plans struck many as a direct assault on religious, especially Catholic, institutions. The Department of Justice’s brief in the Supreme Court case Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is viewed by the bishops as an even more dangerous attack on religious liberty. Last week, Bishop William Lori, chairman of a new ad hoc committee on the religious liberty, testified on the subject before Congress. (I wrote about Lori’s testimony here.)

This morning, a front page, above-the-fold, article about tensions between the Obama administration and the Catholic Church casts a new spotlight on the issue of religious liberty. The article focuses on the decision of HHS not to renew a contract with the USCCB for the provision of services to survivors of human trafficking.

What is going on? Are the alarm bells warranted? Is the Obama administration hell-bent on constricting the Church’s traditional social mission and/or coercing certain Church organizations and programs to choose between following Church teaching and accessing government funds? Or, is this just another case of the Church adopting a defensive posture towards the culture, giving voice to a populist concern, amplified ad nauseum by the people at Fox News, about “cultural elites” that are seeking to strip America of its religious heritage?

In the case of the denial of HHS funding for the USCCB’s efforts to aid the victims and survivors of human trafficking, a grant that amounted to some $4.5 million, some of the language from the USCCB is a bit over-the-top. If the Obama administration really were adopting an “anybody but Catholics” approach, as my friend Sr. Mary Ann Walsh claimed, she must explain why other grants from HHS’s Office of Refugee Resettlement to the USCCB increased from $27 million in fiscal year 2010 to some $32 million in fiscal 2011. But, social service providers gain and lose contracts all the time. Is there a religious liberty issue at stake here?

There are many aspects to the issue of religious liberty. Today, I should like to focus on precisely what the issue is, and what it isn’t. The issue of religious liberty has two principal aspects: 1) Is someone being coerced to do something against their conscience? And 2) Is someone being discriminated against unfairly on account of their religious beliefs or practices?

HHS has every right to set certain requirements for grants. Nor does the Church have a First Amendment right to a government grant. If HHS wants to require all grant recipients provide access to contraception and abortion services, it can do so, but HHS must then demonstrate why such a requirement is more important than other considerations in awarding grants. And, it must be fairly public about making such an argument: A few political appointees at HHS should not be able to decide these issues behind closed doors. In this case, according to the Post story, career staff, that is non-political appointees, at HHS strongly urged the grant be renewed because the USCCB did a better job than other agencies in caring for the victims of human trafficking, but they were over-ruled by political appointees who wanted to insist that the contracts only be awarded to those organizations that would provide access to contraception and abortion services. Does HHS really want to be in the position of arguing that contraception and abortion is so important that it trumps all other considerations regarding support services for the victims of human trafficking? It is not an argument that I would want to make.

So, where is the religious liberty issue in all this? If HHS intentionally discriminated against the Catholic Church in the awarding of grants, that violates the First Amendment. If, however, HHS set a requirement, and the Church feels it is unable to meet that requirement for its own moral reasons, I do not discern a religious liberty issue: Again, the Church does not have a “right” to a government contract. But, it is incumbent upon HHS officials to make it clear what motivated them and a series of congressional hearings on the matter would certainly help illuminate what is now hidden.

HHS is not the only one having difficulty deciding where and how the issue of religious liberty manifests itself. Last week, Bishop William Lori testified before a House subcommittee on the subject of religious liberty. I wrote about his testimony here. But, in the question period, Bishop Lori got dragged into a discussion of same sex marriage that has nothing to do with religious liberty, in fact, the religious liberty argument probably works against the Church’s stance on same sex marriage. The Church opposes same sex marriage because, we believe, marriage means something specific, one man and one woman for one lifetime, open to the possibility of pro-creation, committed to a mutual love so stunning it warrants comparison to the love between Christ and His Church. Religious liberty issues only come up when, for example, the Church feels it cannot award custody of a child in foster care to gay parents, or when same sex couples expect the Catholic Church to treat them the way the Church treats a married couple in terms of employee benefits and the like. Unwittingly, Bishop Lori got dragged off-message by Cong. Steve King, who seemed intent on demonstrating the sacramental significance of marriage, which is a fine thing, but a thing that has no bearing on our constitutional understanding of liberty.

Here is another example of someone intruding non-germane concerns into the religious liberty pot. My friend Sally Steenland, of the Center for American Progress, wrote this regarding the HHS mandates for health care coverage:

“Those on the other side argue that religious organizations such as Notre Dame that choose to operate in a pluralistic secular democracy must respect the religious liberty and consciences of their employees, many of whom are not Catholic—or religious at all. For virtually all these workers, contraception is not a sin but an essential part of moral responsibility around creating a family and parenting. To deny them access to such a basic health service is to unfairly impose a particular set of theological beliefs on people who believe differently.”

To be clear, the HHS mandate, if it does not expand the conscience exemption, would coerce Notre Dame to do something that violates its conscience, forcing the university to either cover contraception and sterilization in its health care plan or to stop providing health care to its students and employees. Steenland’s concern about the consciences of Notre Dame’s employees is admirable but it is misplaced here: No one has a constitutional right to be employed at Notre Dame, nor a constitutional right to receive free contraceptive coverage in their health care plan. Steenland may want, as a matter of public policy, to provide more contraception to more people, but that has nothing to do with religious liberty.

The founders obviously considered religious liberty an important issue: As colonists, they had long raised their objections to British rule as a defense of their civil and ecclesiastic liberties. The founders therefore gave religious freedom a specific mention in the First Amendment. I do not think the historical record warrants the conclusion that the founders saw religious freedom as “primary” in the way Pope Benedict XVI does. Certainly, they did not share the Pope’s anthropological assumptions, and those politicians, mostly from the right, who insist on blurring the differences in order to paint the American founding as a religious event distort the historical record.

To be clear, one of the founders’ principal objectives was to avoid excessive entanglement between religious institutions and government. It is true that the phrase “wall of separation” does not appear in the Constitution, but it does express accurately the ideological concerns of some of the founders. They had seen what a union of throne and altar looked like, and they rejected it. In our day, and especially in the area of providing social services, our nation has concluded that entanglement is a good idea, that we want the government to provide moneys to religious organizations that help the poor, the indigent, the immigrant, the survivor of sexual slavery. These religious organizations tend to do a better job with fewer resources than their secular counterparts, and none do a better job than the Catholic Church. The Obama administration recognizes this. Otherwise, why would it have increased funding for a range of social services provided by the Catholic Church? From 2009 to 2010, government funding for Catholic Charities USA was increased by some $110 million.

There are some “wall of separation” absolutists who oppose such funding. The ACLU has filed a lawsuit against HHS because of its funding of contracts to the USCCB and the consequent result that those funds do not include abortion and contraceptive services. Of course, the ACLU would be on firmer moral ground if it provided services to the victims of human trafficking or opened its own hospitals or ran its own schools. The Catholic Church is on the frontlines of the fight against poverty and other social ills. We should not be penalized because our moral convictions require that we not include contraception and abortions services in our outreach to the poor. Those same moral convictions are what propel us to care for the poor in the first place. There is a moral poverty in our culture’s approach to “reproductive freedom” that is every bit as abhorrent as the socio-economic poverty visited upon too many refugees, immigrants and citizens in our midst. The government demands too much if it demands that we abandon one half of our moral concern in our effort to fulfill the other half.

Tomorrow: The legal aspects of religious liberty arguments.

Prominent RCs Write To Sebelius on Conscience Protections

National Catholic Reporter
Distinctly Catholic

26 August, 2011

Reprinted by permission of National Catholic Reporter,
115 E Armour Blvd, Kansas City, MO 64111

Michael Sean Winters*

At noon today, a group of prominent Catholics released a letter to Health & Human Services Secretary Kathleen Sebelius recommending that she amend the proposed rule on mandated health care coverage to provide for more expansive conscience protections for religious organizations. The letter is signed by some of the same academics who penned a letter to Speaker of the House John Boehner in advance of his commencement address at Catholic University in May, calling on him to support policies that reflect Catholic social teaching. The main organizer of both letters is Professor Stephen Schneck, Director of CUA’s Institute for Policy Research & Catholic Studies.

In addition to academics such as Schneck, Georgetown’s Rev. Thomas Reese, S.J., Lisa Sowle Cahill of Boston College, Margaret Steinfels of Fordham and Duquesne University law professor Nicholas Cafardi, the letter is signed by former Congresswoman Kathy Dahlkemper, one of the pro-life Democrats unseated in last year’s midterm elections as well as Kristen Day, executive director of Democrats for Life, and Sr. Simone Campbell of the social justice group NETWORK. These are the kinds of Catholics that the Obama administration has reached out to in the past, especially during the battle over health care reform, and so the impact of their call for more expansive conscience protections is likely to be heard in the White House. Indeed, the full list reads like a “Who’s Who” of prominent Catholics whose politics tilt to the left.

The letter will be delivered to Secretary Sebelius formally and will be submitted under the guidelines governing public comment on the new rule, which was announced August 1 with a 60-day comment period. The full text of the letter follows.

Dear Secretary Sebelius,

We are an ad hoc group of Catholic leaders and professors, many of whom were associated with the letter addressing Speaker Boehner’s legislative commitment to the poor ahead of his commencement address at The Catholic University of America in May. We write to you, however, to advocate enlarging conscience protections in the mandated insurance programs of the Affordable Care Act.

The Institute of Medicine’s recent determination that insurance mandated by the Affordable Care Act must extend contraception coverage in all plans—to include even post-fertilization drugs and sterilization—raised conscience protection concerns for a number of religious organizations. In response to those concerns, Health and Human Services (HHS) has proposed interim final rules that do provide limited exemptions to religious organizations. However, those exemptions as currently proposed would not extend to many important religious organizations.

The current language limits conscience protection to organizations that 1) have the inculcation of religious values as their purpose; 2) primarily employ those that share their religious tenets; 3) primarily serve persons who share their religious tenets; and 4) are a non-profit organizations. This language is too restrictive.

Catholic charities and Catholic hospitals do not fit the rule’s definition of religious organization. Catholic schools, colleges, and universities also might not fit the current definition. In light of the First Amendment’s protection of religious practice and of the 1964 Civil Rights Act’s forbidding of discrimination for religious belief and insistence on accommodation of religion in the workplace, we propose expanding the definition of religious organization in the final rule to extend conscience protection to religious charities, religious hospitals, and religious schools in regards to mandated health insurance coverage.

Title 26 of the United States Code offers appropriate guidance for defining religious organizations. The HHS interim rule references Title 26 for such consideration. Accordingly, we propose defining a religious organization as one meeting the following criteria:

If it 1) is non-profit religious, educational, or charitable organization; 2) if it engages its religious, charitable, or educational activities for bona fide religious purposes or reasons; and if 3) it holds itself out to the public as a religious organization.

Courts have applied a similar set of criteria in various contexts and have found that organizations should be exempt as “religious” because their charitable or educational activities were deeply religiously motivated, even though those activities did not primarily involve explicit proselytizing or teaching of religion and were not limited to members of the faith community in question. See, e.g., Spencer v. World Vision, Inc., 633 F.3d 723 (9th Cir. 2011) (en banc) (“religious organization” exempt under Title VII; evangelical Protestant humanitarian relief agency); LeBoon v. Lancaster Jewish Community Center Assn., 503 F.2d 217 (3d Cir. 2007) (same Title VII exemption for Jewish-oriented community organization); University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) (ecumenically oriented Catholic college protected from NLRB jurisdiction over faculty); Universidad Cent. de Bayamon v. NLRB, 793 F.2d 383 (1st Cir. 1985) (Breyer, J.) (Catholic college; NLRB jurisdiction over faculty). As the court stated in Great Falls, 278 F.3d at 1346, limiting “exemption to religious institutions with hard-nosed proselytizing, that limit their enrollment to members of their religion, . . . is an unnecessarily stunted view of the law, and perhaps even itself a violation of the most basic command of the Establishment Clause-not to prefer some religions (and thereby some approaches to indoctrinating religion) to others.”

Secretary Sebelius, the language of Title 26 more fully reflects the intentions of the First Amendment and the Civil Rights Act as they pertain to matters of religious conscience. In regard to the mandated insurance coverage of the Affordable Care Act, the language of Title 26 would extend conscience protections to religious organizations on the front lines of the Catholic Church’s ancient mission to the poor and the sick.