Conscience Clauses and the Challenge of Co-operation in a Pluralistic
Reproduced with permission
During the last decade, secular activists began mounting a concerted
effort nationally to eviscerate the concept of "conscience clauses" which
have historically facilitated cooperation between Catholic individuals and
institutions and the government in the delivery of health and social
services. In our state, they are using "reproductive health" freedoms, which
rest on privacy rights, as a vehicle for this challenge. They claim that
privacy rights, which are implicit in the federal constitution and explicit
in California's Constitution, as positive rights, thereby obligating
government to their provision. Secularists are also holding that religious
liberty, affirmed in both constitutions, is subject to government oversight
and subordinate to public sentiment. We Catholics view both privacy and
religious liberty differently; we understand those freedoms as negative
rights, that is, they are rights that insure government noninterference.
A number of questions arise at this point.
First, are "privacy" and religious liberty positive or negative rights?
Second, what exactly is this religious freedom we claim and does it mean
something different today than it did to the American Founders?
Third, must a religious organization be subject to the government
characterization and oversight if the public wills it?
And finally, can we as Catholic individuals and Catholic institutions
continue to function as a viable part of American society if we lose the
"conscience clause" as a method of opting out of immoral or illicit public
In this paper, I will respond to these questions and assert that the
challenge of cooperation in American society is synonymous with the
challenge of keeping effective opt-outs. I will examine certain current
events, the history of religious freedom, contemporary judicial
constitutional interpretation, the divergent worldview of secularists and
Catholics, the agenda and tactics of the secularists, and the nature of
contemporary American society. I will conclude with several suggestions how
we as Catholics can meet the challenge of cooperation in today's society.
Brigham Young University Law Professor Lynn Wardle was prescient when he
wrote in the July-August 1993 issue of Health Progress:
Increasing pressure on healthcare providers who
assert rights of conscience can be expected from three sources. First, some
medical schools have considered refusal to participate in certain procedures
as a negative factor in the admission process... Second, the aging of the
baby-boom generation will create greater financial pressures on the American
healthcare system, and that may cause nonmonetary factors-including rights
of conscience of individual and institutional healthcare providers-to be
sacrificed to the exigencies of the moment... Third, the increasing cost of
healthcare in the United States has made reform a leading political issue.
Although many different plans have been proposed, common to all of them is
an increase in the federal role... [and] the only federal statutory
protection for healthcare providers' rights of conscience... is sorely
He also pointed out that nearly all existing state conscience clauses
protecting healthcare providers are deficient and many have been met with
"hostile judicial interpretations that have diminished their scope and
An impressive demonstration of that very fact occurred in September 2000
when the Superior Court of Sacramento declined Catholic Charities' request
to issue an injunction barring the implementation of a 1999 state mandate
that all employee health insurance policies with coverage for
pharmaceuticals include contraceptive drugs and devices. The authors of the
mandate, foreseeing a religious liberty challenge, had inserted a
"conscience clause" that they touted as an accommodation for religious
organizations. However, the exemption applied only to sectarian institutions
employing and serving fellow sectarians. Further, suitable policies became
unavailable for purchase because the mandate for the inclusion of
contraceptives in drug benefit plans was on insurance companies. This
effectively precluded an opportunity for civil disobedience by the Catholic
social service agencies, healthcare institutions and universities that were
In its lawsuit, Catholic Charities claimed infringement of its religious
liberty rights guaranteed in both the California and the U.S. constitutions.
Because it illicit for a part of the Catholic Church to provide
contraceptive coverage to its employees, and because it is immoral for
Catholic Charities to deprive its employees of pharmaceutical benefits in
their health insurance in order to avoid the conflict, the mandate
unconstitutionally interferes with the Church's religious freedom. The
Catholic Church does not oppose the state or federal government's right to
craft a public policy in variance with its teaching; it only asserts that
institutions, as well as individuals, have the right to exercise
their freedom of religion, as guaranteed in the state and federal
constitutions, and that when public policy is in conflict, and public safety
is not at risk, religious liberty prevails. The Catholic Church and its
institutions should be granted an exemption.
Catholic Charities appealed the Superior Court's decision to the
California Third Court of Appeals. In July 2001 that Court similarly turned
back the request for an injunction, finding that the mandate did not unduly
burden Charities' religious freedom, but that the failure to mandate
contraceptive coverage would infringe on individual workers' conscience
freedoms. Catholic Charities lawsuit is now before the California Supreme
Court, which will have the last word on the state constitutionality of the
contraceptive mandate. That word will be determinate for both the viability
and the scope of religious liberty in California, what many people consider
the most "pluralistic" state in the nation.
"Conscience clauses" had been the time-honored method of allowing both
individuals and religious institutions to "opt out" of public policy in
conflict with their religious beliefs. Following the 1973 U. S. Supreme
Court Roe v. Wade decision, Congress passed the "Church Amendment," known
for its sponsor, Senator Frank Church, to underline the fact that the
Court's decision granting women the right to an abortion was not an
entitlement, and that exemptions for certain health programs was in order.
That amendment, which was the prototype for many state healthcare provider
"conscience clauses" that were legislated in the 1970s, declared that "the
receipt of federal funds... will not require hospitals to participate in
abortion and sterilization procedures, if they object based on moral or
Up until the decade of the 1990s "conscience clause" exemptions were
often included in legal mandates for proscribed activities, such as
abortion, sterilization, contraception, and in vitro fertilization, at the
request of the impacted Catholic institutions. There was almost no
dissention with the claim that Catholic social service, healthcare and
educational institutions were religious organizations. Catholic healthcare
is a large and thriving part of the nation's healthcare system, but because
of historical deference, they have been able to opt-out of providing
services to the public that they find immoral. That may no longer true in
part, as Professor Wardle stated, because "greater financial pressures on
the American healthcare system may cause nonmonetary factors to be
sacrificed to the exigencies of the moment."
It also may no longer true in part because secular activists, such as the
American Civil Liberties Union (ACLU), abortion-rights advocates and women's
groups, are increasingly resisting, on ideological bases, such legal
remedies for conscience violations. They have concluded that entry into the
secular pursuits of caring for society's vulnerable members makes the
institution offering the services a secular rather than a religious one and
that it is "unfair" that such an institution can access the benefit of an
exemption from a public policy mandate. These ideological opponents of
"conscience clauses," are relentlessly and publicly re-labeling them as
"refusal clauses" while mounting
challenges to any exemption from public policy mandates for
religiously-affiliated institutions that accept public funds or narrowly
redefining religious organizations so that the exemption is ineffective.
The ACLU Reproductive Freedom Project, which has taken the lead in this
effort, has a stated agenda of "combating limitations on reproductive health
care." One of the top
items on their agenda is requiring contraceptives be included in employee
health plan pharmaceutical coverage with no-or negligible opt-outs-and their
first target state for this mandate was California. In 1999, five years
after the initial bill was introduced and after numerous tries and despite
extensive opposition lobbying by the Catholic Conference, the requirement
that pharmaceutical coverage in private employee health plans include
contraceptives, with a narrow "conscience clause" exemption, was passed and
signed by the Governor.
The exact language of the exemption was specifically developed by the
ACLU, made available to legislators in
the various states considering a contraceptive mandate, and is in fact
contained in the recently enacted New York contraceptive mandate, which also
fails to exempt most New York Catholic social service, healthcare and
As just demonstrated, "conscience clauses" to protect the religious freedom
of those engaged in healthcare and social services are endangered by both
financial exigencies and secular ideologies. Although religious liberty is
"guaranteed" in California's Constitution, and acknowledged and protected by
the federal Bill of Rights, the ACLU has begun to re-evaluate religious
freedom on the basis of public opinion, claiming that their focus groups and
polls reflect that the public rejects "refusal clauses" by large margins.
At this point it would behoove us to recall the history of religious
freedom in Western civilization, and more particularly, how it grounded the
American democratic experiment in the New World.
History of Religious Freedom
Christendom, the intricate intertwining of Christianity and the state,
provided much of the framework for medieval European society. Monarchs ruled
by "divine right" and were crowned by bishops or popes. Clerics, and even
bishops, served at the pleasure of those who wore the crown.
The hegemony of the Catholic Church was interrupted in 1517, when Martin
Luther posted his 95 Theses. By this act he planted the seeds for the
Reformation, which became "the political and religious event that divided
the Western Christian church into Catholic and Protestant,"
and as history shows, it heralded the beginning of the end for Christendom.
Luther's message that "false doctrine" had led to the corruption in the
Catholic Church fueled a popular movement to reform the Church, which spread
rapidly through Germany in the 1520s. At approximately the same time,
competing Protestant movements began in Switzerland with John Calvin, who
preached predestination and held the Catholic Church guilty of idolatry, and
in England with King Henry VII, who broke with the Vatican over the Pope's
refusal to grant him a divorce from his wife. Responding to these
"protests," Pope Paul III convened the Council of Trent, which met in three
sessions spanning the years 1545-1563. The decrees of Trent clearly defined
Catholic dogma, delineating the Church's theological position over against
Protestantism, and gave form to the Roman Catholicism that endured 400
years-until Vatican II.
Religious wars engulfed the continent during the 1500s and 1600s,
dividing the medieval Church into "Catholic" and "Protestant" and then
fragmenting Protestantism into numerous sects. However, the entrenched model
of Christendom and the familiar desire for religious homogeneity lingered.
It was not until England passed the "Act of Toleration" in 1689, that the
some diversity was formally accepted.
That "toleration" gave legal protection against coercion and mayhem to those
who dissented from the state's chosen religion, but did not grant them what
we understand as religious liberty. It remained for the newly-minted
Americans to implement the idea of freeing religion from governmental
oversight. Colonial America became the place where "for the first time in
Western history, the state and church were cleaved from one another."
European settlers came to America in the middle of the seventeenth
century seeking freedom to practice a religion different from the one
sanctioned by their country's government. Ironically, though, upon arrival
in the New World those first colonists gave their elected leaders the power
to enforce their chosen religious beliefs and practices. "The inhabitants
of... the settlements adhered to a basic... belief that the Bible ... read
correctly... would prove a clear and infallible guide to the constitution of
both Church and State, and no one who refused to follow the canons of
scripture was to be tolerated."
It was not until 1644, when the English Puritan Roger Williams parted
company with his fellow New Englanders and founded Rhode Island that the
"experiment" in religious freedom actually began. Williams believed that
religion could only be authentic if it was freely chosen and freely
exercised; therefore Rhode Island's charter provided religious liberty for
all and established no Church. His thinking was eventually paralleled by the
American founders, 150 years later, i.e.
1. Religion is indispensable to a free republic
because it informs consciences and creates morality.
2. Religion should have no civil authority;
government should have no religious authority.
3. Government must not suppress the free exercise of
religion or coerce conduct contrary to conscience.
"[By] deciding against maintaining an established
church, the United States embarked on a new and radical course. It not only
broke with its European roots; it departed from previous human experience.
Until that time... the idea that a society could be maintained without its
governing authority upholding and promoting a central belief system would
have been inconceivable."
Accordingly, in 1791 the "establishment" clause and the "exercise" clause
were ratified as part of the First Amendment to the Constitution of the
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of grievances.
However, it is important to remember that the founders thought that "the
right of a society or government to interfere in matters of religion will
hardly be contested by any persons, who believe that piety, religion, and
morality are intimately connected with the well being of the state, and
indispensable to the administration of civil justice,"
and considered the "religious liberty" clauses simply as prohibiting the
Federal Government from taking any action to either establish a national
church or to prevent Americans from exercising their religion in the various
states, a number of which did have established churches.
In his 1833 commentary on the U. S. Constitution, Supreme Court Justice
Joseph Story pointed out that "in some of the states, Episcopalians
constituted the predominant sect; in others Presbyterians; in others,
Congregationalists; in others, Quakers; and in others again, there was a
close numerical rivalry among contending sects... Thus, the whole power over
the subject of religion is left exclusively to the state governments, to be
acted upon according to their own sense of justice..."
Judicial Constitutional Interpretation
It is interesting to note that between 1789 and 1947, the United States
Supreme Court heard only one "religious freedom" case.
Since 1947, there have been dozens of cases. Not coincidentally, it was in
1947, that U. S. Supreme Court Justice Hugo Black unearthed and employed
Thomas Jefferson's "wall of separation" language when he wrote for the
majority in Everson v. Board of Education: "In the words of
Jefferson, the clause against establishment of religion by law was intended
to erect a 'wall of separation between Church and state.'"
That phrase, familiar to modern Americans, is not found in the
Constitution but in a January 1, 1802 letter Jefferson wrote in response to
the Danbury Baptist Association's inquiry about his stance on their
religious liberty. At the time the Baptists were being persecuted for not
being part of the Congregationalist Church, the "predominant sect" in the
state of Connecticut. Jefferson wrote:
Believing with you that religion is a matter which
lies solely between man and his God; that he owes account to none other for
his faith or his worship; that the legislative powers of the government
reach actions only, and not opinions, I contemplate with sovereign reverence
that act of the whole American people which declared that their legislature
should 'make no law respecting an establishment of religion, or prohibiting
the free exercise thereof,' thus building a wall of separation between
church and State.
It is important to remember that the religious freedom clauses in the
First Amendment to the U. S. Constitution did not grant religious
freedom to Americans, a liberty which the Founders viewed as God-given, but
rather restrained the federal government from interference with the
citizenry in either their choice or their practice of religion. As Bishop
Thomas Curry points out in his book, Farewell to Christendom:
"Prohibition of an establishment of religion meant that government should
not select, promote, or prefer one religious group, a practice familiar to
many Americans at the time the First Amendment was enacted. America defined
the role of the State; it left the Church free to define its own role and
what was good or bad for religion."
The First Amendment curbs the power of the federal government. It does
not make the government a "neutral" judge as to the benefits and burdens of
certain public policies upon religion and religious practitioners or give it
authority as an arbiter of where to place a "wall of separation"
American founders' intent was that the government is be absent, not neutral,
in all matters religious.
This misuse of Jefferson's words as metaphor to mean a bright line
separating all things secular from all things religious has seriously skewed
the historical concept of religious liberty in the United States and has
resulted in numerous rulings that rest on "judicial reasoning [that is]...
fractured, polarized and utterly confusing. Even constitutional experts lose
their way in the maze of precedents that now surround the First Amendment."
Divergent Worldviews of Secularists and Catholics
Diametrically opposing worldviews explain most of the controversy about
"conscience clauses" and the attempted "refusal" of Catholic institutions to
submit to the demands of the "rights" activists. On one side are activists
whose sensibilities are overwhelmingly secular and whose ideology demands
that religion be treated as just another lifestyle, belonging wholly to the
private realm. On the other side are the Catholic Church and various
religious freedom advocates who share the American Founders' understanding
of religious freedom, a belief in the value of religion and the deference
due it. Arguments that resonate with one side elude the other. In fact, the
very words "right," "justice," "fairness," "discrimination," and "equality"
take on different meanings depending upon the worldview of the proponent.
The "rights" activists, who consider Judeo-Christian religious tenets and
tradition quaint at best and divisive at worst, share a worldview with many
secular ideologues in legal and political circles that have the power to
craft public policy and tender constitutional interpretations. Although
secularists give lip service to the "inalienable rights" language used by
the American Founders in the Declaration of Independence, their worldview is
that human rights come from human institutions and documents, such as the U.
S. Constitution. They hold that individual autonomy is one of society's
highest values, accept the postulate that morals are personal preferences
and believe that rights are positive entitlements, which means that access
to the "right" is synonymous with the right itself. Rather than accepting
the Bill of Rights as restraining government from interference with
God-given inalienable human rights, they see government as the grantor and
arbitrator of those rights.
By virtue of this understanding, they view any "absence" of government in
the oversight of religion and religious practices as showing preference to
religion, and that religious as well as nonreligious individuals and
institutions must heed government mandates. They believe that justice
dictates that government must be actively neutral in ensuring the proverbial
"level playing field," by stamping out "discrimination" by religious
institutions, and erasing their tax benefits.
This worldview has led to the bright line "wall of separation" metaphor
gaining credence in popular culture. Whereas the Founders were concerned
that government would interfere with religion, the current concern seems to
be that religion is interfering with the government's duty to provide
On the other hand, the worldview held by the Catholic Church is that
society, although a human construct, ought to be girded by the principles of
"natural law." Catholic sensibility contains awe at the mystery and
transcendence of the One who created humans in his image and from whom flow
their inalienable rights. Catholic teaching holds out faith in God's love
and justice, hope for human progress consistent with human dignity, and the
belief that with reason we can discover the immutable laws of the universe.
Catholics believe that there is an objective base for societal mores and
personal values and that right and wrong exist independent of individual
choices. They also believe that there are responsibilities corresponding to
rights, and that for thriving, humans need to live in community to which
they owe fidelity. They understand that we have been commanded to care for
each other with love and for all of creation with stewardship.
Although the concept of religious freedom arose within Western
Civilization, the Vatican retained its vision of Christendom as the ideal
relationship between God and human society until the middle of the 20th
century. However, with the thriving of the American Catholic Church in a
land of religious freedom, the Church fathers developed and quantified their
understanding of human freedom to encompass religious liberty. On December
7, 1965 in the Vatican II Council, they adopted Dignitatis Humanae,
in which they declared that "the right to religious freedom is the right of
religious groups not to be prevented from freely demonstrating the special
value of their teaching for the organization of society and the inspiration
of all human activity... [And] the right... to hold meetings or establish
educational, cultural, charitable and social organizations.
Most thoughtful Catholics resist the "wall of separation" metaphor as
instructive for describing the ideal relationship between Church and State.
They assert that religious liberty freedom allows them access to the public
square, welcomes them to speak and act on their values, and permits them to
participate in society in a manner consistent with the tenets of their
faith. Catholics are constrained from imposing their beliefs on government
policy or advocating a theocracy. Likewise, the government is to be absent
in religious activities-unless public safety is in jeopardy. Catholics
dispute secularists' contention that consensus on the "goodness" or efficacy
of public policy, such as universal contraception, rises to the threshold of
"ensuring public safety."
The Agenda and Tactics of the Secularists
As mentioned earlier, the ACLU and affiliated groups' ideology leads them
to re-labeling "conscience clauses" as "refusal clauses" so as to convince
the public that such an opt-out is form of discrimination against or unequal
treatment of women or that it is allows certain institutions which define
themselves as religious to impose their views on their employees or on the
The Reproductive Freedom Project has publicly acknowledged that their
primary agenda item is "combating limitations on reproductive services
offered by religiously affiliated providers."
In order to advance their agenda, their tactics include declaring that
religious institutions do not even qualify for religious freedom or
"conscience clauses"-only individuals have the freedom of conscience or that
exemptions for religiously affiliated institutions amount to "refusal"
clauses, and should cause those institutions to forfeit tax monies and their
tax exempt status.
In her July 2002 testimony before the U. S. Congress Subcommittee on
Health that was considering "Protecting the Rights of Conscience of Health
Care Providers and a Parent's Right to Know," Catherine Weiss, Director of
the ACLU's Reproductive Freedom Project, laid out their rationale for
rejecting "conscience clauses":
Constitutional principles neither require nor
forbid most refusal clauses. Based... on our study of case law the ACLU
identified two measures for evaluating refusal clauses. We consider first
whether granting an exemption would impose burdens on people who do not
share and should not bear the brunt of the objector's religious beliefs...
By "burdens" we mean to include obstacles to health care... We consider next
whether the exemption protects the religious practices of pervasively
sectarian institutions or instead protects institutions operating in the
In addition, reproductive rights activists have cleverly blurred the line
in the public's mind between "access" to a right and the right itself. That
tactic comes under the category of moving the privacy guarantee (upon which
abortion rights rest) from a negative right, i.e., a right to be left alone,
to a positive right, i.e., an entitlement to "reproductive health services"
at the time and place of one's choosing.
Contraception is trumpeted by abortion rights activists as the panacea
for the nation's problems, and a factor in ensuring "public safety." A
demonstration of that mindset can be found in a Planned Parenthood Fact
Sheet prepared in support of California's contraceptive mandate which
contains this claim: "Contraception is not a luxury for women. Just as we
have historically supported immunizations, we should support contraception
as the medically necessary immunization for unwanted pregnancies."
The list of organizations with agendas to protect reproductive rights and
ensure unlimited access to reproductive health services is lengthy. Among
them are Abortion Access Project, the ACLU Foundation Reproductive Freedom
Project, MergerWatch Project, National Abortion Rights Action League,
National Women's Law Center, Planned Parenthood Federation of America,
Center for Reproductive Law and Policy and the Women's Law Project.
Melding their agendas with their tactics, this is the action plan that
1. Using women's equity and individual religious
freedom arguments, mandate contraceptive coverage in all employee health
plans-first in the states and then nationally, where an exemption is
necessary only exempt sectarian institutions;
2. Using the argument that access is necessary for
exercising rights, legalize the dispensing of RU-486 by non-physicians;
3. Using the same access argument, as well as the
individual religious freedom argument, mandate the universal availability of
"the morning-after pill," with or without a physician's prescription, in
pharmacies and rape trauma centers;
4. Using both the women's equity and the access
arguments, mandate abortion training in medical schools, first in states,
and then nationally;5. Using the access and the religious freedom for
individuals arguments, block mergers of Catholic and non-Catholic hospitals,
6. Using the argument that acceptance of public money
means accommodating all the public's requests, require Catholic healthcare
to provide the full range of reproductive health services or lose their
The Nature of contemporary American Society
California is arguably the most pluralistic state in America, a country
which prides itself on its multiculturalism. After all, children speaking
more than 100 different languages attend California public schools. If a
"pluralistic society" is one which is host to a variety of people who differ
in ethnicity, language, lifestyle and religion, then California qualifies,
and America as a whole qualifies. If however, a "pluralistic society" is one
in which many faith traditions and ethnic cultures are welcome to
participate freely in forming public policy and setting social mores,
California does not qualify, and America may not.
In 21st century America the loudest voices are attempting to persuade us
that religion is not a "good" but is an obstacle to freedom. They dispute
what was generally understood for nearly two hundred years-that religion is
effective in creating moral citizens and conducive to the civil order.
Ironically, although secularism and cultural liberalism are the basic tenets
that underlie this dismissal of religion and this drive to raise
"reproductive rights" to the highest freedom, it is not publicly recognized
as a distinctive belief system. As pointed out by Louis Bolce and Gerald De
Maio in their article in the Fall 2002 issue of The Public Interest:
The impression conveyed by both [the Washington
Post and the New York Times] newspapers is that traditional religious
beliefs motivate people to oppose abortion... support conservative social
movements, and adopt intolerant attitudes, but that a modernist or
secularist outlook apparently has little or no connection to the reasons why
someone supports abortion rights... joins culturally progressivist
organizations, expresses antipathy toward... Christians...
American Catholics are part of the American culture, and many have been
seduced by the utopian ideal of unlimited and unilateral "choice." They
reject the wisdom of the age-old Church teachings about sexuality, marriage,
fidelity and family or they fail to understand Jesus' command to care for
"the least among us." Failure by individual Catholics and by some
institutions bearing the Catholic name to adhere to the Church's teaching on
contraceptives is used against the Catholic Church when it challenges public
policy mandates. Polls showing the majority of Catholics reject the
Vatican's stance on birth control; evidence of health insurance contracts in
Catholic hospitals that provide coverage for contraceptives; documentation
of elective sterilization procedures being offered and performed in Catholic
hospitals; and other demonstrations of American noncompliance with Church
teaching all have undermined the religious freedom of those institutions and
individuals who remain faithful to Catholic teaching. In addition, it has
caused boldness in the secularists as they move from mandating coverage for
contraceptives, to mandating abortion training in medical schools, to
requiring emergency contraception at rape trauma centers, and to proposing
that abortion be available in Catholic hospitals that accept public funds.
A realistic assessment of the current American culture means that unless
current trends reverse it looks bleak for the continued existence of social
services and healthcare that have a Catholic identity. Most or all of our
efforts to "cooperate" in a "pluralistic" society may be stymied by the
overwhelming acceptance of secularism as the national ideology. If
self-defined Catholic institutions are unable to follow the tenets of the
Catholic faith when delivering services to the needy on behalf of the
government, those institutions will cease to exist or will cede their
Catholic identity and exist as "community" or government operated entities.
In that case, we all lose. In California, the Church will be precluded from
doing many of its good works and the government will have driven out a large
part of the Catholic Church whose 400 year presence has contributed to the
rich history of the state and whose saints' names have graced much of
California's geography and institutions.
How Can Catholics Meet the Challenge?
Public policy mandates exempt Catholic parochial schools because they
viewed as existing in the private realm. Catholic elementary and secondary
schools were founded more than a hundred years ago to combat the pervasive
Protestant ideology in the public schools. They take no government money
although they provide a service to society by educating the youth. The
result is that the Catholic identity of Catholic parochial schools has
remained intact and no one questions that they are religious institutions
who qualify for religious freedom.
Catholic Charities and Catholic hospitals also have a long and well
respected history of providing service to those who need it. For all the
right reasons, including scriptural mandates, charity and efficacy, in the
last century, Catholic social service agencies and Catholic healthcare began
to accept "pass-through" tax money to provide even more services to the
state and the nation's needy and vulnerable. For most of that time those
Catholic institutions operated in comfortable collaboration with the
government, which allowed them "carve-outs" so that they did not have to
offer services that violated their conscience.
The age-old maxim plays here well: "With the King's money comes the
King." With the increasing secularization of American culture, the
decreasing availability of "reproductive health services," and the expanding
role of the judiciary in tailoring religious freedom, the familiar vehicle
of the "conscience clause" as an opt-out from immoral or illicit public
policy mandates became unreliable. Large Catholic institutions, such as
Catholic Charities, Catholic healthcare, and Catholic universities, became
targets for removal of "conscience clause" privileges because it appeared
that they were being offered a benefit that nonreligious institutions could
not access. Both types of institutions accepted public monies, but only
those that were nonreligious had to accept the "strings." And, given the
historical American Protestant ethos with its congregational understanding
of Church, the claim that Catholics are called to serve humanity's physical
as well as spiritual needs through their religious organizations seemed like
a ploy to escape the burden of mandates.
Recalling Professor Wardle's estimation that the shortage of health care,
including reproductive health care, would create the suitable climate in
which financial exigencies would trump moral imperatives, and bearing in
mind the increasing acceptance of secularism as a national ideology, it is
not surprising that here in the 21st century, the time-honored "conscience
clause" may become an historical artifact.
Two possible solutions present themselves. One, using Catholic parochial
schools as a model, Catholic social services, Catholic healthcare, and
Catholic universities could begin the process of reverting to private
funding. Surely if the enormity of the need is known, large sums of money
would be forthcoming. Although the public money allowed these institutions
to become large and competitive with nonreligious institutions, perhaps now
is the time to scale back, retrench, and rethink the Catholic vision for
caring for the least among us.
Another solution would involve publicizing the possible demise of the
effective "conscience clause" for religiously-affiliated organizations, the
intransigence of the government in providing "pass through" tax money while
allowing Catholic institutions to serve within their moral parameters, and
the likely shortfall of services to needy individuals. If that was combined
with aggressive education of Catholic parishioners on the history of
religious freedom in America and on the Church's teaching regarding
sexuality, family, fidelity, and social justice, as well as reminding them
of the magnitude of the Church's service to the poor and needy on behalf of
society, perhaps public opinion could be moved by them in such a way that
conscience clauses would be preserved.
That then is our challenge. Conscience clauses are an endangered
species-unless the California Supreme Court reverses the lower courts, or
even more improbably, the U. S. Supreme Court reasserts the historic
understanding of religious liberty. Our options are: We can cede our
institutions to community oversight, withdraw from participation in the
wider culture using the parochial schools as a model-or we can educate our
Catholics and the public, and retake our rightful place cooperating in a
pluralistic society, protected from coercion or interference by our
constitutionally protected religious liberty.
1. Lynn D. Wardle, JD,
"Conscience Clauses Offer Little Protection,"Health Progress,
July-August 1993, found at: , p. 7-8.
2. Ibid., p. 1.
3. Maureen Kramlich, Esq., "Respect for Conscience:
History and Current Threats" (Buffalo, NY: Annual Meeting of Diocesan
Pro-Life/Respect Life Directors and State Catholic Conference Directors, 8
August 2002), p. 2.
4. Wardle, "Conscience Clauses Offer Little Protection,"
5. Catherine Weiss,
Prepared Witness Testimony
before U. S. House of Representatives Subcommittee on Health, 11
6. American Civil Liberties Union Reproductive Freedom
"Protecting Reproductive Rightsâ€¦," p. 9.
7. Kramlich, "Respect for Conscience: History and
Current Threats," p. 7.
8. New York State Catholic Conference,
9. Kramlich, "Respect for Conscience: History and
Current Threats," p. 5.
10. Herman J. Pottmeyer, "Catholicism in Germany," in
Encyclopedia of Catholicism, ed. Richard McBrien (New York:
HarperCollins Publishers, Inc, 1995), p. 558.
11. R. Emmet McLaughlin, "The Reformation," in
Encyclopedia of Catholicism, p. 1091.
12. Ibid, pp. 1093-94.
13. Thomas J. Curry, The First Freedoms (New
York: Oxford University Press, 1986), p. 2.
14. James F. Sweeney, Esq., "The 'Problem' of Religious
Freedom: Living Faithfully in a Secular Society" (Fresno, CA: Legatus
Society, July 15, 2002), p. 3.
15. William Ames, Conscience with the Power and
Cases thereof (London, 1630), Bk.4, 10: quoted in Perry Miller,
Orthodoxy in Massachusetts (Cambridge, MA, 1933), pp. 165-66; quoted in
Thomas J. Curry, The First Freedoms, p. 4.
16. Sweeney, p. 4.
17. Thomas J. Curry, Farewell to Christendom
(New York: Oxford University Press, 2001), 3.
18. The Constitution of the United States of America,
First Amendment, 1791.
http://supreme.lp.findlaw.com/constitution/amendment01/01.html#3 citing J.
Story, Commentaries on the Constitution of the United States (1833).
20. J. Story, Id. at 1873.
21. Sweeney, Esq., "The 'Problem' of Religious Freedom:
Living Faithfully in a Secular Society," 6.
22. Justice Hugo Black, writing for the majority in
Everson v. Board of Education, 330 U.S. I, 15 (1947).
23. Thomas Jefferson," Letter to the Baptists in
Danbury, Connecticut," reprinted in Lipscomb, Andrew and Berg, Albert,
The Writings of Thomas
Jefferson, Vol. 16, 282-283, found on First Amendment Cyber-Tribune
24. Curry, Farewell to Christendom, p. 45.
25. Ibid., p. 20.
26. Ibid., p. 72.
27. Vatican II, Dignitatis Humanae, 7 December
1965 (Northport, NY: Costello Publishing Company, Inc., 1996), p. 803.
28. ACLU Reproductive Freedom Project, "Protecting
Reproductive Rights...," p. 9.
29. Weiss, p. 3-4.
30. "Planned Parenthood Fact Sheet on Necessity of AB
110," 1995, contained in the Record for Catholic Charities v. State of
California, Vol 5, Exhibit M, entry A 001158, August 2000.
31. Louis Bolce and Gerald De Maio, "Our Secularist
Interest, Fall 2002, p. 8.