In the fall of 2011, the U.S. Conference of Catholic Bishops (USCCB) formed the ad hoc committee for Religious Freedom, headed by Bishop William Lori. He appeared before the U. S. Senate on October 26 of that year to address the concerns of the Roman Catholic Church regarding the libertas ecclesiae (freedom of the church, as an institution) against perceived threats from groups advocating abortion and contraceptive rights.1 On November 8, 2011, he told Catholic News Agency (CNA) that the first goal of the ad hoc committee was "to lift up the whole area of religious freedom, beginning with the teachings of the church in Dignitatis Humanae—the Second Vatican Council's declaration on religious freedom" and also to recoup "the vision of our Founding Fathers of the United States" regarding religious freedom.2 For him, religious freedom, one of the chief cornerstones of American society, is being violated through restrictions on the free exercise of religion in the public square by some liberal groups.
Implicit in Bishop Lori's statement regarding the religious freedom vision of our Founders is its compatibility with a Roman Catholic understanding of religious freedom. Is this a historically accurate characterization? Perhaps a short review of a Roman Catholic understanding of religious freedom and that of the American republic is in order. Modern Roman Catholicism struggles with adaptation to the prevailing democratic political systems of our world today, many of which allow for religious pluralism.3 Accustomed to centuries-long church-state relations in Europe in which the secular political order was based on monarchical rule, the Catholic Church at that time easily influenced society, producing the Corpus Christianum ("Christian Commonwealth"). Conformity, both moral and religious, was the norm. Defining the state as of divine origin, Roman Catholic political philosophy consequently advocated the moral obligations of the state to uphold and foster religious life.4
The Protestant Reformation (1518) and the near-simultaneous beginnings of the modern political era led to the eventual rise of the nation state. Such a fracturing of the body politic, once unified under the single religion of Roman Catholicism, allowed for the gradual development of religious tolerance and, finally, religious freedom guarantees. The desire for civil peace among varying religious groups (primarily Roman Catholics and Protestants in Western Europe, England, and North America) was, of course, not the only consideration that prompted philosophical consideration of establishing freedom of religion in society. Enlightenment thinkers, with their emphasis upon humanity's rational abilities, opened the way for a new evaluation of the world, its political systems, its study of the sciences, and societal norms. In order to search for truth, humanity needed the unconditional freedom of conscience, thought, and expression. Under such conditions the moral influence of Roman Catholicism no longer guided such evaluations. With the growth of other religious groups, primarily varying Protestant bodies, the norm of religious pluralism became the societal cornerstone, at least in America, along with Enlightenment arguments advocating freedom of conscience.5
Being a minority faith in America at the time of our nation's founding, Roman Catholics fought for religious freedom against predominantly Protestant establishments. By 1789 the First Amendment guarantees of religious freedom had been ratified, being established upon religious norms6 and Enlightenment philosophical propositions.7 The First Amendment clauses put forward by James Madison took some authority from "the law of nature" as propounded by John Locke,8 and reflected the thinking of the French philosophes.9 It was a straightforward proposition: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
In recent years, Roman Catholic scholars have attempted to blend Roman Catholic political philosophy with that of our nation's founding, portraying the ideas of Locke's "law of nature" as a derivative of Roman Catholic "natural law" theory.10 They assert such arguments in an attempt to reduce anti-Catholic sentiment among the American populace and to influence morals in the public sphere.11 If, Catholic revisionists argue, Madison and Jefferson truly conceived of the American nation as being founded upon concepts of Catholic natural law theory, then Catholic natural law arguments regarding humanity's moral nature should govern public policy discussions. Attempting to argue that pro-choice abortion legislation and other societal moral issues, such as contraceptive services required as part of health-care insurance, euthanasia, and same-sex marriages—when legalized—become a denial of Catholics' free exercise of religion rights, assumes that society is founded upon Roman Catholic moral values. Yet current statistics do not support the implied contention that America is a Roman Catholic nation.12 Even among those Catholics living in America, the majority of them do not agree with the moral teachings of the magisterium on the issue of birth control.13 And contrary to ideas of Catholic dominance, America is a republic founded upon a constitutional democracy. Democracy, by definition, is government of those governed—demos, meaning "people" in Greek, and krateo, meaning "to rule, to govern," thus, a "government of the people, by the people, and for the people."
The USCCB, by means of its ad hoc committee for religious freedom, attempts to portray the Catholic Church and Catholics as being denied their religious freedom guaranteed under the First Amendment.14 Recent legislation requiring all institutions, whether private or public, to provide contraceptive options to their employees and clients is demos benefit-focused, rather than anti-Catholic-focused. Such legislation is not neccessarily arbitrary action by the civil administration. Just as the federally mandated minimum wage law was passed for the benefit of all American citizens, so also a national, federally mandated, health-insurance coverage law has been enacted for the benefit of all American citizens. The claims of the USCCB would seem to be unfounded in light of our current administration's response to their inquietudes. The administration has proposed an exemption for religious institutions that, according to the dictates of their conscience, cannot offer such services. By requiring health-insurance companies to nonetheless offer such services removes the responsibility from those religious institutions while granting freedom of conscience and choice to the individual. Such a position is truly in harmony with the free exercise of religion clause of the First Amendment, which not only guarantees the free religious exercise of the individual, but also guarantees the free irreligious (not based on religious convictions) exercise of the individual citizen. This means that government is obligated to protect the conscientious convictions of the individual citizen, apart from religious foundations (the choice to use contraceptives), while also prohibiting the establishment of a religion, or its teachings, in society (in this case, Catholic moral theology).
The nearly 300 Catholic bishops in America are trying to present this issue in terms of a violation of the free exercise of religion, but at least one of the leading American Catholic media sources does not view it in that light. The National Catholic Reporter (NCR) describes the religious freedom of the Catholic Church advocated at Vatican Council II and how it applies to issues of euthanasia and contraception:
"The principle of religious liberty that the Catholic church observes, and that the church must ask the polity to observe as well, is not the insistence that the deprivation of artificial nutrition and hydration be punishable under civil law, but that to the extent one's freely chosen faith belief requires such forced feeding that the law not make it impossible for the believer to pursue that care. If the law allows for religious beliefs to be observed or unobserved as the authoritative family member may decide, the church really should not complain about the president if its own believer makes the wrong choice in terms of Catholic doctrine. In such circumstance, the church's focus should be upon the education and conversion of heart of its own believer, not whether the law permits a contrary belief.
"This same principle explains the limits of the law with respect to all manner of subjects, from abortion to artificial contraception. That the law may specify that abortion or contraceptive coverage be included as choices for employees ought not be seen as making the employer contributing to the legally imposed medical premium complicit in the act itself. To think that an authorizing statute or executive decision violates principles of religious liberty or free exercise merely because it allows a choice contrary to faith is to misunderstand the nature of democracy and individual freedom. It also vastly understates the responsibility of the church's own obligation of moral formation.15
If Catholics (or any other faith group) are properly instructed and converted to the doctrines they profess, then it matters not if any law is passed allowing them (not forcing them) to act contrary to those teachings, because they will uphold the principles enshrined in their hearts. So the real issue rests with the church (and all religions regarding their respective beliefs), not with the government or its enacted laws.
Another Catholic, Paul Moses, in a Commonweal Magazine article entitled "The Bishops, Religious Liberty, and Conscience," raises the question regarding the inconsistencies of religious freedom practiced within the church by its leadership trying to control the consciences of its members on issues that are not mortal sin, while also claiming religious liberty for the church to impose those same moral theological values upon non-Catholic citizenry in America by influencing Catholic voters through its Faithful Citizenship guidelines. If true religious freedom were practiced within the Catholic Church, Mr. Moses states:
"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."16
Another blogger, under the username of "Crystal Watson," perhaps identified the central issue at play when she stated in the "Comments" section to this article by Paul Moses: "I think the bishops are being dishonest in their use of the expression 'religious liberty.' It used to mean that civil government did not have an obligation to officially recognize the church and support it. Pius IX actually said, 'The state must recognize [the Catholic Church] as supreme and submit to its influence. . . . The power of the state must be at its disposal and all who do not conform to its requirements must be compelled or punished. . . . Freedom of conscience and cult is madness.' It was against this mind-set that John Courtney Murray, S.J., worked so hard at Vatican II. When the bishops speak now about religious liberty, they don't mean what J. C. Murray and the council meant. They mean instead the opposite—a loss of Catholic influence on civil society, the inability to force everyone else to follow Catholic teaching."17
All American citizens can be grateful to those American Catholics who truly cherish and practice the American spirit of charity toward a fellow citizen, enough to recognize and respect their conscientious religious (or non) convictions, even when they differ from one's own.
Another dimension of the First Amendment religion clauses comes into focus, namely, "direct" and "corollary" effects. A "direct" effect, under the establishment clause, would be disallowed by the Supreme Court, but a "corollary" effect seems to be permissible in some instances, such as school vouchers. Under this argument, government cannot give money directly to private, religious schools in violation of the establishment clause,18 but it can give that money indirectly ("corollary") in the form of vouchers to the parents of those children who opt to send them to parochial schools, provided that religious schools are one among many educational options.19 Regarding contraceptive services as part of the health-care insurance law, the USCCB vociferously argues against what it terms "corollary effects"—i.e., the individual choosing contraceptive services violates the conscience of the church. Even though this law grants an exemption to religious institutions (out of respect for their conscientious convictions) but still requires the insurance company to offer contraceptives in order to give free choice to the individual, the USCCB considers this to be a "corollary" malfeasant and thus a violation of the Catholic Church's religious free exercise rights. It becomes evident, then, that the Catholic Church desires to receive public funding for its schools through vouchers, which has the indirect effect ("corollary") of promoting Catholic religious teachings, but also desires to restrict the conscientious, free choice of its employees, some of whom may not even be Catholic—even though this has only an indirect effect upon Catholic institutions ("corollary"). In the former case of school vouchers, "corollary" effects are a boon, and thus allowed, because they aid the church, but in the latter case of contraceptive services covered by health insurance, "corollary" effects are a bane because they run contrary to Catholic moral theology, and thus are condemned.
Not only are religious freedom guarantees at play in this debate, but also economic considerations. Stated otherwise, if an institution purporting to exist for the benefit of our nation's citizens seeks federal funding to operate, then it should be willing to accommodate the demos from all backgrounds and be willing to offer them all available services. Thus, the demos is given freedom of conscience to choose what service options are best in his or her case, rather than a religious institution trying to dictate the conscientious choices of its clients. Since the demos is required by law to pay taxes, should not the institutions offering services to the demos also be subject to laws that affect the availability of such services to the demos?
Conscience vs Conscience
Reactionary responses to such statements include those conscientious believers who work at private, religious institutions, but who are placed under legal obligation to offer services that they in good conscience cannot perform. Thus, it becomes a demos-conscience versus a religio-conscience. Whose conscience is guaranteed protection under the First Amendment? Both.
The demos is the spirit behind the Constitution and the Bill of Rights. While some demos-consciences may not be religious in orientation, they nonetheless are protected by the First Amendment religion guarantees because Congress is prohibited from establishing any religion, whether Catholic or Protestant (or other), and because the Enlightenment influence behind the "free exercise" of religion also includes unbelief, that is to say, no religious orientation.
The religio-conscience also finds protection under the First Amendment, through the "free exercise" clause. The essential difference between both types of conscience, however, is the issue of federal funding. The demos-conscience is obligated by law to pay taxes, some of which under current church-state rubric is given to private, religious institutions. Should not the demos-conscience be able to secure services where federal subsidies make services affordable? Debating this viewpoint, the religio-conscience will argue for the right to practice their faith—i.e., not being legally obligated to offer, or perform services contrary to their convictions—but will still argue for their right, or their institution's right, to receive federal funding. Conscientious religious, or irreligious, convictions are guaranteed protection under the First Amendment religion clauses, but not the right to federal funding that derives from all tax-payers' dollars. To argue in support of such an erroneous view is the same as telling someone they have the legal obligation to pay a travel agency for services rendered, but also stating that the travel agency has the right to choose and prepare the travel itinerary regardless of the client's wishes.
The alternative scenario is to encourage such religious groups to adhere to a more robust concept of church-state separationism, as originally espoused by Madison and Jefferson, by cutting their federal funding for noncompliance of federal guidelines. If such religious groups cannot find the fine line of balance between providing for clients' needs and at the same time respecting their conscience, then perhaps those groups should seek funding elsewhere. To fail to do so is to argue for a religious institution's right to conscientiously follow its doctrinal teachings, even by imposing them upon its employees and clientele, while at the same time receiving federal funding—in other words, a religious establishment, and thus, directly in violation of the First Amendment establishment clause.
1 National Catholic Reporter online: http://ncronline.org/blogs/distinctly-catholic/bishop-loris-testimony-religious-liberty/, accessed Oct. 30, 2011.
2 Catholic News Agency: http://www.catholicnewsagency.com/news/bishop-lori-reveals-details-of-religious-liberty-committee/, accessed Nov. 24, 2011.
3 Jacques Maritain, among the most renowned Catholic philosophers of the twentieth century, could not resolve the two. John Courtney Murray, the intellectual architect of the Declaration on Religious Freedom endorsed at Vatican II, acknowledged in We Hold These Truths: Catholic Reflections on the American Proposition, that religious pluralism was here to stay.
4 Pope Leo XIII, promulgated perhaps the most significant encyclical on church-state relations, Immortale Dei (The Christian Constitution of States), on November 1, 1885, which defined the purpose of the state in relation to the church. After establishing that political authority derives from God, Pope Leo XIII declares, "As a consequence, the State, constituted as it is, is clearly bound to act up to the manifold and weighty duties linking it to God by the public profession of religion." He later defines religion as Roman Catholicism. Pope Leo XIII, Immortale Dei (November 1, 1885), and appearing in Gerard F. Yates, ed., Papal Thought on the State: Excerpts from Encyclicals and Other Writings of Recent Popes (New York: Appleton-Century-Crofts, Inc., 1958), p. 23.
5 Latitudinarianism, or the belief that no one religion should be considered as absolute, guided much of societal thought regarding the formulation of civil society so as to achieve societal peace.
6 "The absence of protection for religious freedom was particularly noted. The Baptist General Committee, for example, announced opposition to the proposed Constitution solely because it had not 'made sufficient provision for the secure enjoyment of religious liberty.'" Michael W. McConnell, John H. Garvey, and Thomas C. Berg, Religion and the Constitution (New York: Aspen Publishers, 2002), p. 72. This led to the inclusion of religious freedom guarantees in the Bill of Rights.
7 Primarily the views of Pierre Bayle on "toleration" as "a commitment to a constitutionally guaranteed freedom of conscience without exception" influenced Jefferson, who, in turn, influenced Madison. Anson Phelps Stokes, Church and State in the United States. (New York: Harper & Bros., 1950), vol. 1, pp. 134-136; Ruth Whelan, "Bayle, Pierre," in Alan Charles Kors, ed., Encyclopedia of the Enlightenment. (New York: Oxford University Press, 2003), vol. 1, pp. 123, 124.
8 Stokes, 1:141.
9 This influence was through Thomas Jefferson. Edwin Gaustad notes that while Jefferson was in France as an emissary in 1785, he bought books for Madison on a variety of subjects dealing with "all treatises on the ancient or modern federal republics, 'on the law of nations, and the history natural and political of the New World.'" Views of the French philosophes , who appealed to "nature and reason," are echoed in Madison's arguments in support of the Memorial and Remonstrance (1785), as Gaustad remarks, "Like his Monticello neighbor, Madison found succor and support in the appeal to Reason and to Nature. Religion can be 'directed only by reason and conviction, not by force or violence.' The right of every person to exercise his or her conscience in this realm 'is in its nature an unalienable right.'" (Edwin S. Gaustad, Sworn on the Altar of God [Grand Rapids, MI: Eerdmans, 1996], pp. 19, 59).
10 "America's Fourth Debt", National Catholic Register, "So America is an ally in [Pope Benedict XVI's] quest to rebuild modern society on the basis of natural law – God's law. . . As Cardinal Francis George points out in his recent book The Difference God Makes, the Declaration of Independence affirms the right to life, liberty, and the pursuit of happiness, but the 'form of that life, the purpose of that liberty, and the proper ground of that happiness are left completely unarticulated.' The founders left us to work that out for ourselves. They assumed that we would find the answers where they too had sought them: Christian truth." http://www.ncregister.com/site/article/americas_fourth_debt/, accessed June 11, 2012.
11 Charles E. Rice, 50 Questions on the Natural Law: What It Is and Why We Need It (St. Ignatius Press, 1999).
12 Based on the most recent census information, Roman Catholics make up only 24.5 percent of the current U. S. population. http://www.adherents.com/adh_dem.html/, accessed Feb. 15, 2012.
13 According to Newsmax, a group supporting expanded access to birth control indicated that 57 percent of American Catholic women support the Obama health-care law that includes making contraceptive services available to those insured. Newsmax, "U.S. Bishops: Rescind the Obama Birth-Control Rule," Feb. 12, 2012, http://www. newsmax.com/Newsfront/obama-birth-control-shift/2012/02/10/id/429117?s=al&promo_code=E27F-1/, accessed Feb. 13, 2012.
14 Joan Frawley Desmond, "Bishop Lori: Religious Liberty: 'The Pre-eminent Social Justice Issue' of Our Time," National Catholic Register, Nov. 30, 2011, http://www.ncregister.com/daily-news/bishop-lori-religious-liberty-the-preeminent-social-justice-issue-of-our-ti/, accessed Jan. 27, 2012.
15 Douglas W. Kmiec, "Obama Cannot Be at War With Catholics if He Is at Peace With Religious Freedom," National Catholic Register, Nov. 22, 2011, http://ncronline.org/news/politics/obama-cannot-be-war-catholics-if-he-peace-religious-freedom/, accessed Nov. 24, 2011.
16 Paul Moses, "The Bishops, Religious Liberty, and Conscience," Commonweal Magazine, Nov. 16, 2011, http://www.commonwealmagazine.org/blog/?p=15944/, accessed Nov. 24, 2011.
17 Ibid., under Comments section, username "Crystal Watson," accessed Nov. 24, 2011.
18 Lemon v. Kurtzman (1971); Committee for Public Education and Religious Liberty v. Nyquist (1973); Levitt v. Committee for Public Education and Religious Liberty (1973); Meek v. Pittenger (1975); Wolman v. Walter (1977); et al. Cf. Ronald B. Flowers, That Godless Court? Supreme Court Decisions on Church-State Relationships (Louisville, Ky.: John Knox Press, 2005), pp. 69-98.
19 Zelman v. Simmons-Harris, 2002.
Author: Edwin C. Cook
Edwin Cook has a doctorate in church-state studies from Baylor University, Waco, Texas. He writes from Waco.