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.

Obama Plays Catch 22 with Religious Groups

NEWS RELEASE

Catholic League for Religious and Civil Rights

Catholic League president Bill Donohue addresses the dilemma that the Obama administration has created for religious employers:

Yesterday, the Obama administration mandated that all health insurance plans cover contraceptives and sterilization for women, though it made an exception for religious employers. But did it? Not really. To wit: a religious employer is defined, in part, as one that primarily employs, and serves, persons who share its religious tenets.

Cardinal Daniel DiNardo said this means that “our institutions would be free to act in accord with Catholic teaching on life and procreation only if they were to stop hiring and serving non-Catholics.” He’s right: Catholic schools, hospitals and social service agencies have a long and distinguished record of serving everyone, regardless of religious affiliation; most even employ non-Catholics. However, there are matters, like foster care programs, where same-religion requisites make sense.

The situation is even more pernicious than it looks. Consider that three years ago, then presidential candidate Barack Obama said he opposes allowing faith-based programs to hire only their own people. Since becoming president, he has authorized his administration to consider this issue on a case-by-case basis, and just recently many of his allies lobbied him to gut the religious liberty provision in hiring altogether.

In other words, the Obama administration is playing Catch-22 with religious employers. If they are too religious, Catholic social service agencies risk losing federal funds, but if Catholic hospitals are not sufficiently religious, they cannot be exempt from carrying health insurance policies that transgress their religious tenets.

The Obama administration knows exactly what it is doing, and what it is doing is burning religious institutions at both ends. This is a pretty sick game. But it is one where there is plenty of time left on the clock.


The Catholic League is the nation’s largest Catholic civil rights organization. Founded in 1973 by the late Father Virgil C. Blum, S.J., the Catholic League defends the right of Catholics – lay and clergy alike – to participate in American public life without defamation or discrimination.