The Mandate and the Church

How low can and will HHS go?

In a Public Discourse essay titled, “Deciding Who Gets Religious Freedom: The Latest HHS ‘Accommodation'”, Matthew J. Franck puts forth some withering criticism of the Obama administration’s most recent revisions to the HHS mandate, saying that “the Obama administration may hope that its latest gambit will persuade some credulous judges to toss some of the litigants’ cases. But in truth, it has only revealed its own blinkered and tyrannical understanding of religious freedom, which it would sacrifice to a goal of ‘gender equality’ that is at best only tenuously related to its free-contraception-for-all policy.”

Franck describes the mandate’s three categories of employers and why typical employers will still have to pay for contraception coverage. He then gets to the deeper and even more troubling aspect of the mandate, which is how the government, via the mandate, is declaring it can say who has religious freedoms and who does not:

This brings us to the most grievous moral and constitutional failing of the administration’s latest gambit. It presumes that the government has the power to say who has any religious freedom, and how much, when each party affected is identically situated. In the first category of employers under the HHS mandate, a real-life counterpart to Father O’Malley of St. Mary’s parish may be exempt from providing contraceptive coverage for Sister Mary Benedict and the other female teachers in his parish school.

But O’Malley is no more “religious,” the imperatives of his faith press on him no more heavily, and the claims of religious freedom are no more serious for him, than is true in the case of President William Armstrong of Colorado Christian University, an interdenominational university currently in litigation against the mandate. CCU is placed in the second category of “eligible organizations” by the Obama administration—eligible, that is, to be complicit in the falsehood that it will neither contract nor pay for contraceptive and abortifacient coverage for its female employees.

And Armstrong is no more “religious,” no more bound by the strictures of faith, and no more protected by the shield of the First Amendment than the Hahn family of Conestoga Wood Specialties, the Mennonite owners of a furniture manufacturer in Pennsylvania. The Hahns get neither an exemption from the HHS mandate nor an “accommodation.” They must simply violate their consciences openly, without even the pretended grace of self-deception.

Yet all these employers—the parish priest, the Christian college president, and the Mennonite manufacturer—are identically situated. The priest is not “more religious,” or protected more fully in these circumstances, than the college president, whose case in turn is no stronger than that of the Mennonite furniture-maker.

The priest, the educator in a religious setting, and the layman in the commercial economy: All are children of God, subject first (as James Madison said) to the “Governour of the Universe” before any earthly governor. All are entitled equally to believe, and to act on the belief, that the salvation of their souls is at stake in the question whether they will obey the government in Washington or the Governor above.

(Indeed, as I argued a year ago, even the non-religious—though lacking a claim defensible under the First Amendment’s protection of religious freedom—are capable of stating a conscientious moral objection to the government’s command that they commit a wrong or pay a penalty, which is one reason why the Catholic bishops have insisted from the first that the only “exemption” worth discussing is a wholesale rescission of the HHS mandate.)

But in the cramped freedom calculus of the Obama administration, one of these identically situated employers—all, in truth, equally religious—gets an exemption, another gets an “accommodation,” and a third gets nothing at all. The government has decided that religious freedom is at its maximum in houses of worship, is attenuated in charities, colleges, and other institutions, and is nonexistent elsewhere in the productive economy.

This in fact has been its argument in courts of law—that for-profit employers have no religious freedom that the government is bound to respect. The administration has conceded that religious freedom is at stake in the struggle over its mandate, but it has dictated for whom that freedom exists, when it is truly the common possession of all.

In one of the most astonishing passages in its new rulemaking announcement, the Obama administration says this:

[N]othing in these proposed rules would preclude employers or others from expressing their opposition, if any, to the use of contraceptives; require anyone to use contraceptives; or require health care providers to prescribe contraceptives if doing so is against their religious beliefs.

Well, not yet anyway.

If that seems to you like an alarmist reaction to the administration’s reassurance, ask yourself this. Given its stated hostility to any serious understanding of our first freedom, the right not just to worship but to live one’s faith in all one’s daily work, on what understanding of our remaining constitutional freedoms can the administration assure us that any of these other liberties still stands on a firm foundation?

Yuval Levin, fellow at the Ethics and Public Policy Center and editor of National Affairs, made similar observations a week ago, shortly after the “compromises” were made public:

This document, like the versions that have preceded it, betrays a complete lack of understanding of both religious liberty and religious conscience. Religious liberty is an older and more profound kind of liberty than we are used to thinking about in our politics now. It’s not freedom from constraint, but recognition of a constraint higher than even the law. It’s not “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” but the right to answer to what you are persuaded is the evident and inflexible reality of existence, of meaning, of the universe, and of the mystery of human life. It’s not the right to do what you want; it is the right to do what you must.

Governments have to recognize that by restricting people’s freedom to live by the strictures of their faith they are forcing them to choose between the truth and the law. It is therefore incumbent upon the government of a free society to seek for ways to allow people to live within the strictures of their consciences, because it is not possible for people to live otherwise.

There are times, of course, when the government, in pursuit of an essential public interest, simply cannot make way for conscience, and in those times religious believers must be willing to pay a heavy price for standing witness to what they understand to be the truth. But such moments are rare, and our system of government is designed to make them especially so. Both the government and religious believers should strive to make them as rare as possible by not forcing needless confrontations over conscience. And in this case, I think it is just perfectly clear that the government has forced a needless and completely avoidable confrontation and has knowingly put many religious believers in an impossible situation. It is no secret that most of America’s largest religious denominations are opposed to abortion, and that some are opposed to contraception as well. And there are many alternative means by which the government can (and does) make abortive and contraceptive drugs and procedures available to people. The purpose of refusing to provide a religious exemption from this rule would therefore appear to be to force religious employers themselves to make those drugs and procedures available-to bend a moral minority to the will of the state. It is not only a failure of statesmanship and prudence, it is a failure of even the most minimal toleration.

Read his entire piece. It seems fairly evident that the Obama administration has taken a calculated (and even cynical) approach with its revisions to the mandate, an approach designed, among other things, to persuade certain, high profile “Catholics” to sign off on the changes. They, then, will provide the public cover needed to create the perception (either from sincere conviction or craven capitulation) that all is now well and good. 

Or, in the words of E. J. Dionne, Jr., whose embrace of such capitulation is only matched by his disdain for principled, orthodox Catholicism: “America’s Big Religious War ended on Friday. Or at least it ought to. … The church made a mistake in arguing its case on the grounds of ‘religious liberty’  By inflating their legitimate desire for accommodation into a liberty claim, the bishops implied that the freedom not to pay for birth control rose to the same level as, say, the freedom to worship or to preach the faith.” In Dionne’s world, apparently, mortal sin is simply a quaint artifact of an older, simpler time, before the complexities of government-funded contraception and the carnal needs of responsibility-challenged university students banished those annoying matters of right, wrong, virtue, and sin to the darkness of a pre-Sixties world. 

Dionne, of course, views everything through the lens of “left-right” and “liberal-conservative”, and in that way is simply a creature of a flattened and ephemeral age, in which politics and labels trump principles and actual ideas. Thus his sniffing reference to “conservative bishops”, a term worth a knowing smile, whereas his claim that “HHS Secretary Kathleen Sebelius showed a becoming humility, and it would be nice if this rubbed off on her critics” is simply a howler, the sort of ingratiating hubris that suggests Dionne is as clueles about religious liberty as he is about authentic humility. Thankfully, Cardinal Dolan and the bishops are not buying it

The Administration’s proposal maintains its inaccurate distinction among religious ministries. It appears to offer second-class status to our first-class institutions in Catholic health care, Catholic education, and Catholic charities. HHS offers what it calls an “accommodation,” rather than accepting the fact that these ministries are integral to our Church and worthy of the same exemption as our Catholic churches. And finally, it seems to take away something that we had previously—the ability of an exempt employer (such as a diocese) to extend its coverage to the employees of a ministry outside the exemption.

When Sen. Obama first emerged as a serious candidate in 2007, the cool and happenin’ Catholics assured the press and the populace that he was not pro-abortion, that he was moderate on life issues, and that he was, in fact, a morally sensitive and deeply religious politician whose views were quite in line with Catholic teaching. Such claims, repeateded endlessly, strained the boundaries of what cautious voters actually witnessed in the words and record of the young senator. Those boundaries burst years ago, although some have apparently missed the memo. Yet, here we are, being told another version of a similar, related story. (And there is also the little matter of redifining marriage in the name of the secular god named “Equality”.) Why? Simply, because it has worked before and chances are it will work again. And as long as it keeps working, expect more of the same, with a similar cast and similar results.

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About Carl E. Olson 1220 Articles
Carl E. Olson is editor of Catholic World Report and Ignatius Insight. He is the author of Did Jesus Really Rise from the Dead?, Will Catholics Be "Left Behind"?, co-editor/contributor to Called To Be the Children of God, co-author of The Da Vinci Hoax (Ignatius), and author of the "Catholicism" and "Priest Prophet King" Study Guides for Bishop Robert Barron/Word on Fire. His recent books on Lent and Advent—Praying the Our Father in Lent (2021) and Prepare the Way of the Lord (2021)—are published by Catholic Truth Society. He is also a contributor to "Our Sunday Visitor" newspaper, "The Catholic Answer" magazine, "The Imaginative Conservative", "The Catholic Herald", "National Catholic Register", "Chronicles", and other publications. Follow him on Twitter @carleolson.