A reply to the editors of America

In their opinion dated March 5, 2012, the editors of America magazine recall several elements that are basic to the Church's tradition of thinking about politics. Many of these same elements (not the least of which is the unstated though palpably present appreciation of reasonable civility as the necessary condition of any national discourse that would have reasonable hope of bearing fruit) are constitutively present to the American genius for ordering our lives together. I share the editors' concern lest we lose sight of the importance of civility, and I happily extend grateful praise for their efforts to lead by example in this regard.

Also quite praiseworthy is the construction of the editors' argument: complex and nuanced, its concern from first to last to remain within the great tradition of Catholic moral and political thinking and to apply the tools of that tradition to our present crisis, is evident.

It was especially refreshing to see the editors attempt to articulate a cardinal distinction in political thinking: namely, that between principle and prudential reasoning under the guidance thereof, in accord therewith and pursuant thereto. Refreshing indeed, for our many years' forgetfulness of this distinction has stagnated our whole national discourse and damaged our public conversation, generally. Unfortunately, their precise formulation of the distinction is rather exceptionable - and their specific application of it misplaced.

The editors opine, "The US Catholic bishops' religious liberty campaign seems to have abandoned a moral distinction that undergirded the conference’s public advocacy in past decades: the contrast between authoritative teaching on matters of principle and debatable applications of principle to public policy." By couching the distinction as a contrast, the editors call our attention to a fact of public thinking - that principle and prudential application of it shade into one another, and that the closer they are together, the more difficult it becomes to make real distinctions between them. Here matters begin to come into focus: there is a very bright line of distinction in the present case, and it is the editors - not the bishops - who fail to see it. The plain text of the US Constitution guarantees free exercise of religion: the issue is therefore one of Constitutional principle, directly and immediately. In treating the issue as such, the bishops are not abandoning the aforesaid distinction: they are judging according to it.

The mandate's original formulation is not only unconstitutional. It flies in the face of the "common sense" of the American people; ultimately, it is offensive to reason. That the original mandate is all three at once becomes clear when we consider that the HHS regulation is not simple in its operation, but does two things: it mandates that all employers, including non-profit employers, offer the "full range" of "preventative care" options (including sterilizations and abortifacients); it declares that Catholic schools, hospitals, charities, etc., are non-profit employers sic et simpliciter - which is to say that they are not religious enterprises at all. The surreptitious presupposition upon which the rationale behind the policy must rest, is that religious groups and institutions are naturaliter incapable of contributing to the common good - that when they do, they cease to exercise themselves in a way that the civil authority is bound to recognize as rooted in and internal to those institutions' essential character and ethos, and therefore subject to an especial or particular right, privilege or immunity. This is inconsistent with both the plain text of the Constitution and the understanding of the role of religion in building, sustaining and strengthening the civil society that has been the traditional pillar and bulwark of ordered liberty in America. In other words, the rationale behind the policy is based on a presupposition that, if correct, must lead us to conclude that clothing the naked, feeding the hungry, welcoming the stranger, visiting the prisoner, teaching the ignorant, healing the sick, caring for the dying, and burying the dead, are not and cannot be considered properly religious activities at all - and so, because they serve the common good (the which power to define and determine the civil authority has, in the same stroke, arrogated to itself, sole and entire). This is not merely unreasonable: it is in principle at least as radical a "privatization" of religion as anything to be found in any Soviet constitution.

The President's proposed "accomodation" leaves all of this matter in place. The proposal adds insult to injury, saying essentially that, though the Church shall not be free to serve society except on such terms and in such a manner as the government shall prescribe - even and especially as regards the internal governance of her service institutions - Catholics shall nevertheless be required to believe, confess, and henceforth tamen impossibilis practice free lunch.

The editors say that the bishops have been most effective in influencing public policy when they have acted as pastors, trying to build consensus in church (sic) and society. I agree. What I fail to grasp is the pertinence of the observation, unless it be found in the implicit suggestion that the bishops, attempting to vindicate the rights of the Church, are somehow not behaving pastorally. One of the shepherd's chief duties is defense of the flock: this will mean fending off predators, and sometimes slaying them (cf. 1 Sam 17:34-35). Surely then, stern words with one who would encroach on the pastures will not be unseemly.

Singly and as a body, the bishops have written, spoken and assembled. Some of the bishops have issued statements more measured and thoughtful than others. In their joint address, the bishops have stated their case in the language of truth, and divested of those expressions of servility which would persuade the President that they are asking favors and not rights (cf. Thos. Jefferson, A Summary View of the Rights of British America). Far from wanting a conciliatory tone, the bishops have spoken corporately in the way free citizens speak to their rulers. Whether the American public is, as the editors say, "uncomfortable with an overt exercise of political muscle by the hierarchy," is beside the point. In petitioning the government for redress of grievance, the bishops are exercising one of the most basic rights guaranteed to all citizens under the Constitution.

The editors also accuse the bishops of, "fail[ing] to acknowledge that in the present instance, claims of religious liberty may collide with the right to health care, or that the religious rights of other denominations are in tension with those of Catholics." This pair of accusations confuse the issue in a pair of dangerous ways. First, the accusations suggest that the Catholic concern is merely for religious liberty, or worse, that our concern for religious liberty stands somehow over and against the right to healthcare - specifically, that is, that the Catholic position on artificial contraception is not concerned with the best interests of women especially and of human persons, generally. Second, the accusations are red herrings. The issue is not about women having a right to health care: it is about whether government can force the Catholic Church to pay for contraceptives, abortions and sterilizations. The "tension" between Catholic and other denominations is entirely imaginary - literally fantastic: the land where one group's vindication of its right to govern itself according to its moral convictions could possibly threaten the liberty of another group to do the same, or where government's attempt to infringe on one could possibly not threaten all others, were a land surely peopled by pixies, a land of unicorns, a land of square circles and free lunches, where all the men are king's men, and what matters is who is master.

LD