Religious Liberty?

Alexandria, VA.  Vast and even incalculable quantities of ink have already been spilled over the issue of the HHS mandate that religious organizations purchase contraception as part of their compliance with the Obama health care plan. It would seem that little remains to be said.

I have read and pondered this issue as it has unfolded. I have signed a document, with many other scholars, objecting to the recent “compromise” on the grounds that it does not resolve the basic issue of forcing a religious institution to provide a service that is incompatible with its doctrine and belief. I am largely in agreement that this issue represents a profound and disturbing encroachment upon the internal ordering of religious organizations.

However, I am disquieted by the way in which the issue has largely been framed – not only by the Left, but perhaps more by the Right. The Right has sought to defend “religious liberty” on the grounds that the HHS mandate would represent an abrogation of the First Amendment’s right to “free exercise” and that it would violate the “conscience” of religious adherents. By these appeals to the “rights” of religious organizations to hold certain religious beliefs – whatever those may be – and by an appeal to “conscience” informing that belief – no matter what it may hold – critics of the HHS policy have framed their response in the dominant privatistic language of liberalism. Their defense rests on the inscrutability and sanctity of private religious belief. It borrows strongly from sources of private religious devotion that lays no claim to public witness, in keeping with liberalism’s dominant mode of allowing acceptable religious practice so long as it remains outside the public square. The appeal to conscience, while lodged at the level of institutional belief, subjects itself easily to the same claim by adherents within that religious order who might similarly object to a religious mandate (e.g., the prohibition on artificial birth control) on grounds of “conscience” to aspects of that belief (think Martin Luther. Or Andrew Sullivan.). The public response of critics of the mandate essentially cede to liberalism most of the ground that they would need to mount a serious case against the individualizing, relativizing and subjective claims that lie at the heart of the mandate and, more broadly, liberalism itself.

More than a few commentators have noted that this issue seems particularly oriented toward and at the Catholic Church. While some wags have questioned why other religious traditions don’t seem to have a problem with other aspects of the mandate (e.g., Christian Scientists haven’t risen up in objection to coverage of blood transfusions), frank speech requires acknowledgement of a more fundamental truth: from its earliest articulation, liberalism has set its sights on the rout of Catholic Christendom. Liberalism was fundamentally animated by a deep philosophical and theological objection to Catholicism – and, until recent times, vice-versa. Debate over the HHS mandate should be understood in its broadest context: the longstanding effort to wholly remake society in the image and likeness of liberal philosophy. That philosophy holds at its core that humans are by nature free, autonomous and independent, bound only by positive law that seeks to regulate physical behavior that results in physical harm to others (and, increasingly, selves). Liberal people should not be bound by any limitation upon their natural freedom that does not cause harm (mainly physical harm) to another human; otherwise, the State should be indifferent (“neutral”) to any claims regarding the nature of the “the Good.” Liberalism seeks to secure legal structures governing “Right” – procedures ensuring fairness with an aim to protecting (and expanding) the sphere of individual liberty while balancing claims regarding the “harms” of some individual practices (e.g., liberalism seeks to limit some harmful activities of the market at the edges while leaving its basic structure intact).

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