Religious Liberty (Part 1)

One of the least understood and most complex debates that has been raging the past few years, particularly in the United States, is the “religious liberty” controversy. It is at the heart of Church and government relationships. In this and a few subsequent issues of Along the Way I will try to explain what the debate is about, with perspectives from both sides.

Religious liberty is the idea that government has no right to interfere in the practice of religion other than to ensure the common good and that religion has no right to interfere in the operation of government, any more than any other group of citizens. The government has the right to enforce laws to protect people even if the laws infringe realms claimed by religion. So, if a religion was into human sacrifice, the government has the right to prohibit human sacrifice and to enforce that prohibition. On the other hand, a religious community has the right to voice its opinion as it sees fit on public policy.

This understanding of religious liberty is a relatively new development, emerging since the European Enlightenment over the past couple of hundred years. Prior to that the understanding was that religion and government were intimately related. Religion legitimized the government lending a sense that the ruler was there by “divine right”. Religion also held the ruler accountable, so that his legitimacy could be questioned if he was too abusive or corrupt. While the ruler might claim to be above the civil law he promulgated, no one was above divine law for which the church was the voice in society.

On the other hand, there were times when the Church leadership came under the control of a few powerful political factions in Italy, France and Germany. There is a history of corruption and moral failure among some popes and other church leaders. It got so bad that the Holy Roman Emperor had to intervene and force reform on the Church. It took several hundred years, several Ecumenical Councils and a lot of work by both political and religious leaders to institute the reform that eventually cleaned up the worst of the corruption. The history of the church from the time of Constantine in the fourth century until recent years can be understood as the story of the push and pull between Church and State.

One of the characteristics of the Enlightenment among European intellectuals was a disdain for religion. Many saw it as a holdover from a more superstitious and less rational age. Part of what fed the disdain for religion was the long history of conflict in Europe over religious differences, especially since the Protestant Reformation.

Political philosophers wanted to disengage the legitimacy of government from the Church and argued that the legitimacy of a government rested on the will of the people governed not “divine right”. While political leaders should be encouraged to act in moral ways and promote a vision of good government that is consistent with the religious beliefs of the people, they could not claim any basis for the legitimacy of their leadership beyond the will of the governed.

The United States became the “poster child” for this vision of government at the end of the 18th century, when it gained its independence from England and established its government with a constitution that reflected many of the political theories of the Enlightenment. One of the key elements of the US political experiment was religious liberty.

Church leadership had mixed feelings about the American experiment with religious liberty.  The US hierarchy was enthusiastic, with the brother of Archbishop John Carrol being one of the signers of the Declaration of Independence. In its early years, the United States was predominately a Protestant nation; however, the first amendment to the Constitution provided some degree of protection before the law to the Catholics of America. Church leaders in Europe clung to the older political theories. It wasn’t until the Second Vatican Council and the declaration Dignitas Humanae that the Church officially accepted the idea of different spheres of authority between Church and State and each with their own rights and responsibilities.

While there is general agreement that the government has responsibility for protecting and promoting the common good, how the Church and the government understand the nature of the common good is significantly different. The Church sees the “common good” has having a spiritual and moral component, as well as political. The common good must serve the salvation of people. It must be rooted in objective truth. The government views the common good from a secular perspective, rooted in the constitution, case law and the manifest will of the governed. This perspective is relative and rooted in politics. Sometimes these two perspectives on the common good simply don’t reach the same conclusion.

The central issue in the current controversy is the extent to which the government has the right to require that employers who provide health insurance to their employees provide certain services at a minimum. Mandating these services is part of the “common good” responsibility of the government from their perspective. Birth control is one of the services that the government mandates be provided.

The position of the church is that if the government requires the Church, as an employer, to provide services that are contrary to its moral teaching, then the government is infringing on the religious liberty of the Church. The Church rejects the use of artificial birth control. Thus, in providing birth control to its employees, as required by the government, the Church is being forced to engage in immoral behavior, at least to a limited degree. The government is willing to compromise and not require churches to provide the offensive birth control coverage in their employee health insurance policies.

The debate has shifted to where to draw the line? Does a school run by the Church but independently incorporated enjoy the same ability to not provide birth control coverage for reasons of moral conflict; such as Mount Carmel School? What about a social service agency under the authority of the Church; such as Karidat? This is a gray area, as the school and social service agency are incorporated apart from the Church per se. Yet, because they are organizations that are ultimately organs of the Church they might be put in a position someday where they may be required by law to act in a way contrary to Church teaching; for example, providing birth control to employees through health insurance benefits.

Even though it is a gray area, the debate over birth control and health insurance is relatively clear cut compared to some religious liberty issues.  For example, should church sponsored schools be able to take advantage of federal funding for non-sectarian programs they offer? Can a Catholic school obtain a federal grant for student breakfast programs or math/science teachers? A very recent Supreme Court decision suggests that Catholic schools can enjoy these programs to a limited extent. Some people would prefer to see a complete wall of separation between the Church and State, that has never been part of the North American experience and the Supreme Court appears willing to honor that tradition, at least to a limited extent.

The situation becomes even more confusing when it is the Church who claims religious liberty rights to act in a way that compromises the liberty of another. For example, Dequenne University is a Catholic university in Pittsburgh. About 67% of the faculty are adjuncts. That is, they are hired on an ad hoc basis to teach classes. Many universities like to use adjuncts as they are paid relatively little per course (about $2,500), have the same qualifications and degrees as regular faculty, are not provided health insurance and other benefits, and are only hired when needed. Since they are not tenured, the university has no long-term obligation to such faculty.

At an increasing number of Catholic universities, the adjunct faculty have attempted to form labor unions and been opposed the university administration. One of the legal arguments the universities have made is that if the National Labor Relations Board (NRLB) forces them to unionize that would be an infringement of the religious liberty of the Catholic universities. They argue that many university/faculty contract agreements via the major faculty labor unions limit the university’s ability to hire people whose religious affiliation is the same as the university or fire those whose actions or public statements are contrary to the religious mission of the university. The administration argue that this ability is necessary in order to maintain their particular religious identity.

On the other hand, the adjunct faculty and union organizers argue that forming labor unions is a right according to Catholic teaching, as stated again and again in multiple encyclicals, the Catechism of the Catholic Church and in frequent statements by every Pope since Leo XIII. Indeed, those who stand in the way of justice for workers, such as forming labor unions, are the ones who are condemned. The universities who oppose labor unions for faculty thus make a legal argument in which they oppose the very Catholic teaching they are arguing that labor unions might interfere with them being able to apply. While their concerns over outside interference are legitimate, their appeal to religious liberty as a basis seems specious.





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