Are Liberal Terms Dominating the HHS Mandate Debate?

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).

Liberalism understood from the outset that it could not abide any religious tradition that sought to influence the order of society based upon its conception of “the Good.” “Private” belief could be tolerated: such belief would extend only to the immediate adherents of that faith; its adherents had to personally choose their allegiance to that faith; and any faith commitment would be the result of voluntarist choice and thus, a chosen self-limitation on the part of the faithful. Famously in his “Letter Concerning Toleration,” John Locke refused to extend toleration practically to only one faith – Catholicism. His claim was that toleration could not be extended to any faith that acknowledged a “foreign potentate,” which, for all practical purposes, meant the Pope. But, it requires a peculiar set of assumptions to conclude that the Pope is a “foreign potentate” – while the Pope does not claim political rule over Catholics, the Pope is the final arbiter of doctrine that is to govern not only the private behavior of Catholics, but their role and witness in the world. It is no coincidence that many of the cases involving “religious liberty” now involve Catholics, inasmuch as Catholics have erected worldly institutions in the effort to live out the witness of their faith – schools, universities, hospitals, charities, and the like. The Catholic faith is, by definition, not “private”; it involves a conception of the human Good that in turn requires efforts to instantiate that understanding in the world. As such, Catholics represent a threat to the liberal order, which demands that people check their faith at the door and acknowledge only one sovereign in the realm of proscribing public behavior – the State.

Catholics begin with a fundamentally different understanding of the human person than liberalism. We are not by nature “free and independent”; we are, rather, members of the Body of Christ. In the natural law understanding, we are by nature “political and social animals” (so states Aquinas, following and amending Aristotle), requiring law, culture and religion for our flourishing and right ordering. The law does not simply seek to regulate and prevent bodies from committing harm; rather, the law necessarily derives from, and seeks to advance, a positive vision of human good and human flourishing. The law reinforces the Divine law, seeking the restraint not only of practices that will harm others, but which will tend toward a condition of sin and self-destruction. Even where the law is “silent,” we are not at leave simply to act as we wish; rather, we are admonished to live in accordance with and by the practice of virtue necessary to human flourishing. A polity based upon securing “the Right” is radically insufficient; rather, the polity is understood to be a reinforcement of efforts to orient people toward “the Good.” While the Church and State necessarily operate in different spheres, the State’s activities are oriented by the vision “the Good” articulated by Church and God’s word.

Critics of the HHS mandate have framed their responses to the mandate within liberal terms. This is doubtless a requirement and necessity in contemporary liberal society – to gain a hearing at the table of public opinion, and especially the Courts, arguments must be framed in dominantly liberal terms. Thus, critics of the Mandate have sought to craft their response by claiming that the Church’s internal beliefs will be violated by the Mandate, that the Mandate represents an encroachment upon “conscience.” Critics of the Mandate thus downplay and even ignore the content of the belief in question; they rally around the protections of conscience, claiming a sphere toward which the State should manifest indifference, in which they should not meddle. The nature of the belief is largely irrelevant for the sake of the claim. Many of the Mandate’s critics (especially non-Catholics) claim that they regard the Church’s view on birth-control to be somewhat batty, but that fact is irrelevant to the Constitutional issue protecting private institutional conscience and free-exercise. Catholic critics don’t depart much, at all, from this same argument.*

Catholic as well as non-Catholic defenders have largely sought to hold at arms length any claims about the rightness or truth of the Church’s teachings on birth control: these are to be treated as belief within a “black box” that should be ignored by liberal society. As long as those crazy beliefs don’t harm individuals within or beyond the faith tradition, then they should be accorded respect and indifference by the State. The Church seeks the leave of the State on the only terms recognizable by the liberal state: we have a certain set of private beliefs that aren’t harming anyone. Leave us alone, and we’ll be quiet.

However, everyone is aware, even if dimly, of the real issue, though few explicitly raise the matter. The Church does not seek to propound its teachings as a matter of internal belief solely for its faith adherents: it claims that its teachings are true as a matter of human good. The teachings regarding birth control are not simply a peculiar faith tradition that is thought to apply to adherents of Catholicism; it is a teaching that Catholicism hopes and intends to be adopted by all people, regardless of their faith tradition. The strictures concerning birth control are not propounded as a “faith-based” peculiarity applicable only to Catholics, like Jewish dietary laws, but as a considered position concerning the Church’s deepest understanding of the human good – one that can be, and has been, framed in terms that are intended to be accessible and persuasive to non-Catholics. Among other reasons offered, the adoption of a birth control concerns a practice that Catholicism has understood to entail profound social consequences that, when widely practiced, leads to profoundly damaging social practices.

The Church’s argument – made at a time when it was believed by many that the Church had no choice but to update itself to be relevant to changing times – was articulated forcefully by Pope Paul VI in his 1968 encyclical “Humanae Vitae,” and is addressed not only to Catholics, but to “all men of good will.” As nicely summarized recently by Brendan Patrick Dougherty and Pascal Emmanuel-Gobry, Humanae Vitae articulated four discrete areas of social and political concern that they believed would become manifest with the widespread use of birth control:

1. General lowering of moral standards

2. A rise in infidelity, and illegitimacy

3. The reduction of women to objects used to satisfy men

4. Government coercion in reproductive matters

The first three – unarguably evident in our time – concern the social implications of transforming sexuality from its intimate and natural link to reproduction to a “recreational,” hedonic activity. The Church understood that the cumulative decisions of individuals – not intended to “harm” anyone – would nevertheless lead to manifest and extensive social ills. Liberalism begins and ends with the view that individual choice is paramount, and social costs can and should be redressed by government alone, leaving as much latitude possible to individual satisfaction of desire; Catholicism (echoing Aristotle) holds that society is an intricately woven fabric in which autonomous actions aimed at the satisfaction of individual desire will often prove destructive of that fabric. The Church holds this to be the case in all realms of human activitiy – sexual as well as economic, a point that is too often missed by American Catholics who allow their partisan identities to define their understanding of their faith (are those who oppose abortion and pornography any less “Social Justice Catholics”?). Liberalism holds that the State must be indifferent to the personal choices of individuals; Catholicism holds certain choices not only to be inherently wrong (even if they do not result in the immediate and evident harm of others), but, over time and cumulatively, socially destructive.

The last area of concern is perhaps even more difficult to grasp in an intuitive fashion than the first three. The last claims that the widespread adoption of birth control will eventually entail government coercion in support of its use. The Church understood – long before this tendency became evident – that liberalism was finally incapable of “indifference” toward the choices of individuals, particularly when those choices involved the limitation of individual autonomy, and particularly when any such limitation occurred in the context not of organizations that stressed individual choice, but rather asserted the preeminence of conceptions of the Good that commended practices of self-limitation. In short, liberalism would finally reveal its “partiality” toward autonomy by forcing institutions with an opposing worldview to conform to liberalism’s assumptions. Liberalism would seek actively to “liberate” individuals from oppressive structures, even at the point of requiring such liberalism at the point of a legal mandate and even a gun.

The response of American Catholics to the HHS mandate has (perhaps necessarily) been framed in dominantly liberal terms that give it a chance of receiving a hearing in today’s public sphere and within its Courts. But it should be acknowledged (as the response to the “Compromise” reveals) that the Church will ultimately lose the argument simply due to the fact that the way it is framed already represents a capitulation to liberal premises. Doubtless, an argument that stated more explicitly the Church’s opposition to birth control would be even more quickly dismissed (but, first, caricatured and mocked) than the current invocation of “religious freedom.” But, the real debate is not over religious freedom, in fact: it is over the very nature of humanity and the way in which we order our polities and societies. Catholicism is one of the few remaining voices of principle and depth that can articulate an forceful and learned alternative to today’s dominant liberal worldview. That it truncates those arguments for the sake of prudential engagement in a contemporary skirmish should not shroud the nature of the deeper conflict. That conflict will continue apace, and Catholics do themselves no favors if they do not understand the true nature of the battle, and the fact that current arguments aid and abet their opponent.