The Department of Health and Human Services has mandated that even health plans of religiously affiliated employers must include the coverage of contraception, abortifacient drugs, and sterilization. Hundreds of Catholic hospitals, colleges and universities, and social service organizations will have one of three choices:
- Cave in and accept what is morally repugnant;
- Face heavy fines that would lead to financial ruin;
- Close down to avoid the seemingly inevitable.
The uproar in the Catholic public and beyond is right and just. But the debate has taken this trichotomy of choices as a given and has largely ignored a fourth option that would avoid being affected by the mandate. Catholic organizations could simply retreat from the illusion of “pluralism” and return to what they once were: branches of the Church in which Catholics serve Catholics.
Even though this administration may be the most hostile to religion in the history of this country, it has not succeeded in abrogating the “ministerial exception” principle. On the contrary, the Supreme Court recently affirmed it unanimously, against the position of the Obama administration.
Having been outsiders and suffered discrimination in a largely Protestant nation since its foundation, Catholics in the United States have bought gradual acceptance into the American mainstream for the price of assimilation. Key leaders such as Archbishops John McCloskey of New York, John Ireland of St. Paul, James Gibbons of Baltimore, and George Mundelein of Chicago, urged immigrants to abandon their ethnic Catholic identities and integrate into the surrounding culture in order to move up in a society that was shaped by Protestant (and largely Calvinist) values. The process was completed around the middle of the twentieth century. American Catholics have retained their faith but abandoned the distinctive culture that nourished it. They were now thoroughly assimilated to the mainstream with its dominant ideologies of liberalism, pluralism, egalitarianism, and materialism, all creeds for which there is no foundation in the Catholic tradition.
Leo XIII foresaw exactly this development when, in his encyclical letter Testem Benevolentiae Nostrae of 1899, he condemned some of these views as “Americanism.” This heresy includes tenets such as a supposed “right” of the faithful to decide doctrine for themselves, which is now better known as “cafeteria catholicism.” The Pope derided the idea that all opinions should be aired publicly, as he felt certain speech could harm general morality. The purpose of the encyclical was to warn American Catholics of full assimilation or ecumenical overtures toward Protestantism. Rather, the growing flock should do what was necessary to preserve its culture through its own institutions, for example by refusing to expose its children to public schools wherever possible. Leo XIII advocated a path for Catholics in the United States that was in part separate from the mainstream. Although the Church developed an admirable system of institutions ministering to the faithful, the Pope’s voice was not heeded for long. In the middle of the twentieth century, spearheaded by the likes of the Jesuit theologian John Courtney Murray, the last phase of integration began. Catholic colleges and universities have abdicated their religious identity, Catholic hospitals no longer feel bound by the pastoral guidance of their bishops, and well-organized groups of dissenters from the moral teachings of the Church have gained share of public voice. Several surveys show that the opinions of Catholics on crucial issues such as the sanctity of life, marriage and the family, and other concerns of morality and culture, are indistinguishable from the mean. Maybe even worse, belief in central dogmas such as the perpetual virginity of Mary is on the decline. Those who question total integration into a secular culture are derided as advocates of wanting to return to a Catholic “ghetto.”
Now that Leo XIII’s predictions have become reality and the majority of Catholics on these shores has adopted “Americanism” as their true religion, it must indeed bewilder the media that there is still a group of faithful that resists the HHS mandate. With so many generations of Catholics having already travelled on this road for a century, why are there still those unwilling to complete the journey to a fully secular society?
The government and their pundits do not realize that some Catholics understand that one more act of acquiescence may be the death knoll for the free practice of the Catholic faith in this country. Accepting the fatal trichotomy of obeisance, destruction, or withdrawal, means the end of any recognizable Catholic identity. Without her hospitals and health centers, colleges and universities, insurance companies and charitable organizations, the Church has no voice that can even remotely compete in the cacophonic clutter that is public discourse. She would not die but she would have it much harder to live up to her call to be leaven, a mustard seed, or “salt of the earth” (Mt 5:13, 13:31-33; Mk 4:31; Lk 13:19).
Could the way back into the “ghetto” be the only alternative to the disastrous trichotomy which stands at the end of Catholic “emancipation”?
In its landmark decision Hosanna-Tabor Evangelical Lutheran Church and School v Equal Employment Opportunity Commission (No. 10-553, decided January 11, 2012), the Supreme Court unanimously affirmed – for the first time – that a church enjoys a “ministerial exception” to federal, state, and local laws against virtually all legal actions based on job discrimination if the employee can be regarded as fulfilling a ministerial function. Who counts as a “minister” is a determination to be made internally by religious organizations; it could be anyone who is considered to be advancing the religious mission. The Court said that it was “reluctant to adopt a rigid formula.” With this judgment, two points were made: that churches must not be treated as any other employer, and that internal church affairs are off limits to the government.
Does this have implications for a strategy against the HHS mandate and similar encroachments? The legal reasoning in Hosanna-Tabor may at least partially apply to a challenge brought against the requirement of insurance coverage. Several court cases are pending. But more importantly, we can learn from the decision that university faculty, nurses, hospital doctors, etc., may prove to be central in forming a strategy if they could be understood as “ministers” of that religion if they would spend at least a portion of their work on spreading the faith. The Supreme Court refused to define minimum standards. In his opinion, Justice Alito suggested that to be a “minister, “an employee need not be ordained. Rather, he wrote, the exception “should apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”
What if Catholic colleges and universities train their faculty and staff in the principles of the faith and, as part of their employment contract, expect them to live (rather than benignly neglect) the respective mission statement, including the largest mission statement of all: “Therefore go and teach all nations…” (Mt 28:19). Surely it can be expected of employees of a religiously-affiliated organization to follow its religious beliefs. If they do so actively and credibly, would this not qualify as cause for exemption?
Why should a professor of English when discussing a novel or a professor of economics when explaining the function of markets not bring to bear the richness of Catholic teaching on virtue, sin, charity, and justice? Why should a physician or nurse not also cater to the spiritual well-being of patients by spreading the Good News, even if it is only through a few words of encouragement or a short prayer? Are we not all called to give witness, according to St. Peter’s admonition: “Always be ready to make your defense to anyone who demands from you an account of the hope that is in you; yet do it with gentleness and reverence” (1 Peter 3:15)?
This of course requires a major change in strategy. Catholic organizations would have to abandon their empty and facile talk about pluralism, diversity, and inclusivity and leave it to the mainstream. They might miss out on certain government grants. But they would have a unique opportunity to attract those Catholic students, professors, patients, or medical practitioners again who have forsaken Catholic institutions since the perceived differences from public ones was negligible. In the spirit of a creative counterculturalism, they could position themselves as a true vanguard of professional competence, truth, and goodness. Pope Benedict XVI suggests exactly this when, by borrowing a phrase from the historian Arnold Toynbee, he places his hope in “creative minorities” to revive Catholicism. There may in the future be fewer Catholic hospitals, colleges, or charities, but these would at least be Catholic and (relatively) free to live their faith and mission. If they truly are a “light unto the nations” (Isaiah 49:6), as they are called to be, by the power of the Spirit they may again grow, but grow without compromises that destroy their soul. And if the direction be the “Catholic ghetto”, so be it. Let us then turn our Catholic daycare centers, schools, hospitals, and colleges into models for a society that will soon thirst for positive examples. Edmund Burke’s “little platoons” come to mind. The HHS mandate may then inadvertently have brought about not only a crisis but a krísis in the Greek sense – a turning point in which a decision must be made.
It would require extraordinary courage for our bishops to lead the Church on these shores on such a journey. For this fortitude we should all pray, and pray with fervor. What other choices do we have?