Saturday, March 17, 2012

Catholics, contraceptives and John Locke

By Michael Gerson, here.

A taste:

One tradition of religious liberty contends that freedom of conscience is protected and advanced by the autonomy of religious groups. In this view, government should honor an institutional pluralism — the ability of people to associate, live and act in accordance with their religious beliefs, limited only by the clear requirements of public order. So Roger Williams welcomed Catholics and Quakers to the Rhode Island colony, arguing that a “Church or company of worshippers (whether true or false) . . . may dissent, divide, breake into Schismes and Factions, sue and implead each other at the Law, yea wholly breake up and dissolve into pieces and nothing, and yet the peace of the Citie not be in the least measure impaired or disturbed.”

There is another form of modern liberalism that defines freedom of conscience in purely personal terms. Only the individual and the state are real, at least when it comes to the law. And the state must often intervene to protect the individual from the oppression of illiberal social institutions, particularly religious ones.

This is the guiding philosophy of the American Civil Liberties Union. But as Yuval Levin, editor of National Affairs, pointed out to me, this approach has roots in the Anglo American tradition of political philosophy. John Locke’s “Letter Concerning Toleration” urges legal respect for individual conscience because “everyone is orthodox to himself.” But Locke offered no tolerance for the institution of the Catholic Church: “That Church can have no right to be tolerated by the magistrate which is constituted upon such a bottom that all those who enter into it do thereby ipso facto deliver themselves up to the protection and service of another prince.” In Locke’s view, Catholics can worship as they wish as individuals, but their institution is a danger to the liberal order.

In American history, the treatment of the Catholic Church has often been the measure of institutional religious tolerance. It is amazing how Lockean (unconsciously, one assumes) recent actions by the Obama administration have been. Catholics individuals are free to worship. Catholic institutions must be forced to reflect liberal ideals and values.


Jason Pappas said...

He confuses Locke's liberalism, rooted in property rights, with modern liberalism, rooted in redistribution. The "individual rights" to access that Gerson talks about in his article are to the fruit of another's labor ... very un-Lockean.

Locke was against the Catholic Church because of its sedition, not its theology. As a private institution I suspect it was no less illiberal than Calvinist or Lutheran institutions. Could it be as illiberal as a Puritan?

Phil Johnson said...

In Locke’s view, Catholics can worship as they wish as individuals, but their institution is a danger to the liberal order.

I like that concept. It's worthy of some meditation.

Tom Van Dyke said...

Frightening that some people are in favor of the state controlling the church, Mr. Johnson. I think Gerson's point is spot-on, and devastating to the modern liberal project [even if we sustain Mr. Pappas' objection speaking strictly of Locke].

The church has always been a bulwark against the expansion of the state, and as we see here, the state is co-opting the church to do its bidding, a complete violation of separation of church and state. They won't be happy until they have the bishops passing out condoms.

Jason Pappas said...

I worry about Gerson's last sentence (in the quote): Catholics individuals are free to worship. Catholic institutions must be forced to reflect liberal ideals and values.

This implies that freedom of conscience is only that -- you're free in your feelings, i.e. conscience. Acting on those feelings is another matter. Here the state takes control. Thus, the state can demand that the bishops pass out condoms. They are free to believe otherwise but not to act contrary to state edicts.

Of course, this is merely a reflection of my contention that without property rights freedom is only in the mind, not in reality. Property rights are a prerequisite to a lasting and secure liberal regime including the protection of intellectual liberties.

Ah, but now I'm preaching ...

JMS said...

It seems to me that Michael Gerson is missing the point over the current Catholic contraception controversy. John Locke’s late-17th century English anti-Catholicism is as irrelevant to the current controversy as the USA’s virulent anti-Catholicism from the 1840s-1940s. The real question is if an employer (i.e., a Catholic hospital or university) supplies healthcare benefits, why must an employee (especially non-Catholic employees) who uses the health benefit be forced to adhere to the religious doctrines the employer imposes?

As Madison stated in Federalist #10, "The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points.” Madison concluded that: The regulation of these various and interfering interests forms the principal task of modern legislation,” and in Federalist # 51, “Justice is the end of government. It is the end of civil society.”

In regards to the polls Gerson cites, he missed the March 15th poll by Public Religion Research Institute entitled Majority of Americans Do Not Believe Religious Liberty is Under Attack that refutes his entire argument.

So, Gerson is guilty of some bad history and bad polling.

jimmiraybob said...

The church has always been a bulwark against the expansion of the state, ...

Not since Constantine.

...and as we see here, the state is co-opting the church to do its bidding, a complete violation of separation of church and state.

Unfortunately, not. Everyone is free to practice their religious conviction as a personal or even institutional affair but the state has to balance the interests of its citizens in secular affairs, such as employment security and competing ecclesiastical concerns. This is done all the time in many ways - try stoning a rebellious child. The church is also expected by law not to discriminate when paying protestants, atheists, jews, hindus, heretics and women that work for them in a secular capacity such as providing public health care.

If the church is concerned with contamination through participation in the world then it can withdraw.

They won't be happy until they have the bishops passing out condoms.

Who be the they? The employees hoping for fair coverage?

I'm hoping that priests and bishops are smart enough to use condoms voluntarily when dabbling in the carnal arts - perhaps a matter that the Church might spend a little more effort on instead of whipping up hysterical and absurd concerns about persecution.

Tom Van Dyke said...

Jason has it correct. The state---Obama---in unprecedented fashion---is co-opting the church as agents of the state. Religion becomes a private matter of conscience, and is erased as a public act.

But this will not stand. As for the polls at the present time, I'm surprised that even a significant minority understand the audacity of this mandate. This one's not going away.

JMS said...

Jason and Tom - I think you have it wrong.

As I noted above, Madison concluded on Federalist #10 that: "The regulation of these various and interfering interests forms the principal task of modern legislation.”

Here is how famed lawyer David Boies explained the issue on Lawrence O’Donnell’s Feb. 8, 2012 MSNBC show. Boies stated that no employer is exempt from laws like: workman’s compensation insurance, minimum wage, job safety standards, labor law, tax law, etc. [He may have overstated this a bit: I believe that Amish employers are exempt from having to pay into social security for Amish employees].

But the bottom line is that as Madison noted above, the task of modern labor and healthcare legislation is to insure that all employees be treated equally.

Boies said, “There really isn’t a constitutional issue. There is nothing in the Constitution that says an employer, regardless of whether you are a church or not, isn’t subject to the same rules as every employer."

"The law wouldn’t say to a Catholic Hospital, for example, that you’ve got to do these acts that are contrary to religion, perhaps abortion or something like that. They would, however, say to that Catholic Hospital, you’ve got to treat your employees consistent with the law. You’ve got to give them workmen’s compensation."
"We’re sitting in New York. New York’s has this law. Religion isn’t threatened. The Catholic Church isn’t threatened. The Catholic Church is doing very well in New York.”

Tom Van Dyke said...

Boies is wrong.

"The law wouldn’t say to a Catholic Hospital, for example, that you’ve got to do these acts that are contrary to religion, perhaps abortion or something like that."

That's exactly where the law---the administration's edict---is going, esp last Friday's "correction," that even self-insured Catholic institutions will have to pay for contraception.

That bishops will be forced by the state to hand out condoms is more literally true than poetically!

The strict First Amendment case is tougherter to make, as it's nebulous. However, Rivkin and Whelan are on solid ground here that this Obamacare mandate is clearly a violation of the Religious Freedom restoration Act of 1993 [passed by large majorities of both parties, BTW]:

The refusal, for religious reasons, to provide birth-control coverage is clearly an exercise of religious freedom under the Constitution. The "exercise of religion" extends to performing, or refusing to perform, actions on religious grounds—and it is definitely not confined to religious institutions or acts of worship. Leading Supreme Court cases in this area, for example, involve a worker who refused to work on the Sabbath (Sherbert v. Verner, 1963) and parents who refused to send their teenage children to a public high school (Wisconsin v. Yoder, 1972).

In the high-school case, the Supreme Court found that even a $5 fine on the parents substantially burdened the free exercise of their religion. Under the Patient Protection and Affordable Care Act, employers who fail to comply with the birth-control mandate will incur an annual penalty of roughly $2,000 per employee. So it is clearly a substantial burden.

Objecting employers could, of course, avoid the fine by choosing to go out of business. But as the Supreme Court noted in Sherbert v. Verner, "governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against" noncompliant parties.

The birth-control mandate also fails the Religious Freedom Restoration Act's "compelling governmental interest" and "least restrictive means" tests.

Does the mandate further the governmental interest in increasing cost-free access to contraceptives by means that are least restrictive of the employer's religious freedom? Plainly, the answer is no. There are plenty of other ways to increase access to contraceptives that intrude far less on the free exercise of religion.

And I also agree with the last bit that in the very least, this mandate, this strongarming the church, is in the least bad governance if not a tyranny, even if legal. It would be simple to pass a law or a program and leave the church out of it, instead of rubbing its nose in it.

In this respect, even if he's strictly wrong on the Locke angle, Gerson's quite correct about the church being bent to the state's will. It's one thing for churches to be prohibited from peyote or sacrificing chickens. [The Miller and Hialeah cases respectively.]

To make a church perform an act that it deems immoral is unprecedented in American history.

Doug Indeap said...

Arguments for a "religious employer" exemption have gone from wrong to ridiculous.

Questions about the government requiring or prohibiting something that conflicts with someone’s faith are entirely real, but not new. Confronted with such issues, the courts have ruled that under the Constitution the government cannot enact laws specifically aimed at a particular religion (which would be regarded a constraint on religious liberty contrary to the First Amendment), but can enact laws generally applicable to everyone or at least broad classes of people (e.g., laws concerning pollution, contracts, torts, crimes, discrimination, employment, etc.) and can require everyone, including those who may object on religious grounds, to abide by them.

When the legislature anticipates that application of such laws may put some individuals in moral binds, it may, as a matter of grace, exempt conscientious objectors.

The real question here is not whether the First Amendment precludes government from enacting and enforcing the generally applicable laws regarding health insurance (it does not), but rather whether government should exempt some employers in order to avoid forcing them to act contrary to their consciences.

Those demanding such an exemption initially worked themselves into a lather with the false claim that the law forced employers to provide their employees with health care plans offering services the employers considered immoral. The fact is that employers have the option of not providing any such plans and instead simply paying assessments to the government. Unless one supposes that the employers' religion forbids payments of money to the government (all of us should enjoy such a religion), then the requirement to pay assessments does not compel those employers to act contrary to their beliefs. Problem solved.

Some nonetheless continued complaining that by paying assessments they would be paying for the very things they opposed--seemingly missing that that is not a moral dilemma justifying an exemption to avoid being forced to act contrary to one’s beliefs, but rather a gripe common to most taxpayers, who don’t much like paying taxes and who object to this or that action the government may take with the benefit of “their” tax dollars. Should each of us be exempted from paying our taxes so we aren’t thereby “forced” to pay for making war, providing health care, teaching evolution, or whatever else each of us may consider wrong or even immoral? If each of us could opt out of this or that law or tax with the excuse that our religion requires or allows it, the government and the rule of law could hardly operate.

In any event, those wanting an exemption put up enough of a stink that the government relented and announced that religious employers would be free to provide health plans with provisions to their liking and not be required to pay the assessments otherwise required. Problem solved–again, even more.

Nonetheless, some continue to complain, fretting that somehow the services they dislike will get paid for and somehow they will be complicit in that. They argue that if insurers (or, by the same logic, anyone, e.g., employees) pay for such services, those costs will somehow, someday be passed on to the employers in the form of demands for higher insurance premiums or higher wages. They counter what they call the government’s “accounting gimmick” with one of their own: the “Catholic dollar.” These dollars remain true to an employer’s religious beliefs, it seems, even after paid by the employer to others, e.g., insurers or employees, in that they can be used only for things the religious employer would approve.

What they would think of their tag-the-dollar theory if they realized that I have loosed some of my “atheist dollars” into society and they have some in their wallets? Those dollars can be used only for ungodly purposes, lest I suffer the indignity of paying for things I disbelieve. Whatever they do with them, for god’s sake, don’t put them in the collection plate.

JMS said...

Tom – again, I cannot follow your logic in this discussion.

First - We can all pick and choose our experts. But you cannot dismiss a practicing lawyer like Boies, who knows a thing or two about constitutional issues (e.g., he argued for Gore in Bush v. Gore and lost; he argued against Prop 8 in CA and won), as “wrong.” I think the contraception controversy is a First Amendment issue, but not exclusively. Boies was pointing out that many states (using NY as one example) have similar laws that never raised a peep from the Catholic bishops about any infringement on their religious liberty.

Second – How can you appeal to the Religious Freedom Restoration Act (RFRA) to defend your hyperbolic position that “Catholic bishops are being forced to hand out condoms”? You cannot dismiss the crux of the Employment Division v. Smith decision that spurred Congress to enact it? How can you say that, “it’s one thing for churches to be prohibited from peyote,” and then invoke the RFRA (or also reference animal sacrifice)? The Smith case was about “religious liberty.” Al Smith is a member of the Native American Church, and they use peyote as a sacrament. His being fired from his job as a drug counselor, followed by the state of Oregon’s denial of unemployment benefits, clearly violated his First Amendment rights. But somehow you or Justice Scalia does not think the “free exercise” clause applies to Mr. Smith. Why not? It was the denial of his “religious liberty” that led to the RFRA to try and undo the Smith ruling.

Third – The “Catholic bishops are” not “being forced to hand out condoms.” As a religious institution, the church hierarchy, priests, nuns and lay employees are all exempt. But this well-founded “accommodation” does not apply to church-affiliated institutions (hospitals and universities) with a predominately secular purpose (i.e., health and education – not salvation, or as Adam Smith noted, “The institutions for the instruction of people of all ages are chiefly those for religious instruction. This is a species of instruction of which the object is not so much to render the people good citizens in this world, as to prepare them for another and a better world in a life to come.”).

Fourth - The broader questions are: 1) whose religious liberty needs to be protected; and 2) what is “the church.”

1) As I mentioned in a previous post, you ignore the fact that individuals and institutions have First Amendment religious freedoms. The federal government is only mandating contraceptive coverage in the employee health plan. It is up to the individual employee’s “liberty of conscience” to decide if using contraception violates their conscience or religious beliefs. And, in terms of religion, we are talking about a diversity of employees who may adhere to atheism, agnosticism, Catholicism, Protestantism, Eastern Orthodoxy, Judaism, Islam, Hinduism, Buddhism, Mormonism, etc. Why should a tangentially-Catholic employer determine what healthcare coverage they get? To argue or act otherwise smacks of religious “establishment.”

2) A vast array of polling date shows a huge divergence between the beliefs and practices of Catholic parishioners versus the doctrines and practices of the Catholic hierarchy on: a) using contraception; b) having contraception covered in health plans; c) the hierarchy’s handling of sex abuse cases; d) the ban on married priests; e) the ban on female priests; and f) even on abortion in cases of rape, threats to the mother’s health or genetic defects.

Back to the premises of American Creation and Jon’s post of the Gerson article referencing Locke, the evidence is overwhelming that the “founders” wanted to protect the “free exercise of religion” of individuals from government interference. Unlike Al Smith, nobody’s “free exercise of religion” is being infringed by the employer-provided contraception coverage mandate.

Philippine Prudential Life said...

Nice article. very interesting, thanks for sharing.