Because the Mandated HHS Rules Strike at the Heart of Freedom

Originally, this post was published in mid-January, 2012. A few days later, the thoughts I read by John Courtney Murray, SJ, inspired me to draft the little petition that, with the help of 29,000+ folks, got the White House’s attention when they determined that the HSS Mandate was, for the Church, a “fait accompli.”

Given Justice Sotomayor’s decision to block the Administration’s HHS Mandate toward’s The Little Sisters of the Poor, I’ve decided to dust this off and republish it. Because the Administration is now doing nothing more than playing the bully, thus giving a whole ‘nother meaning to the phrase, bully pulpit. Enough justices and judges have come to the same conclusion, which is why they’ve been handing down injunctions (and stays) in a proportion that oddsmakers would clearly favor the plaintiffs, and not the defendants.

On to the post from nearly two years ago…

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Certainly by now you’ve heard that the present Administration, through the Health and Human Services Department, is mandating that all employer healthcare insurance plans provide coverage for procedures which violate the beliefs of the Catholic Church, and Catholic institutions. Basically, the new rules require the Church, and the institutions operating faithfully under the aegis of the Church, to provide “preventative services for women” to their employees. We’re talking about contraception, and even sterilization. We’re talking the “morning after” pill, and other services “free” for the patient. No co-payments required.

I’m not going to reinvent the wheel on explaining the provisions of the mandate. Omar Gutierrez (who blogs at Regnum Novum) has already penned a primer for us, and you would do well to educate yourself by reading it. Instead, I’m going to share with you the thoughts on religious freedom of John Courtney Murray SJ, whose book, We Hold These Truths: Catholic Reflections on the American Proposition, I have been reading lately.

In the passage below, Fr. Murray explains why this “new” ruling by the Administration is not only disturbing to Catholics, but should be disturbing to all Americans of all religions. It should even be disturbing to those who have no religion, or even those who practice quasi-religions like secular humanism. The reason why we all should be concerned is because with this ruling, see, the Government has made an unprecedented, as far as American history is concerned, move into the realm of deciding that the State has, for the first time, “undertaken to represent transcendental truth” on matters of conscience for all religions within the United States. That in itself is unprecedented, which is also why it is unconstitutional.

If you think I’m being a rash “sea lawyer” in saying so, have a look at the following from Fr. Murray’s book. It goes a long way in explaining why everyone in the Church hierarchy seems all hepped up about this ruling, and frankly, why you should be too.

The third and most striking aspect of the American experience consists in the fact that religion itself, and not least the Catholic Church, has benefited by our free institutions, by the maintenance, even in exaggerated form, of the distinction between church and state. Within the same span of history the experience of the Church elsewhere, especially in the Latin lands, has been alternately an experience of privilege or persecution. The reason lay in a particular concept of government. It was alternatively the determination of government to ally itself either with the purposes of the Church or with the purposes of some sect or other (sectarian Liberalism, for instance) which made a similar, however erroneous, claim to possess the full and final truth. The dominant conviction, whose origins are really in pagan antiquity, was that government should represent transcendent truth and by its legal power make this truth prevail. However, in the absence of social agreement as to what the truth really was, the result was to involve the Catholic truth in the vicissitudes of power. It would be difficult to say which experience, privilege or persecution, proved in the end to be the more damaging or gainful to the Church.

In contrast, American government has not undertaken to represent transcendental truth in any of the versions of it current in American society. It does indeed represent the commonly shared moral values of the community. It also represents the supreme religious truth expressed in the motto on American coins: “In God we trust.” The motto expresses the two truths without which, as the Letter to the Hebrews says, “nobody reaches God’s presence,” namely, “to believe that God exists and that he rewards those who try to find him” (Hebrews 11: 6). For the rest, government represents the truth of society as it actually is; and the truth is that American society is religiously pluralist. The truth is lamentable; it is nonetheless true. Many of the beliefs entertained within society ought not to be believed, because they are false; nonetheless men believe them. It is not the function of government to resolve the dispute between conflicting truths, all of which claim the final validity of transcendence. As representative of a pluralist society, wherein religious faith is—as it must be—free, government undertakes to represent the principle of freedom.

In taking this course American government would seem to be on the course set by Pius XII for the religiously pluralist international community, of which America offers, as it were, a pattern in miniature. In the discourse already cited he distinguishes two questions: “The first concerns the objective truth and the obligation of conscience toward that which is objectively true and good.” This question, he goes on, “can hardly be made the object of discussion and ruling among the individual states and their communities, especially in the case of a plurality of religious confessions within the same community.” In other words, government is not a judge of religious truth; parliaments are not to play the theologian. In accord with this principle American government does not presume to discuss, much less rule upon, the objective truth or falsity of the various religious confessions within society. It puts to itself only Pius XII’s second question, which concerns “the practical attitude” of government in the face of religious pluralism. It answers this question by asserting that in the given circumstances it has neither the mandate nor the duty nor the right to legislate either in favor of or against any of the religious confessions existent in American society, which in its totality government must represent. It will therefore only represent their freedom, in the face of civil law, to exist, since they do in fact exist. This is precisely the practical attitude which Pius XII recognizes as right, as the proper moral and political course.

In consequence of this American concept of the representative function of government the experience of the Church in America, like the general American experience itself, has proved to be satisfactory when one scans it from the viewpoint of the value upon which the Church sets primary importance, namely, her freedom in the fulfillment of her spiritual mission to communicate divine truth and grace to the souls of men, and her equally spiritual mission of social justice and peace. The Church has not enjoyed a privileged status in public life; at the same time she has not had to pay the price of this privilege. A whole book could be written on the price of such legal privilege. Another book could be written on the value of freedom without privilege. In fact, both books have been written, on the metaphorical pages of history. And looking over his own continually unrolling historical manuscript the American Catholic is inclined to conclude that his is a valid book.

That freedom of the Church, and all other religions, to fulfill their missions is what is at stake here. So also is the clear demarcation of the roles of Church and of the State. As Murray explains in his concluding thoughts to this chapter,

In the final analysis any validation of the First Amendment as good law—no matter by whom undertaken, be he Protestant, Catholic, Jew, or secularist—must make appeal to the three arguments developed above—the demands of social necessity, the rightfulness within our own circumstances of the American manner of asserting the distinction between church and state, and the lessons of experience. Perhaps the last argument is the most powerful. It is also, I may add, the argument which best harmonizes with the general tone which arguments for our institutions are accustomed to adopt.

In a curiously controlling way this tone was set by the Federalist papers. These essays were not political treatises after the manner of Hobbes and Hegel, Rousseau and Comte, or even John Locke. It has been remarked that in America no treatises of this kind have been produced; and it is probably just as well. The authors of the Federalist papers were not engaged in broaching a political theory universal in scope and application, a plan for an Ideal Republic of Truth and Virtue. They were arguing for a particular Constitution, a special kind of governmental structure, a limited ensemble of concrete laws, all designed for application within a given society. They were in the tradition of the Revolutionary thinkers who led a colonial rebellion, not in the name of a set of flamboyant abstractions, but in the name of the sober laws of the British Constitution which they felt were being violated in their regard. It has been pointed out that the only real slogan the Revolution produced was: “No taxation without representation.” It has not the ring of a trumpet; its sound is more like the dry rustle of a lawyer’s sheaf of parchment.

It is in the tone of this tradition of American political writing that one should argue for the First Amendment. The arguments will tend to be convincing in proportion as their key of utterance approaches a dry rustle and not a wild ring. The arguments here presented are surely dry enough. Perhaps they will not satisfy the American doctrinaire, the theologizer. But they do, I think, show that the first of our prejudices is “not a prejudice destitute of reason, but involving in it profound and extensive wisdom.” This is all that need be shown; it is likewise all that can be shown.

The Catholic Church in America is committed to this prejudice by the totality of her experience in American history. As far as I know, the only ones who doubt the firmness, the depth, the principled nature of this commitment are not Catholics. They speak without knowledge and without authority; and the credence they command has its origins in emotion. If perhaps what troubles them is the fact that the commitment is limited, in the sense that it is not to the truth and sanctity of a dogma but only to the rationality and goodness of a law, they might recall the story of Pompey. After the capture of Jerusalem in 63 B.C. he went to the Temple and forced his way into the Holy of Holies. To his intense astonishment he found it empty. He should not have been astonished; for the emptiness was the symbol of the absence of idolatry. It symbolized the essential truth of Judaism, that One is the Lord. Professor Boorstin, who recounts the tale, adds: “Perhaps the same surprise awaits the student of American culture [or, I add, the American Constitution] if he finally manages to penetrate the arcanum of our belief. And for a similar reason. Far from being disappointed, we should be inspired that in an era of idolatry, when so many nations have filled their sanctuaries with ideological idols, we have had the courage to refuse to do so.”

The American Catholic is on good ground when he refuses to make an ideological idol out of religious freedom and separation of church and state, when he refuses to “believe” in them as articles of faith. He takes the highest ground available in this matter of the relations between religion and government when he asserts that his commitment to the religion clauses of the Constitution is a moral commitment to them as articles of peace in a pluralist society.

Limited government is the hallmark of the American system, which is why this ruling cannot stand. Ben Franklin, upon the close of the Constitutional Convention in 1787 was asked the following question. “Well, Doctor, what have we got—a Republic or a Monarchy?” He replied, “A Republic, if you can keep it.”

Sic semper tyrannis.