The politics of religious freedom:

The bishops, the sisters, and religious freedom

posted by Elizabeth A. Castelli

At its March 2012 meeting, the Administrative Committee of the United States Conference of Catholic Bishops approved “Our First, Most Cherished Liberty: A Statement on Religious Liberty,” a document drafted by the USCCB’s Ad Hoc Committee for Religious Liberty. Publicly announced on April 12, 2012, the statement offers a brief sketch of purported threats to religious freedom in the U.S., a highly compressed and partial history of the U.S. in relationship to religious freedom, a sober call to disobedience of “an unjust law” (never explicitly named, but almost certainly the 2009 Affordable Care Act [ACA] and its attendant administrative regulations concerning contraceptive coverage), and an exhortation to U.S. Catholics to participate in “A Fortnight of Freedom” from June 21 through July 4 of this year—a period of prayer and activism during a period of time when “both our civil year and liturgical year point us…to our heritage of freedom.”

The rhetoric of the bishops’ statement is familiar to anyone who has followed conservative Christian activism around the cause of religious freedom in the United States over the last two decades or so, though the recourse of Catholic officials to such language is a relatively recent innovation. Meanwhile, their definition of “religious freedom” or “religious liberty” remains both opaque and expansive—again, in imitation of conservative Christian activism tout court. The bishops note the priority of the first amendment to the U.S. Constitution, and the priority of (“our first…liberty”) religious freedom among the freedoms guaranteed by that amendment. Acknowledging that Americans are not alone in their claims concerning freedom (“freedom is not only for Americans”), they nevertheless see the United States as exceptional in its relationship to it (“we think of it as something of our special inheritance”), seeing Americans as the particular guardians of freedom (“we are stewards of this gift, not only for ourselves but for all nations and peoples who yearn to be free”).

The bishops go on to enumerate specific examples of “religious liberty under attack.” By the logic of priority, the mandate issued earlier in the year by the Department of Health and Human Services requiring health insurance coverage for contraception (which the document calls “HHS mandate for contraception, sterilization, and abortion-inducing drugs”), part of the administration’s efforts to assure compliance with the ACA (aka health care reform), holds pride of place in the list of instances of religious freedom under siege. But the bishops cite a number of other domains of constraint: the refusal by state and local authorities to use the foster care or adoption placement services of Catholic Charities because of the organization’s unwillingness to place children with cohabiting or same-sex couples; the state of Alabama’s punitive anti-immigrant legislation; the denial of official recognition of a Christian student group at the University of California Hastings College of Law (because of the group’s requirement that its leaders be Christian and abstain from extra-marital sexual activity); New York City’s discontinuation of the practice of renting public school buildings in New York City to churches for weekend services. Religion (a category represented in the statement exclusively by Christian examples) is under siege, the argument runs, on the federal, state, and local levels, and on many different fronts.

But if the document seeks to catalog the wide range of threats to religious liberty, it is nevertheless primarily concerned with undergirding the bishops’ campaign against the inclusion of contraceptive coverage under the ACA. The document sets the terms of the debate agonistically and dramatically. Although the ACA (along with subsequent regulations issued by the Department of Health and Human Services in the spring of 2012 to assure compliance with the law) is nowhere named explicitly, it certainly resides behind the characterization of “an unjust law [that] cannot be obeyed,” a law that imposes the will of the state upon religious institutions and individuals. Arguing by analogy, the bishops juxtapose the need to disobey such an unjust law—a duty Catholics “must discharge…as a duty of citizenship and an obligation of faith”—to the religiously inflected arguments and actions of the U.S. Civil Rights movement of the 1950s and 1960s, using Martin Luther King Jr.’s “Letter from a Birmingham Jail” as their prooftext. Strikingly, the bishops also take care to distinguish between “conscientious objection” to a societal requirement (unspecified, but one might think of conscientious objection to military service) from the requirement to resist an unjust law. One can imagine that the bishops are seeking to sidestep the question of all of the other ways in which tax dollars, for example, are used to support militarism, capital punishment, or other forms of state-sponsored violence to which religious individuals or institutions might object. Opposition to these kinds of institutionalized forms of state violence does not apparently rise to the status of opposition to “unjust law,” which “cannot be obeyed.”

Framing their opposition to the health care mandate in terms of religious freedom, it needs to be emphasized, is a strategic move that narrows the terrain significantly: to oppose the bishops’ opposition to the health care mandate requires one to take a position against religious freedom. Well played, bishops.

The problem, of course, is that while the bishops speak of religious freedom and seek to portray a consensus that aligns themselves with evangelical Protestants and Orthodox Jews, they conveniently exclude from the conversation other co-religionists who do not share their ethical assessments of the particular issues under debate (e.g., access to medical services, reproductive freedom, etc.) nor their political agenda. (Consider, as just one example, the Religious Coalition for Reproductive Choice, which includes the Episcopal Church, most of the mainline Protestant denominations, the Unitarian Universalist church, virtually all of the Reform, Reconstructionist, and Conservative Jewish governing bodies, and numerous Christian and Jewish national organizations.) Moreover, while advocating for a public square in which religious arguments and actors move freely, the bishops disingenuously frame the issue as one that sets in opposition a “naked public square” (“stripped of religious arguments and religious believers”) against a “civil public square” (“where all citizens can make their contribution to the common good”), carefully disavowing any claim that they desire a “sacred public square” (“which gives special privileges and benefits to religious citizens”). “At our best,” they write, “we might call this an American public square.” Framed in this way, the very presence of religious arguments and believers is precisely what makes the public square “American.” Their absence is, on its face, un-American. And yet, if the public square is a space of deliberation and debate, a space where arguments are evaluated and contested, it seems as though “religion” itself remains somehow immune to contestation and critique—in the public square, but not of it.

One could engage in an extended exploration of the way in which the bishops’ framing of these issues, clearly beholden to nearly two decades of evangelical Protestant activism around religious freedom, depend upon a theoretical incoherency (whereby institutions protecting religious freedom must inevitably define and thereby delimit what counts as “religion”) and revisit debates over the uneasy truce between religion and politics, church and state, that has been forged by recourse to the Protestant secular. But what I prefer to do here is to engage in an imaginative exercise: What would it mean for the bishops to put their money where their mouths are and to defend religious freedom in their own polity—that is, within the Catholic church itself?

Because, on another Catholic horizon, the Vatican has decided that the exercise of what one might well call religious freedom on the part of American women religious—the exercise of conscience—is a problem requiring episcopal oversight. In other words, the sisters are in need of some church-sponsored discipline and a reining-in of their faithful enactment of their own conscience. This action has been undertaken by the Congregation for the Doctrine of the Faith (Congregatio pro doctrina fidei), the modern incarnation of the Inquisition, which has issued a “Doctrinal Assessment of the Leadership Conference of Women Religious,” the culmination of a process of critical investigation initiated by the Vatican beginning in early 2009, focused on the LCRW, an organization that represents 80% of Catholic nuns in the United States. Accused of “a rejection of faith [that] is also a serious source of scandal and … incompatible with religious life,” objectionable “policies of corporate dissent” (on issues of women’s ordination and homosexuality), and “radical feminist themes,” the LCRW has become the target of disciplinary action.

This is not the place to parse all of the details of the Doctrinal Assessment, which seeks “to implement a process of review and conformity to the teachings and discipline of the Church, the Holy See, through the Congregation for the Doctrine of the Faith.” But in the context of the US bishops’ expression of a deep commitment to the notion of religious freedom, it might be a worthwhile imaginative exercise to ponder the following question: What would a defense of religious freedom look like, if the LCWR were considered “religion” in this case and the Vatican were considered “the state”?

Of course, the authors of the Doctrinal Assessment—all American cardinals, I have been told—would reject the question as I have framed it since they insist that faithful religious life can only be lived in “allegiance of mind and heart to the Magisterium of the Bishops,” as they put it in the opening paragraph of the Assessment, where they quote from John Paul II’s 1996 Post-Synodal Apostolic Exhortation, Vita consecrata. In doing so, however, they rather show their hand. Religious freedom emerges as nothing more than a mode of shoring up the authority of the Magisterium of the Bishops, not a set of values that shelters and protects the acts of conscience undertaken by Catholic women religious in the United States. Yet ironically, recourse to a robust notion of personal conscience is an unambiguously orthodox position in Catholic theology and a fully justifiable exercise of religious freedom on the part of the nuns.

The widespread outrage among Catholics in the U.S. in response to the Doctrinal Assessment’s attack on the LCWR—outrage that has produced numerous thoughtful essays about the profound value and integrity of the actual work of Catholic nuns, vigils of support in cities across the country, and even the satirical Twitter hashtag #radicalfeministthemes—has made it clear that the actions of the Congregation for the Doctrine of the Faith does not pass a simple smell test.

In their statement on religious liberty, the Conference of Bishops writes, “The Christian church does not ask for special treatment, simply the rights of religious freedom for all citizens.” To which the supporters of the Catholic sisters in the US might simply respond, “The Catholic women religious and their allies in the church do not ask for special treatment, simply the rights of religious freedom for all members of the church.”

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5 Responses to “The bishops, the sisters, and religious freedom”

  1. avatar Brian Howell says:

    Prof. Castelli suggests that the Bishops “depend upon a theoretical incoherency” in which religious institutions must define the nature and limits of their religion. She’s quite right, of course, that defining religion cannot be done as a theoretical abstraction and in the realm of politics in a secular state, such definitions are more obviously shifting, contested, and particular. However, this element of cultural obviousness is not theoretically incoherent unless one expects unassailable uniformity or an abstracted definition to work in the real world.

    What is theoretically incoherent is Prof. Castelli’s comparison of the Catholic church to the secular state in which she suggests that the church is being hypocritical by not modeling itself on the same principle of rights of conscience they expect from the state. But in what way is a voluntary religious community like a secular state? The state is an inescapable reality of life in which individuals are coerced into belonging to the polity (some polity, somewhere). In a multicultural and multireligious context such as the United States, it works relatively well to operate from the enlightenment position of the morally autonomous self as the unit of rights. The state should only have the power to infringe upon the moral self when it is protecting other selves. Religious communities, however, often work on other logics. Many Christian communities see their membership not as independent selves, but as parts of a community under another authority – scripture, tradition, church authority. Belonging to the community necessarily requires a relinquishing of one’s moral autonomy under the authority of the community. When membership in such a community is coerced, it can conflict with the existence of the secular state, but when it is chosen, it is chosen. Once chosen, it is up to the community to decide what level of dissent, conflict and autonomy is part of the community. To suggest that the Catholic church should embrace the ideals of a secular state is a misunderstanding of how the community defines itself, and an improper, if not theoretically incoherent suggestion for someone to make from the public square.

  2. avatar Vicki says:

    I am not a Catholic – or indeed a follower of religion – but I think that there is a fundamental flaw in your argument. One of the many reasons why the Catholic Church does not appeal to me, is this question of obedience. Those within the Church have to answer to God for the operation of their own conscience, but they are also supposed to live within the guidelines laid down by the Church.

    I think that the Church does not officially expect anyone to act in defiance of their own conscience. They do not, however, have the freedom to follow their individual preference when it comes to acts voluntarily done in opposition to Church doctrine.

    For example, if you were ordered by a bishop to carry out an act which your conscience told you was immoral, perhaps staying silent on a matter learned without the seal of the confessional, you would be free to act against that order. Suppose a neighbour had told you that she had been raped by a priest – you would be free to refuse to sign any gagging order. (I think)

    On the other hand, there is express Papal doctrine, proclaimed ex cathedra, and therefore with the infallibility rules against “artificial contraception”. If you decide that your conscience is clear that artificial contraception is acceptable, then you are not defying the Church in order not to violate your sense of right and wrong. You are choosing to do something which is not necessary (there being other alternatives, starting with abstinence and going on to unfettered procreation) and therefore setting your will up in opposition to that of God (as channelled through the Church, the Pope and the Magisterium of Bishops).

    This is the difference between the refusal to do something immoral, as your conscience declares it, and the assertion of the right to put your own decision making on any matters of doctrine and morals above that of the Church. (Go read, “Brideshead Revisited” for a lengthy story designed to make this point.) The Church of Rome is based on the primacy of a hierarchy of obedience.

    In the case of the nuns, the matter is (probably) still more clear cut. One of the vows usually taken on entering a religious order is that of Obedience. The entails not just obedience of action, but obedience of “heart and mind.” If the rules of your Order require you to think in a particular way, then you must so think – and do it willingly and wholeheartedly.

    If – the argument goes – you wanted to express yourself freely on the need for females in the priesthood, and social justice in third (or even first) world communities, then don’t become a nun. Do not, voluntarily, give up the right to think for yourself.

    It rather gives me the creeps – particularly when these same rules are applied the those being educated by nuns. Try reading “Frost in May” – it’s categorised under “Horror” on my shelves.

    As for the issue at the heart of this current debate – my own opinions are shaped by my experience as a person who health care is provided by a national, free, secular service – Britain’s National Health Service (NHS).

    It seems to me that any organisation as large and powerful as the Catholic Church in the US acquires a whole set of relationships with the larger, officially secular, structures of the State. When it is obliged (or chooses) to provide health cover for its employees, then it becomes an agent operating between the employee and the insurance company. Are Jehovah’s Witnesses allowed to opt out of funding blood transfusions for its employees?

    As I said, I think the US system is only just rational when considered in the context of a former age – and not completely rational even then. Having Health Insurance as part of one’s contract of employment means, essentially, that money for HI is being taken out of your wages. And if you are happy with a monthly deduction for HI, why give it within a system which won’t help you the minute you lose your job?

    When the US had full employment, when a man who wanted to could stay in the same job all his life, and a man who wanted to move could up sticks and get another job somewhere else, then the continuance of proper health cover for himself and his family via his employer might make sense.

    But in a modern economy, with frightening unemployment statistics this no longer makes sense. A woman who has to do 3 part time jobs to support her family may get health insurance with none of them, and not be paid enough to get (for example) proper dental care. If you have to reckon with periods when you will have months of unemployment, then a sudden exposure to life-altering disease may leave you financially ruined. And (which is very much to the point in this case) you may have to take any job you can – even working for the Catholic Church. Immediately (if the Bishops have their way) your contraceptive cover via the pill ceases. You have a choice between finding the money yourself, using a less reliable method or giving up sex until the economy picks up and your can find a more enlightened employer.

    Or the state can step in and protect your health cover, while it stops supporting you if you give up that job with the Church.

    Or, better still, cut employers and the “health insurance tax” which you pay thorough your employers at the moment and get the state to guarantee basic health cover. Then your employer can stop deciding what is and is not permissible for the good of your (and importantly their) immortal souls?

    After all, if it’s good enough for American Veterans, is it not good enough for the rest?

  3. avatar Annette Magjuka says:

    I agree with Vicki regarding the need for a one-payer state health care, one that is not linked to employers at all. But the problem with what is happening in the Catholic Church is that the bishops want to pretend that Vatican II never happened. It DID happen, and many nuns dedicated their lives to living its dictates through social justice work. I am a social justice Catholic, and proud of it. I am not a handmaiden for the Far Right, and neither are the nuns. The bishops and Pope are engaged in seeking political power, not in spreading the Good News of Jesus Christ or in doing His bidding. That is why I am 100% for the sisters, and 100% against the bishops and Pope on this one. And it IS a matter of conscience to follow Jesus and not to seek political power on the backs of the poor. The nuns speak for me; the bishops do not.

  4. avatar Alexander says:

    This is patently ridiculous. The Catholic Church is not a state. The nuns are free to go elsewhere if they wish to dissent. But while they are nuns and while they are involved in the LCWR, they represent the Catholic Church. If the Catholic Church doesn’t think they are representing them well, they have every right to intervene. The same would be true of any organization that represented the American government. The government would have every right to intervene if it felt the organization didn’t represent the government well. The Catholic Church does not represent the American government. They are, in fact, independent of the American government and has every right to not support contraception, even if it is US policy.

  5. avatar Pat Gillick says:

    I think that Brian, Vicki, and Alexander make good points about the authority of the Church to be able to suppress dissent from the LCWR. I did find your second to last paragraph to be based on the strange assumption that the Catholic Church is a democratic or popular institution. The notion that because a large number of American Catholics support the nuns, does not in any way suggest that the religious sisters are correct, or that the Bishops should change their behavior. In fact it probably suggests that the Congregation For the Doctrine of Faith should have acted earlier. Many Catholics were taught in school by religious sisters especially in the older generations, and have a respect for them. When people in positions of authority in an organization are speaking out against the official position of the organization it leads to confusion. If the Catholic Church followed (as doctrine) what the majority of Catholics believe not only would the church have problems of keeping its doctrine consistent but it would also quickly lose any resemblance to the teachings of Jesus, the Apostles, and early Church fathers. The Church is not a democracy and would be incorrect to assume that majoritarian or popular support for a position gives it any validity in terms of morality; if it did then the church would teach it is acceptable to use contraception, engage in extramarital sex, not go to mass, not go to confession, and other such “sins” because of the unanimous participation by all Catholics.

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