Do the Bishops Have a Case Against Obama?

Religion often comes alive in the face of persecution. Recently, Daniel Jenky, the bishop of Peoria, Ill., did not hesitate to play the persecution card in the dispute with the Obama administration over required health insurance coverage of birth control. Evoking the history of “terrible persecution” of the Church, he said: “Hitler and Stalin would not tolerate any competition with the state in education, social services and health care. . . . Barack Obama — with his radical, pro-abortion and extreme secularist agenda — now seems intent on following a similar path.” In an effort to clarify the statement, a diocese spokesperson said, “We certainly have not reached the same level of persecution. However, history teaches us to be cautious once we start down the path of limiting religious liberty.” (She did not explain just what the bishop regarded as the Church’s current “level of persecution” by the administration.)

Jenky’s remarks are only a bit more extreme than standard rhetoric from bishops and other conservative Catholics, who now routinely talk of an “attack” or “war” on religious liberty. Are things really this bad? Or are we seeing a perhaps politically motivated “tempest in a holy water fount”?

To get some perspective, I propose to take a look at the main rational arguments — as opposed to rhetorical appeals — that the bishops and their supporters put forward.

The first argument is based on the right of conscience. It agrees that all employees of a Catholic organization have a right in conscience to practice birth control, but that the organization also has a right in conscience not to pay for (or otherwise facilitate) the practice. The nub of the argument is that an organization’s not offering birth control as part of its health insurance does not take away an employee’s right to birth control; it would at most make it a bit more difficult to obtain. By contrast, the administration’s requirement that the organization offer birth control coverage does eliminate, in this case, its right not to support the practice.

This argument makes a valid point, but omits the rights of a third party: the government, which has a right (and duty) to set up rules for the common good of the nation. In some cases, this right takes precedence over the rights of conscience. The government has the right, for example, to force people to serve in wars they think are unjust or pay taxes to support activities like birth control that they think are immoral. Organized religions have, in our system, greater rights to conscientious exemption than individuals, but there is no absolute immunity that keeps a religion’s claim of conscience from being trumped by the government’s right to “provide for the general welfare.” Once we take account of the government’s right, we see that this argument does nothing to show that Catholic organizations’ rights outweigh the rights of the government in this case.

The second argument begins from the government’s claim that certain religious organizations are not “sufficiently religious” to warrant an exemption from government policy. It recognizes that the Obama administration did exempt, for example, individual parishes and dioceses from the health insurance requirement, but drew the line at institutions like hospitals and universities that are less closely related to the Church and its doctrines.

This argument is willing to concede that religious institutions other than parishes and dioceses might not have the same rights to exemptions from government policy. But it insists that the government itself has no right to decide how and where to draw the line. That, it says, would allow the government to undermine the Church. For if the government can in a given case decide that, say, a hospital or university is not sufficiently close to the Church to merit the full religious exemption regarding rights of conscience, then there is no reason the government can’t do this in other instances, without limit. Therefore, the argument concludes, giving the government the right to decide such matters in effect gives it the right to destroy the independence of the Church.

This argument correctly points out that the government — in the sense of the executive branch — should not be the sole judge of what rights of religious freedom a particular religiously affiliated organization may have. But it is equally wrong to claim, as the argument suggests, that the Church itself should be the ultimate arbiter of its own claims. Nor does it make sense to claim that every effort of the government to restrict religious rights should be rejected on the grounds that it is a step toward the total undermining of religion. One could just as well argue that every restriction on individual liberty is a step toward totalitarianism.

These two arguments express the main case made by Catholic bishops and their supporters against the Obama administration’s birth control mandate. They correctly assert two basic truths: that religious people and institutions have rights to act according to the dictates of conscience and that there are limits on the government’s right to interfere with those rights. But they ignore the complex question of how to balance the right of government to do its job of promoting the general welfare against the right of religious believers to be true to their consciences. Therefore they fail to show that, in this case, the government is wrong. At best, the arguments show that there may be a need, as some Catholic organizations are now doing, to ask the courts to resolve these complex questions.

There may be a cogent case against the government’s position. But there is no slam-dunk appeal to outrageous violations of the First Amendment, such as genuine instances of persecution or a war on religion would provide. Rather, there are arguments based on complex (and contestable) legal considerations — for example, interpretations of the 1993 Religious Freedom Restoration Act — turning on the question of what sort of burden of proof the government has to show that its requirement is necessary to achieve its legitimate goal. The bishops may have a viable legal case against the Obama administration. But they have no case for a call to the barricades.

We cannot, of course, be certain about the bishops’ motives in overdramatizing what should be a routine disagreement. But their often demagogic reaction suggests political rather than religious concerns. There is, first, the internal politics of the Church, where the bishops find themselves, especially on matters of sexuality, increasingly isolated from most Church members; they seem desperate to rally at least a fervid core of supporters around their fading authority. But the timing of their outbursts also suggests a grasp for secular political power. It’s hard to think that the bishops — especially given their concerns for social welfare — would more than mildly prefer a Romney administration to an Obama administration. But, hoping to emulate the success of Protestant evangelicals, they may well want to establish their own credentials as significant players in American politics. We can only pray that American Catholics will see through any such effort.

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Gary Gutting is a professor of philosophy at the University of Notre Dame, and an editor of Notre Dame Philosophical Reviews. He is the author of, most recently, “Thinking the Impossible: French Philosophy since 1960,” and writes regularly for The Stone.