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.”