The Constitution, the ‘Fortnight’ and Questions of Religious Liberty

Apart from a few well-publicized events like the liturgies televised at the Basilica of the National Shrine of the Immaculate Conception in Washington, DC, and a few events that seem to appear in YouTube videos of smallish crowds gathering in front of clergy, did anything happen with the “Fortnight for Freedom” campaign? In the current issue of America magazine, the editors ask this question and offer a balanced reflection that does not take a side in the debate. The opening paragraph of the editorial (“After the Fortnight“) describes what took place or, rather, what ostensibly didn’t.

The Fortnight for Freedom, a series of public activities sponsored by the U.S. Conference of Catholic Bishops opposing infringements on religious freedom, concluded on July 4. The immediate impact of the campaign, however, remains unclear. Reportedly only some 70 of the nation’s 198 dioceses announced programs and activities for the fortnight. In some, little attention was paid to the effort; in others it was energetically promoted.

It’s indeed telling that less-than half of the US dioceses, if this number is correct, participated in the event. The diocese in which I minister currently did not, to my knowledge and that of my fellow clergy, make any sort of organized effort to promote the event. And, frankly, I don’t see that as a problem because there remained a number of unanswered questions about the purpose and goal of some of these events. This was likely the reason why a majority of US bishops did not formally participate in this campaign.

As for the 70 dioceses that did organize events, there are questions that still remain, which have not been adequately addressed. Such as: what do the “Fortnight” organizers have to say about the second half of the First Amendment explanation on the right of religious liberty? As one esteemed professor of constitutional law said to my students back in early July (we had invited him to be a guest speaker in our seminar in interreligious dialogue because of his vast experience as an attorney specializing in religious matters in DC) when one student asked about the validity of the HHS lawsuits and the attention certain US bishops have been giving to this subject: “there are two clauses to the so-called ‘separation of church and state.'”

He said that the US bishops, with good reason, are concerned about the “free exercise clause” of the First Amendment. They are focused on their right to practice their faith in a particular way, but in — at times — an overreaching manner. Importantly, he noted, the US bishops have seemed in this latest effort to focus their attention on the “free exercise clause” to the exclusion of the equally important “establishment clause.”

The central issue in all of this is the way in which Catholic organizations (and not the churches themselves, which have remained exempt from the ‘mandate’), such as hospitals or schools, take money from the federal government and, because those funds originate from taxpayers, they have certain restrictions. These conditions, the so-called HHS mandate in this case, are perfectly legal and, whether some catholics like it or not, are actually in place to make sure other peoples’ religious liberties and other constitutional rights are not infringed.

This is the importance of recognizing the “establishment clause,” so that the Catholic faith does not receive preferential treatment in the public square and in the receiving of public taxpayer funds. Note the distinction: it is the Catholic faith, not the church, that would be receiving the preferential treatment, thereby violating the prohibition of the establishing a religion in the US Constitution, because what is at stake here is so-called “Catholic” non-profit organizations that are not places of worship per se (again, hospitals, etc.).

This part of the issue has, to my knowledge, never come up in the public discussion about the “Fortnight” campaign, the few organizations and the about 13 dioceses who have filed lawsuits because of the “HHS mandate.” This is the most glaring oversight — how do those who are worked up about the “free exercise clause” justify their simultaneous promotion of the violation of the same Constitutional Amendment with regard to the “establishment clause?”

To illustrate another way this could be resolved without compromising the “establishment clause,” is to do what Fordham University Theology Department Chair Terrance Tilley suggested some months back in an NPR interview: Catholic organizations can simply stop taking federal funds. There. But this is not mentioned by those so worked up about the specter of religious-liberty threats.

Returning to the America editorial this week, the editors are correct to say that this is not as straightforward as either side makes out. The President and his administration had failed to take into consideration the ramifications for the way in which this change was presented and implemented. Our guest speaker also made that point. He told our class that he saw serious missteps in the way this was handled on the part of the administration.

That said, the bishops are also responsible for some missteps, as the America editorial highlights:

The mistake of the religious liberty campaign has been to personalize the problem, assigning singular blame to President Obama. It has also inflated the controversy by trying to make a variety of different local, state and national problems appear to be a vast conspiracy. Its hyperbolic rhetoric, while it charges up “true believers,” hardens the hearts of adversaries and alarms people in the middle. It is possible that in overplaying its hand, the campaign, its agents and allies have diminished their ability to share in shaping policy.

As the Duquesne dean emeritus and law professor Nicholas Cafardi says, in his essay “Politics and the Pulpit: Are some bishops putting the church’s tax exempt status at risk?” the overtly partisan tone and tenor of some of the recent US bishops comments — including the “Fortnight” campaign — pushes the boundaries of what is legal. This echoes the concern raised in the editorial response to the “Fortnight.”

The final paragraph of the America editorial summarizes the current situation well:

In recent years Catholic institutions have made defensible moral compromises to deal with state and local health-insurance mandates. Abroad, other bishops’ conferences have likewise responded to similar secular challenges without apocalyptic appeals. More attention should be paid to preparing creative, alternative responses before the church finds itself saving face by shutting doors, a response a few bishops have threatened. That outcome would be unfair to the millions who have come to rely on church institutions and one surely undesired by President Obama no less than by most bishops.

Another way is necessary. This adversarial, partisan, and exclusive focus on the “free exercise clause” to the exclusion of the rest of the Constitution, especially the “establishment clause” of the same amendment, is a dead-end. Can we come up with a better way to addresses these concerns and differences without, to borrow the editors’ phrase, resorting to “apocalyptic appeals?” Can we be a little more Christian in our behavior, language, and public presence?

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8 Responses to “The Constitution, the ‘Fortnight’ and Questions of Religious Liberty”

  1. Brother Father Dan,

    Thanks for this post.

    This issue of the Establishment Clause can only become relevant for voters and taxpayers- Catholic and non-Catholic alike – when they are educated about the reality that Catholic affilliated organizations do APPLY FOR and RECEIVE billions of dollars ANNUALLY in money from the government.

    As a Catholic social worker who has worked in the public, private and faith-based sectors), I am stunned each time I learn how many Americans – Catholic and non-Catholic – do not know that most Catholic-affiliated agencies receive significant portions of their annual income from the American taxpayers as represented by Federal, State and local governments.

    In light of the Fortnight for Freedom, I have been referring people (especially Catholic friends) to the website of Catholic Charities USA (http://www.catholiccharitiesusa.org/NetCommunity/Document.Doc?id=1924) for information about its funding sources in 2009.

    In brief,

    *** 67% of the 4.3 billion dollar funding for CCUSA and its affiliates came from government sources.

    ***Only 3% of that 4.3 billion dollars was supplied by the Catholic Church through its dioceses.

    *** 48 agencies in the Catholic Charities 1700-agency umbrella received $4,438,330 attributable to the American Recovery and Reinvestment Act. (I am still looking into it but it appears that this is an *additional* 4.4 billion dollars in government funding received by Catholic Charities in the year 2009).

    ****

    In essence, American taxpayers (as represented by federal, state and local government) contract with Catholic Charities USA and its affiliates to provides services. CCUSa is not the Church’s charity, though it certainly started that way when the Ursuline sisters set up shop in New Orleans’ Ninth Ward in the 1790s. Today, it is an American charity, funded largely by the public (the government) and administered by Catholic-affiliated agencies.

    ***

    As I have encountered this ignorance again and again in the last two years, I often have been angry at Bishops, priests, religious men and women, Catholic administrators and employees. Too many are colluding – sometimes in sins of commission, sometimes in sins of ommission – in this failure to be honor the reality that Catholic institutions like CCUSA are able to keep their doors open only because American taxpayers – only 22% of whom are Catholic – are funding them through government contracts and grants.

    I still struggle with the look of pain and confusion on the face of one friend – a deeply devout orthodox Catholic friend – when he finally accepted the factual reality that legally married gay families are paying taxes which are then given to CCUSA which will then deny them family shelter should they become homeless.

    Though my friend has not yet said it to me, I know he is asking himself: where is the justice in that story?

    Keep on teaching, brother Father Dan.

    Jean Brookbank

    • Matthew M Says:

      And, in defense of your friend, so how many abortions have we as taxpayers paid for? Or for the tree-huggers, how many bombs has one paid for through one’s mandatory tax “contribution”?
      Sorry, the argument that just because public monies help to fund CCUSA (just one of many organizations), and therefore, cannot remain true to teachings of the Holy Mother Church, because someone ELECTS to excercise their personal choice to use contraception, or even worse an abortion, is absolutely no different that my tax dollars going to fund the pharms and PP, etc. The last time I checked we still live in the Democratic Republic, and as such it is suppose to be the majority that rules, (with of course the obligation not to be tyranical and care for the “marginalized”). It is not one’s friend for whom I worry, but for those who do not see the errors and the writting on the socialist manifesto wall.

      If these institutions are forced to close because of HHS mandate, then so be it. But, do not cry foul about how the Church has failed Her responsibilities to provide for the underpriviledged. Make sure one’s beloved and “sacred” government has the ability to care for all those who depend on the services that CCUSA and other religious affliated organizations provide. Guess what? When one is hungry and down, one does not have the luxury to refuse a meal because it may have come through the hands of a religious, and one might have to listen to Bible verse or two. Who knows that might be just the thing a person needs to hear. But, instead the USG and the leftist regime has decided that ANY type of “message” that is different from their anti-Catholic, anti-Christian, wholly secular, God-less one, cannot be associated with “their” money! Bullocks!!!!

      And for the record, there are other institutions, non-Catholic, but religious that are in danger. This an anti-God campaign, which for even the most left Christian, should be of concern. And for any of the atheist, find yourself a public non-religious instittution to receive your elective services. You might have to wait in-line as the medical care system will be socialized! And for those working in Catholic or conservative religious organizations and one needs elective services, find one’s nearest Planned Parenthood clinic, as my tax dollars also went to support that!!

      • Matthew – Thanks for your passionate response. It certainly seems that you are not one of the many Americans who is unaware that most Catholic social service agencies are heavily subsidized by American taxpayers. That relieves me; few advocates of the exemption for catholic-affiliated agencies acknowledge (when they insist that they cannot be asked to pay for the HHS mandate) that, because of the funding realities, it is primarily taxpayers and not, in the end, Catholics who fund CCUSA and like organizations. That was my point. I have discovered that many Americans – Catholic and non-Catholic alike – do factor that information into their thinking and that, having learned that organizations like CCUSA are recipients of substantial taxpayer funds, many of them agree that the request for an exemption on the basis of religious liberty is not acceptable. I have found this to be the case even when the person fully accepts and is obedient to Church teaching on these issues. I have found that, when people understand that taxes are the primary funding stream for these religiously-affiliated organizations, most of them see the problem with then allowing those organizations to restrict taxpayer-funded services and taxpayer-funded employment according to the Law of their religion rather than the Law of the the land. People may not have an educated grasp of the Establishment clause but I find that, for many Americans, their education has been solid enough that they intuitively get that something is wrong when their taxes are used to, in effect, restrict on religious grounds Americans’ exercise of their rights, freedoms and benefits as citizens, even if they personally would like to see Americans forego those specific rights and freedoms (gay marriage, contraception, abortion). “That’s just not American”, in the eyes of most people who have first become aware of the billions in taxes applied for and received by Catholic affiliated institutions.

        And, my final point: I find that some of those people are truly dismayed that the Catholic leadership leaves out its major funding source – taxpayers – when listing its accomplishments and demanding ITS rights. I find that, to many people, it just doesn’t seem like fair play.

        Please forgive me for my lack of response to other parts of your message. My thinking today is focused on this issue of Constitutional rights and amendments and facts I believe Americans need to be aware of as they are think about and ask questions about these things.

        jean

  2. Matthew M Says:

    Well, at least there is still hope, for the rest of us. I Will NEVER agree that the current regime is has not trampled the Constitution. Plain and simple. http://www.ncregister.com/daily-news/ruling-strikes-body-blow-to-obamacare.

  3. Matthew M Says:

    And another viewpoint, which also addresses the state misuse of tax dollars for “unjust war”. http://www.ncregister.com/blog/mark-shea/the-hhs-mandate-and-unjust-war/

  4. I appreciate your informed, thoughtful post. Also lost in all the arm waving about religious liberty is that, contrary to suppositions or assertions to the contrary, the ACA does not force any employer to provide any health insurance plan, let alone one that violates the employer’s conscience. Under the law, employers have the option of not providing any such plans and instead simply paying assessments to the government. The amount of those assessments is considerably less than the cost of health insurance–so much so that, according to recent studies, 10-30% of employers are considering that option for reasons unrelated to religion. Unless one supposes that the employers’ religion forbids payments of money to government, the law does not compel them to act contrary to their beliefs.

  5. I do get that concern with the HHS mandate but I sometimes feel our bishops are acting disingenuously when they said narry a peep during the Iraq ware even over the objections to JP II. How do all the bishops,cardinals and prelates resolve this issue in Europe? Surely they are partaking of the universal health care systems in their countries which most likely mandate reproductive health care services up to and including abortion. Are the players in the Vatican even cooperating with evil when they partake of these universal health care systems? If so, why aren’t our bishops calling them on it? I love the Church and because of that am disinclined to just sit back and give the bishops’ rhetoric a pass. Inconsistencies that go unchallenged allow the mire of relativism to enter even the teaching office of the Church and so I feel it’s alright to put in a wrench of skepticism and a thorn of doubt upon their authority – part of my efforts to think with the mind of the Church if you will…

  6. […] Dat­ing God; (2) LIBERTAS Nevada; (3) The Blaze; (4) Swim­ming Against the Cur­rent; (5) Catholic News USA; […]

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