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?