Where do U.S. Catholics stand on the “first freedom,” now that the Trump administration has fulfilled its pledge to deliver a broad religious exemption for the Health and Human Services’ contraceptive mandate? And where should we put our energies as fellow believers continue to face powerful headwinds in the culture and the courts?
The commitment of the U.S. Conference of Catholic Bishops to the cause of religious liberty remains undiminished. Just weeks before Christmas, Cardinal Donald Wuerl of Washington, D.C., went to court to defend the local Church’s right to post ads on the city’s subway and bus system that invited riders to take part in the Christmas season, after Metro authorities ruled that the ads violated the transportation system’s policy of barring messages that promote religion. But there are also hints of simmering internal divisions on this issue. And few would question that a robust legal and legislative strategy, while essential, should only constitute one part of a much broader effort to promote religious freedom.
In late October, the University of Notre Dame celebrated the conclusion of its legal challenge to the Health and Human Services’ mandate, after the Trump administration issued its exemption to the federal law, which had required Catholic institutions to provide cost-free contraceptives in their employee health plans — or agree to an “accommodation” they also opposed on moral grounds. But just over a week later, Notre Dame, the most visible Catholic university in the United States, announced that its faculty would, in fact, receive cost-free contraception and related services.
A university spokesman said the decision respected the diverse beliefs of its faculty and that Notre Dame would not be complicit in the provision of contraceptive services because the third-party administrator of its self-insured health plan would pay for the coverage. This stance was puzzling, as Notre Dame’s lawyers had previously argued in court that the adoption of a similar plan would violate its religious beliefs and so cause scandal.
“We rejoiced when Notre Dame united with us in our expression of deep concern that the federal government was intruding on the realm of conscience,” said Cardinal Timothy Dolan of New York in a published interview. But now, he added, the university seemed to be saying the legal fight “wasn’t all that important.”
A week after Notre Dame’s reversal, Bishop Robert McElroy of San Diego gave a speech at Georgetown University that affirmed the importance of religious freedom and called for a “reconversion” of the culture to deepen respect for this constitutional right. But the bishop also admonished those who pushed this campaign too far. In his speech, the bishop characterized what he described as the two major positions on religious freedom in an equally negative light. “The first seeks to … reduce the freedom of religious communities to the freedom of worship,” he said. “The second seeks to maximize the exercise of religious conscience in society, undercutting the legitimate role that government has in advancing the common good.”
According to media coverage of his speech, Bishop McElroy offered no concrete example of a “maximized” defense of religious liberty that undermines the “legitimate role” of government. But it is likely that the progressive San Diego bishop was echoing previous criticism of the U.S. bishops’ 2012 decision to push back hard against the HHS mandate and green light legal challenges to the federal law. At the time, critics of the bishops’ conference warned that the lawsuits would provoke a backlash against the Church and taint the cause of religious freedom. Today, no one would deny that the HHS mandate battle marked a new opening for culture warriors on both sides of the partisan divide.
This month, as a Christian baker went to the U.S. Supreme Court to defend his right to refuse to bake a wedding cake for a same-sex couple, faith leaders generally registered their support, while civil-rights activists opposed his legal argument as a “license to discriminate.” The baker’s allies have reason to hope that the high court will rule in his favor, just as it issued a legal victory for Hobby Lobby, the for-profit Christian-owned craft-store chain that filed suit against the mandate, and just as it delivered a supportive judgment for the Little Sisters of the Poor. These legal victories confirm that the U.S. bishops were justified in resisting the mandate legally, in addition to morally. In the months and years ahead, the U.S. bishops’ judgment and resolve on this matter will continue to be tested, now that the states of California and Pennsylvania have filed suit to block the Trump administration’s religious exemption for the HHS mandate, prompting the Little Sisters of the Poor to return to court again (see related page-one story).
But legal battles won’t be enough. Catholics must do a better job of explaining why the Church and the nation need religious liberty.
“There have been ongoing challenges and questions about whether religious liberty is just a cover for discrimination,” Archbishop Joseph Kurtz of Louisville, Kentucky, the U.S. bishops’ newly elected point man on religious freedom, told the Register. “Shame on us if we cannot positively promote what we once took for granted.”
Archbishop Kurtz acknowledged the need for a “positive,” stepped-up plan of catechetical and cultural engagement as the influence of the “Nones” — Americans with no ties to organized religion — steadily grows.
The rise of the “Nones,” he said, helps explain why the nation is becoming indifferent to the plight of Christians who could lose their businesses if they stay true to their beliefs.
U.S. Catholics, and storied institutions like Notre Dame, need to deepen their own appreciation for the gift of religious liberty and its rich history in the land of the free. We should be able to explain how religious freedom, the foundation of all our civil rights, secures human dignity and the common good. “A society that clamps down on community-based organizations and families is never going to be a just society,” Archbishop William Lori of Baltimore, who led the first campaign against the HHS mandate, told the Register. The most sustainable way to build respect for this fundamental right, he said, is to remain vigilant and to evangelize and catechize.
“It is so very important to understand this not as an abstract ideological fight or a partisan fight,” he concluded, “but as something that is affecting flesh-and-blood human beings.”