Defending Religious Liberty

Notre Dame teaches physics and philosophy, and so does the University of Chicago. Both raise money, field sports teams, and maintain their buildings. Aside from a few peripheral activities, how do they differ? Not much. So the Obama White House has concluded that places like Notre Dame are religious only in an indirect and attenuated sense. Insufficiently sectarian, as it were, they don’t qualify for the full protection of the Free Exercise Clause. Therefore, they must conform to the recently formulated HHS mandate that requires employers to provide insurance coverage for sterilization, contraceptives, and abortion-inducing drugs.

This treatment of religion is not entirely new. In the years after World War II, the courts reinterpreted the Constitution so as to prohibit generic prayers in schools and restrict pious displays on public property. Nobody denied the importance of religious liberty. The disputes turned in large part on what counts as religious. For a long time the consensus was that we could not establish a particular denomination or require adherence to a specific set of doctrines. But the consensus shifted, and the courts decided that for the purposes of establishment, which the Constitution prohibits, any religious expression is suspect. The outcome: a more secular public square.

Now, when it comes to the free exercise of religion, we’re seeing arguments that what counts as religious should be more narrowly defined: churches, yes, but religious schools and agencies, no. This also leads to a more thoroughly secular public square. The narrower view exposes formerly protected religious institutions to greater government control, compromising their ability to function in accord with their distinctive religious missions.

The Catholic bishops have reacted so strongly to the mandate because they see the implications. If the mandate is upheld, then precisely to the degree that Notre Dame and other Catholic institutions are engaged in serving society”educating, caring for the poor, healing the sick”they can be commanded to serve the purposes of the state. The fact that Catholic doctrine is not inwardly turned and sectarian, but has a great deal to say about the why and how of education, health care, adoption, and much more, is of no moment, at least not in the eyes of those seeking to subordinate Catholic social doctrine to the imperatives of the White House.

We can see the same effort to define religious identity more narrowly in the Justice Department’s arguments before the Supreme Court in the Hosanna-Tabor case. The central issue in that case was the “ministerial exemption,” a legal formulation that describes the special freedom that religious institutions enjoy, exempting them from various labor laws and regulations that would interfere with their discretion about whom to hire as ministers. For example, employment law prevents a company from discriminating on the basis of sex, but in the selection, training, and ordination of priests, the Catholic Church can.

In Hosanna-Tabor, the Equal Employment Opportunity Commission argued that the teacher who brought the suit was largely engaged in the activity of teaching secular subjects, and therefore was not exercising a uniquely religious ministry. She was a secular employee, not a religious one. Therefore, the religious school that had employed her was bound by the employment laws that were the bases of her lawsuit.

The logic of the EEOC’s case is plain to see. The narrower the ministerial exemption, the more control legislators and regulators have over intermediary institutions such as religious schools, hospitals, and social service agencies, something the EEOC lawyers argued is necessary to ensure that injustices are not perpetuated. The broader the exemption, the more control religious authorities have over institutions, ensuring that they remain true to their missions.

In a unanimous decision, the Supreme Court rejected the Justice Department’s arguments, reaffirming an expansive rather than constrained view of the ministerial exemption. The decision represents an important victory for religious freedom. The government cannot define who does and does not count as a minister. Hopefully the Court will come to the same conclusion about similar efforts by the Obama administration to define what does and does not count as a religious institution deserving of full constitutional protection.

No matter what the Supreme Court decides, these efforts to reduce religious freedom will not go away. In his contribution to a useful forum in Commonweal taking up the Catholic bishops’ recent statement on religious liberty, “Our First, Most Cherished Liberty,” William Galston makes an important observation. “It is a mistake,” he writes, “to speak of ‘freedom of religion’ as a fixed concept in American culture or constitutionalism. The phrase delimits a zone with a contested periphery.” As the social consensus changes, the boundaries of religious freedom are redrawn.

Many of the founders were at best ambivalent about the dogmas of Christianity. But they affirmed the general consensus of their time. “Of all the dispositions and habits which lead to political prosperity,” George Washington said in his Farewell Address, “religion and morality are indispensable supports.” Differences of dogma and doctrine aside, by this way of thinking, religion is a fundamentally good thing. Our elites in the twentieth century began to take a different view. Religion (read: Christianity) has too much power over society, they thought, and so it needs to be pushed out of the public square. That’s why the Establishment Clause was reinterpreted in a more expansive way.

This negative view of religion has become even more powerful and widespread. Today, many worry that religion leads to an uncritical dogmatism that conflicts with the spirit of critical inquiry and scientific culture. Religious conviction, they warn, promotes intolerance, and with intolerance comes conflict, and often violence. Even when peaceful, religion stands in the way of moral progress. Religion is at odds with an “inclusive” society, we’re told, because its traditional views on sex and marriage conflict with progressive goals of sexual liberation. As Christopher Hitchens put it, “Religion poisons everything.”

In American Grace: How Religion Divides and Unites Us, their recent book about contemporary religious belief and practice, Robert Putnam and David Campbell show that what Hitchens said so bluntly reflects what many secular people now think. Being themselves largely religious, most Americans think religion is a good influence on American life. However, “only about a quarter (24 percent) of the most secular tenth agreed that religion has had a positive influence on American life.” These folks don’t agree with George Washington. For them, religion, which again almost always means Christianity (and lately fundamentalist Islam), is among the evil legacies of a benighted past that our society must deal with. Moreover, this cohort has grown. A government survey in 1957 found that only 3 percent of Americans said they had no religious affiliation. By 2008, 17 percent said so.

Meanwhile, the rest of America has not followed suit. The percentage of those who say they attend church weekly (around 33 percent) has remained roughly the same over the last fifty years. This striking combination of a dramatic increase in irreligion with an equally remarkable continuity of religious commitment goes a long way toward explaining our culture wars, including the current collision between the Obama White House and the Catholic bishops. The secular 17 percent believe that they will inherit the earth, and they are angry that religious believers aren’t accepting their birthright. Yes, very angry, and willing to do what it takes to push aside the ongoing influence of traditional religious and moral beliefs.

In this context, religious believers should not put their trust in the supposed fair-mindedness of liberals. From their point of view, asserting greater government control over religious institutions is necessary to ensure justice, and involves a legitimate reinterpretation of the boundaries of religious freedom guaranteed by the Constitution. Moreover, although the current justices seem very concerned about protecting religious freedom, given the plasticity of constitutional interpretation, which tends to bend to elite opinion over time, we should not rely on the Supreme Court. Our secular elites increasingly tend to think that religion is a force for evil, and they will continually test the limits of the Constitution.

In this effort we must meet them head-on, not only in the courtroom but also in the public square. We need to assert not just our rights to religious liberty but also the benefits that our religious institutions extend to others. We need to bear witness to the many ways in which religious belief and practice are very, very good things for society as whole. That’s one reason why the Catholic bishops’ challenge to the HHS mandate is so important. Religious institutions of all sorts need to make their contributions to the common good in education, health care, and elsewhere precisely as religious institutions, and not as secular institutions that just happen to have been founded, supported, and run by religious believers.

Theology’s Proper Humility

Theology claims to be the queen of the sciences, the master discipline that provides the deepest and most penetrating answers to our most important questions. And yet it does not reach up to the true, the good, and the beautiful, but instead attends to the particular details of salvation history. Christians treat Christ as the way, the truth, and the life. Jews look to the Law given on Sinai. Reflection turns downward and contracts our attention. Theology humiliates the mind.

This works against the grain of our natural impulses. The human mind is programmed to ascend. Thus, in one of his dialogues Plato has Socrates guiding us from the beautiful body of a particular person to the more enduring beauty of a marble statue and finally to the eternal and changeless ideal of beauty. This movement is characteristic of philosophy. If we can see things in their most general aspect”seeing what makes humans human, or what makes truth true, or what makes right right”we’ll be in a much better position to live well. Seeking to attain the most universal perspective, something even the skeptic tries to do with his negative conclusions, philosophy exalts the mind.

Origen was perhaps the greatest speculative thinker in all of Christian history. Yet his theology bends the mind downward. As he writes at the outset of one of his most important works, we should draw wisdom “from no other source but the very words and teaching of Christ.” He wants to realize as best he can the words of St. Paul in Corinthians: “We destroy arguments and every proud obstacle to the knowledge of God, and take every thought captive to obey Christ.” Our goal should be to see things in their Christological aspect, as it were, which means seeing how his life, death, and resurrection make truth true. In this, Origen is typical of the theological tradition as a whole. It affirms a version of the scandal of particularity, in this case the entirely counterintuitive claim that the most intellectually powerful point of view is not above but below.

By and large, modern theologians have found this kenosis, or humiliation of the mind, difficult. They want to tell people what the Gospel is “really about,” which has meant placing Christ into a universal frame of reference: a general theory of religious experience, a concept of social justice, a vision of universal history, and so forth. Anxious about and often embarrassed by the parochial character of revelation, modern theologians have tried to make theology relevant. They have wanted their work to be part of the supposedly larger conversation. This has encouraged us to ascend to the universal rather than descend in thought to Christ crucified.

But descend we must. Theology is a form of obedience, which is why Karl Barth pronounced it “a modest undertaking.” It’s a claim not falsified by the vast scale and vigor of his remarkable work, or by the fact that theology affirms divine truths with utmost confidence. It is modest because submissive, bending down to the given facts of revelation rather than rising up to the heights of the universal.

There is a second and related sense in which the vocation of theology humiliates the mind. Because of its commitment to the supremacy of reason, philosophy claims to cure our souls. Ancient philosophers were clear about this. They consciously presented their teachings as therapies. Although the Stoic, Skeptic, and Epicurean disagreed about the ultimate truth of things, they agreed on one key point, the one that makes philosophers philosophical: If we reason rightly, we will not suffer unnecessarily, nor will we fear death. In this way, these ancient philosophies promised a kind of salvation.

Academics today are less self-aware, but they make a similar claim: If we think clearly and critically, we will not be duped. Unmasking and deconstructing frees us from the oppressive power of the past. Even moral relativism promises a kind of therapy. When we see that there are no deep truths, we find peace and calm. If nothing is worth fighting for, then nobody will fight. If there are no moral truths, then we can live without the disturbances of judgment, guilt, and shame. Thus do the philosophers of our age promise salvation.

As an intellectual discipline, theology makes no such promises. The sacred Scriptures and sacramental life of the Church cure our souls, not theological reasoning. This makes theology more like jurisprudence than philosophy. A professor of law can organize and clarify the complex history of court decisions, but he cannot administer justice. Only the actual work of judges does that. The same holds for the cure of our souls. We can theologize about the Eucharist”often for good reasons and with good consequences for the proper order of our communal practice. But it’s the actual work of the liturgy that brings to us the healing presence of Christ.

This humility”the realization that our work is not, at the end of the day, the central and fundamental work of salvation”is very important. Theology need not be proclamation with footnotes. It need not be preaching through syllogisms, a tendency sometimes encouraged by Karl Barth. It can be undertaken in the obscure corners of canon law, or in close study of the history of the church, or in the rarified reaches of Trinitarian theology. Because theology is second-order rather than first-order, a discipline that serves what saves rather than offering salvation, it is free to be detailed, practical, and even pedestrian. And because it does not do the work of salvation, theology is free to be contemplative.

These are among the reasons why religious ways of thinking are so important for a free, healthy society. The ideological mind is in an important sense philosophical. The spirit of philosophy encourages us to believe that above all we need to reason rightly. This tempts us to become a jihadist for certain ideas. So much is at stake! We owe it to our neighbors to bring them to the right understanding of things!

The humility of theology combats this tendency. The queen of the sciences does not pretend to rule over hearts. She knows that our souls are in the care of our churches and synagogues, not our ideas.

Serving Our Hearth Gods

Having conquered cigarettes, New York City Mayor Michael Bloomberg has launched a campaign against sugary drinks. The media has made fun of his proposed ban on large soft drinks, mocking his neo-Puritanism. Many of my friends are inclined to shake their heads in disbelief.

I’m not so skeptical. Bloomberg’s proposed regulation shifts us from a Nanny to Schoolmarm State, but that’s what many want. The government pays for treating some of the health problems that arise from widespread obesity. So advocates lobby for intervention and regulation. They want us to shift from treatment to prevention: root causes and all that. The Nanny needs to be less indulgent and more demanding.

This is not a novel idea. Modern ideas of public health were developed more than a hundred years ago, and they led to sanitation requirements, mandatory inoculations, isolation of the contagious, and much more. Obesity has recently become a serious problem, which is why health officials have been advocating for some sort of public response.

And it’s not a surprising idea either. Over the last twenty or thirty years, our upper-middle-class culture has become a servant of health. Professional men and women in New York offer daily sacrifices in countless gyms that are veritable temples consecrated to the body. The New York Times and the Wall Street Journal have special weekly sections on health. Young parents worry compulsively about the health and safety of their children.

These same people also do unhealthy things. Working seventy hours a week for a high-powered law firm is not good for one’s health. Nor is a work-hard, play-hard mentality that hits the bars. Nor is sexual license.

These contradictions are perhaps inevitable. Our elite culture serves a trinity of hearth gods: Health, Wealth, and Hedonism. We propitiate them all, which requires managing their demands as best we can. Work demands long hours, which cuts into gym time, thus shifting us to lite beer on the weekends. Polytheism is complicated.

Bloomberg’s campaign against sugary drinks is even more likely to succeed because the same elite culture has become fixated on food”which serves both the gods of Health and Hedonism. The rich and powerful are concerned about eating the right kinds of foods grown by the right people in the right way. Restaurants no longer tout their steak according to its USDA grade (prime!); instead, we are informed that it is “grass fed” and “locally sourced.” Eggs come from “cage-free chickens.” Bread is baked with grain grown in a “sustainable” way. And of course as much as possible is stamped “organic.”

This anxious and moralistic approach to food produces the social conditions for imposing exactly the sorts of regulations Bloomberg wants. Elites may talk “choice” and “liberation,” but they don’t hesitate to coerce when they think the gods demand it.

They especially don’t hesitate when they find the behavior and appearance of the lower classes repugnant. I have friends for whom the very thought of eating at McDonald’s makes them feel vaguely sick. And they respond to obesity with visceral recoil, and often moral outrage.

So, yes, we’ll have Bloomberg’s Schoolmarm State, at least when it comes to the fixations of our leadership class, which include food and health. Over the last forty years, an elite-driven anti-smoking campaign turned a widespread pleasure into a highly regulated taboo. Something similar is in our power when it comes to food and eating habits.

Why not sexual mores, norms for family life, and attitudes toward divorce? The success of campaigns in the service of health shows that we can. But, of course, at present we won’t. The hearth god of Hedonism says no.

Yes, but the true God has smashed idols in the past.

Bending the Knee

His work as a community organizer in poor neighborhoods impressed on David Blankenhorn a simple fact: Children flourish when parented by their biological mothers and fathers. Traditional marriage turns out to be best for kids, a truth that has been amply verified by sociological studies, some of which have been conducted by the Institute for American Values, the nonprofit he founded 1987. So if we care about kids, we should strengthen traditional marriage by discouraging serial cohabitation, working against the divorce culture, and resisting the push to redefine marriage for the sake of gay rights.

Or so Blankenhorn thought. As we learn in his recent New York Times op-ed and NPR interview with Mark Oppenheimer, longtime marriage advocate David Blankenhorn has changed his mind about gay marriage. Sort of.

The homosexual marriage movement redefines marriage so that it has nothing to do with reproduction and children, but instead reflects the desires of adults. By this way of thinking, marriage is a private personal relationship. From this it follows that we must be “fair,” which means “respecting everybody’s choices.”

For more than two decades, Blankenhorn has worked against defining marriage in terms of my choices, because it reflects a widespread pattern of neglecting the needs of children for the sake of satisfying the desires of adults. No-fault divorce provides the most obvious example, but so does the gay-marriage movement. As he wrote in The Future of Marriage, “The weakest support for marriage as an institution is in those countries with same-sex marriage.” Meanwhile, “the most support is in countries without same-sex unions.” Correlation does not prove causation, “but correlation is important. Correlations show that certain things tend naturally to cluster together.”

Blankenhorn hasn’t really changed his mind about that. “I’m not recanting any of it,” he says in the Times. Instead, he’s decided it’s not important enough to stand in the way of gay marriage. It’s time for “bending the knee a bit,” accepting gay marriage as inevitable rather than fighting it.

He’s always believed in “the equal dignity of homosexual love.” Now “the time for denigrating or stigmatizing same-sex relationships is over.” Legalizing gay marriage will be “a victory for basic fairness.” But more decisive are his changed views of American society. Thirty states have passed constitutional amendments defining marriage as being between a man and a woman, but as he correctly points out, “most of our national elites, as well as most younger Americans, favor gay marriage.” They can’t be resisted, he concludes, and so it’s best to join ’em. His hope? “Instead of fighting gay marriage, I’d like to help build new coalitions bringing together gays who want to strengthen marriage with straight people who want to do the same.”

Good luck, David. The push for gay marriage has consistently been framed in terms of equal rights, not expanding or strengthening a culture of marriage. When it comes to the culture of marriage, most gay advocates want us all to affirm “alternative households” across the board. Is this good for children? Who cares. In the Nation, Richard Kim writes, “I think all the debates over which type of family produces the best outcomes for children ought to be meaningless as a matter of state policy.”

Certain things do indeed naturally cluster together.

From the Editor’s Desk

This issue is the first under the direction of our new managing editor, Lauren Wilson. A graduate of the University of Dallas, Lauren worked at Public Discourse, the Witherspoon Institute’s fine online journal, and more recently the Philanthropy Roundtable. She’s cool under fire, and I can report from personal experience that she’s the sort of managing editor who knows how to manage editors. We’re very happy to have her on our team.

We are also fortunate to have two summer fellows this year: Sebastian White, O.P., on loan from the Dominican House of Studies, and Sasha Tatasciore, living here in New York for the summer before returning to graduate study at Duke. Thanks, Brother Sebastian and Sasha.