The First Casualty of War

In their April 12 statement on religious freedom, Our First, Most Cherished Liberty, the U.S. Catholic bishops “address an urgent summons to our fellow Catholics and fellow Americans to be on guard, for religious liberty is under attack.” Among the bishops’ critics is Nicholas Cafardi, former dean of Duquesne Law School, who wrote a particularly skewed account of the bishops’ statement. In a June 1 article, Cafardi all but called the bishops hypocrites for claiming that religious freedom was absolute when it came to the HHS mandate and other “right-wing political causes,” while compromising that freedom when it came to remedies for their mishandling of clergy abuse. Cafardi asks: “If some bishops consented to give up some religious freedom when threatened with an unacceptable alternative”financial ruin, maybe even jail time”then why is there no room for accommodation to comply with the healthcare law now?”

But the bishops did not claim that religious freedom is absolute. What they said is that “An unjust law cannot be obeyed. In the face of an unjust law, an accommodation is not to be sought.”

The bishops believe that the HHS mandate is an unjust law because, even if costs for contraceptives are not passed on, a religious employer’s contract with a health care plan will ensure that employees and their dependents receive ongoing coverage for services the bishops have consistently taught are immoral. Thus, the mandate will compel employers’ cooperation with a practice considered evil. Since coverage of contraceptives is automatic, objecting employees will have no choice whether their health plan includes such services. Further, since the privacy of participants and their dependents who use contraceptives is protected, the mandate will enable teens to obtain sterilizations, potential abortifacients, and other FDA-approved contraceptives without charge or their parents’ knowledge and consent.

The bishops also highlighted the Alabama law that makes criminal the harboring of undocumented aliens. Because it prohibits the Church from offering these people the sacramental and pastoral care that is its core mission to provide, the bishops consider this law unjust.

The bishops further condemned the Connecticut plan to alter dioceses from a hierarchical to a congregational structure. Had it passed, the legislation would have compelled the Church to disregard core theological doctrine, the headship of Christ over His Church, in establishing its ecclesial structure.

These are not right-wing political causes. Bowing to pressure would involve culpable cooperation with evil, abandonment of the Church’s core mission, and alteration of its fundamental structure. In contrast, submitting to a measure of supervision as protection against clergy abuse and declaring bankruptcy to preserve assets to finance church ministries, the examples of “compromise” Cafardi offers, are not in themselves cooperation with evil or in violation of core church values.

The bishops list other examples of government action they consider unjust. In several locales, Catholic Charities lost its license or government contract to provide foster care and adoption services because it refused to place children with same-sex or unmarried opposite-sex couples. Further, the federal government changed its contract specifications for agencies administering to victims of human trafficking, requiring provision of or referral for contraceptive and abortions services, thus ending years of participation by the U.S. Catholic Conference.

The bishops’ concerns are not limited to wrongs against the Church. For example, the Hastings College of Law, part of the California University system, denied the Christian Legal Society funds and use of school facilities offered other student groups because CLS required that its members be Christian and abstain from all pre-marital sex, including homosexual conduct.

These examples, the bishops fear, are part of a calculated scheme to exclude religion from the public square and cabin it in the home and the sanctuary, restricting religious liberty to freedom of worship, thus in effect endorsing “faith without works” as the orthodox course. As Justice Scalia once quipped, religion is then treated as “some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one’s room.”

They say that truth is the first casualty of war. The bishops should expect further misstatements of their positions as the battle for religious freedom proceeds. I have confidence such distortions will not deter them from speaking the truth, even when the shots against them come from behind.

Stephen L. Mikochik is professor emeritus, Temple University School of Law, and visiting professor, Ave Maria School of Law.

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