Readers may have been following with varying degrees of concern the recent ruckus concerning the Department of Health and Human Services in the United States, requiring all employers, including Catholic institutions, to make provisions to make available contraceptives and possible abortifacient drugs as part of their health insurance plans. One of the most prominent themes that is featuring in the predominantly Catholic response to this measure is a condemnation of the Obama administration’s failure to respect the freedom of conscience as protected by the American Constitution.
Much ink has already been spilled on the issue of whether the Obama administration can properly force the Church to contradict itself on life issues. This would not be revisited in this post. What this post will focus on is the question of whether the strategy of appealing to the freedom of conscience and religion is a sound line of defense for the Church. In other words, does the basis on which the Church in America is deploying its criticism properly to the Christian Church, and can the Church successfully defend itself using this strategy? Such a line of questioning has implications not only for the American situation, but also for the Church in any country espousing secular liberal values.
Patrick Deneen of the Front Porch Republic has this week written a post on this very question. In it, Deneen argues two points quite compellingly. The first is that the use of the tropes of freedom of religion or conscience are not ones that inherently come from the Christian tradition. Rather, they are tropes that emerge from modern liberalism, to which the Church as grafted onto itself and taken on as its own. The second is that such a strategy will fail the Church. These two points, and the possible motivations for the Church’s adopting this strategy is summarised in the paragraph below
The response of American Catholics to the HHS mandate has (perhaps necessarily) been framed in dominantly liberal terms that give it a chance of receiving a hearing in today’s public sphere and within its Courts. But it should be acknowledged (as the response to the “Compromise” reveals) that the Church will ultimately lose the argument simply due to the fact that the way it is framed already represents a capitulation to liberal premises.
Although this is not mentioned in the post, the key premise to which the Church has capitulated is that the protection of the supposed freedom of religion and conscience it enjoys is completely dependent on the goodwill of the secular sovereign. Political liberalism as it has evolved to this day is not designed to protect anything that is inherent or universally recognisable (as many critical and postmodern analysts have maintained). The protection of any right or freedom that is inherent would in turn depend on a particular vision of the human person, to which is also enjoined the acceptance of a particular philosophical or theological tradition. The problem here, as John Rawls has made quite clear in his work, is that political liberalism gets its legitimacy precisely because it posits itself as not upholding any tradition. With no set telos, what the State upholds or repeals very much depends on, as John Locke would have it, “whatever the greater force compels it”. Indeed, as Slavoj Zizek once noted, in many liberal democracies freedom itself can paradoxically be repealed by the ruler if the ruler deems that freedom can be protected in this way (witness the imprisonment of citizens of Japanese decent during the Second World War, or the extra-judicial detainment of its own and other citizens in Guantanamo Bay in the execution of the “War on Terror”).
Are there any other ways to conceive of a defense of the Church’s current employment plan? A possible starting point is a paragraph in Benedict XVI’s first encyclical Deus Caritas Est. In paragraph 25, Benedict makes a profound ecclesiological statement, by positing three interlocking pillars that together constitute the Church: kerygma-martyria (the proclamation of the word), leitourgia (worship, although it should be more broadly defined to its original meaning of “public work”) and diakonia (service to the poor). For Benedict, the Church ceases to be discernible if anyone of these components becomes obscured, even if it is done for the sake of better facilitating the other two. Indeed, the interconnectedness of each of these pillars suggests that if one gets compromised, the performance of both the others get similarly curbed.
In light of this reflection, it can be argued that the current HHS Mandate is more than a mere administrative measure, but an ecclesiological attempt by the secular sovereign to redefine the Church itself, in a way that suits the ends of the secular sovereign. If the Church’s health insurance plan is an act of either, diakonia to assist its employees in the face of an unfavourable healthcare situation (as a viewing of Michael Moore’s Sicko would amply demonstrate) or leitourgia to create the space for a conception of a public in keeping with the vision of the Kingdom of God, then the HHS mandate constitutes an attempt to redefine the competences of the Church in both these areas. It redefines diakonia by claiming that it is the State, and only the State, that has authority in providing for the poor. It redefines leitourgia because the State is disengaging the Church’s public vision from its worship by confining leitourgia to mere worship within the four walls of a church hall. To paraphrase William Cavanaugh, the HHS Mandate can be conceived as an attempt for the State to set itself up as an alternative ecclesia by usurping functions that are properly within the ambit of the Christian Church. And Deneen’s article suggests that the Christian Church is allowing for such an ecclesiological usurpation by using the strategem of defending “religious freedom”.
The upside of deploying an ecclesiological line of defense is that this forms a much more robust foundation for the Church’s response to the HHS Mandate: the current administration is not merely violating some “freedom” that it can remould at a whim at any rate. The Mandate is also trying to usurp the means that redefine what constitutes the Church itself. The downside is that such a basis sets the Church on a collision course with the secular liberal status quo, since there would be competing claims to particular competences, and this would very much undermine the Church’s comfortable compromise with that status quo. The question that can be asked at this point is whether, in light of the unbounded capacity afforded to the secular sovereign within the framework of political liberalism, such an arrangement has so compromised the basis for the Church’s activity as to be worth maintaining as far as the Church is concerned.