You Can’t Have it Both Ways: A Clarifying Moment on Religious Liberty

After an initially muddled response to President Obama’s contraceptive compromise in mid-March, the U.S. Conference of Catholic Bishops has called the compromise position–mandating that health insurers cover contraceptives in employee health plans rather than religious institution employers themselves–“unconstitutional.”  The Bishops seem to be spoiling for a fight, Humanae Vitae being at the forefront of their thoughts, well, since 1968.

The Liberal Ironist considers freedom of conscience as foundational to any political perspective founded on Liberalism–that is, with the aim to equipping individual human beings to achieve their potential.  If you are already unsympathetic, this can hardly sound any better: Issues pertaining to freedom of conscience such as religious institutions’ right not to recognize same-sex relationships or to support contraception are no more-parochial than those historically associated with the left, such as religious freedom or the rights of dissent and conscientious-objector status.  The tempests early this year over whether gay marriage or Federally-mandated coverage for contraceptive products by religious institutions threaten the prerogatives of religious organizations strike me as serious even if Democrats consider them mere base-rallying by Republicans.  Whatever political stand you take on them, they demand consideration of whether the demands of personal choice are always individual or can be collective, and how government policy should acknowledge it.  Conservative opinion-makers told us that President Obama foolishly kicked the hornets’ nest when the Department of Health and Human Services announced that religious institutions (aside from churches) would be required by Federal law to pay for contraception for their employees; the Liberal Ironist agreed that the President ignored warnings–including from Vice President Biden and his Chief of Staff–that the policy, instituted under the already-controversial 2010 Affordable Care Act would constitute a serious insult to long-established moral confessions.  (The President’s “accommodation” response–to pass along the responsibility for the cost of contraception to the private health insurers of workers in religious schools and hospitals–has taken much of the heat out of the moral argument but resulted in a Constitutional oddity where insurers are responsible for providing for important health goods and services wherever institutions have by right of their mission moral compunctions for doing so.)  Politically, the issue has swung sharply from being damaging to the President to being damaging to Republicans; the Christian Right has proved that it is not dead and that if it has lost the commanding height of power it achieved under “Compassionate Conservative” George W. Bush, it can still be the tail that wags the dog in the Republican Party, forcing it to take episodic stands on issues that alienate large swathes of the electorate, in this case women.  (The image of a large Congressional Panel, assembled by House Republicans, testifying on contraception which was all-male is as vital a symbol of Republican special-interest callousness as anything; Olympia Snowe’s announcement of her retirement this year, apparently catalyzed by a failed Senate proposal to further restrict employees’ access to contraceptives, is also a bellwether of how Congressional Republicans have marginalized themselves on an issue that initially looked like a clear loser for the President.  From moral blunder by the President to the retirement announcement of yet-another moderate Republican in under a month: My God does politics move fast these days.)

Actually, the legislation that failed in the Senate today deserves its own attention.  The “Blunt Amendment,” as it was called, would have modified President Obama’s Health Care Reform to give private employers the discretion to deny contraceptives through the company health plan–if the employer deemed contraceptives to be at odds with his or her personal moral principles.  The proposal failed, and ultimately the President enacted his compromise: Health insurance companies will pay for contraceptives for policyholders who receive health plans through religious institutions, rather than the religious institutions themselves.  Health insurers accepted this new regulatory demand almost with indifference, apparently reasoning that contraceptives were far cheaper to cover than abortions would be (and retaining the power to simply raise premiums).  Ad-hoc as it was, most concerned agreed that a significant threat to freedom of conscience had been averted.

The compromise the Executive Branch worked-out on contraceptive coverage for institutional health plans reproduces, however graspingly and ad-hoc, the compromise worked-out by the States of New York and Maryland as they passed laws legalizing same-sex marriage: While broad legal changes recognize previously unrecognized or under-theorized individual rights, religious institutions that serve certain purposes regulated by government are personally exempt.  While religious organizations around the country have fought the expansion of same-sex marriage rights in the courts, at the ballot box, and now in State legislatures, their pressuring of the Obama Administration on contraceptive coverage won them exactly the same “parallel policy” treatment towards which they had expressed skepticism on the former issue in New York and Maryland.  (Both of those States legalized same-sex marriage with carefully-worded and much-discussed provisions that religious groups that consider homosexuality sinful behavior would be free to deny marriage ceremonies to gay and lesbian couples.)

Is this a wishy-washy solution?  Sure.  Does it represent moral progress?  Well, yes.  The questions we’re addressing aren’t resolvable by a unified standard or logic.  In the eyes of Richard Weaver (in Ideas Have Consequences) or the early Alasdair MacIntyre (ca. After Virtue), such intractable differences over 1st principles presage the coming anarchy or the next civil war.  In response to the claims of moral purpose religious sects made in the public sphere, the political theorist John Rawls spun out a concept of “public reason”–a deceptively polite request that believers in any metaphysical or moral “comprehensive doctrine” frame their political stances with reference to the dry and supposedly-objective language of the natural and social sciences, which he largely took to be “uncontroversial.”  He originally advanced this idea in book form about 20 years ago; much like his Theory of Justice, it was much-lauded in the academic community and has had strikingly little impact in practice.  Religious groups in many polities, democratic and non-democratic, and where permitted to do so and where not, have become increasingly expressive of their idiosyncratic beliefs.  In a strange mockery of Rawls’ hegemonic “public reason” concept, religious believers often describe politics in supernatural terms, exemplified (though hardly exhausted) when President George W. Bush insisted to Bob Woodward that he didn’t have to consult with his father before launching an invasion of Iraq because he “consulted a higher father”–to a non-believer (or even a dissenting believer, of which there were many) a dangerous abandonment of thought for pure subjectivity.  This has made the religious right a political force for a time but has also inspired a backlash that seems to be gaining strength.  Even if the religious right ultimately results in the political and social marginalization of religious groups, however, the moral cleft issues championed by religious civil society groups shouldn’t be expected to go away.

Why have a 1-size-fits-all answer to social issues?  This may represent a small breakthrough in public policy, but I maintain it presages a consequential shift in our political conception and discourse of social issues.  The Christian Right, which reinforces the enthusiasm (a fitting word which originally meant “God-suffusion”) Republican Party, both facilitates and embodies a pervasive sense of emergency regarding the American abortion regime, gay marriage, and (How to put this?) our popular culture.  The Christian Right has actually become less-popular outside of the Republican Party, and while the United States is becoming more religiously-diverse the proportion of non-religious Americans is among the fastest-growing.  (David Campbell and Robert Putnam theorized in the recent issue of Foreign Affairs that this is primarily a consequence of the partisanship of the Christian Right over the past 20 years.)  When religious organizations demanded different treatment under the Affordable Care Act they had a legitimate grievance, but the issue highlighted that the way for them to maintain their moral mission in a complex society that doesn’t recognize their claims of moral authority isn’t control of but autonomy from that society.  This answer may be deeply-unsatisfying to many religious Conservatives, but they have little to show for their political organization and partisanship over the past 30 years; the political system has changed them more than they have changed society.

To clarify: Maryland’s passage of a same-sex marriage law on the New York model and President Obama’s compromise on the contraception controversy at the beginning of this year brought about a change in my thinking on this issue, and the Liberal Ironist now supports same-sex marriage rather than civil unions.  It is religious organizations, with sentiments based explicitly on supernatural revelation, that will have to ask for parallel institutions rather than the minority groups whose equal status they don’t recognize.  This accommodation of their moral autonomy can be made.  As the Conservative Michael Barone once put it, Americans can live together because they know how to live separately.

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