Wed Feb 27, 2013 - 12:00 pm EST
Why we can’t just ‘lighten up’ over the HHS mandate
February 27, 2013 (PublicDiscourse) - Lighten up! This is the riposte that my employer, the University of Notre Dame, and other like-minded organizations have met with in recent months as they have protested the violation of their religious freedom through the Obama administration’s mandate that they pay for healthcare policies covering contraception, sterilization, and abortifacient drugs.
Critics charge that the protest, manifested most saliently by a lawsuit that Notre Dame and some forty-seven other organizations filed against the Department of Health and Human Services, is unduly fretful and even manifests a persecution complex. They aver that the mandate does not require outfits like Notre Dame to cooperate with evil directly, but rather only to fund insurance policies that enable their employees to commit the acts that Notre Dame regards as immoral.
Cooperation with evil: the concept is invoked most often by Christian supporters of the mandate, who share the faith of opponents but regard them as too uptight. It comes from traditional Catholic moral theology, which forbids “formal” cooperation with evil, where one intentionally supports another’s immoral act, but renders more complex the analysis of “material” cooperation with evil, where one in some way causally enables an evil but does not intend for it to occur—the case of the taxpayer who pays her taxes but regrets that they will support an unjust policy or who votes for a candidate in spite of, not because of, the candidate’s support for an injustice. Material cooperation can be permitted on the conditions that cooperation is sufficiently indirect and counterbalanced by good effects that the same act enables.
Just these conditions are met by the mandate, say supporters, especially in the wake of successive “accommodations” through which the Obama administration has sought to make Christian employers’ cooperation ever more remote—and sought as well to diminish and marginalize the coalition against the mandate. The accommodations have met with considerable success. Each round has brought a new batch of erstwhile public opponents to declare themselves satisfied and their concerns met.
Following the Catholic tradition, I regard the criterion of cooperation with evil as a valid one for a wide range of moral dilemmas, including the one at hand. The debate over cooperation with evil, however, obscures what is most at stake for Christian organizations in the HHS mandate, which is much the same as what has been most at stake for the Christian church in its relationship with the state over many centuries, which in turn is what is most at stake for the church in religious freedom: the right to give witness to the truths that they believe.
To witness means to proclaim or to give testimony for a truth that the proclaimer believes is maximally important. To witness is to communicate a message—in the Christian’s case, that of God’s salvation of the world through Jesus Christ. For a Catholic, this salvation is embodied in, and its meaning for the Christian believer is manifested through, the teachings of the Catholic Church, including its teachings about contraception and the sanctity of life.
Many Protestant churches make parallel claims, with due variations, about the role of the church in salvation. For (many) Christians, then, salvation is achieved through corporate entities as well as the faith of individuals. Consonant with this message, churches and their affiliated universities, schools, hospitals, and orphanages share a duty not simply to avoid cooperating with what is false but to proclaim boldly what is true in both their words and their deeds.
To see how witness stands distinct from cooperation against evil, imagine Patrick, a devout Catholic investor, who lends $1 million to Tony to build a small grocery store—and stipulates that Tony not use the loan to sell pornographic magazines or artificial birth control devices. A year later, Patrick visits the completed grocery store and, lo and behold, finds a nook jutting out from the back wall where just these products are being sold: a sin section.
Patrick confronts Tony, who pleads that he was careful to use his own funds to build this section of the store and did not use Patrick’s loan for it: Patrick should lighten up. Patrick remains unconvinced and steamed. He explains to Tony that these products would not be sold in this store were it not for the loan that built the store in the first place. What is more important, though, Patrick explains, is not his enabling of commerce in these products but the fact that everyone who knows about his investment would be unlikely to make the careful distinction that he didn’t pay for the sin section. Rather, they will wonder why a devout Catholic such as he invested in something so contrary to his beliefs. His reputation and his commitment to living his life as a witness, not simply avoiding cooperation with evil so as to keep his hands clean, is what is most important to him.
The right to witness to the truth of salvation is the heart of the right to religious freedom. Religious freedom is the right to be religious, that is, the right of individuals and organizations to live, practice, and express their religious beliefs. It is a right found in the most important international law documents and, of course, in the First Amendment of the US Constitution. Religious freedom is not absolute, of course, and its boundaries and gray areas are continually contested in the courts. American courts, though, have always understood religious freedom to protect something far wider than the right not to materially cooperate with evil, including, quintessentially, the right of religious people and organizations to give witness to their convictions.
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When religious organizations are required to enable behaviors contrary to their beliefs, even when this enabling is somewhat indirect, they are in fact being required to perform a contradiction by associating themselves closely with deeds that undermine what they aim to profess. Consider the case of Notre Dame. The Catholic Church authoritatively prohibits contraception, teaching that an intrinsic purpose of sex is to beget life, an end that a person ought never to impede. The Church holds that abortifacient drugs destroy a person’s life. To force a Catholic university, which by definition commits itself to manifesting the teachings of the Catholic Church, to promote these actions is to force it to compromise its very witness to the character of life lived in fellowship with the resurrected Christ—indeed as this life might be lived by its own employees. Notre Dame and its fellow plaintiffs cannot lighten up.
The skeptic will retort that the witness dimension of religious freedom does not escape from and only pushes back the problem of cooperation with evil. Religious persons of all stripes, after all, might claim that the message of their faith is contradicted when they pay taxes to a government that acts contrary to their religion. Yet, the skeptic will point out, few religious people in fact refuse to pay their taxes and most may pay them justifiably as long as they do not intend to support the policies they believe to be evil. Religious witness is undermined only when cooperation with evil is either formal or of the unjustifiable material sort. If that is the case, says the skeptic, then the problem of evil is again our main concern. The freedom to witness adds nothing to the picture.
I do not deny that assessing cooperation with evil is important. In my view, the revised regulations that the Obama administration issued earlier this month go some way toward alleviating the problem, at least for some religious employers (while still failing to include religious business owners, for instance). I also contend, though, that the HHS mandate continues to compromise the witness dimension of religious freedom. Even if policies separate from those provided by employers are issued to cover contraception and abortifacient drugs, as the new regulations allow, these policies are still tied closely with employees’ plans and thus compromise Notre Dame’s ability to witness against the use of these products. It is as if Tony sought to assuage Patrick by reconstructing his sin section as a tiny hut one foot away from his grocery store.
The mandate’s interference with the freedom of Notre Dame and others to witness to the truths of their faith enhances the case against it far beyond the problem that material cooperation expresses. That is, even if we were to grant for the sake of argument that the algorithms of cooperation with evil yield up an ambiguous moral conclusion, it remains the case that the HHS mandate violates religious freedom in the far more fundamental sense—namely the right of religious organizations to perform what is most important and distinctive about their religious mission. This consideration, I believe, puts the debate about the HHS mandate over the top on the side of Notre Dame and its fellow critics.
Daniel Philpott is Associate Professor of Political Science and Peace Studies at the University of Notre Dame and a scholar with the Religious Freedom Project of the Berkley Center for Religion, Peace and World Affairs at Georgetown University. This piece is a revised version of one that was commissioned and originally posted by the Religious Freedom Project and can be found here.
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