U.S. Intellectual History Blog

Machinations of Religious Liberty

In 1965, a relatively young Catholic layman and University of Notre Dame law professor named John T. Noonan, Jr. published a much anticipated study of the Catholic Church’s history with the issue of contraception. I call your attention to the term “history” because it was that aspect of Noonan’s work that was at the center of an emerging debate. In John T. McGreevy’s excellent and nearly classic text, Catholicism and American Freedom, he situates the reception of Noonan’s book within a debate among heavyweight Catholic theologians over the relationship between church doctrine and the acids of history. McGreevy writes: “Noonan…traced a twisting doctrinal path, stressing that any fair reading of the history could not ‘look at doctrinal development as an automatic unfolding of the divine will.'” (241) At issue was whether the Catholic Church could accept a reality of its present–Catholic women and American Catholics in general were using contraception and no longer seemed concerned about the church’s ban on it.

Noonan’s argument enraged some moral theologians, especially John Ford, the American priest who was on a birth control commission appointed by the pope and who carried on a fight to preserve the church’s official opposition to contraception through to the release in July 1968 of Humanae Vitae. Ford’s position had become a decidedly minority one among members of the birth control commission and, following the reception of the 1968 papal encyclical, of Catholic theologians in America. Perhaps somewhat forgotten in the church’s opposition to birth control, was an exchange between Ford and John Courtney Murray, the most well-respected Catholic theologian in America, over religious liberty.

In 1965, at almost the same time as the release of Noonan’s book, Murray had helped Boston’s Cardinal Richard Cushing craft a statement on contraception that characterized it as a “practice that can be considered a case of private morality.” Murray had written to Cushing that the function of civil law was not “to prescribe everything that is morally right and to forbid everything that is morally wrong.” In order to respect the liberty of religious groups–many of which had supported the legalization of contraception for women–Murray concluded that it was advisable for the Catholic Church to stop using the state to enforce a doctrine put forth almost solely by the Catholic Church. To use David Sehat’s term: Murray counseled Catholics, at least on this issue, to disengage from the “moral establishment.”

Murray took this position because, as McGreevy explains, he had begun to develop a view of moral theology as historically contingent. Bernard Lonergan, an influential Jesuit theologian from Canada, had given Murray terms that he could use to understand a “belief in an ‘objective’ truth, while recognizing that truth also remained an ‘affair of history.'” When applying such reasoning to contraception, Murray concluded that the church had “reached for too much certainty too soon, it went too far. Certainty was reached in the absence of any adequate understanding of marriage.” And, it seemed, in the absence of an adequate appreciation of religious liberty.

McGreevy hammers that last point in a stunning revelation about an exchange between Ford and Murray just before the latter’s death. McGreevy recounts:

“Upon reading a report of the talk [by Murray on contraception], Ford immediately asked his old friend for a copy. Murray responded, disingenuously, that he had not given a talk ‘about birth control,’ adding, ‘Heaven forbid that I should get into that subject.’ Murray then noted, pointedly, the similarities between two documents: ‘the so-called minority report [on birth control, drafted, as Murray certainly knew, in large part by Ford] and a famous document that I have in my files. It is the letter addressed to the Pope by a group of bishops at the Council [Vatican II], asking him to withdraw the Declaration of Religious Freedom.'”

Ford had written both documents, and his advocacy for a singular position on contraception reflected his opposition to Murray’s construction of religious liberty. Ford reasoned that truth only needed to be pronounced by the pope in order to be accepted by the clergy and laity alike. Murray offered a way to negotiate between truth and history not to undermine papal authority or dismiss natural law, but as perhaps the only way to make the church’s position apparent to those who needed to follow it, the laity. Ford wielded a misbegotten notion of truth to combat history, not to protect Catholics but to control them.

In our contemporary moment, questions regarding contraception have reemerged with a twist: the notion of religious liberty hard fought by Murray is being used to defend the position hard fought by Ford. Once again we are faced with familiar statistics: most Catholic women use contraception, most Catholics disagree with their church’s opposition to contraception. And yet, in this case, the moral establishment seems to have flipped. Marshaling statistics and reports that seem beyond reproach, the federal government has made a case for providing contraception to all women. The argument seems to be, why should any institution be allowed to opt out of this logic?
The US Catholic Bishops have asked for the ability to do just that. The Bishops are not asking to use civil law to keep contraception illegal, as they had in the past. They are asking to opt out of paying for contraception in institutions run by Catholics. As Amy Sullivan notes at the Atlantic, many Catholic institutions will continue to pay for contraception as part of employee health plans, but some would like not to. I think I know where Ford would come down on this present debate; I am not sure where Murray would have found himself. I do wonder, though, if the way religion has been deployed throughout American history–as a way to establish state-sponsored morality–has clouded the way we imagine the role of religious liberty in this current flare-up over contraception. Is it possible in this present case that is the government that has let the truth of its argument overwhelm the historical contingency of its action? The government can claim to be right but it still exists in a historical moment that is contingent on institutions such as the Catholic Church accepting that position. Perhaps Murray would have counseled that the federal government, on this issue, reach for slightly less.

13 Thoughts on this Post

  1. “In our contemporary moment, questions regarding contraception have reemerged with a twist: the notion of religious liberty hard fought by Murray is being used to defend the position hard fought by Ford.”

    Irony of ironies, but history is full of ironies like that. I think the salient issue is this one:

    “The Bishops are not asking to use civil law to keep contraception illegal, as they had in the past. They are asking to opt out of paying for contraception in institutions run by Catholics.”

    Which is to say, they are asking to opt out of having to pay for the privilege of violating their own beliefs.

    The Church can’t use the state to enforce its doctrines, but conversely, the state can’t use the Church to enforce its doctrines, either. It has to work both ways, or the notion of separation is meaningless (leaving aside the fact that in practice the wall has always been permeable). You can stop right there without getting into questions about the administrative state’s desire to squash all intermediary bodies in civil society which might impede its ability to execise its power without restraint. That at least is how Montesquieu (or Tocqueville) might have seen this misguided policy.

    This was a total and unnecessary screw-up by Obama. Just at a time when his fortunes had changed for the better. I know some of his defenders see him has having pulled a fast one on the bishops and Republicans, but I’m highly dubious about that. Sometimes you don’t get out of the tank in water; you just drown. Obama’s most fervent followers should hold him in higher esteem than to think he’s stupid enough to risk drowing.

  2. By the way, Ray, this is an excellent post. It’s late on a Friday afternoon, so it may not happen, but it very much deserves to find a wide audience in the media and the like.

  3. I knew nothing about this aspect of Catholic politics/theology, so thank you for that, but I am still unclear as to why such a breezy equivalence is being drawn between what a government does or should do and what a church does or should do. The US government in this case is not trafficking in or flogging any sort of truth. What it is doing is enforcing part of a more ambitious set of policy goals, the aim specifically of which is to broaden and cheapen access to healthcare, period. These sorts of policy choices are judged along a spectrum from fair, cheap(er), effective, or efficient on the one side to the their perceived or manifest opposite qualifiers and outcomes on the other side.

    I am also unclear about what part of Catholic theology is being violated by the administration stating the obvious–that the Church hierarchy has no say in how secular employees choose to spend the salary or the benefits that they earn earn on the job. My basic understanding of Catholic theology can be encapsulated in the Murray quote taken from the article, that the decision to avail oneself of contraception was a “practice that can be considered a case of private morality.”

    And Varad, allusions to Tocqueville and Montesquieu are all well and good, but they require quite a bit of amnesia in this case. Organized religion here and elsewhere has steadily lost its monopoly on all manner of public goods from education to healthcare to crime and punishment. This past was definitely another country, and you more than anyone know that. Add the fact that the current Catholic church as, again, a secular employer, already offers insurance policies that pay for contraception apparently, without “violating their own beliefs.”

    One last thing, both Varad and Ray suggest that this decision might have been a political miscalculation. I don’t buy that at all. If anything, a key issue has been clarified, and the timing of this decision couldn’t have been more propitious coming on the heels of the Komen fiasco. I think both the initial decision and the compromise are going to pay dividends for the Obama administration and the sizable group of women and men who violate Church doctrine because another key difference between the state and Church is that citizens vote. I think this was a master stroke.

  4. Anonymous: first, thank you for giving the blog a read and for taking the time to leave an extended comment. The issue it seems to me is not Catholic theology being violated but the manner in which any institution can say no to a government mandate. Of course a church can choose to contract with an insurance company and pay for contraception, and a church can also agree to a mandate from a state to cover contraception. Most Catholic women want contraception and use contraception. But when can this church say no to the state’s insistence that it take a specific action?

    You use Murray’s understanding of a private morality, but he argued this line as a way to ease the Catholic church from imposing its morality through the state. But if that was good a thing, then the opposite would be true, the state can’t use the church to impose what it thinks is right and good for society. If the state finds this coverage important then by all means the state should offer a way to make it available. But that way must have some limits and I think the case under review has suggested what those limits are.

    If my tone seemed breezy, it is because I am wrestling with the points that you make in your comments. I am disappointed in the way the church has decided to make this mandate an issue of such dire consequence while it avoids issues that it needs to deal with “at home.” I also understand that the church operates within a legal arrangement that forces it to follow labor laws and other regulations that govern other businesses. But it must be the case, as well, that even though the church operates within the realm of the state it does not need to accept every mandate of the state.

    Again, I appreciate your willingness to engage the issue here.

  5. This current controversy is much to do about nothing. Although I found this essay informative, the Supreme Court has consistently ruled against providing special dispensation for matters of conscience. Reynolds v. United States prevented Mormons from practicing polygamy, Employment Division, Division of Human Resources of Oregon v Smith (1990) denied unemployment insurance to two Native Americans who had been fired for “misconduct” arising from their usage of a controlled substance in a religious ceremony, and Amish employers were required to pay Social Security taxes on their employees in United States v Lee (1982) the Supreme Court unanimously decreed when “followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”

  6. “The US government in this case is not trafficking in or flogging any sort of truth. What it is doing is enforcing part of a more ambitious set of policy goals, the aim specifically of which is to broaden and cheapen access to healthcare, period. These sorts of policy choices are judged along a spectrum from fair, cheap(er), effective, or efficient on the one side to the their perceived or manifest opposite qualifiers and outcomes on the other side.”

    These sorts of policy choices are also judged on this spectrum: are they constitutional or not? None of that other stuff about efficiency or utility or what is just, good, and right, factors into it until that first hurdle is cleared. Whatever the goverment may desire to do or feels obliged to do, it is constrained by what it is legally permitted to do. More than that it cannot do. There’s that whole Constitution thing which determines the ambit within which the federal government may operate. Defining that ambit, expanding and curtailing it, has been one of the main themes of American history.

    And that’s the point you’re overlooking, Patrick. The First Amendment is in play here. It makes no difference whatsoever that plenty of Catholics violate all sorts of doctrines every day. It is the moral, civil, and human right of every last bishop, priest, nun, and lay believer to “cling” to those beliefs until kingdom come. The Church accepts that it can only use its powers of moral suasion to convince its starying sheep otherwise. It cannot use the “secular arm” to compel them as it did when throne and altar were one. But the separation of throne from altar means no less that the government cannot use the Church to impose its will upon those whom it encounters not as citizens but as believers. To claim otherwise, as Obama did for two weeks, is to claim for the goverment the right to determine the terms upon which religious organizations may be present in the public sphere. It is to claim that one may exercise one’s faith exactly as long as one remains behind one’s doors and never sets foot beyond them. It is, finally, to claim that religion and the religious are welcome in civil society exactly to the extent to which they are neither. No government which proposes such an ideal, let alone embraces it, may be considered just.

  7. The very notion of reaching an “accommodation” with those opposed to the contraception is vulgar, an anathema to the very principles of our democracy. As though it were some great triumph that our government masters have seen fit to bestow upon us the privilege of being allowed to exercise the freedoms we are guaranteed by the Constitution. As though by condescending to “accommodate” its foes, our government masters were by a subterfuge passing a suppositious Declaratory Act by whose terms they could claim they have a choice in the matter. As though they have the power to deign whose constitutional rights shall be honored, which ones shall be honored, or if any shall be honored at all. As though, in the last measure, our government masters were our masters, and not we theirs.

    Obama demanded, by deed if not by word, outward conformity to any and every dictate the government may pronounce, for from the perspective which can consider such a principle, there can be no legitimate ground to reject those dictates. The price of such outward conformity is the inner blindness of not seeing that one is violating one’s own conscience. Yet it has been one of the fundamental precepts of Western civilization since John Locke declared in his Letter Concerning Toleration in 1689 that “everyone is orthodox to himself.” It is indeed nearly a categorical imperative for democratic government as it has come to be understood. For everyone to be orthodox to himself means he can be so to none other. This policy, had it stood, would have had the effect of telling people to violate their consciences and, once they had, telling them they hadn’t.

    Those Catholic women who use birth control answer to their consciences, and theirs alone. But the state may not then demand that because they ignore the Church’s teachings the Church must ignore them too. For those who constitute the Church are no less orthodox to themselves. And no one may demand that they be orthodox to any other. To do so is to arrogate a power which we now hold no goverment or person can wield, that of standing between a man and his god. We would have any man be free to turn away from the Almighty. But so that he may, every man must be no less free, should he so choose, to turn toward it.

  8. “This current controversy is much to do about nothing. Although I found this essay informative, the Supreme Court has consistently ruled against providing special dispensation for matters of conscience.”

    If one construes the recent Hosanna-Tabor vs. EEOC case as dealing with a matter of conscience, then that consistency is no longer quite so consistent.

  9. And the point you are repeatedly overlooking, Varad, is that this is nothing more than a compensation issue. Since you are really fond of legal formalism to the complete neglect of everything else, let’s explore this further.

    Are employees entitled to do what they see fit with their compensation or not? If they are not, what other sorts of intrusions into what they are allowed to do with their compensation (let’s assume that their transactions are lawful) are to be permitted the employer? Could a religious employer demand that they only purchase clothing with non-blended fabric? How about prohibitions on the purchase of certain foods? Alcohol? Gas-guzzling cars? How would these prohibitions be enforced? I’m guessing Inquisition police. I am not being facetious here. You have delivered a robust defense of “religious liberty” (yes the scare quotes are fully intended), but as usual, you pay no concern or heed to those who work and whose compensation is being withheld by the Church in the form of benefits. Most of these people are not part of the flock. Why any boss, even a secular one, should have a say over how one gets to spend one’s just compensation needs to be explained by those who trot out liberty like a cheap trope in this specific case.

    The modern state, not one frozen in amber around the time of Locke or Montesquieu or de Tocqueville, but the one we have now, involves large fungible streams of secular revenue that go in every conceivable direction. This requires that certain standards are adhered to when an institution decides to avail itself of that pot of money. The Catholic Church has availed itself of that money. Many of its institutions and hospitals have honored the obligations that this entails without incident. Here’s a short list of Catholic institutions that understood how this works and for whom it wasn’t seen as an infringement on their religious freedom: Georgetown, University of Scranton, Depaul, Boston University and its hospitals.

    And Ray, again, thanks for the short primer on this debate. One question: if the Church actually currently provides insurance that includes contraception (as is required in some 28 states) how is it not now trying to impose its morality through the state given the fact that it takes massive amounts of state money already? We are talking about a status quo situation that, I guess, is now going to be tested in our court system. The state here has only ratified something that was already happening in an effort to broaden coverage, increase revenue pools, and eventually achieve better public health outcomes. If that is a radical leap of some kind, it falls to all of the Catholic institutions who will see nothing whatsoever changed by this decision to explain how this is the case. Count me firmly within the “much ado about nothing camp”.
    (Sorry about the anonymous tag)

  10. Brian and Patrick, I do understand that the constitutionality of the government’s move might be secure. I wanted to suggest that there are issues involving churches and the state that raise questions about the way both use the other to push beyond reasonable limits of their authority. Obviously the Obama administration has not waited for a constitutional ruling on this specific case before it took a new tact. That move does not prove a new constitutional understanding–as Brian suggests, there is case law that can be brought to bear on this situation. And as Varad points out the most recent case involving religion and the state might open new constitutional interpretations of the cases Brian lists. I am more interested, though, in hearing how you would determine the limits of both state power and church influence.

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