By Ken Burrows
As anyone who watches a few episodes of Law & Order or The Good Wife knows, what the prosecution raises on direct examination at trial is open to cross-examination by the defense. I thought about this recently with regard to the issue of religious institutions being mandated to provide contraceptive insurance coverage to their employees, something the institutions found to be in violation of their conscience. They insisted they be given an exemption from such a mandate on those conscience grounds. As is said in court, having raised the issue, they make it fair game for cross-examination.
Before I do that cross, I will point out I’m not entirely at odds with what the religious institutions demand. While I favor people having wide access to contraception and even wider freedom from religious dictates, and while I’m generally not comfortable trafficking in absolutes, the one principle that draws me close to absolutism is the inviolability of conscience. On that principle there is merit in the arguments the religious institutions make on this issue. Their conscience should not be so readily subordinated to public policy.
As a side note, I also think we confront a unique situation in that the vital arena of health care is, historically and presently, disproportionately saturated with religious aegis. As a result, when conscience curtails service provision, customers (i.e., patients and other users of health services) frequently do not have the option of simply “going to the competition” that will offer the services and products they need; often there is no competition available on any practical basis.
I do not see marketplace limitations as justification to coerce anyone to violate his or her conscience, but I would ask religious institutions and believers to at least acknowledge it presents a bona fide conundrum, a significant one that touches on real human needs, and it ought to at least open a conversation on creative and flexible accommodations that might preserve integrity of conscience while also serving fellow human beings equitably. For instance, would it be possible to hold that conscience is individual and personal, not institutional, and then, say, in the matter of contraception, arrange to provide these services and products through the institution’s individuals who are willing to do so because they have no conscientious opposition to it? It’s not a perfect answer, but it might be a way to rationally engage the unique marketplace constrictions in health care described above, preserving individual conscience while serving citizens/patients more fairly, as well as compassionately. It is, of course, rare to find such flexibility in the religious sphere, what with it often seeing everything as absolutely either black or white and allowing little room for individualism of any kind.
But let me now return to my trial testimony scenario and my cross-examination. I believe there is a broader consideration about conscience this whole recent contraception issue raises, one that definitively mingles principles with politics and has far-reaching impacts. If the direct testimony of religious entities is designed to show cause why they should be exempt from coercion against their conscience, my cross-examining question is: If churches and other religious institutions are going to demand that their conscience be respected in political actions, and especially in actions that become coercive to the citizenry as a whole, are they not then obligated to return the favor in kind to others? I.e., cease attempting to coerce the rest of us against our conscience. Isn’t that the only way to be reciprocal, just, and fair?
But today religious persons and entities continue to wage broad, ongoing battles to enact into law provisions that reflect their selective religious views (aka conscience), despite the fact these views are at odds with the sincerely held conscience of millions of their fellow citizens. Whether it’s prohibitions on abortion in general, outlawing same-sex marriages, defining when personhood begins, controlling end-of-life decisions, or even using public funds to pay for religious indoctrination, any of these measures, if enacted into law, would inevitably encompass a coercion that would violate the conscience of others. A large and influential subset of religious adherents sees no religious freedom contradiction in this. They are positively obsessive, and also dismissive of the conscience of anyone who differs. I think of them as religionistas. They are more theocrat than democrat [small ‘d’]; the threat they pose to our freedoms is radical and real.
Catholic bishops are frequently numbered among these religionistas, accepting their guidance primarily not from our Constitution but from the Vatican, which they believe supersedes it. To the extent they place their faith above our freedoms (“our” here meaning citizens as a whole), these victims of the contraceptive coverage mandate become purposeful victimizers in other issues, such as the examples I’ve given above. Religious individuals and institutions should not play favorites this way with the inviolability of conscience, making it sacrosanct for themselves while dismissing it for others. It betrays the core concept of our religious freedom to use it to circumscribe the very same freedom for others.
On a personal and private level, the conscience vs. conscience dilemma is perhaps nowhere more starkly presented than in the case of the patient who has very conscientiously outlined his health care directives — literally his life and death choices — and can have them arbitrarily ignored if he is unfortunate enough to land in a religious health care institution that does not “agree” with his choices. A more egregious trampling of conscience would be hard to envision. (Here the implications of marketplace limitations in health care are impossible to ignore.)
Recall the Manhattan Declaration of 2009—subtitled “A Call to Christian Conscience.” This was authored by a group self-identified as “Orthodox, Catholic and Evangelical Christians,” and it was revealing of the contradictions practiced by religionistas re conscience, probably more explicitly than they intended. The Declaration stated in one passage that “freedom of conscience and religion are foundational principles of justice” and later added that “immunity from religious coercion is the cornerstone of an unconstrained conscience.” Yet, it then went to great lengths to advocate for traditional one-man-one-woman marriage not as a principle of justice or individual conscience but as an “institution ordained by God” and said it is “the duty of the law to recognize and support” this definition [emphasis added]. So it asked that the law permit only this one religiously based definition of marriage, thereby binding the entire citizenry to it, even though individuals may hold sincere but differing moral convictions on the matter. Such a resort to the force of law to impose a religious precept on everyone enervates the “unconstrained conscience” and “immunity from religious coercion” the writers claimed to hold dear.
What is especially troubling is the religionistas draw support from mainstream politicians who similarly miss the contradiction in the situational valuing of conscience. They wrap themselves in the flag of freedom while at the same time endorsing the freedom-subverting campaigns of these radical religious adherents. Even the putative purist on individual liberty, Ron Paul, equivocates by signing a personhood pledge. As James Madison, chief architect of the Constitution, said of an early attempt to impose a tax to pay for religious education, we ought to take alarm at these experiments with our liberties.
What would be well for religious institutions and individuals to learn from this latest imbroglio over mandated contraceptive coverage would be to agree we should all play by the same rules when it comes to how we regard conscience, that all consciences merit equal respect and no favored status accrues to one as compared to others due to its religious basis. If government should not coerce religious adherents against their conscience, neither should religious adherents attempt to coerce against the conscience of others by using government to do so. The transgression against conscience and diminution of liberty via statute or policy is not made a lesser offense for its having had a genesis in religion. As columnist Katha Pollitt recently pointed out in a commentary on the subject, the Amish are exempt from buying health insurance because they have a conscientious objection to it, “but they don’t try to make others read by kerosene lamps or demand the government subsidize their buggies.”
On February 11, the U.S. Conference of Catholic Bishops commented on President Obama’s compromise on the contraceptive coverage issue by saying: “Today’s proposal continues to involve needless government intrusion in the internal governance of religious institutions, and to threaten government coercion of religious people and groups to violate their most deeply held convictions.” This is the same organization of prelates that exhibits no qualms about calling for laws to deny equal rights to marriage by gays and lesbians, based solely on their own closely held religious definition of marriage, or violating the conscience of individuals who have set out advance health care directives governing their intimate life and death choices. The double standard they practice in railing against coercion that violates the individual conscience is breathtaking in its selectivity and, indeed, in its callousness.
A local editorial writer (need we say who?) did hit some correct notes when he wrote about this controversy: “It’s … downright astonishing that Obama thinks he can force religious organizations to buy and promote products and services that absolutely violate the moral principles they have always worked to defend and promote. It threatens the very fabric of who we are as a nation. … It threatens the rights of all individuals to freely exercise their values without the oppression of a government agenda that counters their beliefs.” But he clearly did not go far enough. How much more balanced it would have been to add: “It’s also downright astonishing that religious individuals or institutions think they can call for laws that force citizens of different (or no) religious persuasion to abide by selected religious tenets that violate the differing moral principles these other citizens defend, promote, and live by. It threatens the very fabric of who we are as a nation. … It threatens the rights of all individuals to freely exercise their values without the oppression of laws that counter their beliefs.”
It’s really amazing at times these days to watch what’s happening and remember this country was founded largely on the individual’s passion to be out from under the oppression of a religion he does not assent to. Let’s look at the whole picture regarding conscience and not give religious adherents a pass on their own oppressive agendas. To paraphrase that editorial writer, let’s ask: How much are we willing to let fray the fabric of who we are?
“Just as nightfall doesn’t come at once, neither does oppression. In both instances there is a twilight. And it is in such twilight that we all must be aware of the change in the air — however slight — lest we become unwitting victims of the darkness.” – - – Supreme Court Justice William O. Douglas