Like Eduardo, I have become increasingly baffled by the nearly unanimous support among Catholic commentators of both "conservative" and "liberal" political persuasions for the Bishops' specious appeals to "religious freedom" protections in their rejection of the HSS contraception mandate. I have been completely unable to see how the mandate has anything at all to do with "religion," since the adjudication of the relative merits of religiously informed morality when applied to non-adherents is completely outside the purview of government expertise. As I listened impatiently as Bishop Kevin Rhoades' version of the USCCB "protest" letter was read out in the Basilica of the Sacred Heart at Notre Dame this morning, I was confirmed in my suspicion that all of this really has more to do with politics than religion, and more specifically, that the narrowing of the religious exemption threatens a particular form of politically motivated "Catholic" identity, which the Bishops and many in the Catholic press have a vested interest in protecting.[Warning: This is long!]My suspicions were initially raised in an exchange I had with Rick Garnett over at Mirror of Justice. After I clearly established that none of the possible objections to the HHS mandate and its definition of religious exemption have anything to do with "religion," Rick offered up this "Hail Mary":

One of the key reasons why, say, the Bishops, or Fr. Jenkins, or Sr. Carol, object to the mandate is because they believe compliance with the mandate would compromise the integral Catholic character of (at least some) Catholic institutions. So, the mandate burdens their religious freedom, because religious freedom at least presumptively includes the freedom to construct and operate such institutions.

"Presumptively," indeed. I say this is a "Hail Mary," because "religious freedom" cannot possibly include the right to found and operate any institution "religiously." Could creationists run a "school" that did not teach biology? Could faith-healers run a "hospital" that only offered charismatic prayer services? In spite of the prima facie silliness of this suggestion, Rick does, I think, express the genuine desire behind the Bishops' appeal and the strange allegiance it has received from both "liberal" and "conservative" Catholics. What is actually at stake in all of this is the political influence of a "Catholic constituency" that needs to preserve both its official and authentic religious identity and its connection to a secular public through service and employment in order to be granted a seat at the table. In order to preserve the former, "liberals" cannot become too alienated from their Bishops, otherwise they won't be seen as "Catholic" enough to represent a definable interest group. In order to preserve the latter, "conservatives" cannot be excluded from providing non-religious services to and employing non-adherents, otherwise they won't be seen as having enough influence in the public sphere to be politically important.These political "Catholics" are more concerned with retaining their political viability than their theological scruples, and they publicly compete to be the token "Catholic," for example, offering advice on things like the government's "Center for Faith-Based and Community Initiatives." When the unbridled power to self-define as "religious" for the purpose of public representation is called into question, political "Catholics" worry that their political dance card is going to be revoked. Now, there are theological Catholics, both "progressive" and "orthodox," who remain unaffected by such shifts in the political definition of "religion." In the progressive case, this is because a certain account of natural law, for example, might hold that the relationship between the "City of God" and the "City of Man" is not so inimical as to expect the demands of religious justice to be all that different from those of secular justice. In the orthodox case, a certain account of "divine command," for example, might widen the gap between the "religious" and the "secular" so severely that any compromise will be seen as suspicious, and thus, official recognition by the government will be the first sign of religious demise. In both cases, however, the "political value" of such Catholics is negligible, since the "progressives" will be virtually indistinguishable from all of the other political agitators calling for justice, and the "orthodox" will be dismissive of any government action, as long as they are being left alone.Of course, one might dismiss this analysis as a cynical diagnosis of "religious ideology" coming from someone who has never been on the side of the Bishops (I have) or who is an uncritical supporter of Obama (I am not), but the fact remains that the Bishops have not made their case on theological or religious grounds. This brings me to the letter read out this morning, which followed very closely the letter that Bishop Rhoades sent to the Fort Wayne News-Sentinel. Rhoades did not offer a stirring theological defense of the Church's teaching on contraception with the "romantic" story of gender complementarity and unitive and procreative sexuality constituting marital bonds that the Church's position entails, which would have found an interested audience among the college-age crowd at the 11:45 Mass and would have been a mode of discourse fitting for such a hallowed space. Instead, after (misleadingly, as Grant has pointed out) mentioning that "almost all" employers, insurers, and individuals will be "forced" to offer, include, and buy health coverage providing "sterilization, abortion-inducing drugs, and contraception," Rhoades, following the USCCB's lead, appealed to James Madison and Thomas Jefferson. That's right, not Augustine and Aquinas, but Madison and Jefferson.This is problematic for several reasons. The Madison quote used is given without context, but actually comes from a document on private property rights. The quote reads, "Conscience is the most sacred of all property," and Rhoades introduces it by noting that Madison was the "author of the First Amendment." From the context of the original document, however, it is clear that the "conscience" to which Madison is referring is indexed specifically to individuals, and Madison compares the protection of conscience to the duty to "guard a man's house as his castle." Thus, the idea of conscience being used here is that which belongs to private individuals, which is in keeping with the notion of conscience defended against the Bishops by Lisa Fullam and David DeCosse with reference to Thomas Aquinas. Thus, it's unclear how much traction the Bishops are going to get from Madison for the protection of their collective or institutional consciences over against the individual consciences of those they serve and employ, not to mention that they seem to be choosing the political thought of Madison over the theological arguments of Aquinas.The quote from Jefferson, also given without context, reads: "No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority." Leaving aside the problems with invoking Jefferson's notion of conscience, which is much the same as Madison's, the quote comes from a letter written to the Methodist Episcopal Church in New London on February 4, 1809. The first problem is that this is an occasional comment offered in response to the "approbation" Jefferson received from the congregation in response to a public address he had delivered, and thus, one might expect Jefferson's letter to be especially flattering. It is also aimed at a Church, not a religiously affiliated public institution, and thus, it seems likely that the "rights of conscience" to which Jefferson is referring have to do with explicitly religious faith and worship.Lastly, the sentence immediately following the one quoted reads: "It has not left the religion of its citizens under the power of its public functionaries, were it possible that any of these should consider a conquest over the consciences of men either attainable or applicable to any desirable purpose." Who are the "public functionaries" of the Constitution? It seems that by appealing to Constitutional principles, rather than religious convictions, and claiming to be faithful interpreters of them, the Bishops are offering themselves as proper "functionaries" of the Constitution. It seems strange then that they would turn around and claim exemption from the very political rights and duties they are attempting to promulgate. This smacks of precisely the "heads I win, tails you lose" strategy that Eduardo rightly called into question. If the Bishops are claiming to be politically legitimate interpreters of the Constitution, then it is not on behalf of themselves that they can claim exemption, but on behalf of their conscientiously objecting congregants. This is perhaps why they are asking individual parishioners to write their congressperson, but in such a case, the parishioner would have to show that it is his or her individual conscience that is being violated. Since no individual is being forced to use contraception or individually buy a plan that offers contraception, this is going to be difficult to prove.The last issue, concerning Jefferson, has to do with the definition of "religious practice," which might make the question of individuals writing letters to their congresspersons moot. In an 1802 letter to the Danbury Baptists, Jefferson writes:

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting an exercise thereof," thus building a wall of separation between church and State.

Here, Jefferson explicitly picks out "faith" and "worship" as constituting religious exercise, and he claims that the legislature does have the power to dictate "actions only, and not opinions." The suggestion here is that the government can ask citizens to perform civil duties that do not clearly pertain to "faith" or "worship," and as is traditionally the case, exact penalties for conscientious objection to laws that do not directly govern "faith" and "worship," which would be unconstitutional anyway. So, the "wall of separation" is meant to ensure that the State has nothing whatsoever to do with "faith" and "worship" and vice versa, and it seems clear from the political arguments of the Bishops that this wall has not been violated from the side of the State. In their appeals to Madison and Jefferson, the Bishops offered no theological arguments in support of conscientious objection, their letter contributed nothing to the upbuilding of faith, and it was certainly not worshipful in any sense of the Word. It was a political action performed in a religious sanctuary. So, I ask: Who's violating the separation of church and State now?If you are still reading, which I realize is a big "if," you might object saying, "Just because the Bishops did not provide their theological warrants for opposing the HHS, does not mean that such warrants could not be provided without reference to the Constitution, Jefferson, and Madison, and thus, their objection could be 're-theologized.'" This is, in one sense, true. However, I would first refer one to relevant test-cases in which the interest of the State to protect the rights of non-adherents clearly trumps the rights of religious groups refrain from providing services, e.g. Jehovah's Witnesses and blood transfusions. Just in case, however, such "exotic" examples stretch analogical usefulness too far, consider the following from Pope Pius XI's 1930 Encyclical "On Christian Marriage." In paragraph 74, he writes:

The same false teachers who try to dim the luster of conjugal faith and purity do not scruple to do away with the honorable and trusting obedience which the woman owes to the man. Many of them even go further and assert that such a subjection of one party to the other is unworthy of human dignity, that the rights of husband and wife are equal; wherefore, they boldly proclaim the emancipation of women has been or ought to be effected. This emancipation in their ideas must be threefold, in the ruling of the domestic society, in the administration of family affairs and in the rearing of the children. It must be social, economic, physiological: - physiological, that is to say, the woman is to be freed at her own good pleasure from the burdensome duties properly belonging to a wife as companion and mother (We have already said that this is not an emancipation but a crime); social, inasmuch as the wife being freed from the cares of children and family, should, to the neglect of these, be able to follow her own bent and devote herself to business and even public affairs; finally economic, whereby the woman even without the knowledge and against the wish of her husband may be at liberty to conduct and administer her own affairs, giving her attention chiefly to these rather than to children, husband and family.

This is pretty strong stuff, but it is a "theologically" motivated, "Catholic" position. It would also entail the "conscientious" exclusion of women from the "social, economic, and physiological" life of a democratic polity. As Rosemary Radford Reuther points out, this was the theological warrant adduced for the Church's opposition to women's suffrage in the 1920's. Now, what if an employer conscientiously objected to hiring women without the consent of their husbands? What if a Catholic parish that was designated as a polling place conscientiously objected to allowing women to vote? What if a doctor conscientiously objected to counseling a woman on how to regulate her own reproductive cycle for fear of illegitimately releasing her from the "burdensome duties properly belonging to a wife"? Aren't these all cases in which the rights of individual women to take advantage of all of the privileges owed to them as American citizens override the conscientious objection of their male religious "heads" and employers? And given this history, should we not be more careful to interrogate just whose "freedom" we are defending?