Without Words to Describe - by Helen Alvaré

In The Public Discourse 

Several events at the end of June call to mind John Paul II’s words in Evangelium Vitae describing the elements of a true humanitarian crisis. An act previously and nearly universally condemned, that hurts vulnerable lives, is celebrated as a “right” by people in the best position to protect those lives. How does John Paul II diagnose the cause of such a crisis? He identifies a serious misunderstanding of freedom—one that divorces freedom from solidarity, from reason and truth, and from the inevitability of human suffering.

Sadly, his observations fit painfully well the events of the last week of June.

First, legislator Wendy Davis filibustered a bill in the Texas legislature that would ban killing unborn children in the last twenty weeks of pregnancy and require abortion clinics to meet the medical standards required of other “ambulatory surgical centers.” Had these standards been observed, they might have saved lives at the charnel house of Philadelphia abortionist and convicted murderer Kermit Gosnell. For her efforts, Davis was lauded by the press as one of the Democratic Party’s “most popular politicians,” and a “hero.” The president of the United States joined the chorus of praise, tweeting “#StandWithWendy.”

Second, on June 26, the Supreme Court issued two same-sex marriage opinions. Following upon the Court’s holding in Hollingsworth v. Perry, same-sex couples are already obtaining marriage licenses in California, despite the votes of seven million Californians in favor of ballot initiative Proposition 8. The Court in United States v. Windsor struck down Section Three of the Defense of Marriage Act (DOMA), which defined marriage for purposes of federal law as the union of one man and one woman. The majority opinion authored by Justice Kennedy held that federal legislators (Democrats and Republicans) and President Clinton passed DOMA strictly for the “purpose” of “impos[ing] a disadvantage … and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” According to the majority, lawmakers intended to “demean” and “injure” same-sex couples, and to “humiliate” any children they were raising.

The majority did not devote a single line to the lawmakers’ well-documented interests in assuring a special regard, nationally, for the wellbeing of children as a class, children for whom natural marriage is simply the only vehicle for tying their fathers to their mothers and to themselves, and indeed for preserving their entire historical and genealogical identity in this world. Not a line.

Instead, the Court declared that—in the opinion of five persons—marriage is rather about conferring a “dignity and status of immense import,” about granting a “far-reaching legal acknowledgment” of “intimate relationships,” and about “protect[ing]” “personhood and dignity.” As Justice Scalia’s dissent observed, the majority held that to disagree with their understanding of marriage is to be an “enemy of the human race.”

Third, on June 28, the Department of Health and Human Services issued the final iteration of a health insurance mandate concerning contraception, sterilization, and early abortifacients. What did it decide?

It decided to force insurers to provide “free” birth control and morning-after pills to the employees (and their family members, including minor daughters) of religious employers, regardless of whatever conscientious objection the employers might have. HHS wrote that its decision “respect[s] the concerns of non-profit religious organizations that object to contraceptive coverage.”

They did this despite hundreds of thousands of opposing comments and dozens of (mostly successful) lawsuits against the government. They did it despite the fact that the “scientific report” undergirding the mandate has no empirical data proving the oft-repeated claim that free contraception will prevent women’s illnesses.

In sum, according to the powers-that-be, supporting killing unborn human beings is “heroic,” supporting natural familial bonds for children is “demeaning,” and forcing religious employers to insure (and really to pay for) services for their employees that they cannot in good conscience support is “respecting religious freedom.”

My head is spinning. So is the Merriam-Webster Dictionary.

And Americans are not alone in wondering at what moment reasoned discourse on life or marriage or religious freedom became impossible. Similar difficulties beset our neighbors in Ireland and the United Kingdom. Ireland is soon to vote on legalizing abortion. It would legalize abortion to save the life of the mother (current law requires saving the life of both mother and child). This proposed new law would allow abortion most notably in circumstances wherein it is believed the mother would commit suicide without recourse to abortion.

It is easy to see how, in practice, the legislation will open the floodgates to abortion, though the sponsors call the bill “restrictive” and “life-saving.” But there is even another problem: the best empirical data from Europe also indicate that abortion is likely a cause of female suicide, not a preventive measure.

In the UK, Parliament is considering a bill to grant “marriage” to same-sex couples. Besides ignoring child welfare, the bill undercuts two additional, intrinsic, and perennial features of marriage: it voids the requirement of consummation (lawmakers couldn’t agree how to define it for same-sex partners), and it undermines the norm of fidelity by abolishing the possibility of same-sex adultery.

In other words, if a person granted a same-sex “marriage” has a sexual encounter with another person of the same sex (but not a person of the opposite sex), it is not what people have always thought “cheating” must constitute in the context of a marital relationship, i.e. “adultery.” In short, the UK bill grants marriage rights, while simultaneously voiding longstanding and definitional essentials of marriage.

Defenders of human life, religious freedom, and children’s interests in marriage should excuse themselves these days for sputtering—for having literally no words to offer in response to recent events. It appears words are currently useless. All the words we would ordinarily reach for are taken, and have suddenly been redefined.

To add insult to injury, the movers and shakers redefining the ordinary and natural meanings of things—and thus redefining culture and society, not just law—are beyond our democratic influence. Our hundreds of thousands of comments to HHS about the contraception and early-abortifacient mandate command no legal deference. The mind of Justice Kennedy (who effectively controls the Court’s marriage decision-making given the otherwise 4/4 split) is not open to rational arguments from those who disagree with him. President Obama—who, in his days as a state legislator, already indicated how far removed he is from normal sensibilities regarding the value of human life by refusing to use his power to stop the killing of disabled, born alive human infants in Illinois—has proved himself deaf to all our calls, letters, comments, and lawsuits.

In fact, when the president’s opinions are challenged, he often responds with even more extreme versions of earlier positions. For example, after he refused to defend Section Three of DOMA on the grounds of unconstitutionality, and won in the Supreme Court, he suggested the very next day that same-sex marriage should be imposed on the fifty states by means of repealing Section Two of DOMA, which presently allows states to make their own decisions about the legal definition of marriage.

But of course we have to find our voice again, to insist upon the natural meanings of words, and upon the necessity of logic. In addition, in this age, we need to use images and stories. Once again we have to be willing to be publicly visible—so as to dispel the notion that we do not exist, or that we have given up the fight to ensure rational discourse, and pursue and disseminate relevant, truthful data.

We have to be publicly visible also because that’s the most effective way to dispel the negative, one-dimensional portrait of our ranks. We have to be willing to help organize the currently disenfranchised majority who do possess ordinary humanitarian sensibilities about the good of life over death, the good of natural marriage, and the good of living in integrity with our religious convictions.

Helen Alvaré is Professor of Law at George Mason University.

Uphold Conscience Protection: Religious Freedom’s Contribution to the American Experience and Threats to its Survival - by Helen Alvaré

by Helen Alvaré

Religious communities are an essential part of the fabric of America, even over and above the vital services they provide to weak and vulnerable members of our communities; we must protect their conscience rights against legal coercion.

It is impossible to understand the American experiment without understanding the role that the free exercise of religion has played in our nation’s founding and in its flourishing. We are not a people who have merely “tolerated” religious commitments as eccentricities or only upon the condition that they remain hidden from public view. Rather, we have understood the debt our nation owes to fundamental principles of human rights that have their origins in overlapping theological and philosophical commitments. Particularly today, we know how religion plays a role in securing the family life that provides an irreplaceable foundation for a healthy, prosperous, well-formed citizenry.

We are also grateful to religious institutions for providing services to our most vulnerable citizens, services that government cannot duplicate, because of the thick moral commitments that suffuse them. We understand, too, the role that religion plays in inspiring untold numbers of daily, private interactions that law could neither effectively command nor police, but that are essential for creating a society in which human beings’ intrinsic dignity is both recognized and served. Finally, we recognize the prophetic role that religious institutions and persons have played during our history, when they have identified human rights’ violations and called for both a change of heart and changes in the law.

At the time of our founding, Thomas Jefferson wrote that “Almighty God hath created the mind free. … All attempts to influence it by temporal punishments or burthens … are a departure from the plan of the Holy Author of our religion.” He also wrote that the “moral duties which exist between individual and individual in a state of nature accompany them into a state of society, … their Maker not having released them from those duties on their forming themselves into a nation.” In other words, God has entrusted human beings, alone and in society, with the crucial task of seeking the truth and of living in accordance with it. The state has no authority to interfere with or to direct this pursuit. Our founders’ convictions about religious freedom found their way into our Constitution as the First Amendment of our Bill of Rights.

Over the course of our history, Americans came to understand that the state’s lack of jurisdiction over questions of ultimate meaning entailed not only allowing individuals to believe privately in a transcendent reality, or to worship as they believed, or even to pray privately and perform good works. Rather, it also entailed recognizing that religion is also exercised in the form of associations that provide services to vulnerable citizens of every background in accordance with religious principles. Throughout American history, religious citizens were not only permitted, but even encouraged, to let their religious convictions to inform their work, and their contributions to public debates were understood to have important consequences for our understanding of human rights and dignity.

Americans have also historically recognized religious providers’ valuable contributions in the areas of education, healthcare, and general social services. Religious ministries often lead the way in reaching out to the most unpopular or invisible groups, whether persons with AIDS, immigrants, poor single mothers, the severely disabled, or the dying. Ironically today, these ministries are branded as bigoted and misogynistic by interest groups claiming “rights” to sexual expression of any sort, while these same ministries labor daily to piece together the lives of those directly harmed—whether by sexually transmitted disease, non-marital pregnancies, or abortions—by the exercise of such “rights.”

Institutional religious ministries also serve another valuable function, less often noticed. They act as a force for assimilation, through their services to new immigrants and inner-city students, and in their hiring and serving people who do not share their faith affiliation, especially in their healthcare and social service ministries. In their encounters with millions of diverse clients, these ministries bring invaluable wisdom about human needs to the public policy table on many issues such as healthcare, abortion, post-abortion distress, marriage, euthanasia, immigration, poverty, war, and the moral guidelines for scientific research.

Despite this record of accomplishment, religious individuals and institutions are threatened today by various social and legal forces. First, it seems that both citizens and leaders often forget or take for granted the crucial role that religious freedom has played in our nation’s founding and flourishing. We no longer clearly grasp the relationship between our enjoyment of social peace and prosperity and our long tradition of religious freedom.

Second, among elite academic and media voices, there seems to be a particular animus against Christian adherence to classical norms regarding the dignity of the human person in connection with sex, marriage, and the family. Christians have been especially condemned for their staunch refusal to agree that abortion is a “right,” for their insistence that children’s interests—not adults’—should guide marriage law, and for their refusal to accede to the trivialization of sex and the degradation of women implicit in governments’ approach to birth-control distribution and sex education. Leading Supreme Court opinions, as well as federal statutes and regulations, are more inclined than ever to posit the existence of a “right” to any form of sexual expression, on the grounds of either “privacy” or “equality.” This increasingly aggressive stance is often the cause of the most virulent attacks upon religious freedom.

Third, during the passage of the 2010 health care law (the Patient Protection and Affordable Care Act or PPACA), longstanding, bipartisan agreement to shield the religious freedom of healthcare providers—especially where abortion is concerned—broke down. Democrats in the Senate and then in the House either proposed or ultimately acceded to conscience provisions significantly weaker than those available in past federal laws. Very recently, the Obama administration realized religious institutions’ worst fears by mandating all forms of birth control, and some forms of abortifacient drugs, as mandatory “preventive healthcare” services under the PPACA. Under this regulation, religiously affiliated healthcare institutions that attempt to hire or serve people of other faiths are denied conscience protection. It is almost unnecessary to point out the irony, the shortsightedness, even the cruelty, of such a denial.

Fourth, in the struggle over same-sex marriage, some lawmakers are increasingly hostile to moral and practical arguments about the unique goods intrinsic to opposite-sex marriage, and to citizen demands for conscience protections. It appears that lawmakers are responding more to cultural and media elites who express overt hostility to religion, or they are simply confused about the true meaning and purpose of marriage and the family. Some groups and politicians supporting same-sex marriage brand religious ministries to the poor and vulnerable as “bigotry” and threaten the very existence of those ministries, during a time when the government would be hard-pressed to fund additional services itself. Witness the harassment, and in some cases termination, of Catholic adoption agencies that refuse to pair children with same-sex couples.

Fifth, the expansion of state power, combined with a “creeping” notion of human or civil “rights,” also jeopardizes religious freedom today. Government regulation has spread to nearly every sphere of life and thus imposes more constraints upon a wide variety of religious ministries. At the same time, “rights” language is increasingly applied to human “wants” rather than “needs.” It is used to promote individualism and particular ideologies, rather than universally recognized attributes of human life or dignity. This increase in regulation, combined with “rights creep,” leads directly to refusals to grant religious exemptions, on the ground that people have human “rights” to consensual sexual expression with any other person, or to kill an unborn child, and that “rights” do not permit exemptions for the sake of conscience.

All of these forces are combining to threaten religious freedom at a time when we can ill afford to lose the unique voices and contributions of religious citizens and institutions. Objections to religious freedom on the grounds that religious behaviors and services are “eccentric” or “dangerous” or “against human rights” are contradicted by our historical experience with religious freedom. Furthermore, citizens and lawmakers are quite capable of distinguishing between claimed religious messages or behaviors that might threaten human lives or the common good (e.g., human sacrifice) and those that are merely different means to a good end (e.g., exhortations to practice sexual restraint, or to preserve the centrality of children’s well-being in marriage law). On the grounds of preserving peace and prosperity, strong families, and a robust network of private charitable institutions, and on the grounds of resisting the totalizing inclinations of government, federal and state laws protecting religious voices and ministries—in health care, education, and especially family life—must be enacted and enforced today.

The health of religious freedom in the United States is in large part entrusted to the Congress, to the president, and to state governments. In the near term, our lawmakers need to ensure the passage and enforcement of legislation that at the very least:

• Fixes the PPACA to provide conscience protection for all health care providers, sponsors and insurers.
• Enables religious ministries to continue to operate in accordance with their religious conscience to provide the kinds of educational, health care, and other social services to the vulnerable communities they serve.
• Requires all entities receiving government funds to avoid discrimination on the basis of religious conscience.

A more generous disposition toward religion would be even better—better not only for religious citizens and ministries, but better for the most vulnerable Americans, for American families, and for the nation’s future. For a genuinely healthy national future—for a future in which America nurtures healthy children, personal and group initiative, and volunteerism, while avoiding stultifying bureaucracy and governmental totalism—it is imperative that the next president and next Congress have a firm and intelligent grasp on the real blessing that is our tradition of religious freedom.

Helen Alvaré is an associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute.