As you may have heard, six bishops, led by Cardinal Donald W. Wuerl of Washington and Cardinal Sean P. O’Malley of Boston (the chairman of the U.S. Conference of Catholic Bishops Committee on Pro-Life Activities), sent a letter last week asking Congress to use its constitutional powers of oversight to rescind two recent laws enacted in the federal District of Columbia. The bishops claim that the laws “violate the freedom of religion, freedom of speech, and freedom of association protected by the First Amendment of the U.S. Constitution, as well as by the Religious Freedom Restoration Act and other federal laws.” They state their case as follows:
The Reproductive Health Non-Discrimination Amendment Act (RHNDA) prevents religious institutions, faith-based organizations, and pro-life advocacy organizations from making employment decisions consistent with their sincerely held beliefs. For example, they could be forced to hire, retain and promote individuals whose public speech and conduct contradicts their missions. They may also be forced to subsidize elective abortions through their employee health plans, a result which would violate the Hyde/Weldon amendment approved every year by Congress as part of the Labor/HHS appropriations act.
The Human Rights Amendment Act (HRAA) repeals the Nation’s Capital Religious Liberty and Academic Freedom Act (also known as the “Armstrong Amendment” after Senator William Armstrong) passed by Congress in 1989 and made part of the District of Columbia code. Importantly, the Armstrong Amendment ensures that the D.C. Human Rights Act cannot be construed to require religiously affiliated schools to officially endorse, fund, or provide other assistance for the promotion of human sexuality or sexual conduct contrary to the schools’ faith and moral beliefs. Although there are different beliefs regarding human sexuality and sexual conduct, religiously-affiliated educational institutions ought not be forced under penalty of law to support beliefs contrary to their teachings.
We agree almost entirely with the bishops’ position. Nevertheless, we can’t help but think that, over the long run, their cause may be lost. That’s not to say that they won’t win this particular battle. They may, but only because both houses of Congress are currently controlled by sympathetic Republicans, not because the U.S. government any longer has a predisposition toward moral justice. The fact of the matter is that the federal government today – along with various like-minded state and local governments – possesses a will that is simply too powerful, too determined, and too intent on destroying anything that inhibits its authority.
For nearly the entirety of the great American experiment in freedom and liberty, civic organizations have served as a buffer against government overreach and excesses. In 1840, the great observer of Western civilization, Alexis de Tocqueville, argued explicitly that these organizations – including religious organizations – were crucial factors in the unreserved liberty that distinguished American life from its Western contemporaries. In Volume II of his Democracy in America, Tocqueville put it thusly:
The political associations that exist in the United States are only a single feature in the midst of the immense assemblage of associations in that country. Americans of all ages, all conditions, and all dispositions constantly form associations. They have not only commercial and manufacturing companies, in which all take part, but associations of a thousand other kinds, religious, moral, serious, futile, general or restricted, enormous or diminutive. The Americans make associations to give entertainments, to found seminaries, to build inns, to construct churches, to diffuse books, to send missionaries to the antipodes; in this manner they found hospitals, prisons, and schools. If it is proposed to inculcate some truth or to foster some feeling by the encouragement of a great example, they form a society. Wherever at the head of some new undertaking you see the government in France, or a man of rank in England, in the United States you will be sure to find an association. . . .
Governments, therefore, should not be the only active powers; associations ought, in democratic nations, to stand in lieu of those powerful private individuals whom the equality of conditions has swept away.
Unfortunately, for more than a century, the “modern” state has taken Tocqueville’s words to heart, recognizing the role of civic organizations in tempering government’s reach and therefore trying desperately to limit the influence and the power of said organizations. The Progressive state, which dates to the half century after Tocqueville wrote, seems utterly beneficent on the surface, concerned only with the well-being of its “subjects.” The catch, of course, is that the Progressive state considers only its definition of well-being to be valid, and it has thus endeavored to crowd out any other definitions, especially those promoted by the civic institutions that once characterized American life and safeguarded American liberty. More than six decades ago, the inimitable Russell Kirk recognized the machinations of the state for what they were and, in his classic The Conservative Mind, tried to warn his fellow Americans of their impending loss of liberty. To wit:
All history, and modern history especially, in some sense is the account of the decline of community and the ruin consequent upon that loss. In the process, the triumph of the modern state has been the most powerful factor. “The single most decisive influence upon Western social organization has been the rise and development of the centralized territorial state.” There is every reason to regard the state in history as, to use a phrase that Gierke applied to Rousseau’s doctrine of the General Will, “a process of permanent revolution.” Hostile toward every institution which acts as a check upon its power, the nation-state has been engaged, ever since the decline of the medieval order, in stripping away one by one the functions and prerogatives of true community – aristocracy, church, guild, family, and local association. What the state seeks is a tableland upon which a multitude of individuals, solitary though herded together, labor anonymously for the state’s maintenance. Universal military conscription and the “mobile labor force” and the concentration-camp are only the most recent developments of this system. The “pulverizing and macadamizing tendency of modern history” that [the great English jurist, Frederic] Maitland discerned has been brought to pass by “the momentous conflicts of jurisdiction between the political state and the social associations lying intermediate to it and the individual.”
Near the end of their letter last week, the bishops warn Congress that, “[i]n effect, both RHNDA and HRAA would compel religious institutions, faith-based organizations, and pro-life advocacy organizations to engage in certain behavior that seems intended to drive these institutions and organizations out of the District of Columbia.”
We cannot say for certain, of course, but it seems that the bishops mean to inform Congress that this might be an unintended consequence of the District’s legislation. If so, the bishops are mistaken. For the consequences of these laws are not unintended, but are, in fact, precisely and specifically designed to remove one obstacle from the government’s expanse of control.
We have long believed and long argued that the American Catholic establishment’s loose affiliation with the “liberal” state was a grave mistake. There is no question that the state and the state alone is capable of providing a resilient safety net capable of protecting the poorest and most vulnerable in our society from the deprivations of material need. Even Tocqueville himself acknowledged as much. Nevertheless, any encouragement of the state to expand its powers and reach in the pursuit of addressing material need was, and is, a bargain with the proverbial devil, in that it also empowered said state, over time, to crush any and all entities wishing to be partners in this pursuit.
Roughly a century ago, the Christian/Catholic apologists J.K. Chesterton and Hilaire Belloc warned of the development of what the latter described as “the servile state,” the condition in which the masses exist primarily to serve the needs and the desires of the few, in which the erstwhile sovereign people exist explicitly to serve the state, rather than the other way around. The District of Columbia’s legislation is merely one manifestation of the growing audaciousness of the servile state. The bishops are right to fight back. But they should, we think, be aware that this is but one of countless battles to limit or destroy the Church’s influence in society that will take place over the next several weeks, months and years.