In response to: http://www.washingtonpost.com/opinions/the-gospel-accordingto-obama/2012/02/09/gIQAngvW2Q_story.html Dear Dr. Krauthammer, It would be precisely those Catholics who protest the loudest who would be least likely to buy into your "functionalist" definition, immersed as they are in their "essentialistic" metaphysic, which, in fact, lies at the root of the present, as you call it, contretemps. Now, it is true, especially for one with a catholic (both/and) perspective, that there is to be no compartmentalization of one's religious sensibilities, as they are to provide the impetus for the integral manner in which we live, move and enjoy our entire being in this world, impacting all that we do and all that we are. Still, a distinctly catholic perspective does not believe that human moral reasoning requires the benefits of any divine revelation and thus draws a distinction between faith and morals, the latter which do not require the former in order to live a good life, as I am certain you'd be among the first to agree. Faith is super-reasonable, going beyond empirical, logical, practical and moral reasoning but not without them. Our history of American jurisprudence seems to have implicitly (albeit still too inchoately) adopted a similar parsing regarding what is distinctly religious, governing one's relationship with ultimacies, and what is clearly moral, governing one's relationship with other wo/men. So, this history reveals that, whenever these religious and secular magisteria overlap but in serious contradiction, they appear to defer, even yield, one to the other? Less serious contradictions apparently result in exemptions. The rub, in the case at hand, will likely come down to competing visceral reactions regarding just how serious this matter is for just how many people and why. So, this religion clause jurisprudence is much more nuanced than all the recent political demagoguery surrounding the birth control coverage recommendation made by the Institute of Medicine to the United States Department of Health and Human Services? Jurisprudence provides no consensus model of interpretation for our 1st Amendment's religion clauses (nonestablishment and free exercise); specifically, it offers no single definition of the term religion. Some interpretations could rely on specific contexts and draw upon parallels from other clauses. For example, when religious expression is at issue, the free speech clause might guide us; when discrimination is at issue, the equal protection clause might offer insights. At any rate, if we look at our history to see what government has clearly established, legislated, enforced and adjudicated, perhaps we can also better circumscribe what it is that the free exercise of religion would necessarily entail or not? Clearly, the government HAS NEVER established liturgical or devotional norms, whether theistic or not, for the creedal, cultic or communal dimensions of any faith or other concerns regarding ultimacy? Just as clearly, however, the government HAS INDEED routinely established practical and moral norms, both prescriptive and proscriptive, notwithstanding competing stances by religious authorities? Now, it is implausible that the term religion, which, in the 1st Amendment, was used 1
once and shared by both clauses, has different meanings in each clause? On the surface, then, isn't it a little disingenuous to invoke the phrase "religious liberty" for a position that is essentially moral and practical rather than liturgical, devotional, creedal, cultic or communal? Is this really an unprecedented and historic attack on "religious freedom" or the common sensical administration of what are essentially PRACTICAL norms, not that much different from: 1) mandated compulsory education even over the "religious" objections of many Amish? 2) mandated medical intervention for minors even over the "religious" objections of many Christian Scientists? 3) mandated immunizations for an std even over the "religious" objections of many Evangelicals? 4) mandated metabolic screenings of week old infants even over the "religious" objections of many Scientologists? 5) mandated MMR immunizations even though the rubella vaccine was developed from FDA-approved fetal tissue cell-line cultures even over the "religious" objections of many Roman Catholics? 6) mandated blood transfusions for minors even over the "religious" objections of many Jehovah Witnesses? 7) outlawing of polygamy even over the "religious" objections of many Mormons? 8) and so on and so forth ad nauseum? Both individual and societal risks, as accounted for in public health concerns, can be regulated by government without violating so-called "religious" liberty! Public health laws that are generally-applicable and religion-neutral do not interfere with the right to free exercise of religion. This is the logic used by state courts in holding that mandatory vaccination of school children does not interfere with religious liberty. Not only do states not have a constitutional "obligation" to enact religious exemptions, when it comes to vaccines, it remains unclear whether they even have the constitutional "authority" to enact them! Catholics do not ordinarily differ, significantly, from the rest of the population on gender, sex and life issues. Because SUPERMAJORITIES favor both embryonic stem cell research and in vitro fertilzation, clearly both IUD's and morning after pills are morally acceptable forms of birth control to them, along with condoms and other contraceptives. Taken together, all of these forms of birth control can drastically reduce the numbers of abortions (despite the incredibly tortured logic and oft stated counters to the contrary). So, given that, as gestation advances, there is an increasing consensus among those of otherwise divergent views regarding the moral significance of the embryo, many find it poignantly sad (some even morally repugnant) when birth control access is curtailed since it could head off so many of these truly tragic choices. And they find it similarly sad (again, often repugnant), that so many die from AIDS where condom access has been curtailed (e.g. African missions). Additionally, there are other therapeutic purposes to birth control pills beyond their contraceptive efficacies. The public health consequences of the Dept of HHS mandates that now hang in the balance are clearly not insignificant and the expressed will of the 2
overwhelming supermajority of Americans (and Catholics) should not be thwarted, much less the welfare of hundreds of thousands of workers, by those who imagine they can invoke a religious liberty even as they advocate what is otherwise an essentially moral stance. And that stance enjoys VERY LITTLE normative impetus in the public square because the arguments in its favor are not compelling to most people of large intelligence and profound goodwill, including a supermajority of the coreligionists of the vocal minority protagonists! At the most, this recent dust up might should evoke a federalism debate. But religious liberty? Give me a break! We've got an unequivocal right to free exercise of our faith but where any given moral calculus impacts significant public health issues with enormous consequences vis a vis societal risks, the emperor is indeed naked who imagines he can cloak an essentially moral stance under a religious garb that just ain't there! Finally, I'm not saying that religious institutions have not had a most efficacious role in forming morals and ethics throughout history. This is true, too, for other institutions like the family, like schools, like manifold social organizations. All of these institutions should continue to thus contribute to human moral formation and public moral discourse. But they must translate their moral arguments and articulate them in a manner that is transparent to human reason without relying on what are essentially religious arguments, without invoking mere religious authority, without resorting to ad hominem excuses (that blame those who, despite their sincerest efforts, cannot make sense of their terms and categories, much less their logic). For once, maybe they should look at the man in the mirror or talk to a human being who has ovaries?
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