Thursday, February 16, 2012

Thoughts on the HHS mandate, religious liberty, etc.

I'm having a hard time putting my finger on just what about this panel-hearing made me so uneasy, besides the fact that it was three-and-a-quarter hours long (yes, I watched the whole thing). Here we had five men of the the cloth speaking cogently against the HHS mandate, which would require religious organizations and their subsidiaries to pay for contraceptives and abortifacients for their employees, either by paying for the drugs themselves, or by paying the insurance premiums to the company which provides the drugs. In many ways, it was wonderful to behold. The Rev. Matthew Harrison, president and bishop of my own church body, the Lutheran Church - Missouri Synod, was among those testifying, and I have to say, I was right proud! Yet he along with the others kept invoking the American aura of religious freedom as the reason for their objection to this mandate. Freedom of conscience, they all insisted, is sacrosanct, and not to be violated by the government. The freedom to believe in and follow a set of religious tenets, they claimed, is enshrined by the Constitution, specifically Amendment I, which I will not bore you with by reproducing here. Google it.

I'm definitely sympathetic to this position. I mean, let me be clear: it's my position, too, and no one can convince me that it's wrong.

But another part of me doesn't really care what the government has to say about the free exercise of religion. Because on this particular point from among many, true and undefiled religion before God -- which I love, because I love Jesus -- bids me not to care. We are to cling to Christ our Heavenly Bridegroom for richer and for poorer, in sickness and in health, in plenty and in want, because even death won't part us, it will simply unite us fully with Him.

It is true of course, that when the U.S. Constitution stipulates that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, it means what it says.

It means what it says. Just how helpful is that?

Well, golly. I guess we should go and get someone to tell us what it says. I'm no devotee of Derrida, but we delude ourselves here if we think that interpretation of the "free exercise clause" throughout U.S. jurisprudential history has been consistent.

To whit:

Congress can't prohibit the free exercise of religion. Except when the free exercise of religion constitutes a violation of civil law. For example, if your free exercise of religion entails crashing jets into skyscrapers, it's prohibited. By Congress, no less. Crashing jets into skyscrapers kills people, and we, as a society, are against this.

Congress can also prohibit your free exercise of religion if the same entails you, as a man, marrying several women. (But fear not, men: you can sleep with as many women as you want, you just can't marry them all.) This particular exercise of religion is verboten, as the history of the Mormons proves.

Congress can also prohibit your free exercise of religion if your religion requires human sacrifice. And wouldn't we support this? I mean, maybe the U.S. Congress wouldn't be the ones to do it, but I'm sure that the local constabulary wouldn't waste time quoting chapter and verse, or your Miranda rights, to you if they catch you you with the knife upraised and your victim lying prone on the altar. No, they'll taser your human-sacrificing ass. And wouldn't we support this?

Now comes the HHS mandate. It appears that Congress can also prohibit your free exercise of religion if the same would have you refuse to pay for contraceptives and abortifacients.

Know how I know this? They just did. They passed Obamacare. Because they, in their collective wisdom and by means of their legislative prerogative, concluded that Obamacare was reasonable and prudent for carrying into execution all of their foregoing powers, etc., or something like that. I mean, it wasn't exactly the first huge entitlement package that was pushed through the hallowed halls. I'm not defending it. Just saying.

Anyway the brass tacks of the HHS mandate mean several things for the devoutly religious here in America. If you're a Roman Catholic hospital, or a Lutheran restauranteur, or a Jewish chiropractor, or a Baptist liquor-store owner, you can't refuse to comply with this mandate for religious reasons. You can't say, "the free exercise of my religion binds me to disregard this law," with impunity.

But you can say that, and you can do that,

You can civilly disobey. Obey God rather than men. Ignore the government. Say your piece, and move on undeterred. I wish that more would have been made by each clergyman present of the fact of our future noncompliance. Why are we seeking to parley? Cause a major fuss. Clear the temple, so to speak. Let zeal for His house consume us, etc.

We do not have an unalienable right to religious liberty, my friends. It makes so little sense to frame this discussion in the context of rights. Freedom is the ability to do as you ought, and that freedom will never be taken away. Why? Because it is literally a freedom that you can die exercising. Indeed, to die is gain, the fullest fruition of such freedom. To face fines, imprisonment, persecution, and even death rather than forsake Our Lord is ultimately the fate of the faithful in this world. Paradoxically, it is the highest joy and the greatest blessing, as well. Remember that St. Paul, after mentioning his Roman citizenship to the tribune and gaining some leniency from it, ultimately went before Festus and Agrippa, and then before Caesar himself -- Nero, to be precise. In the end, all that his Roman citizenship did for him was allow him to be executed by beheading rather than crucifixion.

With all that said, just why is it, then, that we as Christians are walking around like we own the place? We don't! America isn't God's country. Indeed, this whole world is still in thrall to its prince, unless it become the Church, and be sanctified. But then it is no longer the world, for the Holy Spirit calls the Church out of the world, to be separate from it, perpetually other, even while in the midst of it.

But I digress.

I'm not saying that this hearing was a bad thing. No, it was wonderful to see these men speaking of His testimonies before Kings unashamedly, as it were. But we, the Church, need to be already thinking about how we will take "no" for an answer. Because that's what the answer is going to be, in one way or another, at some point or another.



  1. Trent,
    I just had a few thoughts while reading this that, while they may not answer your concerns, might add to your mental toolbox while you tinker on them.

    First, a distinction that I can't decide if it is important or not, so I'll just throw it out there and let you decide. The cases of congress infringing religious liberty that you spoke of are cases of the worldly authority saying that you may not do certain things even if your religion says you should. The arguments for these, if they are ever made, are made from natural law. This current case is one of the worldly authority telling everyone in the country "You must do this, even if it violates your conscience." Again, I'm not sure, even as I write this, that that distinction matters, but there it is.

    The second is that, while the men of the cloth may not have made much of their future refusal as a group (I only watched the clips of Rev. Harrison), Rev. Harrison did mention it twice, and once quite forcefully that we will obey God rather than men. Perhaps they should have made more of it, but Harrison, certainly, left no doubt in the minds of anyone who watched him.

    The third regards your point that suffering for the sake of the Gospel is a good thing. I think that there are two or three things that require that we do more than say our piece and move on. The first is something Rev. Harrison mentioned during the hearing, which is our vocation as citizens - particularly citizens in something of a democracy. We should participate in the political processes, particularly when they plan to pressure the church to act against its conscience. Also, we are told to be at peace with all men, so far as we are able. There is a time for saying "Here I stand" but it is not the first recourse. It is a last resort after we have failed to settle our problems with our neighbor.

  2. Good thoughts, Nathaniel. Perhaps I was too quick to envision the endgame, but that is more or less what I was doing.

    Chairman Issa made a very helpful, clarifying point: “The government spends your tax dollars involuntarily,” he said, “but you recognize that’s separate from telling you, you must take part in it directly.” Your distinction between negative and positive law (a case of "Thou shalt not" versus "Thou shalt") is recognized -- I, too, am unsure of what to make of it.

    That is the crux of the issue: Caesar will always require us to render him taxes, and we cannot always (or even often) control how our tax dollars are spent -- this galls me as much as it does you. But what makes this beyond the pale is the mandate that Christians actively and directly violate their consciences. Put more bluntly, this law would force Christians to sin. We must disobey it.

    To me, this is a case where the Church must take seriously her duty to obey God rather than men moreso than she clamors for her "rights". In this vale of tears, the Church has no unalienable rights. We have rendered to Caesar his due, but we will render no more: now we render to God what is His, come what may. Jesus said this would happen. You are right, though: Rev. Harrison's words could not have left any doubt in the minds of his hearers as to what his endgame, and that of the LC-MS, would look like. I especially loved his paraphrase of Luther: "The conscience has room for God alone, not God and the federal government. The bed is too narrow, the blanket is too short." Brilliant. It's been awhile since I was proud of the Missouri Synod as such.

    I'm not saying that we shouldn't be fighting this injustice through peaceable means. I think, though, that massive civil disobedience by devout Christians might a) be what this ends up requiring, and b) be the more catalyzing course of action, and the most effective. Refuse to comply with the mandate, and refuse to pay the fine -- with a clear conscience! What are they going to do then? Do the Democrats really want to be responsible for imprisoning a bunch of pastors? Hmmm. What would that do to them politically?

    Also, do you know what I was wishfully hoping for? A condemnation of contraception by Rev. Harrison. I'm pretty sure that he is personally opposed to it, but even he can't speak for our synod. Contraception is, sadly, a third rail in our church body. Someday, someday...

  3. Hi Trent, Nathaniel,

    I think the distinction between a mandate to prevent and a mandate to promote action is hugely important. As Trent has eloquently pointed out focus on 'inalienable' religious liberties at this juncture is bogus. We will get trapped in hypotheticals: "if the church said to do x would the state not be allowed to stop them?" etc ad infinitum.

    No, what is key is that the government really needs a better reason than it has to mandate a particular action. Laws prevent us doing things all the time, we are used to it and it is in this 'negative' way that we see the values of a society projected, we define ourselves by what we don't do (e.g. human sacrifice). But trying to define English (or American) people by what they do becomes a lot more tricky. It is partly for this reason, I believe, that the government rarely mandates behaviour except in extreme circumstances, for example, forcing a curfew during an invasion.

    Now, the powers that be may be of the honest opinion that contraceptives are necessary part of healthcare - I can make room for this opinion in the country in which I live even if I disagree with it. What the American government can not do is claim that the lack of availability of contraceptives is so serious that a mandate to provide them has become necessary. It is doing something which governments rarely do (except ideological dictatorships) which is mandating behaviour on principle. This contravenes the norm which seems to be that the principles of a country are defined very loosely and by what is forbidden rather than what is imposed.