Burwell v. Hobby Lobby

It seems strange to identify the cause of morality with the interests of a profit-making corporation. That this should actually be the case as a result of the government's ideologically driven contraception mandate is itself certainly a sign of the times - of our morally confused and conflicted, topsy-turvy times. 

I have not had time to read in its entirety today's Supreme Court opinion in Burwell v. Hobby Lobby, nor in any case am I qualified to analyze it as a constitutional lawyer would. I write, rather, as an ordinary citizen, with a strong personal commitment to - and obvious investment in - religious freedom. At issue in this case was the applicability of the 1993 Religious Freedom Restoration Act (RFRA), which was, I believe, itself a response to Justice Scalia's 1990 decision in Employment Division v. Smith, which held that accommodating religious beliefs was not obligatory in the case of "a neutral law of general applicability." In response, RFRA provided that "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." Faithful to RFRA, the Court today ruled that specifically such closely held corporations as Hobby Lobby (and Conestoga Wood Specialities, party to the other case also decided today, Conestoga Wood Specialties Corp vs. Burwell) may not be forced to violate their owners' religious beliefs by providing the contraception coverage mandated by ACA. 

The decision is limited to companies such as family-owned Hobby Lobby, which are "closely held," i.e., those defined by the IRS as having half their stock owned by 5 or fewer individuals. So this is not an expansive claim that large, impersonal corporations, e.g., General Motors, are also persons capable of religious beliefs.

Corporate involvement notwithstanding, this is certainly a laudable victory for religious freedom. That said, it remains, as I have repeatedly written here, a win in an unnecessary war. There was no need to tarnish the necessary and laudable provision of near universal access to health insurance with a demand that employers be forced to become instruments for the furtherance of a certain secularist ideology. 

It is also unfortunate that the terms of the debate have been framed almost exclusively in terms of religious liberty as a kind of opt-out from what would otherwise be generally applicable. That alone speaks volumes about where and how fast our society has moved. Providing protection for religious freedom in the form of exemptions from generally applicable laws may be a necessary self-defense for religious people in a rapidly secularizing society, but it effectively enshrines the secularist ideology as the normative one for society in general. (and, of course, it leaves un-debated the specific social policy question of the desirability of society's promotion of radical "reproductive rights.")

All of which once again points to the fundamentally flawed way in which we have gone about fixing access to health care. It was perhaps inevitable, given our polarized and dysfunctional politics, but it remains a problematic flaw nonetheless. I refer, of course, to the preservation of private insurance as the medium for providing citizens' access to health care, instead of the obvious and much more efficient alternative of a single-payer, government-run plan ("Medicare for all"). In that case, of course, the issue would never arise of compelling employers to pay for morally problematic procedures. 

Of course, a contentious political debate would likely have ensued in Congress and in the nation about whether to include contraception in taxpayer-funded health insurance (not unlike the earlier debates about the famous "Hyde Amendment" regarding abortion coverage). Instead of emphasizing justifiable exceptions to generally applicable laws, that would be a larger debate well worth having. 

Sarajevo and our Hundred Years of War

Some centennials are merely historical curiosities. Others deserve attention not just as history but as a window into an unresolved present. Such is this year's 100th anniversary of the start of World War I - the beginning not just of four tragically unnecessary years of European warfare but of a century of still unresolved world-wide conflict.

Sunday, June 28, 1914, was one of those liminal moments in human history, when a threshold was crossed from one state of civilization to another, the beginning of an ambiguous and disoriented century of war and genocide.

No one knew that at the time, of course. We can only expect what has already been experienced. And, after a century of relative peace since the defeat of Napoleon, the imminent unhinging of western civilization in an uncontrollable fratricidal conflict was hardly front and center in anyone's mind - certainly not on that fateful Sunday, when the heir to the Austro-Hungarian throne, the Archduke Franz Ferdinand, and his morganatic wife, went to the Bosnian capital, Sarajevo - to a province only recently incorporated into the Empire, much to the chagrin of Serbia and the Serbian terrorist network that would irrevocably change human history that day. When one of World War I's products, Yugoslavia, finally fell apart upon the end of the Cold War, the ensuing Bosnian war continued that seemingly age-old old conflict, highlighting even further the symbolic significance of Sarajevo at the center of the 20th-century's sad story of a world at war with itself.

We can ignore this anniversary, of course, coming as it does at the height of the summer vacation season. Or we can commemorate it nostalgically - a look back at the beautiful but doomed world of civility, protocol, and old-world European elegance. Or we can try to draw some lessons from the foolhardy way the European powers allowed a nasty Balkan quarrel to undo a century of virtual peace and centuries of Western civilization. After a century for most of which the world has been at war with itself as a direct result of that Sunday in Sarajevo, what other choice have we?

God's Merciful Heart

In his recent book, Mercy: The Essence of the Gospel and the Key to Christian Life, Walter Cardinal Kasper, considers the devotion to the Sacred Heart of Jesus, which the Church celebrates today. "In many centuries," Kasper writes, "veneration of the sacred heart of Jesus functioned as a special expression of faith in God's love and mercy." In Jesus' heart, "we recognize that God himself has a heart (cor) for us, who are poor (miseri), in the broadest sense of the word, and that he is, therefore, merciful (misericors). In this way, the heart of Jesus is an emblem of God's love, which became incarnate in Jesus Christ."

Kasper further notes the "important fact that the modern veneration of the sacred heart of Jesus became pervasive in the context of the dawning enlightenment and secularization, and in connection with the strengthening sense of the absence - indeed, the death - of God. ... In the middle of this night of moribund faith in God and the world's increasing obtuseness and apathy toward God's love in Jesus Christ, we may experience in the heart of Jesus God's suffering because of the world and his never-ending love for us." Pope Pius XII's 1956 encyclical on devotion to the Sacred Heart, Haurietis Aquas, Kasper notes, "emphasizes that, on the basis of the hypostatic union of the second divine person with humanity, the emotions and suffering of the human nature of Jesus are also the emotions and suffering of the divine person. The suffering of Jesus as a human being is, therefore, the suffering of God at the same time." What Kasper calls God's "compassionate suffering [Mitleiden]" is, in fact, an expression of God's omnipotence. "because of his sovereign love, God got himself involved, so to speak, in the incarnation and lowered himself to the status of a slave. He was not overpowered by suffering. In Jesus' death, God has not relinquished omnipotence, but rather has acted in an all-powerful way."

Especially on this annual solemnity of the Sacred Heart, Kasper's is a message well worth meditating upon on at this time when mercy - divine and human - has again moved even more overtly to the forefront of our consciousness.  

Instrumentum Laboris

Today the Holy See has published the Instrumentum Laboris for the 3rd Extraordinary Assembly of the Synod of Bishops, which will meet in Rome in October on the theme "The Pastoral Challenges to the Family in the Context of Evangelization." As its title suggests, the Instrumentum Laboris is a "working document," which reflects the results of last fall and winter's world-wide consultation process. While consultation with the world's bishops and others is not unusual in these situations, the very public character of the questions asked and way in which many bishops and religious superiors solicited input from their constituencies made this an extremely extensive - and hopefully fruitful - consultation process.

The 2014 synod will be an "extraordinary: one, which means participation will be limited largely to the leaders of national episcopal conferences. According to the Instrumentum Laboris, it will "throughly examine and analyze the information, testimonies and recommendations received fromt eh particular Churches." The 2015 synod will be an "ordinary" one, which means participation will be broader, including elected representatives from each Bishops' Conference. Its mandate will be to "reflect further on the points discussed so as to formulate appropriate pastoral guidelines." so, whatever outcomes we may expect from this synodal process, there will be no attempt at some sort of "quick fix," but rather a deliberative assessment of the empirical situation and a discernment of possible pastoral applications.

The document consists of a Preface and 159 paragraphs concluding with a prayer to the Holy Family. It is divided into three parts: a report on the faithful's "knowledge and acceptance" of the Church's teachings on marriage and family, a look at "various challenges and actual situations" for families today, and the particular topics of "openness to life" and parents' responsibilities in bringing up their children.

Unless one has been living in a very particular kind of bubble, no one will be surprised to read that the teachings of the Church nowadays often meet with widespread incomprehension and non-acceptance. Reasons for this are many and various, and again anyone familiar with the trajectory of Church history for the past 50 years will find little surprising in this section. Perhaps the most intriguing observation is the "want of an authentic Christian experience, namely, an encounter with Christ on a personal and communal level, for which no doctrinal presentation, no matter how accurate, can substitute. In this regard, some responses poitn to the insufficiency fo a pastoral activity which is concerned only with dispensing the sacraments without a truly engaging Christian experience" (15).

Also unsurprising is the recognition that natural law - so central to the Church's tradition on this topics - has become "highly problematic, if not completely incomprehensible." As I recall, I used a similar phrase myself in my response to the questionnaire. The document recognizes the problem, but it remains unclear whether an effective solution still exists. Given their importance of natural law in the Catholic moral tradition and its unique ability to articulate universal moral principles that ought to be accessible to all regardless of religion, I think this question deserves a very high priority.

Against modern tendencies to privatize everything but the state, the document does a good job of recalling that the family is about more than its immediate members, but is - as Pope Francis has recently reminded us (EG, 66) - "the fundamental cell of society, where we learn to live with others despite our differences and to belong to one another."

The document also does a good job, I think, in highlighting some of the contemporary challenges - including the breakdown of communication exacerbated by contemporary electronic devices and external economic pressures. I was pleased to read this rather unambiguous statement: "In dialoguing with the Sate and related public entities, The Church is called to offer real support for decent jobs, just wages and a fiscal policy favouring the family as well as programmes of assistance to families and children" (71). Likewise in the third section - on openness to life -the documents asserts that "childcare, flexible working hours, parental leave and an easiness at integrating raising a family into a work situation appear to be essential. Christians, therefore, share a responsibility in promoting legislation and structures which foster a positive approach towards birth."

So much attention in the media has been devoted to trying to anticipate what the Synod might or might not say about couple in irregular situations. The working document definitely does not try to decide anything in advance  and does a good job of elaborating the various proposals and their potential impacts. Regarding the problem of requests for marriage by non-practicing couples, the document still sees support for the theory that this may prove to be an evangelizing moment (105), while also acknowledging the reality "that some of the clergy experience a certain frustration at often witnessing a failure in their pastoral endeavours, when only a very small number of couples continue some kind of relationship with the parish after the celebration of marriage" (106). As for the newer concern about same-sex marriages, the document seems to reflect the impasse that has been reached. Thus, it notes that "the extreme reactions to these unions, whether compromising or uncompromising" do not seem to have facilitated the development of an effective pastoral programme which is consistent with the Magisterium and compassionate towards the persons concerned" (113). On the other hand, on the question of baptizing and catechizing children of such unions and similar situations, the document seems unambiguously welcoming (120, 146, 149, 152).

The document is overly long, as such documents tend to be, but the big issues do surface from the forest of details. The coming synods will certainly have their work cut out for them!

The Iraq Debate in the Shadow of Vietnam

There are actually several debates going on about Iraq right now, in addition to the most obviously immediate one about what, if anything, the United States should be doing right now in terms of direct intervention. That invites a deeper debate about what is actually going on in Iraq, and what exactly the long-term interests of the United States in regard to this sectarian conflict are. That, of course, brings us full-circle back to the debate of a decade ago about the merits of the American intervention that toppled Saddam Hussein's regime and set the stage for what has happened since. That debate has been exacerbated by the recent public posturing of some associated with the 2003 decision to go to war and their sometimes strong criticisms of present policy-makers now saddled with an array of bad options - one worse than the other - as a result of that earlier decision. 

CNN's series, The Sixties couldn't have come at a better time, since it reprises - rather fairly - the way we trapped ourselves in a losing war in Vietnam. For those of my generation especially, just hearing the President use that infamous term "advisers" today is more than enough to call up a host of unhappy memories from that terrible time!

However unwise and ideologically constricted the process that got us into Vietnam, it is fair to say that American motives were for the most part honorable, at least the way most Americans understood "honorable" back in the Kennedy years. Those were, it should always be recalled, among the most intensely conflicted of the entire Cold War. It was eminently rational to interpret what was happening in Vietnam not as just another regional nationalist conflict but as yet another front in the world-wide conflict we called the Cold War. Whether that was a correct interpretation is another question. In any case, since we lost the war in the end, it proved to be a mistaken interpretation in terms of serving our long-term national interest. The Cold War was serious business. (The Soviet blockade of Berlin began 66 years ago today!) But because a policy was understood in Cold War terms and based on Cold War motivations did not guarantee its wisdom or ultimate success and did not prevent it from damaging rather than advancing the long-term interests of the United States. The same obviously applies to today's War on Terror.

But the point remains that, while Vietnam in the end damaged rather than advanced the long-term interests of the United States, it was a mistake many made intelligently and honorably. That was one reason it took so long for us as a society to conclude that the war was really a mistake - by which time we were disastrously over-invested in the conflict from which we then found it so tragically difficult to extricate ourselves.

So I am more than willing to concede intelligent error and honorable miscalculation to our 21st-century policy-makers - at the time much of the political class in both parties - who initially supported the Irag war. Endless recriminations about the process leading up to the decision to go to war and trying to establish one's moral high-ground based on how soon one changed one's mind just adds further fuel to the endless fire of political polarization - much as the endless Vietnam debate has for decades fanned the flames of an incorrigible culture war.

That said, it is important to admit the damage the war in Iraq has done - damage to Iraq itself, to the stability of the region, to America's Great Power credibility and international standing, and to our necessary role in establishing and maintaining a stable and balanced international order. In other words, whatever the original goals of the Iraq war and however honorable anyone's intentions may have been, it has turned out - like Vietnam - to be an unmitigated disaster. Recognizing that must become the first premise of any further discussion

To me it also appears increasingly clear that the post-World War I arrangement of regional middle eastern state borders is no longer sustainable. In a sense, what is happening there is a middle eastern version of what happened in Europe during and after World War II, when the the post-World War I re-drawing of Europe's borders was superseded by a drastic and murderous re-arrangement of populations. The victorious Allies' own role in the post-war ethnic cleansing (if one may use that ugly phrase) of eastern Europe, resulting in much more ethnically homogeneous successor states should also not be forgotten or minimized. Personally, I do not know whether the partition of Iraq into three states (or pseudo-states) is inevitable, or whether it would be more just and equitable than trying to keep the current artificial country going. How does anyone know? The fact is that the demons that were unleashed with the Iraq war a decade ago are now probably well beyond our capacity to control and even beyond our capacity to interpret with a sufficient probability of accuracy.