Berkley Center

Lighten up! This is the riposte that my employer, the University of Notre Dame, and other like-minded organizations have met with in recent months as they have protested the violation of their religious freedom by the Obama Administration’s mandate that they pay for health care policies that cover contraception and abortifacient drugs. Critics charge that the protest, manifested most saliently by a lawsuit that Notre Dame and some 40 other Christian organizations filed against the Department of Health and Human Services, is at best unduly fretful and at worst manifests a persecution complex. The mandate does not require outfits like Notre Dame to cooperate with evil directly, they aver, but rather only to fund insurance policies that indirectly enable their employees to commit the acts that Notre Dame regards as immoral. Demurring, Notre Dame and its fellow travelers claim that the mandate requires them to support evil too directly and too objectionably.

The debate over cooperation with evil, however, misses what is most at stake for Christians organizations in the HHS mandate, which is much the same as what has been most at stake for the Christian church in its relationship with the state over many centuries, which in turn is what is most at stake for the church in religious freedom: their right to give witness to the truths that they believe.

The debate over the HHS mandate has fixated upon cooperation with evil since the mandate was decreed in January 2012. Drawn from traditional Catholic moral theology, the concept confronts situations where a person is potentially involved in evil acts that he does not necessarily intend. A taxpayer, for instance, is required to transfer money to a government some of whose policies she regards as abhorrent – this unjust war, that law allowing abortion, or that other policy canceling vital services for the poor. Can she still pay those taxes? Catholic moral theology forbids “formal” cooperation with evil, where one joins one’s purposes to the evil act – say, when a taxpayer willfully desires that her taxes support the wrong or votes for a candidate in order to promote an unjust policy. More complex, though, is “material” cooperation, where a person in some way causally enables an evil but does not will it to occur – the case of the taxpayer who pays her taxes but regrets that they will support an unjust policy or who votes for a candidate in spite of, not because of, the candidate’s support for an injustice. The permissibility of “material” cooperation, in the traditional teaching, depends on how direct the cooperation is and on its proportion to good policies that the same act enables.

But this accommodation was little more than an accounting trick, the mandate’s critics rejoin. The mandate remains as problematic as asking a Jewish Kosher deli owner to sell pork sandwiches, to borrow the analogy offered by Catholic Bishop William Lori. Even if the deli owner does not directly consume these sandwiches, his being required to sell them to customers implicates him all too directly in acts that violate his conscience – and his religious freedom.

Now that President Obama has been re-elected and shows no sign of budging on the mandate, the mandate’s opponents look to the courts as their last potential rescuer from the excruciating choices of complying, paying an exorbitant fine for violation, civilly disobeying, or shutting their doors, as Cardinal Francis George has vowed that scores of hospitals, schools, orphanages, and other Catholic agencies would do if the mandate is not rescinded or struck down.

Following the Catholic tradition, I regard the criterion of cooperation with evil as a valid one for a wide range of moral dilemmas, including the one at hand. The debate over cooperation with evil, however, whose every thrust and parry grows increasingly complex in its distinctions regarding intentionality, causality, and directness, obscures the larger, more important issue of whether Christian organizations enjoy the freedom to give witness to their professed truths.

To witness means to proclaim or to give testimony for a truth that the proclaimer believes is maximally important. To witness is to communicate a message – in the Christian’s case, that of God’s salvation of the world through Jesus Christ. For a Catholic, this salvation is embodied in, and its meaning for the Christian believer is manifested through, the teachings of the Catholic Church, including its teachings about contraception and the sanctity of life. Many Protestant churches make parallel claims, with due variations, about the role of the church in salvation. For (many) Christians, then, salvation is achieved through corporate entities as well as the faith of individuals. Consonant with this mission, churches and their affiliated universities, schools, hospitals, and orphanages share a duty not simply to avoid cooperating with what is false but to proclaim loudly what is true.

The right to witness to the truth of salvation stands at the heart of the right to religious freedom on which Christians justly insist. In the Catholic Church’s definitive proclamation on religious freedom at the Second Vatican Council, Dignitatis Humanae, the Church defines religious freedom as a civic right for both individuals and associations to be immune from coercion in the search for religious truth and in the practice of religious faith. Dignitatis Humanae makes clear that this right protects religious organizations’ worship, internal governance, instruction, appointment of ministers, property, and construction of buildings as well as “the right not to be hindered in their public teaching and witness to their faith, whether by the spoken or by the written word.”

The right to religious freedom, of course, is also protected by the First Amendment of the U.S. Constitution. Historically it has been among the most cherished of American freedoms and, much as Dignitatis Humanae prescribes, it has protected religious practice, religious expression, and virtually all of the distinctive things that religious organizations do. It is not absolute, of course – no practice that violates the basic human rights of others can be defended through religious freedom – and religious freedom’s boundaries and gray areas have been worked out over time through the courts. But U.S. courts have always understood religious freedom to protect something far wider than the right not to materially cooperate with evil, including, quintessentially, the right of religious people and organizations to give witness to their convictions.

The freedom of religious organizations to live their faith and to communicate their message is violated when they are required to enable behaviors they believe to be immoral, even if this enabling is somewhat indirect. What they are being required to do is to perform a contradiction by associating themselves in their actions closely with deeds that undermine what they aim to profess. Consider the case of Notre Dame. The Catholic Church authoritatively prohibits contraception, teaching that an intrinsic purpose of sex is to beget life, an end that a person ought never to impede. The Church understands the use of abortifacient drugs to violate the life of the child who would be lost. To force a Catholic university, which by definition commits itself to manifesting the teachings of the Catholic Church, to promote these actions is to force it to compromise its very witness to the character of life lived in fellowship with the resurrected Christ – indeed as this life might be lived by its own employees. Notre Dame and its fellow plaintiffs cannot lighten up.

The skeptic will retort that the witness dimension of religious freedom does not escape from and only pushes back the problem of cooperation with evil. To return to our taxpayer, any Christian may claim that his witness to Christian truth is contradicted when he pays taxes to a government that acts in ways that he believes contradict the ways of Christ. Yet, the skeptic will argue, few Christians in fact refuse to pay their taxes and most may pay them perfectly justifiably as long as they do not intend to support the policies they believe to be evil. Christian witness is undermined only when cooperation with evil is either formal or of the unjustifiable material sort. But if that is true, then the problem of evil is again our main concern. On the skeptic’s view, the freedom to witness adds nothing to the picture.

Again, I do not deny the importance of working through cooperation with evil. In my view, what the HHS mandate requires of religious organizations like Notre Dame, namely to pay for policies that enable sinful actions on the part of its own employees, involves much closer cooperation with evil than does paying taxes to a government that conducts thousands of policies, programs and activities. I also contend, though, that interfering with the freedom of Notre Dame and company to witness to the truths of their faith enhances the case against the HHS mandate far beyond the problem that material cooperation expresses. That is, even if we were to grant for the sake of argument that the algorithms of cooperation with evil yield up an ambiguous moral conclusion, it remains the case that the HHS mandate violates religious freedom in the far more fundamental sense – namely the right of religious organizations to perform what is most important and distinctive about their religious mission. This consideration, I believe, puts the debate about the HHS mandate over the top on the side of Notre Dame and its fellow critics.

The performance of witness, and that fact that this performance surpasses the importance of non-cooperation with evil alone, points not only to why the HHS mandate is unjust but also to how Christians ought to respond to this injustice. Historically, the greatest of Christian witnesses – the saints – have responded to legal restriction, endangerment, and other denials of their freedom by viewing these predicaments as opportunities to offer a fresh articulation of what is being restricted, endangered, and denied. At a time when the sexual act is routinely commodified or rendered a vehicle for the limitless self-definition of autonomous agents, Christians might see in the controversies over the HHS mandate an occasion to proclaim a view of sexuality as a gift of self expressed in conjugal fidelity. In a culture where life is snuffed out both inside the womb and outside on the streets of our cities, Christians might seize this opportunity to witness to God’s love for the most fragile and vulnerable of people.

The word martyr is derived from the Greek word for witness. Although neither Notre Dame nor its fellow plaintiffs is about to suffer martyrdom, in having their religious freedom curtailed more sharply than religious freedom has been curtailed at any other time in the history of the republic, they experience an injustice that resembles in form if not in magnitude those injustices that historically have produced martyrs. Many a perpetrator of these injustices has told Christians to lighten up. Early Roman emperors, Henry VIII, French revolutionaries, and the Chinese government today all have said to Christians (or specifically to Catholics): you don’t have to give up your faith but just to give fealty to the emperor, renounce papal authority, give up control over educating your children, and so on. In refusing to comply, martyrs have not only replied no, this contradicts our witness, but have also taken these opportunities to restate their witness. This denial and this opportunity, Christians should not overlook as the walls of the HHS mandate close in upon them.