Institutional Religious Freedom: Broadening the Scope

The 2011 U.S. Department of Health and Human Services (HHS) contraceptive mandate has garnered ample media attention as a polarizing issue among U.S. Catholics and the general public. A rhetorical icon for the religious liberty debate, contraception orients discourse about religious freedom to personal practices, political opinions, and religious beliefs. A vital issue for many people –especially for women, who are profoundly affected by reproductive choice and public health policies—a narrow-minded focus on contraception limits both moral discernment and political imagination regarding religious liberty. Broadening the scope of the current conversation, I offer the following reflections on religious liberty and immigration law.

Several states, dissatisfied with federal efforts to curtail undocumented immigration, have passed controversial laws empowering police to ascertain unauthorized residents after stopping them for traffic violations. Setting their sights on employers who might attempt to hire undocumented persons or traffickers who seek to indenture them, Alabama has passed legislation –purportedly to protect civil order and the common good—that forbids “harboring” unauthorized residents. Church leaders argue, however, that the law criminalizes basic Christian pastoral practices by prohibiting religiously affiliated schools, hospitals and non-profits from interacting with or providing assistance to unauthorized residents. In light of this tension between church autonomy and state law, Christians there are faced with difficult questions: To what extent does the law infringe upon the autonomy of religious and religiously affiliated institutions?  To what extent are churches responsible for respecting civic law?  If a law is unjust, ought Christian institutions violate it in prophetic witness to the Gospel? While this case has received significantly less media attention than the HHS mandate and elicited less fervor among U.S. Catholics, it raises similar questions about the theological and ethical content of religious freedom for churches and religiously affiliated organizations.

Catholic legal scholars Richard Garnett (University of Notre Dame) and Gregory Kalscheur, S.J. (Boston College) provided perspective on this tension at BC, in November.  Garnett argued that churches and other religious organizations possess the freedom to organize, govern, and direct themselves in accord with their own teachings.  While religion is an individual experience, religious communities are not merely an aggregation of individuals; these communities represent traditions of shared beliefs. As the right of religious freedom in constitutional law, “church autonomy” –what John Courtney Murray called “the Freedom of the Church”—protects them. Kalscheur argued that liturgies and ordination policies are “uniquely religious” activities beyond the boundaries of civil authority. However, when religious institutions embody their religious mission through temporal and social service activities, they are engaged in activity that the civil authority may have the jurisdiction to regulate; thus, this public service and advocacy is not “uniquely religious” despite ministry outreach to unauthorized residents and not necessarily exempt from civil demands contrary to their beliefs.

For Kalscheur, while churches and religiously affiliated institutions may be called to embody their mission through public ministry, they are called also to cooperate with state laws and regulations in order to protect civil order and foster the common good. For Garnett, government may enact laws that compromise the fundamental public mission of the church.  In the immigration case, Alabama asks the Church to participate in the anti-Christian activity that compromises a fundamental ministry as expressed in Matthew 25: care for those who are hungry, thirsty, strangers, naked, sick, and imprisoned. Alabama’s law pushes undocumented immigrants –some of the most economically, socially, and politically vulnerable—farther into the shadows of society, jeopardizing the life and dignity of individuals, their families, and communities. Catholic institutions ought not abide by this unjust law; rather the Church should vigorously advocate its repeal and resist it through acts of civil disobedience.

This case helps us to think about other conflicts between law and religious freedom, including the HHS Mandate:  it demonstrates significant tensions between church autonomy and civil law; illustrates the importance of Church cooperation with civil authority to protect order, justice, and the common good; and acknowledges that some laws fundamentally conflict with the public ministry of the Church. The Church must respond in a way that protects the integrity of our pastoral work and prophetic witness in the world.