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Living Tradition, Oblates of Wisdom, P.O. Box 13230, St. Louis, MO 63157, USA
|No. 151||Roman Theological Forum | Article Index | Study Program||Mar 2011|
DIGNITATIS HUMANAE: A NON-CONTRADICTORY DOCTRINAL DEVELOPMENT
In the last year or two, in the context of a series of official conversations between leading theologians of the Priestly Society of St. Pius X (SSPX) and other theologians appointed by the Congregation for the Doctrine of the Faith, there has been a renewal of interest in the question of whether Vatican II’s 1965 Declaration on Religious Liberty, Dignitatis Humanae (DH), can be reconciled with the traditional Catholic doctrine concerning religious tolerance and the duty of Christian States toward the true religion. This doctrine was classically expounded in such papal encyclicals as Mirari Vos (1831) of Gregory XVI, Quanta Cura and the accompanying Syllabus of Bl. Pius IX (1864), Immortale Dei (1885) and Libertas (1888) of Leo XIII, and Quas Primas (1925) of Pius XI. As is well known, the perception that the doctrine enshrined in these magisterial documents, and indeed, in the Church’s universal and ordinary magisterium since the patristic era, is irreconcilable with that of DH has been a major factor in the SSPX’s continued resistance to Vatican Council II. The Society’s dissatisfaction with DH has in fact constituted one of the chief difficulties in bringing about a reconciliation between the See of Peter and this traditionalist group founded by the late Archbishop Marcel Lefebvre. (The Society now has nearly 500 priests worldwide, various communities of women religious, numerous schools, and hundreds of thousands of lay Catholics regularly attending its churches and chapels.)
This writer has, over a period spanning a quarter-century, published two books1 and a number of articles2 arguing for the substantial harmony – though not identity – between the doctrinal content of DH and that of the aforesaid papal documents. The present paper will set out, in a brief and rather schematic form, the points which seem most important in making the case for doctrinal non-contradiction between the conciliar and pre-conciliar teaching.
I. First of all, certain important hermeneutical distinctions need to be kept in mind:
(a) between Church doctrine (teaching proposed as true for all times and places) and Church law or prudential policy judgments (adaptable according to different historical/cultural circumstances).
(b) between a Vatican II Declaration such as DH and more authoritative conciliar documents, such as Dogmatic Constitutions. Conciliar declarations (of which there are two others, Nostra Aetate and Gravissimum Educationis, on inter-religious dialogue and Catholic education respectively) are not meant to be read as if they proposed universal, timeless and unchangeable doctrine from start to finish. All three of them begin with a few basic general doctrinal principles of this sort, and then go on to lay down practical norms and other comments that the Church considers appropriate as present-day applications of, and reflections on, those principles.
(c) between affirming a right to do X and affirming a right to immunity from coercion in doing X. In a purely juridical or legal document setting out only what is and is not to be prohibited and punished by human positive law, this distinction would be inapplicable, even meaningless. But in a theological, doctrinal document such as DH, which in the first place considers moral rights and duties, and only secondarily their implications for human law codes, the distinction is crucial. DH carefully specifies that what it affirms as the natural right to religious freedom is only the second kind of right. A theological affirmation that there is a human right to do X simply means that X is itself a kind of action which is objectively morally upright and justifiable – one that does not, as such, deserve censure or disapproval from either God or man. But to affirm a right to immunity from human coercion in doing X – that is, a right not to be prevented by human authority from doing X – does not necessarily imply that X is objectively good behavior. It is simply a reflection of the important distinction between sin and crime; that is, it recognizes the limited jurisdiction of government when it comes to penalizing the errant behavior of citizens. St. Thomas recognized long ago that it is not the function of human law (civil authority) to outlaw and punish any and every kind of sin.3 And he answered negatively the question as to whether Muslim or Jewish parents could justly be prevented by Catholic governments from teaching their children their respective non-Christian religions. (In practice, of course, such prevention would mean removing these children from their parents’ custody altogether.) Aquinas said this would be unjust, because the right of a father over his family in this case prevails against the alleged right of government to intervene in favor of the true religion.4 Does that mean St. Thomas is saying or implying that there exists a “right to teach one’s children false doctrine” – doctrine contrary to the revealed truths such as the Incarnation and Trinity? Not at all. There is only a right not to be prevented by government from doing so.
Other clear examples would be our Lord’s warning to avaricious souls who lay their treasure up on earth instead of in heaven, and to those who sin by omission in neglecting the poor. The parables of the rich fool, the rich man and Lazarus, and the Last Judgment all make it clear that these sins can be mortal: they lead to eternal punishment. But does that mean Jesus was implying that government can justly punish a man for his ‘thought crime’ of being inwardly too attached to this world’s goods? Or that it would be just to send us to jail, not only for failing to pay our taxes to the government, but also for failing to donate enough of our income to charitable causes? Of course not. Extending to government the authority to punish every kind of sin – even every kind of grave sin – would in practice be a recipe for totalitarian tyranny. In short, coercion can be unjust – and thus violate another person’s rights – not only when it is inflicted on the innocent, but also when it’s inflicted on a wrongdoer by someone who oversteps his own authority by inflicting it.
(d) Finally, we need to avoid the fallacy of assuming that if we say a government should tolerate a certain activity, we are implying or presupposing that it has a right, in justice, to repress that same activity if it wishes to do so. Again, in a purely juridical document, that right might perhaps be implied. But not in theological discourse, in which the first of the above propositions by no means entails the second. In the context of such discourse, saying that a ruler tolerates activity A simply means that, while disapproving of A, he decides not to repress it even though he disposes of enough physical force (police or military), and perhaps the permission of his country’s existing positive law, to do so. Whether or not he would also have the right (in the sense of the moral authority) to repress A is a distinct question. In some cases he would, in others he wouldn’t. So critics of Vatican II are setting up a false dichotomy when – as often happens – they claim to discern an implicit contradiction between DH’s language of “rights” in civil society for those practising various different religions and the traditional papal language that spoke of mere civil “tolerance” for non-Catholic religious activity. The distinction made in (c) above also needs to be kept in mind here. It follows from all this that the respective concepts of having a right not to be prevented by the State from carrying out religious activity A (which is the language of DH), and of being tolerated by the State in carrying out A (the language of the pre-conciliar magisterium) are not at all logically incompatible. And precisely because they are compatible, it would not be oxymoronic to combine the conciliar and pre-conciliar ways of speaking in one expression, affirming that persons can sometimes have a natural “right to be tolerated” by government in carrying out A.
II. Note also that, according to DH 1, the religious freedom affirmed in this document leaves “intact”, or “whole and entire” (Latin integram) the “traditional Catholic doctrine concerning the moral duty of individuals and societies toward the true religion and the one Church of Christ”. Now, the word “societies” here certainly includes civil or political communities as such. This was clarified in words that were personally approved and mandated by Pope Paul VI, and then read out by the relator (official spokesman for the drafting committee) to the assembled Fathers who were about to vote on this final draft of DH. The relator told them that this and other last-minute additions to the text were a response to the concerns expressed by some Fathers about apparent doctrinal inconsistency between the declaration they were being asked to approve and “ecclesiastical documents up till the time of the Supreme Pontiff Leo XIII”, especially the “insistence” of these documents on “the moral duty of public authority (potestas publica) toward the true religion”. The relator then pointed out to the Fathers that the revised text, by virtue of the final amendments to articles 1 and 3, “recalls [this duty] more clearly”. As a result, he said, “it is manifest that this part of the doctrine has not been overlooked”.5 Therefore, any interpretation of DH that has it contradict the doctrine of previous popes cannot reflect the mind of the Church as to the true meaning of the Declaration.
III. Keeping in mind the preceding hermeneutical criteria, we can now set out very briefly a case for non-contradiction. Two of the three doctrinal propositions of DH in its key paragraph (article 2, paragraph 1) are not usually contested by the declaration’s traditionalist critics. These brethren are troubled little, if at all, by the Council’s vindication of immunity from human coercion for non-Catholics in their private religious activity, or by its assertion that no one is to be coerced into acting against their conscience in religious matters. What troubles these critics in DH #2 is its teaching that, “within due limits”, no one may be prevented from acting publicly in accord with their conscience in religious matters. This assertion, they claim, is unorthodox and irreconcilable with previous papal teaching, in spite of its recognition that the right to such freedom for public activity is not unlimited.
Now, taking into account the elaboration of those “due limits” which we find in article 7 of the Declaration, this controverted teaching of DH can be synthesized as the following proposition:
P: It is unjust for human authority (Catholic or non-Catholic) to prevent people from publicly acting in accord with their conscience in religious matters, unless such action violates legal norms, based on the objective moral order, that are necessary for safeguarding: (a) the rights of all citizens; (b) public peace; and (c) public morality. (These three factors are said to make up collectively “the basic component of the common good”, otherwise termed “a just public order”. It is important to be aware that DH defines “public order” in terms of these three.)
Now, if indeed P contradicts traditional Catholic doctrine in the way critics of Vatican II claim it does (i.e., by allowing too much civil freedom in religious matters) then the pertinent traditional doctrine would have to have been the following:
P1 It is sometimes just for human authority (Catholic or non-Catholic) to prevent people from publicly acting in accord with their conscience in religious matters even when such activity does not violate any of the three general norms (a), (b) and (c), specified in P.
But P1 was not in fact the Church’s traditional doctrine. It cannot be found – in those words or others implying the same thing – in the pre-conciliar magisterium, ordinary or extraordinary. For the popes of earlier times who sometimes exhorted Catholic rulers to repress all public manifestations of non-Catholic religions would certainly have answered affirmatively, had they been asked whether such manifestations violated one or more of the three norms set out in proposition P above. (We will return to this point below.) Ergo, DH does not contradict the Church’s traditional doctrine.
It might be objected, however, that P conflicts with the traditional doctrinal maxim that “error has no rights”. Not so. The maxim is of course a figure of speech; for, clearly, only persons, not ideas in abstraction, can really possess “rights”. And what the figure of speech means is that error can never be either the object or the foundation of any human right. But DH doesn’t say that error is, or ever could be, either the object of any human right (i.e., that to which the right entitles us), or the foundation of any human right (i.e., its reason, grounding, or justification). The Declaration just emphasizes that government should only exercise a carefully limited role in restricting the religious practice of citizens: it teaches that the object of the natural right to religious freedom is precisely immunity from coercion by government (or other human powers), and not belief in, or propagation of, the doctrinal content of this or that religion. The Catechism of the Catholic Church, which can be seen as giving us an authentic commentary on the meaning of DH, reinforces this by asserting, with a footnote reference to Leo XIII’s encyclical Libertas, that “[t]he right to religious liberty is neither a moral license to adhere to error, nor a supposed right to error” (#2109).
Traditionalist critics of DH may still object that in any case, the pre-Vatican II Church often allowed – indeed, exhorted – governments to repress all public religious activity except that of the true religion, Catholicism, and that this has now been disallowed by DH. Such legal restrictions did indeed obtain in such nations as Spain and Colombia right up till Vatican II. In other words, the traditional ethical line between legally permissible and legally repressible religious activity in public was the line between truth and error, not the three limiting criteria specified by Vatican II (see P above), which prescind from the whole truth-versus-error question.
Is this a real doctrinal contradiction? No. To prescind from a former doctrinal position, or to avoid restating it, does not mean contradicting it. And in any case, traditional doctrine left it an open question as to whether that line between truth and error should always and everywhere be the ethical line between legally permissible and legally repressible public activity. Indeed, the preconciliar magisterium was practically silent about where that line should be drawn by non-Catholic governments. Therefore, since Vatican II very much wanted to address that issue, it unavoidably found itself in the position of having to break some new doctrinal ground. In keeping with Vatican II’s aim of reaching out to all humanity, this Declaration was directed to the rulers of all nations, not just those with Catholic governments and/or majorities.
The key to appreciating this non-contradiction lies in taking note of certain nuances which ‘soften the edges’, as it were, of both the old and the new doctrinal positions, thereby enabling their reconciliation. This means taking note of what they abstain from saying, as well as what they actually say:
First: Traditional doctrine was never so rigorous as to affirm (though neither did it deny) that in all countries and at all times – from Pentecost to Judgment Day – it would be within the bounds of justice for civil authority (whether in predominantly Catholic or non-Catholic societies) to suppress all public non-Catholic religious manifestations. (Those who have never been members of the Church, we charitably presume, are in most cases probably not violating their own consciences by continuing as non-Catholics.) Some very conservative theologians, including Archbishop Marcel Lefebvre, have held that such suppression would never under any circumstances be unjust, and that at worst it would sometimes be imprudent or uncharitable. But that unqualified assertion of the universal justice of such repression never reached the status of Church doctrine – either of the ordinary or extraordinary magisterium. Indeed, other approved traditional theologians (e.g., Suárez, Von Ketteler, and even Pope Gregory the Great) foreshadowed Vatican II to some extent by saying that Catholic civil authorities are obliged by the requirements of justice (not merely of prudence) to tolerate the worship of at least unbaptized monotheists – mainly Jews and Muslims – carried out in synagogues, mosques, or other places of public worship.6 Once again, we need to recall that penalizing someone can be unjust under two titles: (a) when he is innocent or when the penalty is disproportionate to his offence; or (b) when he is guilty and deserves the imposed penalty, but it is being imposed by someone who has no authority to impose it. (If I succeed in overpowering a burglar who has broken into my house, and manage to keep him imprisoned in my basement for three years, I am doing him an injustice. He may well deserve four years’ imprisonment; but I as a private citizen have no right to decide on and administer any such penalty. That is, the burglar, guilty though he is, has a right to immunity from punishment by me.)
Second: Vatican II’s position is not so liberal as to deny that under certain past circumstances, the public manifestation of erroneous religious ideas and practices could have been, as such, a justly punishable threat to the common good of society (that is, it would jeopardize the rights of other citizens, and/or public peace, and/or public morality).
In short, the pre-conciliar and conciliar doctrines respectively are not so ‘absolute’ as to exclude and contradict each other. The perennial common thread in the Church’s doctrine, from ancient times until now, has been that, on the one hand, those persons outside the Church, especially those presumed to be invincibly ignorant of the truth of Catholicism, have a right to some degree of civil religious freedom (e.g., at the very least, non-Christians should never be coerced into baptism and Church membership, and should enjoy civil freedom to teach their religion privately to their own children), but that on the other hand, the State also has the right to impose some limitations on the spread of harmful and dangerous ideas in the interests of the common good of society. So there are two poles here, ‘positive’ and ‘negative’, that need to be kept in equilibrium: respect for erring consciences (toleration) and the need to prevent the spread of the most dangerous propaganda.
The difference between old and new has basically been a gradually changing emphasis in the Church’s position. Traditionally she emphasized more the ‘negative’ end of the spectrum - the State’s right to repress error; and from the mid-20th century on, she emphasizes more the human person’s right to immunity from coercion. Changes of emphasis, however – even to the extent of making the rule what was once the exception – are not contradictions. What we have here, rather, are changing prudential judgments as to where to find the right balance between necessary freedom and just restraint. Some traditionalists claim to detect, underlying the Vatican II teaching, the modern heresy that completely reverses the traditional principle of Catholic theology and philosophy that objective truth has priority over what one subjectively thinks is true. Dignitatis Humanae, we are told, turns this classical principle upside down by giving the primacy to subjectivity – by making truth and reality subordinate to error and illusion. But this is too extreme as an attempt to detect what lies at the heart of DH. The text says nothing which implies any such radical reversal. By her new prudential judgment implied in the conciliar declaration, the Church does indeed give more weight now than she previously did to subjective sincerity and the need to respect erring consciences in civil society, especially under the religiously pluralistic conditions that predominate in today’s world. But that is a far cry from a full-blown volte-face at the level of fundamental metaphysical principle.
We can draw a parallel here with the Church’s developing position on capital punishment. She continues to teach that this is not intrinsically (always and everywhere) unjust; but she now makes the prudential judgment that it can rarely if ever be justified under modern circumstances (cf. CCC #2267). Similarly, Vatican II does not teach that it is or was intrinsically (always and everywhere) unjust for a Catholic State to repress all public manifestations of non-Catholic religions as being per se a danger to fundamental elements of the common good (which is what Vatican II means by “a just public order”). But the Council does clearly imply, by what it says and what it significantly fails to say, the prudential judgment that under modern circumstances, such repression would, in any country on earth, violate the natural right to religious freedom of those concerned. (The significance of the Council’s failure to say that predominantly Catholic countries would be an exception to this rule is obvious.)
When the highest Church authorities in former times often urged the State repression of public non-Catholic religious activity as such, they certainly judged that the propagation of such errors constituted threats to at least one, and often all three, of the social values which DH #7 says must be legally protected against abuses of religious freedom (see our proposition P above).
1. Rights of other citizens: The spread of seductive religious errors among a Catholic populace – especially those with little education – was certainly regarded as a grave danger to their eternal salvation, and thus, a violation of their right to live in a Christian society that helped, rather than hindered, their battle against Satan and their pilgrimage toward Heaven. (For a Catholic to lapse into heresy or apostasy is mortally sinful, and results in latae sententiae [automatic] excommunication.7)
2. Public morality: Bitter experience in Western culture has shown repeatedly – and with increasing clarity in recent decades – that once the socially and legally recognized authority of the Catholic Church as the unique authentic interpreter of the natural moral law is rejected as a result of anti-Catholic propaganda, public morality eventually takes a catastrophic plunge as well: we get legalized divorce, abortion, artificial procreation, unnatural birth control, so-called gay “marriage”, adoption rights for homosexual couples, etc. And those who promote these deviations increasingly seek to impose them as “human rights”, with growing social and legal intolerance for the alleged “hate” and “bigotry” of traditional believers who dare to voice disagreement.
3. Public peace: In many periods of history, the spread of heresy was very often in fact a menace to the public peace. (The same can be said of the world-wide diffusion in our own day of Wahhabi mosques and madrassas wherein Islamist imams preach the duty of armed jihad and the universal imposition of sharia law in all its rigor.) Heresy led to disastrous wars of religion. Early Protestants were no more tolerant than Catholics were at that time, and frequently persecuted the Church once they attained power by force of arms. And that of course violated the Catholics’ right to freedom of worship (cf. #1 above) as well as public peace.
Since Vatican II, given that religious pluralism is increasingly the de facto reality throughout the world, the new norm of the Church’s public law or policy in her relations with States is that not even in states with a Catholic majority may simple public dissent from Catholic doctrine, without any aggravating factors, be considered any longer a sufficiently serious threat to the common good as to warrant legal repression. But again, this is not a contradiction of previous doctrine. The relator at Vatican II explained officially to the Fathers just before they voted on the final draft of DH that the requirements of the common good itself can change considerably over time; and he pointed out that this fact was relevant in addressing the concerns of some Fathers who said they did not want the Council to pass a sweepingly harsh judgment on the Church’s own previous doctrine and practice.8 Indeed, an appreciation of how changing historical conditions can reasonably and legitimately influence the formulation and practical application of Catholic doctrine is arguably the most important element in showing its essential diachronic continuity across the centuries, in cases where this is not immediately apparent.
THE HHS MANDATE: IS IT OUR BISHOPS WHO ARE OPPOSING RELIGIOUS FREEDOM?
Editor’s note: Although this issue of Living Tradition bears the date “March 2011” in order to maintain serial continuity in the successive issues of our publication, the following article was written in April 2012. A much shorter version, entitled, “How is unlimited access to contraception religious freedom?”, was published in the print version of the weekly newspaper of the Archdiocese of St. Louis, the St. Louis Review, April 13, 2012, pp. 2-3, The unabridged version was posted in the April 12, 2012 online edition of this newspaper, and is accessible at http://stlouisreview.com/article/2012-04-12/hhs-mandate-it-our.)
Amid the intense nation-wide public debate over the Department of Health and Human Services Mandate requiring all employers to pay for insurance policies covering contraceptives, sterilization and abortifacient drugs, there is no little confusion as to how the mandate relates to human rights, and in particular, the right to religious freedom.
Not only orthodox Catholics, but also many of other faiths, are strongly opposed to the mandate. And their main argument is an appeal to the most natural, common-sense reading of the U.S. Constitution’s First Amendment, which disallows the federal government to interfere with Americans’ free exercise of religion. They point out that forcing individual citizens and group employers to collaborate directly with, and pay for, activities that their conscience tells them violate God’s law, plainly constitutes interference in the free exercise of their religion. For “free exercise” involves not only the freedom to do certain things we believe are required by God, but also the freedom not to do other things we believe are forbidden by God. Archbishop William Lori of Baltimore expressed it very succinctly when he recently compared the way the HHS mandate strikes orthodox Catholic employers to the way a government requirement that all eating establishments offer pork chops and bacon would strike Orthodox Jewish restaurateurs. Obviously, the mandate is unconstitutional and must be rescinded.
Whence, then, comes the confusion over what should be an open-and-shut case? Believe it or not, there are those calling themselves Catholic who are publicly claiming not only that the HHS mandate does not violate anyone’s religious freedom, but that the boot is actually on the other foot. That is, they are maintaining that it is the precisely the U.S. Conference of Catholic Bishops that is guilty of disregarding the religious freedom of other Americans! A group calling itself “Catholics for Choice” has recently been making this case against our bishops in a number of public forums around the nation. These include the St. Louis Post-Dispatch, which on February 23 ran a column by the group’s president, Jon O’Brien, under the title, “Reclaiming religious freedom”. The sub-title is calculated to give readers the impression that the author’s views are quite in line with Church teaching. It reads, “Contraception: Catholics are called to respect rights of others as well as their own consciences.”
Now, that statement is perfectly true, and no Catholic will dispute it. But what, specifically, does Mr. O’Brien have in mind here? He says we should “consider the subject of religious freedom from a Catholic point of view”, and goes on to cite an authoritative source: Vatican Council II’s Declaration on Religious Freedom, entitled Dignitatis Humanae (DH). This document, he says, teaches that “in protecting and promoting religious freedom, conscience is foremost: each person is bound to follow it, and nobody can be forced to act against it.”
That also is perfectly true. So far, so good. But now begins the confusion. I am the author of two books and quite a few published articles on DH’s teaching on religious freedom. And frankly, I have never seen a more flagrant manipulation and distortion of the Vatican II declaration than this attempt to twist it against the position espoused by the U.S. Conference of Catholic Bishops (USCCB). According to Mr. O‘Brien, it is precisely the HHS decision that “harmonizes well” with the aforesaid Vatican II teaching on conscience, while it is the “U.S. bishops” who are failing to “respect the consciences” of “sexually active Catholic women who have used a form of birth control banned by the Vatican”. Our bishops, we are told, “have seen fit to ignore” the “moral decisions” of these women, and so “are now trying to get the government to legislate their point of view so that Americans – Catholic and non-Catholic alike – have a harder time accessing birth control.” This, and the bishops’ expressed resolution to take their objections to the Supreme Court if necessary, “smacks of the very coercion the Catholic Church warns against”.
So, according to “Catholics for Choice”, it is “the Obama administration” and its supporters who are the Good Guys in this dispute. For, by “refusing to bow to the USCCB’s pressure tactics and instituting a more expansive conscience exemption”, the administration, we are told, has “respected Catholic teachings in the Declaration on Religious Freedom”. The author then tries to back up this claim by citing a passage in DH that says, “Government is to see to it that equality of citizens before the law . . . is never violated, whether openly or covertly, for religious reasons”. And the bishops, he says, “are the ones seeking the ‘discrimination among citizens’ with their quest for an ever-larger exemption for religious institutions.”
It is difficult to know just where to begin in order to untangle the knot of this devious attempt to turn Catholic teaching itself against our Catholic bishops. First of all, what should we make of the claim that our bishops are “trying to get the government to legislate their point of view”, so that all Americans will “have a harder time accessing birth control”. That makes it sound as if our bishops are pushing for new federal legislation which would make contraceptives – and sterilization and abortifacient drugs – less available than they have been up till now. But, of course, the bishops are doing nothing of the sort. On the contrary, the legal innovation is coming from the federal government, and our bishops are demanding simply that the legal status quo be continued without change. That is, they are insisting that the Federal government continue to abstain altogether, as it always has done since the foundation of this Republic, from requiring citizens to pay for, and cooperate directly with, activities that in conscience they believe are forbidden by God’s law.
It follows that to accuse the bishops of “discrimination” on “religious grounds” is nonsense. Since they are the ones arguing for no change at all in the long-existing, ‘hands-off’ federal policy in this matter, their position could be plausibly criticized as “religious discrimination” only if that existing federal government policy was itself discriminatory. But it is manifestly nothing of the sort. By abstaining from requiring any person at all pay for anti-life procedures, or for any other practices that would violate some citizens’ consciences, the federal government has clearly been treating citizens of every religious persuasion with complete equality in this respect throughout the 223 years since the U.S. Constitution was approved. Our bishops, therefore, in simply seeking the continuance of this traditional legal neutrality, are being equally non-discriminatory.
Let us look now at what else Vatican II teaches in DH, in order to see whether Mr. O’Brien’s other charges against the USCCB are justified. The key section of the document is article 2, where we find two formal doctrinal propositions regarding the human right to immunity from coercion in religious matters. They are like two sides of the one coin. The first is that, in such matters, neither government nor any other human power may ever coerce anyone into acting against his/her conscience. Now, are our bishops, in protesting against the HHS mandate, asking the federal government to coerce anyone into carrying out some action which he/she believes is forbidden by God? The question answers itself: of course they are not.
Actually, not even “Catholics for Choice” is making such a preposterous accusation. Rather, the charge made in their name by Mr. O’Brien is that our bishops are disregarding the second doctrinal proposition enunciated in DH #2. This complements the first one by affirming that, as a general rule, it is unjust for government to use its coercive powers in order to prevent people from acting in accordance with their religious conscience. Article 7 of the declaration clarifies that there can be exceptions to this rule in cases where such activity would violate the rights of others, or would constitute a threat to public peace or public morality. (To take an obvious example, no government can or should recognize the “religious freedom” of suicide bombers to massacre people in the name of Allah, no matter how conscientiously they may believe they will go straight to Paradise as a reward for this slaughter of “infidels”.)
Now, is the USCCB in fact acting against this second Vatican II proposition on religious freedom? Well, in the first place, it would be pretty uncommon that someone would desire contraceptives, sterilization, or abortifacients for religious reasons. When people, married or single, opt for these procedures, they are nearly always motivated simply by their own perceived personal welfare, not by a sense of duty to obey a command coming from God. But even if we consider those few people who might sincerely think they have a sacred religious obligation to use these methods of birth prevention (rather than, say, abstinence or natural family planning), is the USCCB urging the government to legally prevent them from doing so? Not at all. Our bishops are not demanding that the government ban the sale of contraceptives, or prohibit sterilization procedures. (They have of course opposed – unsuccessfully – the legalization of abortifacients; for using these drugs violates the right to life of newly conceived human beings, and so is not the kind of activity DH would consider a legitimate exercise of religious freedom.)
Nor are our bishops demanding that the Federal government make these birth control procedures more expensive or difficult to obtain than they are at present.9 So it is perfectly clear that the USCCB’s current protest does not conflict in any way with Vatican II’s teaching that government must not prevent people from acting in accord with their religious conscience. All the bishops are saying is that the federal government should not introduce radically new and unconstitutional laws that try to coerce Americans – whether as individuals or in groups such as charitable organizations, hospitals and colleges – into violating their own religious principles by financing practices their conscience tells them are gravely immoral.
Moreover, pregnancy is not a disease or injury that needs to be insured against as part of “health care”. It is a healthy condition resulting from freely chosen behavior, and preventing it is equally elective. Therefore, even if the preventive procedures in question were all morally legitimate and nobody had any conscientious objection to them, it would still by no means follow that employers and college administrators could justly be required to finance their employees’ and students’ use of these procedures. If that were the case, the same employers and administrators could logically be required to pay not just for their employees’ and students’ birth control, but also for their beer, gasoline, health foods, cigarettes, vacation travel . . . and what else? The list would be endless.
In short, the accusation by “Catholics for Choice” that the American bishops’ stance contravenes their own Church’s teaching on religious freedom would be justified only if the Vatican II declaration taught the following doctrine: Government must not only guarantee each person’s right not to violate his/her own religious conscience, and to act freely in accordance with it, but may also require third parties to pay for such activities, even when compliance by those third parties would violate their religious conscience. Such a doctrine – which contradicts itself as well as Catholic teaching – is so obviously alien to both the spirit and the letter of Dignitatis Humanae that one can only wonder whether anyone could be truly sincere in claiming to find it in that document.
1 1) Religious Liberty and Contraception (Melbourne: John XXIII Fellowship, 1988); 2) Arnold T. Guminski and Brian W. Harrison, O.S. Religious Freedom: Does Vatican Council II Contradict Traditional Catholic Doctrine? A Debate (South Bend: St. Augustine Press, 2012).
2 The following previous articles in Living Tradition are readily accessible online: “Pius IX, Vatican II and Religious Liberty” (LT #9, January 1987), at www.rtforum.org/lt/lt9.html; “Religious Liberty: ‘Rights’ versus ‘Tolerance’” (LT #16, March 1988), at www.rtforum.org/lt/lt16.html; “John Courtney Murray: A Reliable Interpreter of Dignitatis Humanae?” Parts I and II (LT ##33-34, January-March 1991), at www.rtforum.org/lt/lt33.html and www.rtforum.org/lt/lt34.html; and a review of Michael Davies’ book, The Second Vatican Council and Religious Liberty (LT #44, January 1993), at www.rtforum.org/lt/lt44.html. The argument developed in that review article has since been modified in one important respect: for my revised position, cf. Brian W. Harrison, O.S., “What Does Dignitatis Humanae Mean? A Reply to Arnold Guminski” (Faith & Reason, Vol. XXX, nos. 3 & 4, Autumn & Winter, 2005, pp. 243-295, especially section IV.4, pp. 277-282).
3 Cf. Summa Theologiae, Ia IIae, Q. 96, a. 2.
4 Cf. Summa Theologiae, IIa, IIae, Q. 10, a. 12.
5 “. . . ex quo patet hanc doctrinae partem non praetermitti” (Acta Synodalia, IV, VI, 719).
6 According to such theologians, neither civil nor ecclesiastical Christian authorities have any jurisdiction over the unbaptized in their religious activities, as long as these do not include practices contrary to what is knowable by reason and natural law, such as idolatry and polytheism. The Jews were considered ‘off limits’ for Christian authorities for an additional reason, namely, that their providential continued existence as a distinct religious community left them as living witnesses – independent of, and even hostile to, the Church herself – to her own historical origins and to the historical truth of both Old and New Testaments.
7 Cf. Catechism of the Catholic Church, #2089, and Code of Canon Law, c. 751.
8 Bishop De Smedt, the relator, expressed agreement with the Fathers who had raised this concern, and who had urged that “one should take into account the fact that human society itself has exhibited different modes of thinking and living in different ages.” “This”, responded the relator, “is quite true, but it is equivalently expressed when we affirm that the norm for the care of religion is the common good. The common good, as everyone knows, is something relative: it is linked to the cultural evolution of peoples and has to be judged according to that development” (Acta Synodalia, IV, VI, 723, n. 15, present writer’s translation).
9 Even if the bishops were in fact requesting American civil authorities to restrict access to contraceptives, or even ban them altogether, such requests would still not be opposed to DH. For contraceptives, according to Catholic teaching, undermine public morality. Therefore legal access to them, according DH #7, is not included within the right to religious freedom. Paul VI, the chief signatory to DH, addressed “Rulers of Nations” as follows only three years after he promulgated the Declaration: “Do not allow the morals of your Peoples to be undermined. Do not tolerate any legislation which would introduce into the family practices which are opposed to the natural and divine law – for the family is the primary unit in the State” (Humanae Vitae #23). Far from being an exclusively Roman Catholic policy, legal prohibition of the sale and distribution of contraceptives had been established by some U.S. State legislatures with Protestant majorities, and remained in force until 1965 – the same year DH was promulgated. (In that year the U.S. Supreme Court, in Griswold v. Connecticut, struck down such laws as violations of a newly discerned “right to privacy” in the American Constitution. (This decision paved the way for the Court’s infamous Roe v. Wade ruling of 1973, which used similar reasoning in order to declare abortion a fundamental constitutional right.)