Religious Liberty Humbles the State

By David and Angela Franks

This column appeared in the March 28, 2014, edition of The Boston Pilot.






Is government the master of life and death, and conscience?

The Supreme Court on Tuesday heard arguments concerning President Obama’s Health and Human Services (HHS) “contraceptive” mandate (which in fact also covers certain abortion-inducing drugs, female sterilization, as well as contraceptives that may operate abortifaciently). What’s at issue in Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius is whether the religious right to object, possessed by individuals, is also to be recognized with regard to the owners of certain for-profit corporations. If you are a Christian businessman, say, who objects to providing coverage under the mandate because some of the devices and drugs involved can cause abortion, or a Catholic business owner who recognizes the damaging social effect of contraceptive use, what recourse do you have?

Taking a step back to take a look at this debate in terms of our ideals, an American might feel a little confused. Why does a case have to be made for conscience rights in America? In America?!

The First Amendment to the Constitution begins with these rights: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” And the fundamental law of our nation is enshrined in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”

This is the American proposition: the government as one instrument of the people to help secure the common good, which at least consists in the safeguarding of divinely given rights. This is a non-secularist liberalism (“liberal” referring to the participatory nature of governance). Unfortunately, America has more and more fallen under the sway, since the Progressive Era, of the explicitly anti-religious, indeed anti-Catholic, secularizing “liberalism” of the French Revolution. This is not really liberal, because it is the assertion of an omnicompetent state as the ultimate horizon of all human action, run by a self-anointed elite that is sure it knows best how to manage life: better than the common citizen, better than families, better than churches, better than local governments, better than the voluntary associations of civil society.

The secularist state wields its power in manifold ways, especially through apparatuses of education. The ultimate goal is to regiment the very desire of citizens, to manage desire in a way to render us passive with regard to the bureaucratic projects of the elite. Michel Foucault, the important post-structuralist theorist, has a name for this: biopower.

This is where the “contraceptive” mandate comes in. The ne plus ultra of biopower is state management of the population through contraception and abortion, which fundamentally restructure desire.

Angela has written this history in her book Margaret Sanger’s Eugenic Legacy: The Control of Female Fertility. It is Sanger’s vision of biopower that is finding its ultimate realization in the HHS mandate.

Why would the president pick this fight? Why make an enemy of the Catholic Church? Because the Left, which gets its name from where the Jacobins and allies sat in the National Convention (as Jeffrey Bell has noted), has always sought one thing above all, even above socialism: the administration of all of life by the state elite. Right now in America, of course, we aren’t looking at the Reign of Terror, but we are witnessing a breathtaking attempt to introject secular ideology into the most intimate spaces of the human person. Freedom of conscience? How inconvenient, when the precise point is contracting, secularizing, our deepest desires so that they do not look beyond the horizon of the state to a transcendent sovereignty belonging to God. If Jesus is Lord, then elitist ideology is always subject to interruption from on high.

Contraception looks like freedom: control the number of kids you have. “Looks like freedom, but it feels like death,” as Leonard Cohen sings. In fact, this “freedom” or “control” serves the interests of state elites for whom the greatest disaster is religious faith: trusting in God as the Sovereign Lord of history, to Whom we surrender control of our lives. A life of faith blows up the pretensions of the state to have final say in the practical affairs of our lives.

The Church provides a vision of the fulfillment of the human person that runs through temporal goods, and on to the ultimate good of intimacy within the Trinitarian communion: infinite actualization of knowing and loving. Integral human development—the trajectory of the human person from creatio ex nihilo to participation in God, ipsum esse subsistens, (from nothing to everything)—requires recognition of many rights, but two in particular are the most salient: the right to life and the right of religious liberty. And both of these are compromised by the HHS mandate.

The Supreme Court arguments were heard on the Solemnity of the Annunciation. A delicious irony of providence. What is religious liberty for but to utter Yes to the Father? What shows more clearly the inviolability of the right to life than the zygote Jesus? The Blessed Virgin Mary, with her Yes, opened the way for the true Lord of all to break into this dark world, where we lord it over each other, in ways petty and spectacularly violent.

Jesus comes to break the hold sin has on our hearts. But He doesn’t liberate by managing us from on high. In fact, He descends, always seeking the lower place, always subverting our unloveliness by loving us even more radically. The Word enters the interiority of each of us in our darkness: “A body You prepared for Me.” (Heb 10:5) And there, in the flesh of universal humanity, the King of the universe is leavening the whole human lump with His infinite love, working through any of us who lets Him say Yes in us.

Download PDF