Nanny knows best: Kathleen Sebelius, Secretary of Health and Human Services, with President Obama as he announces his contentious "contraceptive mandate" in January (Credit: Joshua Roberts)
Viewed from a distance, the 2012 US presidential election debate must seem very strange: at a moment of severe domestic economic dislocation, escalating national debt, dysfunctional governmental institutions and grave international danger, Americans are arguing about birth control.
Well, no: Americans aren't arguing about the appropriate means of family planning, despite the Obama administration's best efforts to convince Americans, and the world, that that's what's been going on since January — an effort in which the administration has been aided and abetted by a gullible media and often clueless Republican presidential candidates. Ever since the administration's January announcement that Obamacare — its healthcare reform programme — would require all employers to provide health insurance coverage that included such "preventive health services" as contraception, sterilisation, and abortifacient drugs, the American culture war has indeed heated up, to boiling point sometimes. But as one witty blogger put it in March, "This is about birth control the way the American Revolution was about tea."
But if it's not about birth control, what has this argument — which will not go away between now and the November election, and which will continue if President Obama is re-elected — been about?
It may help to think of the debate as a series of concentric circles, in which questions of both public policy and democratic theory are engaged. The outermost circle is formed by concerns about Obamacare itself. The 2,200-page Bill that passed Congress in early 2010 — and which more than 60 per cent of the American people now say they regard as a bad idea — was alarming enough; there was probably not a single member of the US House of Representatives or Senate who had actually read and mastered this gargantuan piece of legislation. Worse, however, have been the opening gambits in the implementation of this vastly complicated reset of the American healthcare system and the American health insurance industry. For the implementation has been left to federal agencies like the US department of health and human services (HHS), where the statist tendencies of the Obama administration have been embraced by what is arguably the most left-leaning bureaucracy in the entire government.
Here was a marriage made in Bevanite heaven: an administration seeking to tie the entire American population ever closer to the federal government, joined to a bureaucracy staffed by men and women whose political and social attitudes reflect the hard Left of American public life, with the newly weds suddenly given control of one-sixth of the US economy. Little wonder that the elixir of unprecedented power proved over-stimulating. For Obamacare's implementation was what those charged with designing it had been yearning for during their long exile in what they regarded as the vast wasteland of the Reagan and post-Reagan years — a desert sojourn that was not made easier by a Clinton administration that many of these people take to have been reprehensibly conservative. At last, the long march towards the full-blown social welfare state could begin anew, led this time by a president whose sense of self was little less than messianic and whose skills at bamboozling the public were of the highest calibre.
Over-stimulation, of course, leads to an ever-heightened sense of power: a conviction of invulnerability seasoned with a profound belief in one's moral superiority. Detached from political reality, however, that kind of hubris is a sure prescription for political over-reach. And that (plus no small amount of sheer political ineptitude) is a fair description of what led the Obama administration into the thicket of the culture wars in January.
For the regulators at HHS are not simply dedicated to the nationalisation of healthcare in the United States; they are committed to the use of federal regulatory power to promote and enforce their understanding of "preventive healthcare", a euphemism that masks their commitment to the sexual revolution in its most extreme forms and their devotion to a virtually unrestricted abortion licence (which is itself, of course, a key factor in making the sexual revolution "work"). Thus it seemed self-evidently clear to those drawing up plans for the implementation of Obamacare that all employers providing health insurance to their employees should be required to buy insurance plans that covered, not only contraceptives, but sterilisations and abortifacient drugs — all of which, to the permanent bureaucracy at HHS, are components of "preventive healthcare".
That contraceptives are more readily available in the US than cigarettes or beer is a fact of 21st-century American life that has become completely lost in the media fog. Moreover, the government already has ample means at its disposal to provide cost-free contraceptives, which it does through voluntary organisations like Planned Parenthood (a recipient of vast amounts of governmental money) and an extensive network of community health clinics in poor areas; there, contraceptives are provided by Medicaid, the government's healthcare programme for the poor. But this was not sufficient for the HHS regulators and their allies in the White House — which brings us to the second circle in this debate.
Under the HHS mandate, one of the largest employers that would be required to provide preventive health services is the Catholic Church, which, through various institutions and agencies, serves one in six hospital patients in America (often the poorest of the poor), runs thousands of educational institutions (which frequently serve more non-Catholics than Catholics), and conducts an extensive programme of social services in impoverished rural areas, among immigrants, and in America's inner cities. And the Catholic Church, as a matter of settled moral conviction, objects to what the administration demanded that the church provide to the employees of these Catholic institutions and agencies. From the church's point of view, which coincides with the constitutional and legal reality of the matter, this has not been a debate about birth control; the church was not imposing its moral doctrine on anyone. Rather, this was about the US government, through coercive state power, compelling Catholic institutions to provide what the Catholic Church teaches is wrong. This was about religious freedom, which includes a broad freedom for the church to conduct its educational, medical, and charitable ministries according to its own moral standards.
The Catholic reaction to the administration's January 2012 "contraceptive mandate" was fiercely negative across the spectrum of Catholic opinion (and irrespective of the critics' views on the morality of various methods of family planning). Progressive Catholics who had been stalwart proponents of the Obama administration suddenly found themselves criticising HHS and the White House for unnecessarily coercing the church, and for doing so in a politically inept way in an election year. The administration, taken aback by this criticism, proposed an accommodation of religious concerns on February 10, which many of the pro-Obama Catholics quickly embraced. But the Catholic bishops of the United States were unimpressed, rightly regarding the "accommodation" as an accounting shell game that left the church's religious freedom concerns unaddressed.
Those concerns, it should be emphasised, are both institutional and personal. They certainly have to do with the fact that the HHS mandate would require most Catholic institutions to act in ways contrary to the Catholic Church's teaching on the morally appropriate ways to plan families. But the bishops have also taken up, as they should, the cause of Catholic owner-employers who accept the Church's teaching and would be forced to act against their conscientious convictions or suffer heavy financial penalties. More-over, the bishops and their allies among Catholic intellectuals and activists have been deeply worried by the administration's attempt to define a "religious employer" (who might be exempted from the mandate) so narrowly that hardly anyone would seem to meet the definitional strictures. The government, it seemed, was unable to imagine religious freedom encompassing anything other than freedom of worship — freedom to engage in a certain kind of recreational activity on weekends. That any coherent theory of religious freedom had to include the educational and charitable activities that religious communities carried out because they believe it to be God's will that they do so, seemed beyond the administration's comprehension.
That, however, should not have been so surprising, for over the past three years, the Obama administration had been quietly hollowing out religious freedom in its international human rights policy. In that arena, Secretary of State Hillary Clinton and other administration officials often speak of freedom of worship, but never of religious freedom. Now, to be sure, religious freedom rightly understood includes the freedom to worship. But if that is all religious freedom means, then there is "religious freedom" in North Korea and Saudi Arabia, as long as the worship in question is conducted clandestinely behind closed doors. And that is manifestly absurd.
This dumbing-down of the first liberty has been paralleled by other administration policies that have been singularly tone-deaf to religious freedom. Thus the Obama administration challenged the decades-long "ministerial exception" to the federal equal employment laws, a waiver that permitted religious communities to hire according to their own internal standards (thereby allowing the Catholic and Orthodox Churches to ordain only men as priests, and all religious communities to choose teachers for their schools who agree with the doctrines of the community in question). When a congregation in Michigan, Hosanna-Tabor Evangelical Lutheran Church and School, challenged in court the administration's attempt to bring all hiring of religious personnel under the ambit of the equal employment opportunity laws, the administration fought on, arguing that the First Amendment's religion clauses were irrelevant, and that religious organisations had the same status as bridge clubs. The Supreme Court resoundingly rejected that argument in a January 2012 decision, Hosanna-Tabor vs EEOC. The court voted 9-0 in favour of the congregation, with President Obama's two court nominees joining in the unanimous rejection of the administration's position, and Chief Justice John Roberts writing that the court could "not accept the remarkable view that the Religion Clauses have nothing to say about a religious organisation's freedom to select its own ministers". That this stinging rebuke took place a few days before the administration announced the "contraceptive mandate" suggests just how deeply constricted a view of religious freedom runs in the Obama administration.
That depth of ideological conviction is also demonstrated by one of the more bizarre episodes of the Obama years. In this case, the law in question is the federal Defense of Marriage Act (DOMA) which defines marriage as the legal union of a man and a woman for purposes of the provisions of federal law. Challenged in the federal courts by gay activists and other proponents of redefining marriage, the constitutionality of DOMA (a federal law passed by both Houses of Congress in 1996 and signed by President Clinton) ought to have been defended in court by the US Solicitor General's office as a matter of accepted practice. But the Obama administration has refused to do its constitutional duty and defend DOMA, presumably because the administration agrees with DOMA's critics that support of marriage as traditionally understood is irrational bigotry — especially if that "bigotry" is shaped by religious conviction.
The Obama administration has thus been consistently and aggressively at war with classic understandings of religious freedom. That is why the coalition in defence of religious freedom that has now formed because of the HHS mandate is by no means exclusively Catholic. It includes evangelical Protestants, Orthodox Jews, and secular people who do not accept the teaching of the Catholic Church on the morality of family planning, but who believe deeply in broad religious freedom. Thus such instant celebrities as Ms Sandra Fluke, the Georgetown law school student who enjoyed her 15 minutes of fame because she nicely fitted the media narrative of a young woman oppressed by elderly male Catholic bishops, represent the forces that have taken a profoundly anti-pluralist position in this debate, insisting that one-size-fits-all when it comes to preventive health services. The Catholic bishops and their allies, on the other hand, have been and will remain the defenders of genuine pluralism, against the narrowness of an administration in which ideology trumps both democratic principle and political reality in most cases.
Which brings the debate down to its inner circle, the third of the concentric circles of argument here. That the Obama administration is the most aggressively secularist in American history ought to be clear from its shabby record on religious freedom, at home and abroad. At the same time, and perhaps not coincidentally, the Obama administration is the most statist in American history — the most enamoured of centralised governmental power as a means of implementing both public policy and what it regards as desirable cultural change. For all his vaunted history as a community organiser — itself vastly overblown — President Obama seems singularly insensitive to the multiple communities that make up the American Republic: those communities and institutions of civil society that, for Alexis de Tocqueville, were the sinews and musculature of American democracy. The HHS mandate is a powerful example of an overweening government trying to bring a civil society institution to heel — and threatening it with financial calamity should it refuse. So was the administration's attempt to rewrite employment law and turn religious institutions into departments of the federal government. The same impulse is at work in both instances. The state will fill every available inch of space in the public square, bludgeoning out of the way those who resist.
And notwithstanding the fact that Obamacare portends fiscal disaster for the United States (and, ultimately, for the world), this Hobbesian impulse is the deepest, most disturbing, and most urgent problem with the administration's signature legislative achievement: it centralises power over a vast part of the American economy in an unprecedented way, driving both individuals and civil society institutions to the margins of public life by compelling certain behaviours from the former and turning the latter into virtual departments of the state. The stakes here have been nowhere better defined than by the political scientist Yuval Levin, one of the Anglosphere's leading young commentators on Edmund Burke. He writes:
The administration is clearly determined to see civil society as merely an extension of the state, and to clear out civil society — clearing out the mediating layers between the individual and the state — when it seems to stand in the way of achieving the president's agenda. The idea is to leave as few non-individual players as possible in the private sphere, and to turn those few that are left into agents of the government. This is the logic of the administration's approach to the private economy, not just to civil society. It is key to the design of Obamacare (which aims to yield massive consolidation in the insurance sector, leaving just a handful of very large insurers that would function as public utilities while strangling all the others with red tape), and much of the regulatory agenda of the Left. And it is all the more so the character of the administration's approach to charitable institutions. It is an attack on mediating institutions of all sorts, moved by the genuine belief that they are obstacles to a good society. This approach is especially noxious and pernicious when it is directed at religiously affiliated institutions — both because they deserve special standing and because they do some of the hardest and most needful work of charity in our society. We should use every available means to protect those institutions from this mortal danger...But as we do so, we should not forget that we are dealing with an instance of a larger and deeper danger, and we should do what we can to combat that danger in its own terms.
The stakes are therefore high indeed. And they are high because this is an argument down to first principles. Like other such debates, this one has brought previously obscure aspects of American public life to the surface.
Perhaps the most noteworthy of these revelations is that the secularism of the American Left is not unlike that of its European and Canadian counterparts: it is not benign, civil and tolerant, but narrow, aggressive and hegemonic. It is not content with a civil public arena in which all points of view participate in a robust public debate; it demands a thoroughly secularised public square in which religiously-informed moral argument is neither welcome nor tolerated. That determination to fill the available public space with a deeply secularised and hegemonic secularism coincides, in the case of the Obama administration, with its disdain for Edmund Burke's little platoons, which in the American context remain largely religious platoons.
That disdain has not only put the Obama administration on a collision course with the Catholic Church and with other religious bodies that do not share its commitment to lifestyle libertinism and its assumption that personal wilfulness is the essence of freedom. It has also put the administration on a collision course with the 1993 Religious Freedom Restoration Act, which sharply restricts the ability of the federal government to burden the exercise of religious freedom, and with the First Amendment to the US Constitution, which guarantees the free exercise of religion while banning any religious "establishment".
The logic of the First Amendment is that "no establishment" serves the goal of "free exercise": there is no national (or established) church in the United States so that religion may flourish on its own terms, without the evangelically stifling embrace of state power. "Free exercise" is the end; "no establishment" is the means. But this is precisely what the Obama administration denies; for the administration seems to understand "free exercise" as a series of exemptions granted by the state, exemptions carved out of an overwhelmingly secularist public square.
It was not an accident, as the Marxists used to say, that the 20th-century totalitarian regimes, in consolidating their power, first sought to co-opt, and where that was impossible, crush, the institutions of civil society, including religious communities. That totalitarian impulse knows no unique ideological home; it can appear on the Right as well as on the Left. Indeed, if we trace the proximate origins of political modernity back to Hobbes and Leviathan, the hegemonic, anti-pluralist impulse — the passion to fill the public square with state power — seems built into modern politics. Resisting that impulse defines the most fundamental layer of the debate in the United States this election year.
Burke v. Hobbes; an open, pluralistic public square, hospitable to all convictions, or a bare public square in which only arguments based on secularist premises are tolerated; a rich diversity of mediating, civil society institutions that perform the works of charity and are schools of liberty, or a dull, grey uniformity of public life, enforced by a hegemonic state committed to the idea that freedom is a matter of will rather than intellect — those are the issues. The issue is not birth control and Sandra Fluke is not a 21st-century Joan of Arc. The issue is religious freedom. The issue is the future of American civil society.
The assault on America's first liberty, religious freedom, has sounded the alarm over a concerted assault on the entire structure of liberty in a pluralistic democracy, by an administration that imagines itself heir to Saul Alinsky, the radical community organiser, but is in fact the spawn of Thomas Hobbes.
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