To Follow Rousseau or Locke on the HHS Mandate

27 Mar

From Hunter Baker:

Editor’s Note: The following is an excerpt taken from remarks at the Fortnight for Freedom, used with permission from the author.

The need for this article rose from recent actions of the government which indicate that religious freedom may be in serious danger. Specifically, the Department of Health and Human Services issued a mandate requiring all employers who offer insurance to provide coverage for contraceptive and abortifacient products and services. The mandate contained no exemption for religious institutions such as universities, charities and hospitals, which might find difficulty complying for reasons of faith and conscience.

This issue may appear to be a new one, but it is actually very old. The eighteenth-century philosopher Jean-Jacques Rousseau wrote a number of influential books and essays. One of the most notable is The Social Contract. In that book, Rousseau has a chapter titled “On Civil Religion.” In the chapter, he observes that ancient cultures traditionally united theology and politics. Each religion was tied to the laws of its state. There could be no conversion other than through conquest. The only missionaries were soldiers. There was nothing to discuss. Force decided religious disputes. There are still quite a few nations that practice the same philosophy today.

Rousseau points to Jesus as the person who disrupted that age-old system. For a time, you had the Christians operating within the context of a pagan empire while simultaneously refusing to accept the emperor worship that held the whole system together. The empire was willing to tolerate a polytheistic festival of religions as long as all would submit to the overarching religion of Rome. The Christians refused. And they were persecuted, terribly persecuted (killed by wild animals, tortured, turned into flaming lanterns), until, improbably, everything changed. Some of the powerful were converted, such as Constantine, and Christianity gained first protection, and then establishment status. The empire of Rome eventually fell. But the Christian church carried on.

From Rousseau’s perspective, Christianity presents a serious problem because there will always be the difficulty of double power since the church will not simply yield to the state. Where there is conflict, the church will go where it believes God is leading it. Rousseau thought such a conflict should be impossible. The state must rule without question. He praised Hobbes for trying to put the two powers back together under the rule of Leviathan in which the state would control religion completely. What is needed, Rousseau wrote, is theocracy such that there is no pontiff other than the prince and no priests other than the magistrate. The only real sin in this new state Rousseau envisioned is intolerance. It is not enough to have theological intolerance and civil tolerance. Theological intolerance cannot be tolerated. Anyone who “dares to say outside the church there is no salvation ought to be expelled from the state . . .”

Rousseau, of course, was one of the great intellectual inspirations for the French Revolution. The French Revolution, so different from the nearly contemporaneous American one, followed Rousseau’s logic. The revolutionary leaders carried on a massive campaign against the Catholic church and tried to create a new national civil religion. The method of the secular, statist revolutions has been that if there is to be something like a religious power, it must be a power under the control of the state and its leaders. But like the old pagans, the new pagans have found that the followers of Jesus Christ are not willing to accept the idea of the state as the supreme power. That resistance to the supremacy of the state has been and should always be one of the marks of the Christian church.

It seems to me that the mandate handed down (in an undemocratic, regulatory fashion) by the government’s department of Health and Human Services represents a return of Jean-Jacques Rousseau’s political thought in our time. In essence, the state and its rulers are saying that its conception of what is good for human beings is superior to the church’s view and it will be made mandatory (even for the church) regardless of the church’s objections. The offense is compounded because the state could simply opt to tax the people and provide the services on its own. Instead, it insists that religious institutions themselves pay for the contraceptive and abortifacient products and services it rejects. It is not enough that religious organizations have to accept it as passive taxpayers. Instead, they must be forced to directly fund the products and services as part of their employment contracts.

Whether its members realize it or not, the administration is working directly under Rousseau’s canopy. It would have been a simple thing to insert a provision into the mandate accommodating objections based on faith and conscience. Employees working for religious employers (especially Catholic ones who are the most affected) hardly represent a large portion of the labor force. But the accommodation has not been made in any meaningful sense. And one has the feeling that the accommodation has not been made because the other side is working from their own view of principle. They are saying, with Rousseau, that what they see as civil and theological intolerance cannot stand. The Catholic Church finds itself at odds with the metaphysics of the United States government. Other churches will soon find themselves in similar circumstances if we do not curb the boldness of the government quickly. Though it is in a relatively low key way (low key as opposed to the French Revolution), the government is essentially saying that a particular view of the Catholic church will not be permitted to shape its organizational behavior, even though the church’s view does not threaten anyone with harm. Individuals who work for Catholic organizations could easily work elsewhere. The church does not force anyone to sign a contract of employment.

I have frequently been surprised to find people who should know better supporting the administration and its mandate. What it often comes down to is one’s political sympathies. Those who prefer a larger government and believe government is the primary provider for the good of people tend to think the mandate is a just measure. But I have discovered that they are able to see the problem with the mandate when I change the fact situation to one with which they are more sympathetic. Let us imagine a Quaker college with a core conviction regarding pacifism. Let us further imagine that the government were to insist that such a college host an ROTC unit on campus. Given these facts, would you insist that the Quaker college must simply buckle under, ignore its core beliefs, and do what the government says? When I put it that way, I find that supporters of the mandate suddenly understand the problem with the situation the government is putting the church in. If the issue is pacifism rather than sex or reproduction, then the matter of conscientious and spiritual objection becomes more clear. We can be blind to important principles when our particular ox is not being gored.

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