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“Religious man was born to be saved, psychological man is born to be pleased.”

“The rules of health indicate activity; psychological man can exploit older cultural precepts, ritual struggle no less than play therapy, in order to maintain the dynamism of his culture. Of course, the newest Adam cannot be expected to limit himself to the use of old constraints. If “immoral” materials, rejected under earlier cultural criteria, are therapeutically effective, enhancing somebody’s sense of well-being, then they are useful. The “end” or “goal” is to keep going.” ― Philip Rieff, The Triumph of the Therapeutic: Uses of Faith after Freud

obergefell decisionBy requiring all public and private institutions to include contraception and abortion “services” in their health insurance plans, President Barack Obama has infringed on the right to religious freedom of those citizens whose religion proscribes the use of or complicity with contraception. And, after Obergefell, it no longer seems outside the pale of future possibility that Catholic priests will be forced to officiate over same-sex marriages. But, although Catholics and other Christians may defend themselves against these rulings in the name of religious freedom, religious freedom is, simply, not absolute, and thus an integral Christian cannot “win” this way. Effective defense against the present and future, nihilistic onslaughts must involve a stance that is founded upon something absolute.

American Mormons are legally prohibited from practicing polygamy, even though The Book of Mormon permits it; American Hindu women are forbidden to commit suicide on the funeral pyres of their husbands, notwithstanding their tradition’s commands; and pagans and Satanists cannot sacrifice human beings, no matter what the devil demands. Religious-freedom infringement occurs quite a bit in American legal practice, and it makes sense that it does; for, those in charge of securing the common good of the community, as well as the rights of individuals, have the right and obligation to ban practices that are a direct and serious threat to it. Religious freedom, in the realm of practice at least, is not an absolute right, and so must be balanced with the competing rights of others in light of the overall common good. In short, religious practices can legitimately be proscribed.

Of course, in this case, the right of Catholics not to be forced to provide contraception, directly or indirectly (the “compromise” position of the Obama regime doesn’t change things morally), and not to be forced to preside over or in any way support same-sex marriages, is absolute, and neither competes with any other genuine rights nor poses a threat to the common good. But such a right is not absolute if it be grounded in nothing more than religious liberty. As Humanae Vitae and the Catholic moral tradition teaches, it is the use of contraception itself that hurts people’s bodies and souls, can kill baby humans, and damages the common good of the family and the society at large. And, of course, same-sex marriage destroys both the flourishing of persons in the family, especially children, as well as the ontology of creation. These are practices in which one should not be forced to be complicit, not because they contradict one or more religious beliefs, but because they are, in a word, evil, they offend God, damage persons, and destroy the common good. Yet, the right not to become complicit in objective evil has been judged by the competent authority to interfere with the overall good of the American political community and the competing right of others to have what they consider vital health services included in their health insurance coverage, and with regard to Obergefell, wedding cakes by pizza parlors on demand. And in reaction to both the Department of Health and Human Services (HHS) mandate and the Obergefell decision, the American Catholic Bishops and Catholic public intellectuals, for the most part, have couched their public protest in terms of religious freedom.

Perhaps their choice of argumentative discourse serves as the most effective, short-term strategy to defeat this particular government mandate and Supreme Court decision. But I am afraid that if we do indeed “win” using this strategy, it would only be because the Obama/Kennedy regime conceded to the Bishops’ terms out of a pragmatic, self-interested calculus—perhaps just to increase the chances of getting reelected, or of biding time for a more unequivocal victory in the future for “the liberty to define one’s concept of existence.” Again, the real, fundamental issue is the evil of contraception and sodomy, and the threat these and our cultural of sexual license poses to the temporal and spiritual good of human beings. Another issue that is sidelined by the public Catholic’s rhetoric, which I would like to discuss further in this article, is their own public, moral and spiritual authority, the political influence of the Catholic Church in America. As I shall try to show, the long-term effects of playing the religious-freedom card might be disastrous for both Catholics and non-Catholics.

Catholic-bishopsIt is understandable why the American Catholic Bishops would protest that the religious freedom of Catholics is being infringed upon, but it is not understandable why they should think that a protest articulated in terms of religious freedom would be sufficiently effective to prevent such attacks, and worse ones, in the future. It is not understandable as both a judgment of prudence and of principle, for it appears to presuppose ideas about the nature of politics and the relation of Church and state derived from the secular Enlightenment, not the theological Tradition of the Catholic Church. By desiring to protect with state power their godless, therapeutic culture, with its cultic religious practices of baby-murder and sexual perversion, President Obama and the HHS and Justice Anthony Kennedy and Obergefell are trying to unify church and state, as it were, a principled union Leo XIII explicitly taught as the political ideal and which was not changed at Vatican II. In other words, the Obama/Kennedy regime is, in spite of its Rawlsian-liberal rhetoric, promoting a particular conception of the good, not merely advocating more space for the exercise of individual rights. It is attempting to inculcate what it considers “virtue” and to promote the “well-being” of human persons. These are, all things being equal, Aristotelian and Thomistic moral and political goals, however perverted, and they indicate a non-liberal role and influence for comprehensive conceptions of the good transcending the merely private and sub-political.

In other words, though their evaluative moral scheme and worldview are mistaken, and the particular values they deem good are, in truth, wicked, by seeking to rid the political culture of a practice they deem evil and vicious, and not merely infringing on someone’s rights, the Obama/Kennedy regime is, to this extent, behaving in a manner more in line with traditional Catholic political philosophy and theology than that implied by the Bishops/Catholic intellectuals’ classical-liberal-Lockean rhetoric!

The truth is that we live in an officially “therapeutic” state, in the Rieffian sense of this term, with the old revelatory “god-terms” and religious “interdicts” having been replaced at some point in the 60s with the Freudian “self-terms” terms and their obligatory transgressions. In other words, in spite of the First Amendment, and our delusional insistence that we have a multicultural and pluralistic culture, there is an established religion and culture in America, one embodying a particular conception of the sacred, namely, the sacredness of unfettered, individual human desire in its pursuit of worldly and psychological well-being. The HHS and Obergefell decisions reflect the desire of those in power to make this established religious and cultural outlook more official by defending it with state power, so much so that it is no longer willing to tolerate public practices that threaten its hegemony, such as Catholics witnessing against the good of deliberately sterile sex by refusing to offer “free” contraception and to condone God-condemned unions. In a perverse sense, then, the political authorities are simply doing their duty to protect the common good, therapeutically understood, and to help people attain well-being, as they perversely define it. And if it takes rewriting or abolishing the First Amendment to protect the common good of a satanic, God-transgressing liberty, and the common good does take precedence over individual goods, all things being equal—well, they are going to do it!

Thus, the main political problem with HHS and Obergefell is not their infringing on religious freedom or individual rights, for these are not absolute, as we have said, but that the American regime subscribes to and is motivated by the wrong religion and cult. One might concede this point and still protest their un-American desire to make this cult publicly authoritative, but this is also wrongheaded. It may be un-American, but perhaps that is a virtue in this regard. There really is no such thing as a private cult, just as there is no private culture, and, as Catholic social teaching maintains, anyone in a position of political authority has the right and obligation to promote the common good as he sees it, within limits imposed by the natural law and Divine Positive Law, the genuine rights of persons, and reasonable constitutional and legal restrictions upon his employment of coercive force.

When Catholics argue for their right to religious belief practice, that argument is necessarily heard by other Americans in Lockean terms, in which “every religion is orthodox to itself,” and in which the sole power and authority over all matters pertaining to the things of this world is the secular state. Religion is, by this definition, strictly otherworldly, and there is no non-subjectivist way of knowing the truth of religious dogma or judging between conflicting doctrines and practices. In other words, religious relativism is the official lens through which all judgments on the proper bounds of church and state are made in America—ab initio, as William Cavanaugh, has argued. If religion is private, idiosyncratic, and otherworldly, not public, truth-embodying, and world-implicated, it cannot have an authoritative, public role in ordering common life. Defined as a private cult claiming no authority over anything but its own private doctrines and practices, perhaps the Obama/Kennedy regime might concede the Church and its institutions the right to its rather bizarre and barbaric proscription against “responsible sexual activity” and its outdated preference for “gender-dictatorial marriage,” but it would never do so for a Church defining herself as the Mystical Body of Christ and demanding from this regime and all governments the libertas ecclesiae, that is, a liberty prior to, and higher and more privileged, as Dignitatis Humane makes clear, than the generic religious liberty accorded to persons, due to the Church’s unique divine identity and mission.

Indeed, the Obama/Kennedy regime did not decide to offer a compromised position for any other reason than self-serving pragmatism, with some ideological lip service given to a radically individualist conception of the right to “conscience,” meaning, in this case, the right for Catholics to believe in a cruel, sex-hating, gender-totalitarian god, and to play-act in accordance with their fantasy. Are the Bishops satisfied with the Church over which they rule being characterized and treated by the state as nothing more public and authoritative than some superstitious debating society, as long as it can continue to enjoy tax-exempt status and some private freedoms of conscience for its members? Is this truly libertas ecclesiae?

religious-freedomAgain, I think the Bishops and all Christians of good will should try to win this battle using any moral means necessary, and perhaps using the purely practical strategy of appealing to liberalism’s own principles might work—this time. But I fear that playing the religious-freedom card alone won’t work again. The Bishops need to make a straight-forward public declaration of the immorality of contraception and sodomy, as well as the Church’s Divine authority to make such a declaration (an authority bound up with its divine identity that has been made evident by definite signs in the world and therefore cognizable by unaided human reason). They should make clear the obligation of all political authorities to privilege the libertas ecclesiae (while supporting the religious freedom of all). And finally, they need to uphold the natural law, the common good, and the rights of God, and not merely common consent, custom, and the rights of man, as the ultimate legitimizing ground of the employment of coercive power. Without such declarations, the religious-freedom rhetoric may have the effect of securing Catholics the right to refuse contraception coverage and cooperation with same-sex marriage, but it would promote, indirectly, the secularist political liberalism that has led to the nihilistic culture of death in the first place.

Do the Bishops want to send the message to President Obama and Justice Kennedy that their main sin is not being Lockean enough, in not adequately respecting the sacred “wall of separation” between church and state, in mixing politics and religion? Yes, President Obama and Justice Kennedy are being bad liberals in not respecting the freedom of religion of some citizens, but they are, more importantly, being bad men in promoting objectively evil practices that destroy souls and the common good of persons. Do Catholics and other Christians want to pressure other Americans in power to be merely good liberals, even if that would win Christians a short-term reprieve? Should not the Bishops and all men of good will who see through the liberal shell game consider more carefully the long-term benefit for our country, the Church, and the West of declaring the truth, in and out of season, especially when it is becoming quite clear that, notwithstanding Benedict Opt-Outs, anything short of mass, nationwide conversion to the Gospel can save America now?

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11 replies to this post
  1. This argument about not subordinating the salvific importance of religious truth to the temporal importance of religious freedom – if I’m understanding the author correctly – is one to which we should pay heed. What advantage do moral conservatives gain by conceding from the get-go that the weltanschauung of liberal progressives is THE rule book according to which civilized conduct and debate is to be refereed?

    But I don’t understand what is meant by the phrase – “notwithstanding Benedict Opt-Outs”. Did the Pope Emeritus say something about opting out, or is it another Benedict who is being referred to?

    • That refers to so-called Benedict Option e.g. withdrawal from public contention to joys of private community, as elicited by Alysdair MacIntyre and recently promoted by Rod Dreher. However many feel incuding me that this is the hoarding of the Truth that Jesus warned against in Matthew 25: 14- 30, and such Christian communities would be hunted down and prosecuted and enslaved in the end…

  2. While I agree with this essay insofar as the analysis of American reality goes, as well as the limits to the religious freedom argument – I think that the recourse to arguing that the practices supported by the “Theraputic State” are evil risks the same problem; namely American culture no longer recognizes evil in the sense that it is written about here, just as American culture no longer recognizes religious freedom in the traditional liberal sense.

    What American culture now recognizes is, quite simply, unrecognizable to most of us. As someone who to a lesser or greater extent has been engaged at different points in my life in the political struggle to preserve America’s finer traditions, I do however respectfuly find myself disagreeing with conservatives who wish to continue this struggle and believe that it is only a question of method. The struggle is over – and it is lost. The recent Supreme Court decision on Same Sex marriage has ended it definitively.

    The Supreme Court decision was not the result of accident, but the result of a deep alteration of the fundamental premises of American culture in favor of nihilism (or whatever else you want to call it, since nihilism admits – by definition – of many names).

    No immediate remedy exists to this malaise – and to be certain, it did not begin with the “gay rights” movement or the “pro-choice” movement. We may go back in time and find the source of all our woes in the desire of men to divorce their wives and of women to divorce their husbands – in other words, to break their marriage vows and ignore their children and wider familieis and communities. In short: we – those whom liberals would cal “white heterosexuals” – we destroyed the family by trying to liberate ourselves from it first.

    At this juncture, while I respect those conservatives and Christians who continue to fight the good fight – I personally see the fight as a lost cause. We must, instead, come to accept that the culture of the United States of America is not a Christian culture. As someone who lives in a country that still IS a Christian culture, I can tell you that this view is all the more correct to me as I look around here in Poland and compare it to what you are experiencing in America.

    The only reason – the one and only reason – why there are crosses in Polish schools, and why the notion of “gay marriage” is shockingly silly to people here is because everyone is intricately connected to the Catholic Church which is as organic to Polish culture as – excuse the comparisson – using the toilet is.

    No one in their right mind – in America and Europe – would ever suggest using the Kitchen Sink instead of the Toilet. We do not have debates about this, there are no partisan battles over the question. There is no hue and cry for restaurants to allow customers who would like to use the kitchen sink instead of the toilet to let them do it.

    Forgive the ourageous comparisson – but we must realize that the idea of “gay marriage” becoming a viable political force with the strength to actually become the law of the land via the Supreme Court is akin to the culture changing to the extent of millions of people suddenly demanding that the law accomidate those who would like to use the kitchen sink as a toilet.

    And once that happens – once culture changes to that extent – then your own culture becomes alien to you. You become, suddenly, a foreigner in your own country.

    Visit certain African countries and you will see men with six wives. No one of polite and good sense would propose that the societies of these men should be erased and replaced with our own. We view them as exotic. We might indeed engage them at the individual level to sing the praises of our Christian culture, but this same Christian culture commands that we respect theirs and build ours. Common sense also tells us that to radically alter a whole culture is impossible – we may at best convert a single heart.

    Yet now, it is American culture which has suddenly become this foreign area; this strange place.

    My solution – and I am not at all happy with it – is acceptance. I accept what America has become and focus my work to keep it from becoming worse. It is, ultimately, the culture which must be repaired – not the law, nor the politics – which have now come full circle to reflect this culture.

    My view is that we must let the liberals have their “victory.” The only way to fight against it is to build stong families and communities and to communicate, with humble faith in human reason, the normative ideas of common sense Christian life. There are many Americans with whom we may find common cause who are not worth antagonizing over these social issues which seem so immensely important to them, for reasons which are so immediately wrong to us. But since there are more of them than there are of us, and since it is they who rule the culture and now the law – I do not know whether continuing a battle like this will not come at the cost of other fights – which are still possible to win – and for what prize? No prize. For I see no prospect for altering this great change in culture in the immediate future.

  3. Thank you Prof. Kozinski. Yes it would seem the freedom of religion is the most important of our freedoms, except for all the others… but what else does such trampling portend? The Obergefell verdict twinned with Obama’s use of executive order on immigration, shows an open disdain for constitutional and legislative authority. In the wake of all flagrant behaviors by the banking community still unchecked (in fact only rewarded), our fragile democratic structure is now further under assault. I wish to assert that this is the far more concrete problem for our society than wishing we could withhold the monies that support sexual license. The worst part is that realpolitik is being inspired, with a natural thirst for revenge.

    As we suffer through the de facto fascist program of neoliberalism, including the Patriot Act for the President to monitor enemies without hiring any “Plumbers”, due to the short-sightedness of al-Qaeda-hunting politicians who failed to turn the other cheek, we now have Cruz and Trump chomping at the bit, to match the Obergefell abuse of power with their own counter-abuses. I am hearing an equation of “liberalism” with the failing of democracy from many quarters and it should remind us in more than a passing way of the unraveling following WWI and the Roaring Twenties, the foretaste of calamity as recognized by Chesterton. Can martial law be but one major bombing away? Let us defend faith in the public sphere yes, but let us first defend our precious public institutions that are also being savaged under the relentless drive for uniformity. Thank you again.

  4. What this article shows is that it is all too easy to externalize evil. And when one does that, it is easy to sweep one’s own sins under the carpet of rage at the sins of others.

    But perhaps we should start with this question: Is believing in other gods than the Lord any less evil than homosexuality or using nonabortive contraceptives? Here, I am assuming that life begins at conception. And yet, we allow for others to practice the evils of their religion. And we do that with good theological and pragmatic reasons. IN terms of good theological reason, we should note that the NT is firm is telling us that the discipline that occurs in the Church, stays in the Church. And the same can be said of judgment that occurs in the Church. We see this when Jesus talks about Church discipline, it is implied there. But we see it explicitly taught in I Cor 5 when a church member was being disciplined for a heterosexual sin, that by all accounts, could be considered worse than homosexual sin. For when it comes to judging those outside of the Church, Paul declines. It isn’t the Church’s job, he tells us. The good pragmatic reasons for that are rather obvious.

    So if we accept the evil of other religions, they worship the wrong god after all, in society, why am I suppose to throw a fit because the gov’t is allowing the evil of same-sex marriage? For some, it is because some churches have intervened too much into the bedroom, at least more than the Scriptures really permit.

    So while some conservative churches, both Roman and Protestant, rant and rave at both those moral lepers who have sex for other reasons than reproduction, one is reminded of the the parable of the two men praying. For what sins have these same churches allowed to fly in under the radar and thus have been complicit in? What have those who oppose the Obergefell ruling said about our economic system from which they benefit as it relies on exploiting people? What have those who oppose the SCOTUS ruling on same-sex marriage said about the current rate of environmental destruction that is done in the name of prosperity and promoting our way of life? And what have those who oppose Obergefell said about our current militarism and our endless waging of war?

    Yes, point to those evil people whom you want society to treat in the same way that Luther wanted his fellow Germans to treat the Jews. But just perhaps your zeal to see those who commit sodomy, regardless of whether that occurs in heterosexual or homosexual couples, be punished by society could be just another sign of your own evil. For there is one way to counter sexual sin among consenting adults; it is to preach the Gospel. For it is the Gospel that not only saves those who, unlike us, are evil. It also saves us from our own evil–that is it can save us provided that we are not being the pharisee from the parable of the two men praying.

  5. Thaddeus,
    Every sin calls for God’s punishment. But that isn’t the only issue here. Another issue is how we will share society with others. If we assume a privileged place above others, as favored by this article, will we not be laying stumbling block after stumbling block to many who would otherwise listen to the Gospel because we have denied them equality with us? And if we are denying their equality, aren’t we subjugating them? And doesn’t the act of subjugating others go against what Jesus said about not being like the gentiles by “lording it over’ them?

    Finally, if we create unnecessary stumbling blocks to people who would otherwise listen to the Gospel, wouldn’t we be sabotaging our own efforts and hurting our best chance at helping people to repent from their sins?

    • Thaddeus,
      First, thank you for the response. I do understand what what your challenge is. But in asking them to rethink religious liberty, are you asking them to seize the day without consideration of the other? Are you asking them to seek privilege over liberty? BTW, I distinguish the two with the following formula: liberty – equality = privilege.

      From the article and the comments I am reading, the answer to both questions is a resounding ‘YES!’ ‘Justice requires that the state recognizes’ the Church’s right to have a predominant role in society? How is that a justice issue? From what I am reading it seems that you are saying that the state owes it to the Church to be subservient to it.

      So if the Church meets your challenge, how is it going to distinguish itself from groups like ISIS in ways other than its methods of punishment?

      So if the Church meets your challenge, would it be the result of following New Testament theology or Church history? If you respond with the former, where is this ‘divine mandate’ found in the New Testament?

      So if the Church meets your challenge, what violence would it be inflicting on the First Amendment?

      And so if the Church were to try to meet your challenge, how would its actions not sound alarm bells telling those outside the Church to defend themselves from a would be conqueror? And how could we ever both preach the Gospel to these people while seeking to conquer them?

      See, I am not confusing charity and justice. I am making a distinction between justice and authoritarianism. It seems that your only objection to the current authoritarianism is that the wrong party is in control. But there is another alternative to both your proposed authoritarianism and the current secular authoritarianism that “rules” over the Church. That alternative would consist of the Church working to share society with others as equals.

      What you call justice I call ambition wearing the cloak of the fear of God’s judgment. And the challenge you put forth certainly has precedents in both Protestant and Roman Church history, but it is neither based on the New Testament nor encouraged by past efforts of having done the same.

      • Thaddeus,
        First, I want to thank you for the continued dialog. I know that discussing things with people who disagree isn’t always fun. But I wanted to thank you for your time and effort.

        Of course what follows will be a sharp disagreement. That starts with saying that claims of infallibility and categorizing my writings do not answer questions. BTW, didn’t know if you knew this, I just learned last week from a blog discussion. Do you know what famous denomination also claims infallibility for its confessions? Well, the conservative synods of the Lutheran Church do. And I have found that challenging their claims to infallibility can be as fun as juggling multiple hornets nests while wearing only a swimsuit. However, the use of counterexample is a valid way of disproving infallibility. The Pope’s apologies for past actions as well as an examination of past actions and teachings of the Church can easily disprove claims to infallibility. Then there is William Ward’s logic that is based on an implication with a questionable, at least unproven, premise.

        Now I appreciate some things in the Roman Church. My best friend, the person I have learned the most from, is a nominal Catholic. And I like some of the Pope’s statements on Capitalism and the environment. I tell my Reformed Theological friends that, in making those criticisms, the Reformed Churches should imitate his example of prophetically speaking to society and the world. Please note that my use of prophetically here does not imply inerrancy.

        Now despite the time you put into your last response to me, you never answered my questions. And so I will repeat them below:

        So if the Church meets your challenge, how is it going to distinguish itself from groups like ISIS in ways other than its methods of punishment?

        So if the Church meets your challenge, would it be the result of following New Testament theology or Church history? If you respond with the former, where is this ‘divine mandate’ found in the New Testament?

        So if the Church meets your challenge, what violence would it be inflicting on the First Amendment?

        And so if the Church were to try to meet your challenge, how would its actions not sound alarm bells telling those outside the Church to defend themselves from a would be conqueror? And how could we ever both preach the Gospel to these people while seeking to conquer them?

      • Thaddeus,
        Yes, I agree that only Jesus has the authority to settle the boundary between Church and State. The real difference between us is the belief that any denomination represents God infallibly today. Of course, there is another difference, there is more than two choices between believing that a particular denomination infallibly represents God or the liberal alternative. BTW, ties to the apostles is based on shared concepts and convictions, not positions and the passing of the torch.

  6. Interesting read and comments. I’m no scholar, but I am a tired mother of a one-year-old, so please forgive any oversights on my part.

    I remember trying to appeal to other people in my circle that if Christians are more upset by the HHS Mandate due to government intrusion into religious liberty, rather than because of the contraceptive and abortive aspects, then we’re in big trouble. My proposal didn’t receive much affirmation.

    My basic intuition is that truth will out, and refuge in religious freedom is false because there are indeed religious practices we prohibit, and ultimately freedom is at the service of truth and love. Otherwise it’s just self-aggrandizement. Anyway, the truth is that many Christians in the West have practically rejected their own history of understanding regarding the nature of man and woman, even if they still admirably believe in the biblical aspects.

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