Protection of Conscience Project
Protection of Conscience Project
Service, not Servitude

Service, not Servitude

Conscience Clauses and the Challenge of Co-operation in a Pluralistic Society

Director for Pastoral Projects and Communications

February 2003

Reproduced with permission

Carol Hogan*


During the last decade, secular activists began mounting a concerted effort nationally to eviscerate the concept of "conscience clauses" which have historically facilitated cooperation between Catholic individuals and institutions and the government in the delivery of health and social services. In our state, they are using "reproductive health" freedoms, which rest on privacy rights, as a vehicle for this challenge. They claim that privacy rights, which are implicit in the federal constitution and explicit in California's Constitution, as positive rights, thereby obligating government to their provision. Secularists are also holding that religious liberty, affirmed in both constitutions, is subject to government oversight and subordinate to public sentiment. We Catholics view both privacy and religious liberty differently; we understand those freedoms as negative rights, that is, they are rights that insure government noninterference.

A number of questions arise at this point.

First, are "privacy" and religious liberty positive or negative rights?

Second, what exactly is this religious freedom we claim and does it mean something different today than it did to the American Founders?

Third, must a religious organization be subject to the government characterization and oversight if the public wills it?

And finally, can we as Catholic individuals and Catholic institutions continue to function as a viable part of American society if we lose the "conscience clause" as a method of opting out of immoral or illicit public policy?

In this paper, I will respond to these questions and assert that the challenge of cooperation in American society is synonymous with the challenge of keeping effective opt-outs. I will examine certain current events, the history of religious freedom, contemporary judicial constitutional interpretation, the divergent worldview of secularists and Catholics, the agenda and tactics of the secularists, and the nature of contemporary American society. I will conclude with several suggestions how we as Catholics can meet the challenge of cooperation in today's society.

Current Events

Brigham Young University Law Professor Lynn Wardle was prescient when he wrote in the July-August 1993 issue of Health Progress:

Increasing pressure on healthcare providers who assert rights of conscience can be expected from three sources. First, some medical schools have considered refusal to participate in certain procedures as a negative factor in the admission process... Second, the aging of the baby-boom generation will create greater financial pressures on the American healthcare system, and that may cause nonmonetary factors-including rights of conscience of individual and institutional healthcare providers-to be sacrificed to the exigencies of the moment... Third, the increasing cost of healthcare in the United States has made reform a leading political issue. Although many different plans have been proposed, common to all of them is an increase in the federal role... [and] the only federal statutory protection for healthcare providers' rights of conscience... is sorely inadequate.[1]

He also pointed out that nearly all existing state conscience clauses protecting healthcare providers are deficient and many have been met with "hostile judicial interpretations that have diminished their scope and strength."[2]

An impressive demonstration of that very fact occurred in September 2000 when the Superior Court of Sacramento declined Catholic Charities' request to issue an injunction barring the implementation of a 1999 state mandate that all employee health insurance policies with coverage for pharmaceuticals include contraceptive drugs and devices. The authors of the mandate, foreseeing a religious liberty challenge, had inserted a "conscience clause" that they touted as an accommodation for religious organizations. However, the exemption applied only to sectarian institutions employing and serving fellow sectarians. Further, suitable policies became unavailable for purchase because the mandate for the inclusion of contraceptives in drug benefit plans was on insurance companies. This effectively precluded an opportunity for civil disobedience by the Catholic social service agencies, healthcare institutions and universities that were impacted.

In its lawsuit, Catholic Charities claimed infringement of its religious liberty rights guaranteed in both the California and the U.S. constitutions. Because it illicit for a part of the Catholic Church to provide contraceptive coverage to its employees, and because it is immoral for Catholic Charities to deprive its employees of pharmaceutical benefits in their health insurance in order to avoid the conflict, the mandate unconstitutionally interferes with the Church's religious freedom. The Catholic Church does not oppose the state or federal government's right to craft a public policy in variance with its teaching; it only asserts that institutions, as well as individuals, have the right to exercise their freedom of religion, as guaranteed in the state and federal constitutions, and that when public policy is in conflict, and public safety is not at risk, religious liberty prevails. The Catholic Church and its institutions should be granted an exemption.

Catholic Charities appealed the Superior Court's decision to the California Third Court of Appeals. In July 2001 that Court similarly turned back the request for an injunction, finding that the mandate did not unduly burden Charities' religious freedom, but that the failure to mandate contraceptive coverage would infringe on individual workers' conscience freedoms. Catholic Charities lawsuit is now before the California Supreme Court, which will have the last word on the state constitutionality of the contraceptive mandate. That word will be determinate for both the viability and the scope of religious liberty in California, what many people consider the most "pluralistic" state in the nation.

"Conscience clauses" had been the time-honored method of allowing both individuals and religious institutions to "opt out" of public policy in conflict with their religious beliefs. Following the 1973 U. S. Supreme Court Roe v. Wade decision, Congress passed the "Church Amendment," known for its sponsor, Senator Frank Church, to underline the fact that the Court's decision granting women the right to an abortion was not an entitlement, and that exemptions for certain health programs was in order. That amendment, which was the prototype for many state healthcare provider "conscience clauses" that were legislated in the 1970s, declared that "the receipt of federal funds... will not require hospitals to participate in abortion and sterilization procedures, if they object based on moral or religious convictions."[3]

Up until the decade of the 1990s "conscience clause" exemptions were often included in legal mandates for proscribed activities, such as abortion, sterilization, contraception, and in vitro fertilization, at the request of the impacted Catholic institutions. There was almost no dissention with the claim that Catholic social service, healthcare and educational institutions were religious organizations. Catholic healthcare is a large and thriving part of the nation's healthcare system, but because of historical deference, they have been able to opt-out of providing services to the public that they find immoral. That may no longer true in part, as Professor Wardle stated, because "greater financial pressures on the American healthcare system may cause nonmonetary factors to be sacrificed to the exigencies of the moment."[4]

It also may no longer true in part because secular activists, such as the American Civil Liberties Union (ACLU), abortion-rights advocates and women's groups, are increasingly resisting, on ideological bases, such legal remedies for conscience violations. They have concluded that entry into the secular pursuits of caring for society's vulnerable members makes the institution offering the services a secular rather than a religious one and that it is "unfair" that such an institution can access the benefit of an exemption from a public policy mandate. These ideological opponents of "conscience clauses," are relentlessly and publicly re-labeling them as "refusal clauses"[5] while mounting challenges to any exemption from public policy mandates for religiously-affiliated institutions that accept public funds or narrowly redefining religious organizations so that the exemption is ineffective.

The ACLU Reproductive Freedom Project, which has taken the lead in this effort, has a stated agenda of "combating limitations on reproductive health care."[6] One of the top items on their agenda is requiring contraceptives be included in employee health plan pharmaceutical coverage with no-or negligible opt-outs-and their first target state for this mandate was California. In 1999, five years after the initial bill was introduced and after numerous tries and despite extensive opposition lobbying by the Catholic Conference, the requirement that pharmaceutical coverage in private employee health plans include contraceptives, with a narrow "conscience clause" exemption, was passed and signed by the Governor.

The exact language of the exemption was specifically developed by the ACLU,[7] made available to legislators in the various states considering a contraceptive mandate, and is in fact contained in the recently enacted New York contraceptive mandate, which also fails to exempt most New York Catholic social service, healthcare and educational institutions.[8] As just demonstrated, "conscience clauses" to protect the religious freedom of those engaged in healthcare and social services are endangered by both financial exigencies and secular ideologies. Although religious liberty is "guaranteed" in California's Constitution, and acknowledged and protected by the federal Bill of Rights, the ACLU has begun to re-evaluate religious freedom on the basis of public opinion, claiming that their focus groups and polls reflect that the public rejects "refusal clauses" by large margins.[9]

At this point it would behoove us to recall the history of religious freedom in Western civilization, and more particularly, how it grounded the American democratic experiment in the New World.

History of Religious Freedom

Christendom, the intricate intertwining of Christianity and the state, provided much of the framework for medieval European society. Monarchs ruled by "divine right" and were crowned by bishops or popes. Clerics, and even bishops, served at the pleasure of those who wore the crown.[10] The hegemony of the Catholic Church was interrupted in 1517, when Martin Luther posted his 95 Theses. By this act he planted the seeds for the Reformation, which became "the political and religious event that divided the Western Christian church into Catholic and Protestant,"[11] and as history shows, it heralded the beginning of the end for Christendom.

Luther's message that "false doctrine" had led to the corruption in the Catholic Church fueled a popular movement to reform the Church, which spread rapidly through Germany in the 1520s. At approximately the same time, competing Protestant movements began in Switzerland with John Calvin, who preached predestination and held the Catholic Church guilty of idolatry, and in England with King Henry VII, who broke with the Vatican over the Pope's refusal to grant him a divorce from his wife. Responding to these "protests," Pope Paul III convened the Council of Trent, which met in three sessions spanning the years 1545-1563. The decrees of Trent clearly defined Catholic dogma, delineating the Church's theological position over against Protestantism, and gave form to the Roman Catholicism that endured 400 years-until Vatican II.[12]

Religious wars engulfed the continent during the 1500s and 1600s, dividing the medieval Church into "Catholic" and "Protestant" and then fragmenting Protestantism into numerous sects. However, the entrenched model of Christendom and the familiar desire for religious homogeneity lingered. It was not until England passed the "Act of Toleration" in 1689, that the some diversity was formally accepted.[13] That "toleration" gave legal protection against coercion and mayhem to those who dissented from the state's chosen religion, but did not grant them what we understand as religious liberty. It remained for the newly-minted Americans to implement the idea of freeing religion from governmental oversight. Colonial America became the place where "for the first time in Western history, the state and church were cleaved from one another."[14]

European settlers came to America in the middle of the seventeenth century seeking freedom to practice a religion different from the one sanctioned by their country's government. Ironically, though, upon arrival in the New World those first colonists gave their elected leaders the power to enforce their chosen religious beliefs and practices. "The inhabitants of... the settlements adhered to a basic... belief that the Bible ... read correctly... would prove a clear and infallible guide to the constitution of both Church and State, and no one who refused to follow the canons of scripture was to be tolerated."[15]

It was not until 1644, when the English Puritan Roger Williams parted company with his fellow New Englanders and founded Rhode Island that the "experiment" in religious freedom actually began. Williams believed that religion could only be authentic if it was freely chosen and freely exercised; therefore Rhode Island's charter provided religious liberty for all and established no Church. His thinking was eventually paralleled by the American founders, 150 years later, i.e.

1. Religion is indispensable to a free republic because it informs consciences and creates morality.

2. Religion should have no civil authority; government should have no religious authority.

3. Government must not suppress the free exercise of religion or coerce conduct contrary to conscience.[16]

"[By] deciding against maintaining an established church, the United States embarked on a new and radical course. It not only broke with its European roots; it departed from previous human experience. Until that time... the idea that a society could be maintained without its governing authority upholding and promoting a central belief system would have been inconceivable."[17]

Accordingly, in 1791 the "establishment" clause and the "exercise" clause were ratified as part of the First Amendment to the Constitution of the United States:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[18]

However, it is important to remember that the founders thought that "the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice,"[19] and considered the "religious liberty" clauses simply as prohibiting the Federal Government from taking any action to either establish a national church or to prevent Americans from exercising their religion in the various states, a number of which did have established churches.

In his 1833 commentary on the U. S. Constitution, Supreme Court Justice Joseph Story pointed out that "in some of the states, Episcopalians constituted the predominant sect; in others Presbyterians; in others, Congregationalists; in others, Quakers; and in others again, there was a close numerical rivalry among contending sects... Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice..."[20]

Judicial Constitutional Interpretation

It is interesting to note that between 1789 and 1947, the United States Supreme Court heard only one "religious freedom" case.[21] Since 1947, there have been dozens of cases. Not coincidentally, it was in 1947, that U. S. Supreme Court Justice Hugo Black unearthed and employed Thomas Jefferson's "wall of separation" language when he wrote for the majority in Everson v. Board of Education: "In the words of Jefferson, the clause against establishment of religion by law was intended to erect a 'wall of separation between Church and state.'"[22]

That phrase, familiar to modern Americans, is not found in the Constitution but in a January 1, 1802 letter Jefferson wrote in response to the Danbury Baptist Association's inquiry about his stance on their religious liberty. At the time the Baptists were being persecuted for not being part of the Congregationalist Church, the "predominant sect" in the state of Connecticut. Jefferson wrote:

Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State.[23]

It is important to remember that the religious freedom clauses in the First Amendment to the U. S. Constitution did not grant religious freedom to Americans, a liberty which the Founders viewed as God-given, but rather restrained the federal government from interference with the citizenry in either their choice or their practice of religion. As Bishop Thomas Curry points out in his book, Farewell to Christendom: "Prohibition of an establishment of religion meant that government should not select, promote, or prefer one religious group, a practice familiar to many Americans at the time the First Amendment was enacted. America defined the role of the State; it left the Church free to define its own role and what was good or bad for religion."[24]

The First Amendment curbs the power of the federal government. It does not make the government a "neutral" judge as to the benefits and burdens of certain public policies upon religion and religious practitioners or give it authority as an arbiter of where to place a "wall of separation"[25] American founders' intent was that the government is be absent, not neutral, in all matters religious.

This misuse of Jefferson's words as metaphor to mean a bright line separating all things secular from all things religious has seriously skewed the historical concept of religious liberty in the United States and has resulted in numerous rulings that rest on "judicial reasoning [that is]... fractured, polarized and utterly confusing. Even constitutional experts lose their way in the maze of precedents that now surround the First Amendment."[26]

Divergent Worldviews of Secularists and Catholics

Diametrically opposing worldviews explain most of the controversy about "conscience clauses" and the attempted "refusal" of Catholic institutions to submit to the demands of the "rights" activists. On one side are activists whose sensibilities are overwhelmingly secular and whose ideology demands that religion be treated as just another lifestyle, belonging wholly to the private realm. On the other side are the Catholic Church and various religious freedom advocates who share the American Founders' understanding of religious freedom, a belief in the value of religion and the deference due it. Arguments that resonate with one side elude the other. In fact, the very words "right," "justice," "fairness," "discrimination," and "equality" take on different meanings depending upon the worldview of the proponent.

The "rights" activists, who consider Judeo-Christian religious tenets and tradition quaint at best and divisive at worst, share a worldview with many secular ideologues in legal and political circles that have the power to craft public policy and tender constitutional interpretations. Although secularists give lip service to the "inalienable rights" language used by the American Founders in the Declaration of Independence, their worldview is that human rights come from human institutions and documents, such as the U. S. Constitution. They hold that individual autonomy is one of society's highest values, accept the postulate that morals are personal preferences and believe that rights are positive entitlements, which means that access to the "right" is synonymous with the right itself. Rather than accepting the Bill of Rights as restraining government from interference with God-given inalienable human rights, they see government as the grantor and arbitrator of those rights.

By virtue of this understanding, they view any "absence" of government in the oversight of religion and religious practices as showing preference to religion, and that religious as well as nonreligious individuals and institutions must heed government mandates. They believe that justice dictates that government must be actively neutral in ensuring the proverbial "level playing field," by stamping out "discrimination" by religious institutions, and erasing their tax benefits.

This worldview has led to the bright line "wall of separation" metaphor gaining credence in popular culture. Whereas the Founders were concerned that government would interfere with religion, the current concern seems to be that religion is interfering with the government's duty to provide positive rights.

On the other hand, the worldview held by the Catholic Church is that society, although a human construct, ought to be girded by the principles of "natural law." Catholic sensibility contains awe at the mystery and transcendence of the One who created humans in his image and from whom flow their inalienable rights. Catholic teaching holds out faith in God's love and justice, hope for human progress consistent with human dignity, and the belief that with reason we can discover the immutable laws of the universe. Catholics believe that there is an objective base for societal mores and personal values and that right and wrong exist independent of individual choices. They also believe that there are responsibilities corresponding to rights, and that for thriving, humans need to live in community to which they owe fidelity. They understand that we have been commanded to care for each other with love and for all of creation with stewardship.

Although the concept of religious freedom arose within Western Civilization, the Vatican retained its vision of Christendom as the ideal relationship between God and human society until the middle of the 20th century. However, with the thriving of the American Catholic Church in a land of religious freedom, the Church fathers developed and quantified their understanding of human freedom to encompass religious liberty. On December 7, 1965 in the Vatican II Council, they adopted Dignitatis Humanae, in which they declared that "the right to religious freedom is the right of religious groups not to be prevented from freely demonstrating the special value of their teaching for the organization of society and the inspiration of all human activity... [And] the right... to hold meetings or establish educational, cultural, charitable and social organizations.[27]

Most thoughtful Catholics resist the "wall of separation" metaphor as instructive for describing the ideal relationship between Church and State. They assert that religious liberty freedom allows them access to the public square, welcomes them to speak and act on their values, and permits them to participate in society in a manner consistent with the tenets of their faith. Catholics are constrained from imposing their beliefs on government policy or advocating a theocracy. Likewise, the government is to be absent in religious activities-unless public safety is in jeopardy. Catholics dispute secularists' contention that consensus on the "goodness" or efficacy of public policy, such as universal contraception, rises to the threshold of "ensuring public safety."

The Agenda and Tactics of the Secularists

As mentioned earlier, the ACLU and affiliated groups' ideology leads them to re-labeling "conscience clauses" as "refusal clauses" so as to convince the public that such an opt-out is form of discrimination against or unequal treatment of women or that it is allows certain institutions which define themselves as religious to impose their views on their employees or on the public.

The Reproductive Freedom Project has publicly acknowledged that their primary agenda item is "combating limitations on reproductive services offered by religiously affiliated providers."[28] In order to advance their agenda, their tactics include declaring that religious institutions do not even qualify for religious freedom or "conscience clauses"-only individuals have the freedom of conscience or that exemptions for religiously affiliated institutions amount to "refusal" clauses, and should cause those institutions to forfeit tax monies and their tax exempt status.

In her July 2002 testimony before the U. S. Congress Subcommittee on Health that was considering "Protecting the Rights of Conscience of Health Care Providers and a Parent's Right to Know," Catherine Weiss, Director of the ACLU's Reproductive Freedom Project, laid out their rationale for rejecting "conscience clauses":

Constitutional principles neither require nor forbid most refusal clauses. Based... on our study of case law the ACLU identified two measures for evaluating refusal clauses. We consider first whether granting an exemption would impose burdens on people who do not share and should not bear the brunt of the objector's religious beliefs... By "burdens" we mean to include obstacles to health care... We consider next whether the exemption protects the religious practices of pervasively sectarian institutions or instead protects institutions operating in the public sphere.[29]

In addition, reproductive rights activists have cleverly blurred the line in the public's mind between "access" to a right and the right itself. That tactic comes under the category of moving the privacy guarantee (upon which abortion rights rest) from a negative right, i.e., a right to be left alone, to a positive right, i.e., an entitlement to "reproductive health services" at the time and place of one's choosing.

Contraception is trumpeted by abortion rights activists as the panacea for the nation's problems, and a factor in ensuring "public safety." A demonstration of that mindset can be found in a Planned Parenthood Fact Sheet prepared in support of California's contraceptive mandate which contains this claim: "Contraception is not a luxury for women. Just as we have historically supported immunizations, we should support contraception as the medically necessary immunization for unwanted pregnancies."[30]

The list of organizations with agendas to protect reproductive rights and ensure unlimited access to reproductive health services is lengthy. Among them are Abortion Access Project, the ACLU Foundation Reproductive Freedom Project, MergerWatch Project, National Abortion Rights Action League, National Women's Law Center, Planned Parenthood Federation of America, Center for Reproductive Law and Policy and the Women's Law Project.

Melding their agendas with their tactics, this is the action plan that emerges:

1. Using women's equity and individual religious freedom arguments, mandate contraceptive coverage in all employee health plans-first in the states and then nationally, where an exemption is necessary only exempt sectarian institutions;

2. Using the argument that access is necessary for exercising rights, legalize the dispensing of RU-486 by non-physicians;

3. Using the same access argument, as well as the individual religious freedom argument, mandate the universal availability of "the morning-after pill," with or without a physician's prescription, in pharmacies and rape trauma centers;

4. Using both the women's equity and the access arguments, mandate abortion training in medical schools, first in states, and then nationally;5. Using the access and the religious freedom for individuals arguments, block mergers of Catholic and non-Catholic hospitals, and;

6. Using the argument that acceptance of public money means accommodating all the public's requests, require Catholic healthcare to provide the full range of reproductive health services or lose their tax-exempt status.

The Nature of contemporary American Society

California is arguably the most pluralistic state in America, a country which prides itself on its multiculturalism. After all, children speaking more than 100 different languages attend California public schools. If a "pluralistic society" is one which is host to a variety of people who differ in ethnicity, language, lifestyle and religion, then California qualifies, and America as a whole qualifies. If however, a "pluralistic society" is one in which many faith traditions and ethnic cultures are welcome to participate freely in forming public policy and setting social mores, California does not qualify, and America may not.

In 21st century America the loudest voices are attempting to persuade us that religion is not a "good" but is an obstacle to freedom. They dispute what was generally understood for nearly two hundred years-that religion is effective in creating moral citizens and conducive to the civil order. Ironically, although secularism and cultural liberalism are the basic tenets that underlie this dismissal of religion and this drive to raise "reproductive rights" to the highest freedom, it is not publicly recognized as a distinctive belief system. As pointed out by Louis Bolce and Gerald De Maio in their article in the Fall 2002 issue of The Public Interest:

The impression conveyed by both [the Washington Post and the New York Times] newspapers is that traditional religious beliefs motivate people to oppose abortion... support conservative social movements, and adopt intolerant attitudes, but that a modernist or secularist outlook apparently has little or no connection to the reasons why someone supports abortion rights... joins culturally progressivist organizations, expresses antipathy toward... Christians...[31]

American Catholics are part of the American culture, and many have been seduced by the utopian ideal of unlimited and unilateral "choice." They reject the wisdom of the age-old Church teachings about sexuality, marriage, fidelity and family or they fail to understand Jesus' command to care for "the least among us." Failure by individual Catholics and by some institutions bearing the Catholic name to adhere to the Church's teaching on contraceptives is used against the Catholic Church when it challenges public policy mandates. Polls showing the majority of Catholics reject the Vatican's stance on birth control; evidence of health insurance contracts in Catholic hospitals that provide coverage for contraceptives; documentation of elective sterilization procedures being offered and performed in Catholic hospitals; and other demonstrations of American noncompliance with Church teaching all have undermined the religious freedom of those institutions and individuals who remain faithful to Catholic teaching. In addition, it has caused boldness in the secularists as they move from mandating coverage for contraceptives, to mandating abortion training in medical schools, to requiring emergency contraception at rape trauma centers, and to proposing that abortion be available in Catholic hospitals that accept public funds.

A realistic assessment of the current American culture means that unless current trends reverse it looks bleak for the continued existence of social services and healthcare that have a Catholic identity. Most or all of our efforts to "cooperate" in a "pluralistic" society may be stymied by the overwhelming acceptance of secularism as the national ideology. If self-defined Catholic institutions are unable to follow the tenets of the Catholic faith when delivering services to the needy on behalf of the government, those institutions will cease to exist or will cede their Catholic identity and exist as "community" or government operated entities. In that case, we all lose. In California, the Church will be precluded from doing many of its good works and the government will have driven out a large part of the Catholic Church whose 400 year presence has contributed to the rich history of the state and whose saints' names have graced much of California's geography and institutions.

How Can Catholics Meet the Challenge?

Public policy mandates exempt Catholic parochial schools because they viewed as existing in the private realm. Catholic elementary and secondary schools were founded more than a hundred years ago to combat the pervasive Protestant ideology in the public schools. They take no government money although they provide a service to society by educating the youth. The result is that the Catholic identity of Catholic parochial schools has remained intact and no one questions that they are religious institutions who qualify for religious freedom.

Catholic Charities and Catholic hospitals also have a long and well respected history of providing service to those who need it. For all the right reasons, including scriptural mandates, charity and efficacy, in the last century, Catholic social service agencies and Catholic healthcare began to accept "pass-through" tax money to provide even more services to the state and the nation's needy and vulnerable. For most of that time those Catholic institutions operated in comfortable collaboration with the government, which allowed them "carve-outs" so that they did not have to offer services that violated their conscience.

The age-old maxim plays here well: "With the King's money comes the King." With the increasing secularization of American culture, the decreasing availability of "reproductive health services," and the expanding role of the judiciary in tailoring religious freedom, the familiar vehicle of the "conscience clause" as an opt-out from immoral or illicit public policy mandates became unreliable. Large Catholic institutions, such as Catholic Charities, Catholic healthcare, and Catholic universities, became targets for removal of "conscience clause" privileges because it appeared that they were being offered a benefit that nonreligious institutions could not access. Both types of institutions accepted public monies, but only those that were nonreligious had to accept the "strings." And, given the historical American Protestant ethos with its congregational understanding of Church, the claim that Catholics are called to serve humanity's physical as well as spiritual needs through their religious organizations seemed like a ploy to escape the burden of mandates.

Recalling Professor Wardle's estimation that the shortage of health care, including reproductive health care, would create the suitable climate in which financial exigencies would trump moral imperatives, and bearing in mind the increasing acceptance of secularism as a national ideology, it is not surprising that here in the 21st century, the time-honored "conscience clause" may become an historical artifact.

Two possible solutions present themselves. One, using Catholic parochial schools as a model, Catholic social services, Catholic healthcare, and Catholic universities could begin the process of reverting to private funding. Surely if the enormity of the need is known, large sums of money would be forthcoming. Although the public money allowed these institutions to become large and competitive with nonreligious institutions, perhaps now is the time to scale back, retrench, and rethink the Catholic vision for caring for the least among us.

Another solution would involve publicizing the possible demise of the effective "conscience clause" for religiously-affiliated organizations, the intransigence of the government in providing "pass through" tax money while allowing Catholic institutions to serve within their moral parameters, and the likely shortfall of services to needy individuals. If that was combined with aggressive education of Catholic parishioners on the history of religious freedom in America and on the Church's teaching regarding sexuality, family, fidelity, and social justice, as well as reminding them of the magnitude of the Church's service to the poor and needy on behalf of society, perhaps public opinion could be moved by them in such a way that conscience clauses would be preserved.

That then is our challenge. Conscience clauses are an endangered species-unless the California Supreme Court reverses the lower courts, or even more improbably, the U. S. Supreme Court reasserts the historic understanding of religious liberty. Our options are: We can cede our institutions to community oversight, withdraw from participation in the wider culture using the parochial schools as a model-or we can educate our Catholics and the public, and retake our rightful place cooperating in a pluralistic society, protected from coercion or interference by our constitutionally protected religious liberty.


1. Lynn D. Wardle, JD, "Conscience Clauses Offer Little Protection,"Health Progress, July-August 1993, found at: , p. 7-8.

2. Ibid., p. 1.

3. Maureen Kramlich, Esq., "Respect for Conscience: History and Current Threats" (Buffalo, NY: Annual Meeting of Diocesan Pro-Life/Respect Life Directors and State Catholic Conference Directors, 8 August 2002), p. 2.

4. Wardle, "Conscience Clauses Offer Little Protection," p. 1.

5. Catherine Weiss, Prepared Witness Testimony before U. S. House of Representatives Subcommittee on Health, 11 July 2002,

6. American Civil Liberties Union Reproductive Freedom Project, "Protecting Reproductive Rights…," p. 9.

7. Kramlich, "Respect for Conscience: History and Current Threats," p. 7.

8. New York State Catholic Conference, news releases

9. Kramlich, "Respect for Conscience: History and Current Threats," p. 5.

10. Herman J. Pottmeyer, "Catholicism in Germany," in Encyclopedia of Catholicism, ed. Richard McBrien (New York: HarperCollins Publishers, Inc, 1995), p. 558.

11. R. Emmet McLaughlin, "The Reformation," in Encyclopedia of Catholicism, p. 1091.

12. Ibid, pp. 1093-94.

13. Thomas J. Curry, The First Freedoms (New York: Oxford University Press, 1986), p. 2.

14. James F. Sweeney, Esq., "The 'Problem' of Religious Freedom: Living Faithfully in a Secular Society" (Fresno, CA: Legatus Society, July 15, 2002), p. 3.

15. William Ames, Conscience with the Power and Cases thereof (London, 1630), Bk.4, 10: quoted in Perry Miller, Orthodoxy in Massachusetts (Cambridge, MA, 1933), pp. 165-66; quoted in Thomas J. Curry, The First Freedoms, p. 4.

16. Sweeney, p. 4.

17. Thomas J. Curry, Farewell to Christendom (New York: Oxford University Press, 2001), 3.

18. The Constitution of the United States of America, First Amendment, 1791.

19. citing J. Story, Commentaries on the Constitution of the United States (1833).

20. J. Story, Id. at 1873.

21. Sweeney, Esq., "The 'Problem' of Religious Freedom: Living Faithfully in a Secular Society," 6.

22. Justice Hugo Black, writing for the majority in Everson v. Board of Education, 330 U.S. I, 15 (1947).

23. Thomas Jefferson," Letter to the Baptists in Danbury, Connecticut," reprinted in Lipscomb, Andrew and Berg, Albert, The Writings of Thomas Jefferson, Vol. 16, 282-283, found on First Amendment Cyber-Tribune website.

24. Curry, Farewell to Christendom, p. 45.

25. Ibid., p. 20.

26. Ibid., p. 72.

27. Vatican II, Dignitatis Humanae, 7 December 1965 (Northport, NY: Costello Publishing Company, Inc., 1996), p. 803.

28. ACLU Reproductive Freedom Project, "Protecting Reproductive Rights...," p. 9.

29. Weiss, p. 3-4.

30. "Planned Parenthood Fact Sheet on Necessity of AB 110," 1995, contained in the Record for Catholic Charities v. State of California, Vol 5, Exhibit M, entry A 001158, August 2000.

31. Louis Bolce and Gerald De Maio, "Our Secularist Democratic Party," The Public Interest, Fall 2002, p. 8.