HHS, Freedom Of Conscience, And Price Of Shortcuts

“Will The HHS Mandate Save Catholic Social Teaching From Itself?”

     It is impossible to read Francis Cardinal George’s cri de coeur against the Obamacare HHS mandate and not be moved.  It is impossible not to hear a new note of determination in DOLAN’s report about the HHS mandate to the USCCB.  While all people of good will strongly support the political effort that is currently underway to repeal it, any victory will be uncertain and easily reversed so long as Catholic Social Teaching permits the use of political coercion to fulfill religious duties.  

     Beginning with Pope John XXIII and continuing largely through Pope John Paul II, CST has focused on “fundamental rights.”  These rights are generally “positive” in the sense that they affirm that a person has a moral right to demand some good (food, housing) or service (education, medical care) from others.  These rights, because they are deemed “fundamental,” trump other rights, such as the right to property.

         This model is breaking down.  The problem is that costs to purchase “X” are uncontrolled.  Moreover, with the increase in demand for “X” and the government’s pre-commitment to pay whatever it takes to buy “X,” the price skyrockets.  A simple example may illustrate this.  My dad was a Catholic school teacher.  We paid for our dental care.  One year, the UAW negotiated dental insurance for its members.  Suddenly, dental care for our family became a significant expense because the demand, and money available to pay for, dental care increased.  The same thing, of course, happens for government programs.

     We are in the first phase.  The increasing centralization of the delivery of services necessarily sands over individual differences or the programs cannot be administered on the scale demanded.  It necessarily coerces consciences and undermines the formation of real human relationships, which are both the substrate and the result of a just society.   Although Blessed John Paul II and the Holy Father have warned us about such centralization, CST has been slow to incorporate their insights.

    The key is this.  A person’s conscience is where he or she actively forms a relationship with Christ.  When conscience is coerced or a person is prohibited from acting in accordance with it, that becomes a gruesome offense against Christ.  Conscience operates from the bottom-up; each person approaches Christ and either agrees to obey him or not.  It cannot be a top-down thing like bureaucracy and centralized government programs.  CST thus can either be very dangerous or be the means through which the Holy Spirit renews the face of the Earth.  Because the foundation of CST is always each person’s relationship with Christ, a top-down approach is internally inconsistent and ultimately destructive of the ends that it seeks.  Everywhere in history where the ends that CST holds up have been sought without being based firmly on a relationship with Christ, the result is failure.  The solution is for each of us to actively respond to Christ’s call.  Until the CST fully acknowledges this, it will always be easily co-opted by politicians and political movements that talk a good game, but have evil in their hearts.


Bravo for Our Bishops!

On March 14, 2012, the USCCB issued the following statement about the HHS mandate.  Bravo!

The Administrative Committee of the United States Conference of Catholic Bishops, gathered for its March 2012 meeting, is strongly unified and intensely focused in its opposition to the various threats to religious freedom in our day. In our role as Bishops, we approach this question prayerfully and as pastors—concerned not only with the protection of the Church’s own institutions, but with the care of the souls of the individual faithful, and with the common good.

To address the broader range of religious liberty issues, we look forward to the upcoming publication of “A Statement on Religious Liberty,” a document of the Ad Hoc Committee for Religious Liberty. This document reflects on the history of religious liberty in our great Nation; surveys the current range of threats to this foundational principle; and states clearly the resolve of the Bishops to act strongly, in concert with our fellow citizens, in its defense.

One particular religious freedom issue demands our immediate attention: the now-finalized rule of the U.S. Department of Health and Human Services that would force virtually all private health plans nationwide to provide coverage of sterilization and contraception—including abortifacient drugs—subject to an exemption for “religious employers” that is arbitrarily narrow, and to an unspecified and dubious future “accommodation” for other religious organizations that are denied the exemption.

We begin, first, with thanks to all who have stood firmly with us in our vigorous opposition to this unjust and illegal mandate: to our brother bishops; to our clergy and religious; to our Catholic faithful; to the wonderful array of Catholic groups and institutions that enliven our civil society; to our ecumenical and interfaith allies; to women and men of all religions (or none at all); to legal scholars; and to civic leaders. It is your enthusiastic unity in defense of religious freedom that has made such a dramatic and positive impact in this historic public debate. With your continued help, we will not be divided, and we will continue forward as one.

Second, we wish to clarify what this debate is—and is not—about. This is not about access to contraception, which is ubiquitous and inexpensive, even when it is not provided by the Church’s hand and with the Church’s funds. This is not about the religious freedom of Catholics only, but also of those who recognize that their cherished beliefs may be next on the block. This is not about the Bishops’ somehow “banning contraception,” when the U.S. Supreme Court took that issue off the table two generations ago. Indeed, this is not about the Church wanting to force anybody to do anything; it is instead about the federal government forcing the Church—consisting of its faithful and all but a few of its institutions—to act against Church teachings. This isnot a matter of opposition to universal health care, which has been a concern of the Bishops’ Conference since 1919, virtually at its founding. This is not a fight we want or asked for, but one forced upon us by government on its own timing. Finally, this is nota Republican or Democratic, a conservative or liberal issue; it is an American issue.

So what is it about?

An unwarranted government definition of religion. The mandate includes an extremely narrow definition of what HHS deems a “religious employer” deserving exemption—employers who, among other things, must hire and serve primarily those of their own faith. We are deeply concerned about this new definition of who we are as people of faith and what constitutes our ministry. The introduction of this unprecedented defining of faith communities and their ministries has precipitated this struggle for religious freedom. Government has no place defining religion and religious ministry. HHS thus creates and enforces a new distinction—alien both to our Catholic tradition and to federal law—between our houses of worship and our great ministries of service to our neighbors, namely, the poor, the homeless, the sick, the students in our schools and universities, and others in need, of any faith community or none. Cf. Deus Caritas Est, Nos. 20-33. We are commanded both to love and to serve the Lord; laws that protect our freedom to comply with one of these commands but not the other are nothing to celebrate. Indeed, they must be rejected, for they create a “second class” of citizenship within our religious community. And if this definition is allowed to stand, it will spread throughout federal law, weakening its healthy tradition of generous respect for religious freedom and diversity. All—not just some—of our religious institutions share equally in the very same God-given, legally-recognized right not “to be forced to act in a manner contrary to [their] own beliefs.” Dignitatis Humanae, No. 2.

A mandate to act against our teachings. The exemption is not merely a government foray into internal Church governance, where government has no legal competence or authority—disturbing though that may be. This error in theory has grave consequences in principle and practice. Those deemed by HHS not to be “religious employers” will be forced by government to violate their own teachings within their very own institutions. This is not only an injustice in itself, but it also undermines the effective proclamation of those teachings to the faithful and to the world. For decades, the Bishops have led the fight against such government incursions on conscience, particularly in the area of health care. Far from making us waver in this longstanding commitment, the unprecedented magnitude of this latest threat has only strengthened our resolve to maintain that consistent view.

A violation of personal civil rights. The HHS mandate creates still a third class, those with no conscience protection at all: individuals who, in their daily lives, strive constantly to act in accordance with their faith and moral values. They, too, face a government mandate to aid in providing “services” contrary to those values—whether in their sponsoring of, and payment for, insurance as employers; their payment of insurance premiums as employees; or as insurers themselves—without even the semblance of an exemption. This, too, is unprecedented in federal law, which has long been generous in protecting the rights of individuals not to act against their religious beliefs or moral convictions. We have consistently supported these rights, particularly in the area of protecting the dignity of all human life, and we continue to do so.

Third, we want to indicate our next steps. We will continue our vigorous efforts at education and public advocacy on the principles of religious liberty and their application in this case (and others). We will continue to accept any invitation to dialogue with the Executive Branch to protect the religious freedom that is rightly ours. We will continue to pursue legislation to restore the same level of religious freedom we have enjoyed until just recently. And we will continue to explore our options for relief from the courts, under the U.S. Constitution and other federal laws that protect religious freedom. All of these efforts will proceed concurrently, and in a manner that is mutually reinforcing.

Most importantly of all, we call upon the Catholic faithful, and all people of faith, throughout our country to join us in prayer and penance for our leaders and for the complete protection of our First Freedom—religious liberty—which is not only protected in the laws and customs of our great nation, but rooted in the teachings of our great Tradition. Prayer is the ultimate source of our strength—for without God, we can do nothing; but with God, all things are possible.”

Fr. Marcel’s Statement: The Dangers of Celebrity

Fr. Marcel has issued a press release/letter.  He did so, after being instructed by legitimate ecclesiastical authority to remain quiet, because he feels that the questions he has received from the public and parishioners “oblige” him to do so (unlike the ecclesiastical authorities in whose diocese he is operating).  The statement provides two new facts: (1) that the EME who provided Holy Communion to Ms. Johnson was four feet away from him and (2) the nature of the illness that impaired him during and after the Mass.  Most importantly, it provides his rationale for his action.

He wrote:

In the past ten days, many Catholics have referenced canon 915 in regard to this specific circumstance. There are other reasons for denying communion which neither meet the threshold of canon 915 or have any explicit connection to the discipline stated in that canon.

If a Quaker, a Lutheran or a Buddhist, desiring communion had introduced himself as such, before Mass, a priest would be obligated to withhold communion. If someone had shown up in my sacristy drunk, or high on drugs, no communion would have been possible either.  If a Catholic, divorced and remarried (without an annulment) would make that known in my sacristy, they too according to Catholic doctrine, would be impeded from receiving communion. This has nothing to do with canon 915. Ms. Johnson’s circumstances are precisely one of those relations which impede her access to communion according to Catholic teaching. Ms. Johnson was a guest in our parish, not the arbitrer of how sacraments are dispensed in the Catholic Church.

This is the nub of the controversy.  Notably, Fr. Marcel does not provide an explanation for allowing the EME — who was four feet away — to distribute Holy Communion to Ms. Johnson.  Fr. Marcel’s analysis of the canon law also seems incorrect:

There is not, and never has been, the slightest doubt but that a Catholic woman living a lesbian lifestyle should not approach for holy Communion, per Canon 916. One so approaching risks receiving the Eucharist to her own condemnation. 1 Corinthians XI: 27. But, once any Catholic approaches for the public reception of holy Communion, a different norm controls the situation, namely, Canon 915. The only question in this case is, and has always been, whether the centuries-old criteria for withholdingholy Communion from a member of the faithful were satisfied at the timethis woman approached this minister. Unless all of those criteria were satisfied at that time, then, no matter what moral offense the woman might have committed by approaching for the Sacrament in her state (for which action she would be accountable before God), the minister of holy Communion acted illicitly. Period. End of paragraph.

Now, if the minister of the Church acted illicitly in this case (and the information available to me indicates that he did), he needs to be corrected (not punished, corrected). That said, his evident love for Our Lord in the Eucharist, and the conditions under which this decision seem to have been suddenly thrust upon him, suggest that there is no deep disrespect for certain members of the faithful at work in him, and the demands for him to be severely disciplined seem aimed more at exploiting the incident than at resolving it.

The emphasized section seems to me to be the wisest comment that I have read about this situation.  Several points are becoming clear:

  • Fr. Marcel was faced with a difficult situation all around.  Yet, Canon Law seems to provide a clear answer.  Setting these rules is unquestionably within the prerogative of the Church and Fr. Marcel’s discomfort with the answer is not an excuse for violating it.
  • Fr. Marcel should unquestionably have prevented the EME from distributing the Eucharist.  He can’t have it both ways.  By refusing to distribute the Eucharist himself and allowing a lay EME to do so, Fr. Marcel inadvertently suggested that he may have a “deep disrespect for certain members of the faithful.”
  • Fr. Marcel is reading too much of his own publicity.  My day job is a management-side employment discrimination lawyer.  Fr. Marcel’s statement reads to me like the words of so many employees who have an inflated sense of their importance and who are being told how bad the boss is by too many people.  They lose perspective.  Fr. Marcel, like former Fr. Cutie and (former?) Fr. Corapi, rather than reconciling himself to the Church, is now fighting it.  He needs to step back and ask himself what obedience means (and not come out with technicalities like Cardinal Wuerl isn’t my Cardinal.)
  • The ill-fated attempts to get written statements personally always ends up badly as it has here.  Was there intimidation or not?  That’s in the eye of the beholder.  Fr. Marcel did not serve himself well.  He really needs to chill.

Fr. Marcel obviously has some real gifts.  I pray that he gains the maturity to handle this situation in a way that serves the Church rather than tearing it apart.

Fr. Marcel, Canon 915, And The Rule Of Reasonableness

By now, most people have heard the story of Barbara Johnson and Fr. Marcel.  Ms. Johnson asked Fr. Marcel to distribute the Holy Eucharist to her.  He said no, but allowed an EME to do so.  She now will not rest until  he is removed from parish life.

Most of the blog-o-sphere sides with Ms. Johnson. Some comments are hot.  Some comments, such as that of lay Canonist Dr. Ed Peters, are temperate and analytical.  Some like those of Bishop Knestout try to chart a middle course, acknowledging Ms. Johnson’s hurt without condemning Fr. Marcel.  I think they all miss the real issue.

The opinion that follows is my own.  It is not that of anyone at St. Francis.  It is an opinion based on available information, with the recognition that some facts needed are not public and will never be public.

Based on the facts as I have been able to find them and one fact in particular that never made it into the secular press, I believe Fr. Marcel erred.  He tried to reach a practical compromise that met the spirit of the various rules that governed the situation without the time for cool reflection. I, as a layman, of course, do not judge and do not wish to jump on the bandwagon.  At the same time, many people are questioning the way the Archdiocese handled the situation.  When one identifies the issue correctly — and the issue is not the one that has been reported — , the Archdiocese’s actions were completely appropriate.  Ms. Johnson’s behavior has been reprehensible.  Now is a time for healing and to let the appropriate ecclesial authorities deal with it.

The Facts

On February 17, 2012, the Maryland House of Delegates approved the bill by a 72–67 vote.  On February 23, 2012, the Maryland Senate approved the bill by a vote of 25-22.  On March 1, 2012, Governor Martin O’Malley approved the bill.  It is scheduled to take effect on January 1, 2013.  The law, however, does not require the Catholic Church to solemnize same-sex “marriages.”

Two days later, a funeral Mass was scheduled at St. John Neumann in Gaithersburg for Barbara Johnson’s mother.  The celebrant was Fr. Marcel Guarnizo.  Just before Mass, as he was vesting, Ms. Johnson chose to introduce her “partner” or “lover” to Fr. Marcel.  Fr. Marcel told her that she should not present herself for communion.  Ms. Johnson immediately left the sacristy.  Fr. Marcel tried to go to her, but was physically restrained by Ms. Johnson’s “partner” or “lover.”

When the time came for Holy Communion, Ms. Johnson chose to present herself to Fr. Marcel to receive the Eucharist.  She did this even though (an) Extraordinary Minister(s) of Holy Communion were available. Ms. Johnson described what happened as follows:

When Guarnizo covered the wine and wafers with his hand during Communion, Johnson stood there for a moment, thinking he would change his mind, she said. “I just stood there, in shock. I was grieving, crying,” she said. “My mother’s body was behind me, and all I wanted to do was provide for her, and the final thing was to make a beautiful funeral, and here I was letting her down because there was a scene.”

.  “As a lifelong Catholic and former Catholic school teacher,” Ms. Johnson stated that she was surprised that Fr. Marcel thought her “sexual orientation” was an issue.  Ms. Johnson then went to an EME and received Holy Communion.

After having received Holy Communion, Ms. Johnson then gave a eulogy for her mother.  Fr. Marcel left the altar.  It has been stated that he was sick.  Fr. Marcel then arranged for a replacement priest to accompany the family and Ms. Johnson’s mother’s body to the cemetery.

Ms. Johnson then wrote a letter to Fr. Marcel the next day, Sunday, February 26th.  The letter condemned Fr. Marcel and asserted that his actions were based on politics:

“You brought your politics, not your God into that Church yesterday, and you will pay dearly on the day of judgment for judging me,” she wrote in a letter to Guarnizo. “I will pray for your soul, but first I will do everything in my power to see that you are removed from parish life so that you will not be permitted to harm any more families.”

The rest of the letter has not been published.  Meanwhile, Ms. Johnson contacted Fr. Marcel’s superiors at the Archdiocese of Washington.  By Monday, February 26th, the Archdiocese of Washington was investigating the situation.  She was able to speak with Msgr. Michael Fisher, the Archdiocesan Secretary for Ministerial Leadership, who then spoke with Auxiliary Bishop Barry Knestout.  Bishop Knestout wrote a personal letter of apology to Ms. Johnson dated February 28, 2012.   It is unclear whether this letter was intended to be made public as it differs from the official statement.  The letter expressed regret for any personal hurt that Ms. Johnson experienced and characterizes the situation (as Msgr. Fisher reported it to him) as involving a “lack of pastoral sensitivity.”  Bishop Knestout also personally spoke with Ms. Johnson and the family.

This apology and personal counseling was not enough.  Ms. Johnson informed the Washington Post about the situation. The newspaper published a story on the situation at 9:27 A.M. on Wednesday, February 29th.  Television then got involved on February 29th, too.


Judging from the facts above, the following seems apparent.  First, Fr. Marcel declined to distribute Holy Communion to Ms. Johnson.  Second, it appears that he did so because he believed that it was not appropriate for him, as a priest, to do so publicly.  Third, Fr. Marcel attempted to reach a practical compromise by allowing the EME present to distribute the Eucharist to Ms. Johnson.  This practical resolution seemed to offer a way out of a very difficult situation — by refusing quietly, Fr. Marcel attempted to disassociate himself as a priest in persona Christi from any possible affirmation that Ms. Johnson’s known behavior was appropriate.  At the same time, not having conducted the private counseling that is the policy of the Archdiocese of Washington, Fr. Marcel left it up to Ms. Johnson as to whether she would or would not receive Communion.  Significantly, she decided — after being warned twice that she likely should not receive Communion — to receive the Blessed Sacrament.

It also appears that this really was a pastoral situation — Fr. Marcel does not seem to have believed that Canon 915 applied (or if he did, he believed that the policies of the ADW did not allow him to enforce it until and unless he had privately counseled her).  If he had, he presumably would have (and should have) instructed the EME to decline to distribute the Blessed Sacrament to her.  He didn’t.  Where that leaves me is this:  Fr. Marcel supplemented to the ADW’s direction regarding the distribution of the Blessed Sacrament with the codicil — in a situation where Canon 915 applies, but for the required private counseling, it is appropriate for a priest to decline to distribute the Eucharist, but to allow an EME to do so.

Viewed in this light, Bishop Knestout’s February 28th letter makes perfect sense.  The underlying premise of his letter is that Canon 915 did not apply.  If it did, then Fr. Marcel (or even Bishop Knestout) would have had no discretion and the opinion expressed in the letter would have been manifestly unjust.  But it appears that even Fr. Marcel believed that he had discretion and once Fr. Marcel had discretion, the question then became one of whether that discretion was reasonably exercised in the circumstances. The circumstance was a funeral Mass for the proposed communicant’s mother; perhaps a Sunday Mass or a daily Mass or a different proposed communicant would call for a different judgment.

It may be that, at some time in the future, the Church will adopt the Marcel Principle and handle these situations as he did.  But, as of now, Fr. Marcel’s ecclesial superiors believe that his decision was the wrong one.  We should pray for Fr. Marcel and for Cardinal Wuerl and Bishop Knestout who have many difficult decisions to make.