« Supreme Court 2012: Bailey v. United States and Detention During a Search Warrant | Main | Belated rotations »

Friday, November 02, 2012

Bishop Jenky's Letter

Bishop Daniel Jenky received some attention today for his order to priests in his diocese to read a letter this weekend, on the verge of the election. The letter can be found in full here. Some relevant excerpts:

Since the foundation of the American Republic and the adoption of the Bill of Rights, I do not think there has ever been a time more threatening to our religious liberty than the present. Neither the president of the United States nor the current majority of the Federal Senate have been willing to even consider the Catholic community’s grave objections to those HHS mandates that would require all Catholic institutions, exempting only our church buildings, to fund abortion, sterilization, and artificial contraception.

This assault upon our religious freedom is simply without precedent in the American political and legal system. . . .  

I therefore call upon every practicing Catholic in this Diocese to vote. Be faithful to Christ and to your Catholic Faith. May God guide and protect his Holy Church, and may God bless America.

I should be clear that I don't agree with much of the hyperventilating that this letter has occasioned. But the bishop does some hyperventilating of his own. His letter strikes me as a document that wavers between wrong and bizarre--and I say that as a critic of the mandate.

Let me offer a few examples of things that either distress or bewilder me about the letter. First, I find the suggestion that "there has [n]ever been a time more threatening to our religious liberty than the present" in American history astounding, especially for a one-time history student. Leaving aside the pregnant phrase "Know Nothing," I must imagine that many native Americans, Jehovah's Witnesses, and Mormons, to say nothing of more historically aware Catholics, would have to take issue with Bishop Jenky on this one. I grant that this involves a matter of opinion as to which there can be no final resolution; I think I could make an equally strong case that the years 1980-1992 represented a greater threat to religious liberty than the present day, but I wouldn't expect to persuade the bishop to change his mind. That said, he is quite obviously wrong. For similar reasons, I'm not sure what to make of the claim that "This assault upon our religious freedom is simply without precedent in the American political and legal system," except that it is either wrong or silly.

Finally, I find the closing statement urging the faithful to vote fairly remarkable for a number of reasons. The letter is about the mandate, not about abortion or contraception themselves. I could full well understand a letter urging every member of the faithful to vote against any politician who supports either abortion or contraception, and arguing that a vote to the contrary would be a mortal sin. But the subject of this letter is a contested and contestable issue concerning the scope of government power to promulgate generally applicable (in a colloquial rather than technical sense) regulations and the extent to which the government, having already accommodated churches to some extent, is obliged to go further. I'm not one of the faithful, but this strikes me as moving well beyond either the bishop's expertise or his flock's obligations. Indeed, I'm surprised that he calls upon the faithful to vote at all. Again, I can understand him commanding the faithful not to cast a vote that constitutes mortal sin, but are they not free in good conscience to refuse to vote at all--if, say, they believe (and I don't necessarily share this view) that the President's leading opponent would repeal the mandate but otherwise act in ways that increased human suffering?  




Posted by Paul Horwitz on November 2, 2012 at 10:19 PM in Paul Horwitz | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Bishop Jenky's Letter:


What amazes me about this letter is how close it is to (if not well over) the line of violating the "no political activity" requirement for 501(c)(3) tax-exempt status. Without expressly stating it, Bishop Jenky has told the parishioners in his diocese that they (a) need to vote and (b) cannot vote for Obama or for a Democrat for Senate. Now, I doubt the IRS would ever, under any circumstance, revoke the Catholic Church's tax-exempt status, but if a non-religious 501(c)(3) did the same thing, they would be in serious jeopardy.

Posted by: Charles Paul Hoffman | Nov 3, 2012 1:04:53 PM

Prof. Corbin has an alternative view, including on religious freedom grounds, of the Hosanna-Tabor case:


The reply of Garnett et. al. is to me a "troubling failure to appreciate fully the implications of a commitment to religious freedom," including of employees et. al. in the covered areas.

But, I appreciate a sense of perspective, so kudos to the comments.

Posted by: Joe | Nov 3, 2012 11:57:52 AM

Freedom from religion is also at risk. In any event, not all of Paul's and Rick's concerns are sound; and Jefferson has withstood a test of time that neither Paul nor Rick have. Let's all light up a peyote! The First Amendment's religious clauses, fortunately, do not trump the speech clause (and vice versa).

Posted by: Shag from Brookline | Nov 3, 2012 11:42:04 AM

Paul, as per usual, and unlike many of the letter's critics, focuses correctly on the letter's tone and content, as opposed to (a) the fact that a Catholic bishop is telling priests in his diocese what to do with respect to a matter that he thinks is related to his obligation to teach on matters of faith and morals and (b) the fact that a Catholic bishop is speaking publicly on a "political" question.

Andy Koppelman and I "debated" (but not really) the question, a few weeks ago, whether "religious freedom is at risk". A link to the video is here: http://clrforum.org/2012/11/01/usd-institute-for-law-and-religion-garnett-and-koppelman-debate-religious-liberty/ Among other things, I said "Yes, religious freedom is at risk; remember, it *always* is at risk; and remember also that things are a lot better here, and now, than they are elsewhere or than they have sometimes been in the past."

The mandate is bad policy and unjust and, along with the Administration's brief in the Hosanna-Tabor case suggests a (to me) troubling failure to appreciate fully the implications of a commitment to religious freedom. That said, as Paul points out, there are plenty of examples of more dramatic impositions on religious freedom and exaggerations should be avoided.

Posted by: Rick Garnett | Nov 3, 2012 11:18:52 AM

I don't want to get too far afield from the main subject of my post. That said, while the priests may or may not have a problem with this, that seems to me a question of the internal organization of a church and not terribly relevant to me or to most outsiders. Moreover, I see nothing to object to in principle, unless one's real objection is to certain fundamental doctrines of church organization itself. I would be fine with a school principal or board ordering public school teachers to say and do certain things, on pain of dismissal, and that's actually a state actor. Still less do I object here. It's some of the substance of the letter I find objectionable, not the fact of its existence or mandatory nature. The question of celibacy etc. seems like a bit of a red herring here; as I pointed out, the letter is directed at the religious liberty aspects of the contraception mandate, not at doctrine concerning contraception or abortion. I suppose the incident may "highlight" some of Jefferson's concerns, but I'm not convinced that it does especially well, nor in any event that all of Jefferson's "concerns" were sound. Jefferson is not, any more than anyone else, the alpha and omega of all thinking about religious liberty.

Posted by: Paul Horwitz | Nov 3, 2012 10:09:36 AM

It could be some of the Bishop's priests may have a problem with this, especially to be read by a celibate male to the many females in the congregation who may indeed have a choice, but the priest doesn't. I personally have no problem as it highlights Thomas Jefferson's concerns.

Posted by: Shag from Brookline | Nov 3, 2012 9:54:30 AM

I have no problem with the bishop ordering his priests to read a letter, including on the weekend before the election.

Posted by: Paul Horwitz | Nov 3, 2012 9:39:03 AM

Keep in mind that this is an "order" from the Bishop to priests in his diocese. The priests apparently lack choice. This boils down to the bully political side of the pulpit that should be separate from state. Perhaps the Bishop should also "order" his priests to read the Catholic Bishops' critique of Paul Ryan's budget (that the GOP has supported) as contrary to Catholic principles. Alas, the Nuns lack the Bishop's power to make their case for Catholic women. The Bishop's timing is (im)purely political.

And consider the aging Rev. Billy Graham's recent removal of Mormonism from his evangelical Christian cult list, presumably to support Mitt Romney. Can we expect Rev. Pat Robertson and his ilk to blame Obama for hurricane Sandy?

Posted by: Shag from Brookline | Nov 3, 2012 7:37:49 AM

Sheesh. This sort of thing is ridiculous. I say this as a supporter of the mandate but also someone who actually has a sense of perspective.

Posted by: Joe | Nov 2, 2012 11:39:14 PM

The comments to this entry are closed.