Doctrinal Error in the USCCB Statement on Religious Liberty

The U.S. Conference of Catholic Bishops issued a statement on religious liberty Our First, Most Cherished Liberty. The statement correctly objects to recent attacks on religious liberty in the United States, from a number of different sources. These attacks include the HHS Mandate, requiring employers (with a few exceptions) to pay for health care plans that include contraception, abortifacient contraception, direct sterilization, and certain types of abortion (IUDs and abortifacient drugs). Certainly, the Bishops have done well in strongly opposing this unjust requirement.

Technically, the HHS Mandate is not a law. The Patient Protection and Affordable Care Act (PPACA), often called Obamacare, does not contain such a requirement. Rather, the law requires the U.S. department of Health and Human Services (HHS) to determine what the minimum health care coverage for insurance will include. Rather than choose a true health care minimum, the HHS has decided to include a sinful secular wish-list in what must be included.

But the Bishops are correct in saying that “These features of the ‘preventive services’ mandate amount to an unjust law.” (p. 2) Perhaps there is a legal avenue to overturning the HHS Mandate, in that it is in effect a law, but one not enacted by the legislature. It requires employers to act, and it would punish them for refusing to obey, just as a law would. But from a moral point of view, the Mandate is essentially an unjust law.

The doctrinal error in this USCCB document is found in the Bishops’ assertion concerning our moral response to unjust laws in general, and to this unjust law in particular. It is moral to object to an unjust law. It is true that an unjust law is not law at all, but a species of violence, as St. Augustine, St. Aquinas, and Pope Leo XIII each taught. But are we always morally required to refuse to obey each and every unjust law?

USCCB: “It is a sobering thing to contemplate our government enacting an unjust law. An unjust law cannot be obeyed. In the face of an unjust law, an accommodation is not to be sought, especially by resorting to equivocal words and deceptive practices. If we face today the prospect of unjust laws, then Catholics in America, in solidarity with our fellow citizens, must have the courage not to obey them. No American desires this. No Catholic welcomes it. But if it should fall upon us, we must discharge it as a duty of citizenship and an obligation of faith.

“It is essential to understand the distinction between conscientious objection and an unjust law. Conscientious objection permits some relief to those who object to a just law for reasons of conscience—conscription being the most well-known example. An unjust law is ‘no law at all.’ It cannot be obeyed, and therefore one does not seek relief from it, but rather its repeal.”

The USCCB Statement on Religious Liberty teaches that “an unjust law cannot be obeyed,” that we may not seek “an accommodation,” and that it is “an obligation of faith” to disobey unjust laws. These assertions are erroneous. Certainly, any law must not be obeyed that requires us to sin. For sin is never justified, even if a secular law approves or requires the sin. But not every act of obedience to an unjust law is itself a sin.

Some laws are unjust without requiring sin. For example, the laws permitting abortion and euthanasia are intrinsically unjust laws. We may never exercise our legal “right” to abortion or euthanasia. We must oppose these intrinsically unjust laws and seek to overturn them. But other laws are unjust because they require an act, not merely because they permit an act.

If an unjust law requires an act, is obedience to that law (by the commission of that act) always a sin?

There are three fonts of morality; three things that make an act moral or immoral. If all three fonts of morality are good, the act is moral; it is not a sin. If any one or more fonts is bad, the act is immoral; it is a sin to knowingly choose such an act. If obeying an unjust law is a sin, it must be a sin under one or more of these fonts.

The case of cooperation with an unjust law falls under the principle of cooperation with evil. For a full explanation of this principle and its application, see my Kindle booklet: Roman Catholic Teaching on Cooperation with Evil or my book: The Catechism of Catholic Ethics: A work of Roman Catholic moral theology.

In brief, the principle of cooperation with evil is an application of the three fonts of morality to a particular type of knowingly chosen act, one in which your act cooperates with the sinful act of another person. But as always in Catholic moral theology, if all three fonts of morality are good, then the act is morally-permissible, even if it is an act of cooperation with the sin of another person.

The three fonts of morality: (1) intention, (2) moral object, (3) circumstances, correspond to the three types of cooperation with evil.

1. explicit cooperation (intention)

When the cooperation includes the intended end to assist the other person in a sinful act, the cooperative act is called ‘explicit cooperation’. It is always a sin to act with a bad intention. It is always a sin to intend to assist another person’s act in accord with whatever is sinful in that act. When you have no such cooperative intention, but you are cooperating formally or materially, then the cooperation is called implicit, not explicit.

2. formal cooperation (moral object)

When your cooperative act assists the intrinsically evil act of another person in attaining its evil moral object, then your cooperative act is called formal cooperation. The moral object of formal cooperation is itself an evil moral object (assisting another act in attaining its evil moral object), and so every act of formal cooperation is itself intrinsically evil and always immoral.

3. material cooperation (circumstances)

When your cooperative act assists the sinful act of another person in the circumstances of the act, then the cooperation is termed ‘material’. This type of cooperation is sometimes moral, and other times immoral. The morality of the act, if there is only good in the intention and only good in the moral object, depends on the moral weight of the reasonably anticipated good and bad consequences for all persons affected by the act (including the bad consequence of scandal). Some acts of material cooperation are moral, and others are immoral.

Unjust Laws

It is a sin to enact an unjust law. But is every act of cooperation with that just law immoral?

Explicit cooperation (formal or material) is always a sin, due to your bad intention. Acting with a bad intention is always a sin (under the first font of morality). Therefore, any explicit cooperation with an unjust law is sinful.

Formal cooperation (explicit or implicit) is always a sin, due to a bad moral object in your act (and in the act of the other person). The deliberate choice of an act with an evil moral object (an intrinsically evil act) is always a sin; such acts are immoral by their very nature. Therefore, any formal cooperation with an intrinsically evil unjust law is sinful.

However, this applies only to formal cooperation and only to those unjust laws that are intrinsically evil. If an unjust law is intrinsically evil, your cooperation might be formal, or it might be merely material (or it could be both). Any formal cooperation is always immoral, because formal cooperation is itself an intrinsically evil act. When a law is not intrinsically evil, then cooperation with that law is not formal cooperation. (Of course, you could possibly sin by committing an intrinsically evil act related to that law, but such a sin is not cooperation, but perpetration.)

Mere material cooperation (cooperation which is neither explicit nor formal) is moral if the good consequences of cooperation morally outweigh, or at least equal, the bad consequences of the cooperation, but immoral if the bad outweighs the good.

According to the constant teaching of the Magisterium, not every kind of cooperation with evil is immoral. Mere material cooperation, done without committing any type of intrinsically evil act and without any bad intention, can be moral, depending on the circumstances.

Pope John Paul II: “Indeed, from the moral standpoint, it is never licit to cooperate formally in evil.” (Evangelium Vitae, n. 74)

The holy Pontiff condemns all formal cooperation, but not all material cooperation. In the same document, Pope John Paul II permits a type of mere material cooperation with a law that permits abortion, specifically, that a legislator may vote for such a law:

“when it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.” (Evangelium Vitae, n. 73)

In another example, the Ethical and Religious Directives for Catholic Health Care Services, issued by the USCCB (5th edition, November 2009), permits Catholic hospitals to engage in some types of material cooperation:

“If a Catholic health care organization is considering entering into an arrangement with another organization that may be involved in activities judged morally wrong by the Church, participation in such activities must be limited to what is in accord with the moral principles governing cooperation.” (ERD, n. 69; see also n. 66, 70, 71)

“At such times, Catholic health care institutions should determine whether or to what degree collaboration would be morally permissible. To make that judgment, the governing boards of Catholic institutions should adhere to the moral principles on cooperation.” (ERD, footnote 10).

Therefore, mere material cooperation with an unjust law is not always immoral. Neither is such cooperation always moral. Absent an evil intention or an evil moral object, the morality of material cooperation with an unjust law depends on the moral weight of the circumstances.

The USCCB Error

Now let’s consider again the relevant portion of the USCCB Statement on Religious Liberty.

USCCB: “It is a sobering thing to contemplate our government enacting an unjust law. An unjust law cannot be obeyed. In the face of an unjust law, an accommodation is not to be sought, especially by resorting to equivocal words and deceptive practices. If we face today the prospect of unjust laws, then Catholics in America, in solidarity with our fellow citizens, must have the courage not to obey them. No American desires this. No Catholic welcomes it. But if it should fall upon us, we must discharge it as a duty of citizenship and an obligation of faith.

“It is essential to understand the distinction between conscientious objection and an unjust law. Conscientious objection permits some relief to those who object to a just law for reasons of conscience — conscription being the most well-known example. An unjust law is ‘no law at all.’ It cannot be obeyed, and therefore one does not seek relief from it, but rather its repeal.”

The HHS Mandate requires employers to pay for insurance that includes coverage for contraception, sterilization and certain types of abortion. This Mandate is essentially an unjust law. Any explicit or formal cooperation with that law would be always immoral.

But what the Bishops’ Statement says goes beyond condemning all explicit and all formal cooperation. They state simply that “an unjust law cannot be obeyed”. This statement contradicts the teaching of the Magisterium that mere material cooperation is sometimes moral. If a law does not require you to commit an intrinsically evil act, but only requires you to cooperate materially in the sin of another person, obeying that law might be moral, depending on the circumstances. The claim by the Bishops’ Statement that disobeying the law is “an obligation of faith” is not always true. The claim that such an unjust law “cannot be obeyed” is not always true.

For example, Jesus taught that it is moral to pay taxes, even if the government uses those taxes to do evil.

[Luke]
{20:22} Is it lawful for us to pay the tribute to Caesar, or not?”
{20:23} But realizing their deceitfulness, he said to them: “Why do you test me?
{20:24} Show me a denarius. Whose image and inscription does it have?” In response, they said to him, “Caesar’s.”
{20:25} And so, he said to them: “Then repay the things that are Caesar’s, to Caesar, and the things that are God’s, to God.”

The Romans worshipped pagan gods; they considered many of the Caesars to be gods. They engaged in unjust wars, conquering other nations merely to obtain more money and power. They approved of and engaged in slavery. They oppressed the peoples that they conquered. And yet Christ taught that is it morally lawful to pay taxes to such a government. This teaching is a clear example of moral material cooperation with evil.

Is it moral for a Catholic to pay taxes when the government of his nation uses some of that money to engage in an unjust war, to promote contraception, sterilization, and abortion, or to pay for abortions? Yes, it is moral, if the reasonably anticipated good consequences of cooperation equal or outweigh the bad consequences. If cooperation avoids the grave harm of imprisonment, loss of one’s job, inability to support one’s family, etc., and if the bad consequences of cooperation are reduced in moral weight because they are more distant from one’s own action (the more remote a bad consequence is, the less its moral weight), then the cooperative act may well be moral.

Pope Pius XI wrote, in 1932, on the principle of cooperation with evil in order to address the persecution of Catholics in Mexico. At that time, the Mexican government was attempting to control the Catholic Faith: by exiling all Bishops, restricting the number and activities of priests, closing seminaries, imprisoning dissenters, and requiring permission for public worship. There was a concern among some of the faithful that any compliance with these unjust laws might constitute immoral cooperation. But the Pontiff, while condemning these laws, taught that not all cooperation with unjust laws is immoral.

The Pontiff allowed that a person, even a priest, could morally obey these laws because “it is an imposition to which he is forced to submit in order to avoid a greater evil.” The cooperation with this unjust and gravely immoral law was deemed mere material cooperation, not formal cooperation by the Pope:

“In truth, the danger of formal cooperation, or of any approval whatever [i.e. explicit cooperation] of the present law, is removed…. and, far from approving the law that unjustly imposes such a request, submits to it materially, as the saying is, and only in order to remove an obstacle to the exercise of the sacred ministry: an obstacle that would lead, as We have said, to a total cessation of worship, and hence to exceedingly great harm to innumerable souls.” (Acerba Animi, On the Persecution of the Church in Mexico, n. 16-17.)

On the subject of cooperation with unjust laws concerning contraception, sterilization, and abortion, all formal cooperation and all explicit cooperation is immoral. For example, it would be an act of formal cooperation to directly pay for an abortion. But it is not formal cooperation to pay for a health insurance plan that merely includes contraception, sterilization, and abortion as possible services, if the covered person decides to use those immoral services. This type of cooperative act is material, not formal, and so it may possibly (but not necessarily) be moral.

Therefore, an employer may judge that his cooperation with the HHS Mandate is mere material cooperation, and that the good consequences of cooperation morally outweigh the bad consequences. This is particularly true if refusal to obey the law would result in fines that would bankrupt the company, or imprisonment for the employer. If it is possible to refuse to cooperate, without these grave bad consequences, then the employer must refuse. But if it is not possible, and if the good consequences of cooperation morally outweigh the bad, then — according to the constant teaching of the Magisterium on cooperation and the same teaching of Christ in the Gospels — the employer may morally obey an unjust law.

The USCCB statements to the contrary, speaking as if mere material cooperation with an unjust law is never moral, are erroneous.

by
Ronald L. Conte Jr.
Roman Catholic moral theologian and
translator of the Catholic Public Domain Version of the Bible.

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2 Responses to Doctrinal Error in the USCCB Statement on Religious Liberty

  1. Adam says:

    Thanks for the article. It cleared up a few points. On the other hand, as the Bishops have spoken, unanimously, that the law is unjust and that we cannot cooperate with it, does this not settle the issue?

    As I understand the history (I’m only a novice historian and a poor theologian), we may and perhaps should pay the fines (if possible). This seems to be analogous to Catholics paying fines for not attending Anglican services under Queen Elizabeth.

    Again, as I understand, the cooperation of the employer who provides a (pre-packaged) plan covering contraceptives has only material cooperation. However, for the employer who provides their own insurance (and I understand a large number of Catholic organizations do this), it becomes formal, does it not? We must also be careful not to relax efforts to change the unjust law to a just one, and it does seem a danger that many Catholics will do so if material cooperation becomes blasé.

    On an unrelated note, thank you for your translation work.

    • Ron Conte says:

      The statement by the ad hoc committee on religious liberty is not unanimous in the sense of the universal Magisterium, so it is not infallible. That statement is also not the unanimous opinion of all U.S. Bishops. But I expect that this issue will come up at the next USCCB meeting, perhaps with a statement that the Bishops vote on.

      The teaching of the Magisterium on material cooperation is settled doctrine. So an error in a committee statement cannot settle the issue in any way contrary to that teaching.

      Catholic employers may morally refuse cooperation and instead pay fines. They should do so if possible, if the bad consequences do not make this approach sinful. But if the bad consequences are too weighty, then morally they may not refuse cooperation. It is always a sin.

      I don’t think that many employers provide their own insurance; what if a covered employee has a catastrophic illness. The employer would go bankrupt. An employer might arrange with a health care insurance company to formulate a plan specifically for the employer. But then the situation is morally the same; it is a healthcare package required by law, provided by a third party.

      A Catholic employer may never directly provide or pay for contraception, sterilization, or abortion.

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