Justice and the HHS Mandate

by Fr. Joshua Allen

Saint Brigid Catholic Church

Johns Creek, Georgia

The classic definition of justice is very simple, and it is one to which I think we can assent: “Justice is to give to each person what is his or her due.” Justice seeks to ensure that each human being both receives what is due to him and gives to others appropriately as well. So justice as a concept regulates both what we receive from and give to the community.

But this definition contains within itself a problem: if we are to give to another according to his due, then who is to determine what is due to each particular man or woman? How do we arrive at a determination of what is due to our neighbor?

In a society that has expended no small effort to remove all things transcendent from public consideration, it seems that we can determine what is due to another in one of only two ways: either by the judgment of the self or the judgment of others. Now keep in mind: this determination is extremely important, because justice demands that if we determine that someone is entitled to something, then that same determination levies an obligation upon the rest of us to provide it. In a common society, there are no isolated actions. Every entitlement is a giving to one and a taking from another. If we are going to do this, and to some degree in any society it must be done, then we should take care to do it according to justice.

So let’s consider our two methods of determining what is just.

First: the judgment of oneself. If my own desires are the standard, then how can they be measured and considered to be right or wrong? How do we deal with the conflict that will necessarily arise when one person believes he or she is entitled to something belonging to another person when the other person disagrees?

Sadly, we see this quite frequently. For many in our society today, the standard of “goodness” has become “whatever I feel like right now,” with no concern for others whatsoever.

But we do as a society recognize at least some standards of justice outside of the self—that is why we have laws. Laws are supposed to encourage and instruct us in the best way to live well. Knowledge of how to live well is our cultural inheritance, passed down through centuries, and at least partially enshrined in our culture through laws.

By virtue of the fact that we have laws to which all citizens must adhere—whether they personally like them or not—we can see that justice cannot be a purely individualistic thing. Thus, what is just cannot be solely self-referential.

So if justice is not determined by an individual, perhaps it is determined by the judgment of others as a group? We all know that if a group is large enough, unanimity will be practically impossible. But is justice based on the will of the majority? Or must it be based on something else?

Let us consider the case of chattel slavery—that is, human beings as mere property—as it was practiced in the United States and surrounding areas in the 1800s. While there have always been opponents to chattel slavery (the Catholic Church among them), the general societal consensus in 18th and early 19th Century America was that it was not a moral issue, but an economic one. Even many of those who had moral opposition to slavery admitted its economic necessity, and so tabled their objections. Not until the early 1800s in the United States was chattel slavery brought to the moral attention of the nation, and even then, it was still an issue for only a minority. Once the crisis of slavery began, it took nearly 60 years to resolve itself, and the after-effects lingered for decades more.

So here’s my question: did chattel slavery only become unjust once those with moral objections formed a majority, or was it always morally unacceptable and unjust? Was it fine to treat black people like mere property until the abolitionist movement came along, and then suddenly it was morally wrong to do so? I think we can all agree that it is absurd to posit that the intrinsic value of a human being suddenly changes when a big enough group of people comes to a new consensus.

Does justice depend on the consensus of the majority, or is it something that transcends the particular dispositions of a people in one particular time and place?

I, for one, am prepared to claim that justice demands women not be marginalized and abused in society. I believe that, for instance, a legal system that punishes a woman who is raped by stoning her to death is fundamentally unjust.

But here’s the thing—the person who promotes that legal system would disagree. In fact, there are, as we know, entire countries where the majority would disagree with my statement. Are we prepared to say that the brutalization of women is okay as long as the majority thinks so? Is the brutalization of women “just” in a country with Sharia law, but unjust in Western societies? Is justice so fickle as to depend on the peculiarities of geography?

No. Justice is not and cannot be based on the will of the majority any more than it can be based on the whim of an individual. But what other option do we have? What are we left with?

There is something about justice that transcends culture, time, and particular histories. Because it transcends man, the standard of justice must come from something that transcends man—something to which man must conform.

The experience of transcendent values points us to God. All values must be grounded in something, and if justice cannot be grounded in individual whims or even in the common experience and judgment of the majority, then it must be grounded in something greater. My friends, justice is grounded in God, and this we can know from reason alone! This is an uncomfortable conclusion in a secular society, but if we are to be intellectually honest, I think we have to admit that the basis of justice is and must be God, because it can’t be man.

If justice is grounded in God, then any action we undertake in the name of justice must, as a condition of being just, be tested against the general principles we know about God. This rule is enshrined for Americans in our very first written statement of common belief, the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness.”

Our Declaration of Independence—the proto-document of our society—itself recognizes that human beings are governed first by the endowment of their Creator. All action must be referenced to this Creator and to his providence in creation.

Enshrined in the very thought of the Declaration is the notion of religious liberty. Religious liberty is not a product of the will of our Republic—it is a prerequisite. Only if there is first a freedom granted to men by their Creator can there be any attempt to stand against the tyranny of a King who would seek to take it away. If the King were the origin of freedom, then his decision to eliminate it would be just, but freedom and justice do not originate from kings. They come from our creator. Kings can nourish and support freedom and justice, or they can oppose it, but they can neither create nor destroy the fundamental religious freedom of created man—that is, the freedom to refer all of goodness and truth and beauty to the God from which all things of any value flow.

Make no mistake: religious freedom is logically and actually a prerequisite to economic and political freedom, because only by free reference to God, the object of religion, and by reference to his providence, can economies and politics—which are by their very nature aimed at justice and the common good—understand the means by which they will accomplish their task.

When we as a country cease to respect, honor, and defend the primacy of religious freedom in our society, we must, by necessity, admit that we have simultaneously given up on the very principle of justice. What we are left with is a paltry excuse for justice, something aimed at a false, dissatisfying, hopeless, and ultimately impossible utopia.

My friends, to mandate to religious institutions and to religious individuals that they must provide coverage for morally offensive products and procedures—contraception, sterilizations, and abortifacient drugs—and this is just for starters—in the name of fairness and justice is actually neither. One cannot seek to provide intrinsically unjust services in the name of justice. One cannot propose as healthcare options morally offensive products and procedures in the name of personal freedom when the first freedom—that of religion—is being destroyed in the process.

This mandate, which is wildly unpopular among the people, will have the effect of fundamentally altering the manner in which this country conceives and defends justice, divorcing the concept from its transcendent object, and placing its propagation at the hands of the self-appointed “enlightened ones” who consider their opinions—self-contradictory, inconsistent, and logically hopeless as they are—to be superior to those of religion and the God who created men and women with their natural endowments.

The HHS mandate, which forces those within religious institutions to violate their consciences, while forcing private Catholic business owners to do the same, is not an instrument of truth or justice. It orients itself fundamentally against life, truth, freedom, and justice, in the name of a false and fundamentally anti-human humanism.

As Catholics, we are called to examine our own consciences. How have I, in my own political life, in my own spiritual life, and in my own economic life, contributed to the dissolution of our American culture such that we have arrived at the point where we are actually debating whether freedom is something worth preserving? Too long have we been silent and complacent, rationalizing every little compromise that has been made—surely this little issue is not the one we really have to stand up for. After all, it’s just a little compromise, just a little loss of freedom.

Death by a thousand cuts is still death.

And the shame of it is that it is so unnecessary. If the Federal Government thought it was so important to provide free contraception to all women, then why are they just pushing it now? This could have been an entitlement benefit a long time ago, paid for by the taxpayers of the United States. But no: it wasn’t important before. Now the government is seeking to shove this mandate down our throats, claiming that something that was not previously an issue of justice is now. My friends—do you see how governments cannot be the origin of justice? Justice cannot be at the whim of the majority, or else justice is nothing more than a whim.

So what can you do? I would like to address those of you who own businesses and are worried that there is no conscience protection for you. Even the mandate “exemption” offered to religious employers does not apply to you. Our Bishops have not yet given us guidance, because they are hoping for a favorable legal challenge. Many private employers are left with the question of what to do. This is a complicated question, and the answer for your business depends on a number of varying factors. What I recommend to you is to go and speak to a priest one on one. Let him know your situation and seek his counsel. This can help to inform your conscience, and you will then be able to make a prudent decision on how to proceed. Remember, your conscience is where God speaks to you—a prudent man, when he listens to his conscience, hears the voice of God.

For the rest of you, those who do not own businesses. I know you hear from many people that we need to pray for this or that. I cannot encourage you enough to pray for a favorable outcome with this mandate—not just for institutions but for individuals. I encourage you to fast—I mean real fasting—in sacrifice and solidarity with all of the people who are being harmed and who will be harmed by this evil legislation. And educate yourselves—not just on this issue—but on the very philosophical and theological foundations of freedom and society—about how we are to live together.

St. Thomas More was martyred by King Henry VIII in 1535 because he would not sign an oath of allegiance to the crown that admitted the legitimacy of Henry’s assertion that he alone could be the arbiter of religious truth. Henry wished for a religion that allowed him, the King, to do whatever he wanted. The Pope disagreed, referring to God as the source of truth, not the King. St. Thomas More stood on the side of truth, and was killed for it.

As he prepared to meet his fate, More protested that he died “the King’s good servant, but God’s first.” My friends, I don’t know that this issue will come to all that, but St. Thomas More’s last words should be instructive to us. We are called to be good and faithful sons and daughters of America, but children of God first.