'Religious Freedom,' the Individual Mandate, and Gifts: On Why the Church is Not a Bomb Shelter

31 Pages Posted: 5 Oct 2012

Date Written: October 1, 2012


The Health and Human Services' regulatory requirement that all but a narrow set of "religious" employers provide contraceptives to employees is an example of what Robert Post and Nancy Rosenblum refer to as a growing "congruence" between civil society's values and the state's legally enacted policy. Catholics and many others have resisted the HHS requirement on the ground that it violates "religious freedom." They ask (in the words of Cardinal Dolan) to be "left alone" by the state. But the argument to be "left alone" overlooks or suppresses the fact that the Catholic Church understands that it is its role to correct and transform society, not merely to be left alone in a gilded cage. This paper uses the HHS mandate as a vehicle by which to clarify the Catholic understanding of the ideal -- but currently mostly unachievable -- relationship between Church and state: the state should receive its principles from the Church, not the Church from the state. Social justice and subsidiarity disallow a state that reduces the Church to the status of a bomb shelter. Leviathan is happy to have the Church out of sight and out of mind.

Keywords: religious freedom, individual mandate, contraceptives, rights, state, church, subsidiarity, social justice, pluralism, immunity

Suggested Citation

Brennan, Patrick McKinley, 'Religious Freedom,' the Individual Mandate, and Gifts: On Why the Church is Not a Bomb Shelter (October 1, 2012). Villanova Law Review, Forthcoming, Villanova Law/Public Policy Research Paper No. 2013-3006, Available at SSRN: https://ssrn.com/abstract=2157145

Patrick McKinley Brennan (Contact Author)

Villanova University School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

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