According to some definitions, and according to the London School of Economics, Centre for Civil Society,
"Why" do we need civil society organizations at all, if the provision of social services is a purely government responsibility? "Why," whatever the perceived injustices may be in a given society, must the problem in curing them inevitable involve growth in the power of the state, and a restriction on individual freedom? "Why" is it that individual freedom may produce or reinforce certain inequities, but the determined attempt by the state to achieve greater equality, according to its definition of equality, undermine liberty? "Why" should people and organizations filled with people, serving people, have to worry about having equal freedom to manifest their most basic commitments in their lives? "Why" are so many of us interested in advancing the cause of independent monitoring of the not-for-profit sector? "Why" not simply leave the regulation and monitoring of the sector to governments?
Sure, as we have discovered as we follow the evolution of the proposed Law on Associations and Non-Government Organizations in Cambodia, we are aware of some of the controversy surrounding the proposed law, and specifically, what effect it would have on the sector should it be enacted and signed into law. But, just what is the basis for that controversy that pits some elements of the civil society sector against the Royal Government of Cambodia? And, for the average person in the street, we are faced with a similar, but profound two word question, "so what?"
Civil Society refers to the arena of uncoerced collective action around shared interests, purposes, and values. Its institutional forms are distinct from those of the state, family, and market, though in practice, the boundaries between state, civil society, family, and markets are often complex, blurred, and negotiated.For those who follow and are involved in the civil society sector, there is really nothing new here in this definition, although its application may be unevenly applied across different cultures and histories. Alexis de Tocqueville, in his observations of America in his report, Democracy in America, wrote about the place of civil society and how it gave strength to the democratic impulses in America, particularly as in respect to intermediary associations. He described his native France as a growing and centralized state, and its increasingly coddled and individualistic, undisciplined populous with more emphasis on pleasure and equality than virtue. Describing the power exercised by the state in these circumstances, he writes:
After having taken each individual in this fashion by turns, into its powerful hands, and having kneaded him in accord with his desires, the sovereign extends its arms around society as a whole. It covers its surface with a network of petty regulations -- complicated, minute, and uniform -- through which even the most original minds and the most vigorous souls know how to make their way past the crowd and emerge into the light of day. It does not break wills; it softens them, bends them and directs them. Rarely does it force one to act, but it constantly opposes itself to one's acting on one's own. It does not destroy, it prevents things from being born, it extinguishes, it stupefies, and finally, it will reduce each nation to nothing more than a heard of timid, industrious animals of which the government is the shepherd.In October 2011, at the time of the death of Steve Jobs, I started reading the biography written by Walter Isaacson, and book, Start With Why: How Great Leaders Inspire Everyone to Take Action, by Simon Sinek. As I wrote my posts on this blog about the Power to Regulate is the Power to Destroy, and later when I spoke at the "Regional Forum: 'Revisiting CSO Governance and Accountability in South East Asia in the Context of Post High Level Forum 4 in Busan,'" sponsored by the Cooperation Committee for Cambodia (CCC) in Phnom Penh, I found myself once again asking the question: Why? During our recent ICFO Board meeting in Amsterdam, the Netherlands, we met with Dr. Pedro Ortún, a Director in the European Commission, Directorate-General for Enterpise and Industry, and once again the question, "Why?" was just underneath the surface of our discussions.
Sure, as we have discovered as we follow the evolution of the proposed Law on Associations and Non-Government Organizations in Cambodia, we are aware of some of the controversy surrounding the proposed law, and specifically, what effect it would have on the sector should it be enacted and signed into law. But, just what is the basis for that controversy that pits some elements of the civil society sector against the Royal Government of Cambodia? And, for the average person in the street, we are faced with a similar, but profound two word question, "so what?"
All of this has brought be back to a controversy that has come to the fore in the United States that is thought of more as a political question, particularly in this election season. The question is the power of government to regulate and perhaps destroy a segment of civil society through its laws. I am not speaking here of laws, such as the draft law in Cambodia, that involves the direct regulation and monitoring of the sector. Rather, as I discussed in my early blog post, Government, Civil Society, Charity, and Public Benefit in November 2009, I am speaking of the collateral destruction or damage, perhaps not intended, when laws are applied to certain segments of the civil society sector without regard to whether or not they are really appropriate to that sector, and if so, whether there are other rights that deserve protection.
Simply stated, when the United States Congress passed, and the President signed the Patient Protection and Affordable Health Care Act in 2010, the law mandated, inter alia, that health-care plans across the United States would have to provide to subscribers, a prescribed list of "preventive services for women." In August 2011, the U.S. Department of Health and Human Services proposed regulations to implement this part of the law. In late January 2012, the Secretary of Health and Human Services announced that the final rule on preventive health services would ensure that women with health insurance coverage would have access to the full range of the Institute of Medicine's recommended preventive services, including all FDA (Food and Drug Administration)-approved forms of contraception. This included drugs known as Plan B, which when taken after the possibility of fertilization, would function as an inducer of abortion. Only limited exception to this rule was provided, although the administration had already granted some exceptions to the rule.
In my blog post of 22 November 2009, Government, Civil Society, Charity, and Public Benefit, I wrote about the conflict between the city of Washington, D.C. and the Catholic Archdiocese of Washington and Catholic Charities, a religious charitable organization. The conflict arose when the city proposed changes in the city law which provided for a same-sex marriage. Although under this law, religious organizations would not be required to perform or make space available for same-sex marriages, they were required to obey the law prohibiting discrimination against gay men and lesbian women. There was no exception in the law for religious beliefs or practices. Thus, Roman Catholic officials and the Catholic Charities suspended all social services for the city since it would be required to provide employee benefits to same sex-sex married couples, or allow the adoptions of children to same-sex couples, because the requirements were contrary to the teaching of the Church.
Then, in January 2012, the United States Supreme Court unanimously ruled in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity et al., that, in response to the question as to whether there was a ministerial exception to the Civil Rights Act of 1964, and to other employment discrimination laws:
The government's position in the case was that the ministerial exception "should be limited to those employees who perform exclusively religious functions." Moreover, according to the government, "the logic of the exception would confer on religious employers 'unfettered discretion' to violate employment laws by, for example, hiring children or aliens no authorized to work in the United States."
Justice Thomas, in a separate concurring opinion, citing the U.S. Supreme Court decision in Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, wrote:
Notwithstanding this line of decisions from the U. S. Supreme Court, a writer, commenting on the health care law and regulation, wrote that he would suggest that in "a secular democratic society which promises religious freedom to all of its citizens, the government has not only the right, but a duty to 'interfere' when religions attempt to force their beliefs on the population at large." According to this writer, the Catholic church does this through its network of hospitals. How can we be so concerned about these things when we see poverty around us, often dealt with only by the church working around the world to alleviate poverty.
However, notwithstanding the clear language of the Court's unanimous decision in the Hosanna-Tabor Evangelical Lutheran Church and School case, the religious exemption granted in the announced policy on this new health care law and regulation is essentially limited to the delivery of homilies or sermons and the distribution of sacraments in churches, synagogues, mosques, and similar houses of worship. Serving the poor, housing the homeless, healing the sick, educating students, adoption services for the childless and for children without parents, and the like, are regarded by the government as secular pursuits. Indeed, in a variety of international settings, "religious groups, with support from the U. S. Government have engaged in AIDS treatment, fistula repair, malaria control, and promotion of child and maternal health."
But, these are not just regarded as secular pursuits. As documented in a University of Pennsylvania study, the "domestic role of 'sacred places that served civic purposes' -- homeless shelters, food banks, health care, welfare-to-work, prisoner re-entry programs," also has economic implications for communities in which the cost to government agencies for assuming these roles would be about $140,000 each year for the typical community-serving religious institution. As an example, in the case of one city, Philadelphia, with about 2,000 faith-based institutions, many of which are Roman Catholic, replacing the services provided by these institutions would require about a quarter of a billion dollars every year.
As columnist Michael Gerson wrote in the Washington Post on 6 February 2012,
Yet, many beyond the United States are reluctant to give any special place to religion. Countries, and particularly international tribunals, such as the European Court of Human Rights, are preoccupied with the problems of a pluralistic society, and the assumed needs to treat all citizens equally no matter their beliefs. So, although there might be some lip service to the idea of freedom of religion, it is more often viewed as a species of freedom of conscience. Moreover, as Professor Trigg noted, "religion, it seems to some extent, can be protected only by appeal to secular norms, such as the importance of democracy and pluralism.
One of the characteristics of postmodernity is the rejection of reason and logic, and the growing influence of existentialism. Doubt is a pervasive feature of modern critical reason, permeating into everyday life as well as philosophical consciousness. Claims which may be true, are in principle, always open to revision, and perhaps even abandonment at some later time. Systems of accumulated expertise represent multiple sources of authority, frequently internally inconsistent and divergent in their implications. Since ideas cannot be rejected, the individual or group making truth claims is marginalized and ultimately rejected as narrow-minded, bigoted, extreme, or an out-of-date traditionalist. And, this is exactly what is going on in the debate over the health care mandate for preventative healthcare for women.
Moreover, privatization is the process that produces a cleavage between private and public spheres of life and focuses on the private sphere as a special area for expression of individual fulfillment. Thus, as discussed in a recent symposium at Georgetown University's Berkley Center for Religion, Peace, and World Affairs, the battles are often pitted between the right of religious freedom and the assumed right of sexual expression, and now with the mandate, sexual expression legitimized and subsidized by the government. While privatization includes the opportunity for individual freedom, including freedom from the constraints of community, tradition, and other people, privatization is also limiting. So, in matters of religion, modern society allows freedom of religion, but only so long as it is confined to the private, personal preference, or to family, and private association. This sets up a sort of harmless spiritual reservation established by the architects of secular apartheid. So, in the context of the recent mandate for various forms of birth control for women, religious beliefs are not honored or respected, and the only manifestation of those beliefs under which exceptions to the mandate are allowed, are preaching to the faithful and the administration of the sacraments.
Although a concern for equality can visibly diminish religious freedom, it also can marginalize those individuals and institutions whose purpose for existence, including the advancement of the welfare of society, or which contribute to our well-being and enables us, individually and collectively to flourish. We all desire and expect a moral order of society. Simplicity in the law and its administration, will always be preferred, and consistent application of a law will be assumed to be fairer. So, I would submit that it is not just the religious protection issue which is at stake here, and in much of what is done in the name of equality and fairness and distributive justice.
It seems that there are a number of issues that are of some import here. Obviously, some may be uniquely American problems. But, others may also reflect competing interests in countries around the world.
The first, and most obvious one, which is trumpeted in the national media, is the state infringement of the Freedom of Religion clause in the First Amendment to the U.S. Constitution, which provides that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."
While it is beyond the scope of this post, and has been discussed in some degree above, there might be a few observations that are pertinent to the overall question of the mandate. From a standpoint of contemporary American constitutional law, religion as noted above has been regarded as a personal and private matter of individuals or groups of individuals. Indeed, in constitutional litigation, the courts have interpreted the clause as immunizing the individual or group activities from governmental control, whether federal or state. However, it would be a profound mistake to consider the relation of law to religion solely from a legal point of view, that is, solely on the basis of religious foundations of legal freedom. I think this is consistent with the themes advanced by Professor Trigg in his book discussed above. Otherwise, we would not do justice to the religious sentiments of the American people, the majority of whom would state that they believe in God, and would state that they adhere to some organized religious community, whether Christian, Jewish, or Muslim, and perhaps even those who claim to be agnostic. This is why, men who framed the U.S. Constitution, and particularly Thomas Jefferson, who in his first message as President, said "that the liberties of a nation [cannot] be thought secure when we remove their only firm basis, a conviction in the minds of people that their liberties are a gift of God" believed that the ideals of freedom and liberty were found in the religious sentiment that they were gifts of God.
The second issue is that of religious freedom. The authors of the Constitution, including those who were skeptical of the truth of traditional theistic religion, did not doubt that the vitality of the legal system itself depended upon the vitality of religious faith, and in the United States in its early years, of the Protestant Christian faith. Alexis de Tocqueville wrote in 1835 in his Democracy in America, that "there is no country in the world where the Christian religion retains a greater influence over the souls of men that in America." As professor Harold Berman, of Harvard Law School and Emory Law School wrote 20 plus years ago:
It is the conjunction of these two trends, higher spending on dependency creating programs and fewer taxpayers to pay for these programs, that concerns those interested in the American form of government. Americans' concerns are rooted in deeply held beliefs that the "life's blessings are more readily obtained by independent people and that growing dependency on government erodes the spirit of personal and mutual responsibility created through family and civil society institutions." According to the Index, more than 70 percent of federal spending in the United States goes to dependence programs.
As I have written previously, there is a confusion that arises as to the very nature of civil society when the government funds, and indeed, regulates the sector, or organizations within the sector. A number of months ago I wrote about this using the case of the Pulaski Community Action Office as an example. My sense is that the fundamental problem with defining civil society, and how it functions, is more a matter of research discipline, such as sociology, politics. law, economics, or legal and political philosophy.
The Pulaski Community Action Office is located in Pulaski County, in the mountains of southwest Virginia. It is a small poverty emergency assistance charitable organization. According to a story in the Washington Post newspaper in Washington, D.C., the first client on this particular day, 16 April 2011, was a young woman with tangled hair and smudged eyeliner, a single mother of two young children. She had lost her job at a local restaurant. As she reported to the aid worker, the Pulaski Community Action Office was her last resort. She had just received a termination notice because her electric bill had been unpaid and she was about to be evicted from her home. She needed $510.15 immediately to cover the past-due electric bill, and asked for help.
The aid worker told her that all she could provide was $35. Outside the door stood others talking about their needs. Pulaski, a town of 9,000, had lost 3000 textile workers when the factory closed. The local Walmart, the main street barber shop, and all eight restaurants in the downtown area had closed.
The Pulaski Community Action Office had been in town for 50 years, and had routinely handed out vouchers worth $1,000 each week, plus meeting other emergency needs of the people of that area on its annual budget of $7 million. Normally, 48 percent of its budget came from the federal government subsidies and other federal programs, 7 percent from the state budget, and in 2009, 15 percent came from the Obama administration' s stimulus money, a one-time influx of money. The rest came from donations from businesses and individuals. Essentially, what has been happening in Pulaski County is that over the years, because of federal and state funding, and then with the 2009 infusion of money from the stimulus law, the Pulaski Community Action Office started to lose its normal donor base and its ability to raise private donations from the public. With the worldwide economic downturn, government budgets were cut, businesses were closing, and individuals were losing jobs or their ability to be generous. With that, the Pulaski Community Action Office could no longer fulfill its charitable vision and mission as it had in the past.
This kind of story is repeated around the United States, and in countries all over the world. My question is whether or not civil society organizations, such as, the Pulaski Community Action Office, are truly charities, NGOs, public benefit volunteer organizations, or whether they are simply organizations that are serving as arms or programs of the government. What in many cases started as religiously founded and based charities, somehow became organizations dependent upon government largess and regulation.
What the 2012 Index shows is that federal dependence-creating programs crowd out assistance from local government and civil society institutions, even replacing aid that used to come from family members. Research findings reported in this 2012 Index also reflected the fact that individual giving as a proportion of personal income declined by 13 percent between 1960 and 1976, while the proportion of philanthropic giving devoted to social welfare dropped by 9 percent. By 1974, governments were spending about 10 times as much on social services as were nonprofit agencies, even though nonprofit agencies were receiving close to half of their total revenues from governments
This rapid increase between 1960 and 1976 corresponded with the new commitment by the federal government to solve local social and economic problems which had been previously the responsibility of local governments, civil society organizations, communities and families. Although there was some slower growth during the 1980s and 1990s, the first decade of the new millennium saw the return to the growth rates of the late 1970s, with a recent growth rate unlike anything before.
As reported in this Index,
As Professor Carter pointed out, the federal court in New York held in its 1993 decision in New York County Board of Ancient Order of Hibernians v. Dinkins, that: "The First Amendment protects the right of individuals to hold a point of view different form the majority and to refuse to foster, in the way [the State] commands, an idea they find morally objectionable." As an aside here, part of the argument presented by the Obama Administration and supporters of the particular mandate at issue here, is that the majority (98 percent) of women support contraception. While there has been serious debate about that statistic, and indeed the methodology by which it was determined, the idea of a statistic of a majoritarian viewpoint fits right into the language of the court in New York County Board of Ancient Order of Hibernians v. Dinkins.
Although the surface issue was discrimination in the New York case, Professor Carter argued in his book that the underlying issue was "autonomy." For religions to be truly free, they must be able to engage in practices which the larger society might condemn. In this case, according to Carter, "the state has a perfect right to send a message that it is wrong to discriminate on the basis of sexual orientations . . . but government must not be allowed to conscript private organizations, least of all religions, to assist." To be autonomous means that religious groups "should not be beholden to the secular world, that they should exist neither by the forbearance of, nor do the bidding of, the society outside of themselves." This would not normally apply to charitable organizations that are not religiously based or associated with some religious group, such as, a church, synagogue, or mosque.
According to Tocqueville, as paraphrased by Professor Carter:
Whether it is a woman's "reproductive rights" giving rise not only to the right to determine whether or not to have an abortion, or to take contraceptive pills, or the right of same sex individuals to marry, and thereby change the definition and language of marriage that has served all societies through two millennia or more, or the asserted right to assisted suicide or euthanasia, for example, the focus tends to be on the individual, or on individuals, until ultimately the rights may be invoked on the basis of a group. As U.S. Senator Barbara Boxer recently said in a television interview concerning the debate over the health care mandate for the availability of all FDA approved contraceptives, without cost to the woman, the right to insurance trumps religious rights and freedoms.
Professor Trigg, again:
Engraved on the walls of the Jefferson Memorial in Washington, D. C., are a number of well-known quotations of Thomas Jefferson, all of which are taken from his writings, some of which appear in edited form appropriate to engraving on the marble walls of the memorial. One of my favorites, which is apropos to one of the issues raised in this whole discussion of the relationship between civil society and government, and specifically in response to some of my "why" questions.
George Washington, in his farewell address in 1796 said:
Simply stated, when the United States Congress passed, and the President signed the Patient Protection and Affordable Health Care Act in 2010, the law mandated, inter alia, that health-care plans across the United States would have to provide to subscribers, a prescribed list of "preventive services for women." In August 2011, the U.S. Department of Health and Human Services proposed regulations to implement this part of the law. In late January 2012, the Secretary of Health and Human Services announced that the final rule on preventive health services would ensure that women with health insurance coverage would have access to the full range of the Institute of Medicine's recommended preventive services, including all FDA (Food and Drug Administration)-approved forms of contraception. This included drugs known as Plan B, which when taken after the possibility of fertilization, would function as an inducer of abortion. Only limited exception to this rule was provided, although the administration had already granted some exceptions to the rule.
In my blog post of 22 November 2009, Government, Civil Society, Charity, and Public Benefit, I wrote about the conflict between the city of Washington, D.C. and the Catholic Archdiocese of Washington and Catholic Charities, a religious charitable organization. The conflict arose when the city proposed changes in the city law which provided for a same-sex marriage. Although under this law, religious organizations would not be required to perform or make space available for same-sex marriages, they were required to obey the law prohibiting discrimination against gay men and lesbian women. There was no exception in the law for religious beliefs or practices. Thus, Roman Catholic officials and the Catholic Charities suspended all social services for the city since it would be required to provide employee benefits to same sex-sex married couples, or allow the adoptions of children to same-sex couples, because the requirements were contrary to the teaching of the Church.
Then, in January 2012, the United States Supreme Court unanimously ruled in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity et al., that, in response to the question as to whether there was a ministerial exception to the Civil Rights Act of 1964, and to other employment discrimination laws:
We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of such a church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause [of the First Amendment to the U.S. Constitution], which protects a religious group's right to shape its own faith and mission through its appointments.In this case, the minister at issue was an ordained minister in the Hosanna-Tabor Lutheran church, and taught in its elementary school, teaching both religious subjects and non-religious subjects, such as, math, language arts, social studies, science, gym, art, and music. She became ill, and was on disability leave for the beginning part of the school year. When she informed the school in late January that she would be reporting for work the following month, she was informed that the school at already contracted with another teach to complete the school year, and also expressed concern that she was not yet ready to return to the classroom. She refused to resign and threatened legal action, and was subsequently terminated. The government then sued the church and school, with the teacher/minister joining in the lawsuit.
The government's position in the case was that the ministerial exception "should be limited to those employees who perform exclusively religious functions." Moreover, according to the government, "the logic of the exception would confer on religious employers 'unfettered discretion' to violate employment laws by, for example, hiring children or aliens no authorized to work in the United States."
Justice Thomas, in a separate concurring opinion, citing the U.S. Supreme Court decision in Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, wrote:
It is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission. Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission.Justice Alito, also in a separate concurring opinion in which he was joined by Justice Kagan, wrote:
Throughout our Nation's history, religious bodies have been the preeminent example of private associations that have "acted as critical buffers between the individual and the power of the State. [citation omitted] In a case like the one now before us -- where the goal of the civil law is in question, the elimination of discrimination against persons with disabilities, is so worthy -- it is easy to forget that the autonomy of religious groups, both here in the United States and abroad, has often served as a shield against oppressive civil laws. To safeguard this crucial autonomy, we have long recognized that the Religious Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs. The Constitution guarantees religious bodies "independence from secular control or manipulations -- in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.
However, notwithstanding the clear language of the Court's unanimous decision in the Hosanna-Tabor Evangelical Lutheran Church and School case, the religious exemption granted in the announced policy on this new health care law and regulation is essentially limited to the delivery of homilies or sermons and the distribution of sacraments in churches, synagogues, mosques, and similar houses of worship. Serving the poor, housing the homeless, healing the sick, educating students, adoption services for the childless and for children without parents, and the like, are regarded by the government as secular pursuits. Indeed, in a variety of international settings, "religious groups, with support from the U. S. Government have engaged in AIDS treatment, fistula repair, malaria control, and promotion of child and maternal health."But, these are not just regarded as secular pursuits. As documented in a University of Pennsylvania study, the "domestic role of 'sacred places that served civic purposes' -- homeless shelters, food banks, health care, welfare-to-work, prisoner re-entry programs," also has economic implications for communities in which the cost to government agencies for assuming these roles would be about $140,000 each year for the typical community-serving religious institution. As an example, in the case of one city, Philadelphia, with about 2,000 faith-based institutions, many of which are Roman Catholic, replacing the services provided by these institutions would require about a quarter of a billion dollars every year.
As columnist Michael Gerson wrote in the Washington Post on 6 February 2012,
The provision of social services in America, and by America abroad, is a partnership between government and religious groups, both of which have advantages. Religious charities are compassionate and trusted by communities. Government has greater reach and resources.
A humane partnership between the two has depended on an uneasy compromise. Religious groups must use public funds for public purposes, not for proselytization. Government, in turn, allows religious charities to maintain views and practices that are different from those of public institutions.Professor Roger Trigg, senior research fellow at the Centre for the Study of Religion and Public Life, University of Oxford, recently wrote in Equality, Freedom, and Religion,
Can dissent be still allowed and contained within a wider community holding different standards? When states introduce new legislation, whether about women, homosexuals, or whatever, and some object to this, can they allow exceptions on religious grounds to the operation of the law? This question can be applied about both religious institutions and individuals, and the law courts in many countries are getting caught up in litigation on precisely these points. At the same time, many may query why a religious conscience should be given priority over other forms of conscientious objection.
* * *
Must individuals and groups always be coerced to act against their consciences if that is the democratic decision of a country? Put like this, it becomes apparent that the very ideal of personal freedom must at times be at stake. Democracy is itself build on the free judgements of its members and would not be necessary if everyone always agreed. It is a system not just for making decisions, but for containing, and even respecting disagreement.He continues further that:
Religion is always a target of totalitarian regimes, which wish to control, if they cannot destroy its influence, and it was a particular target of Communism. The reason is that it provides an alternative system of influence to that of the state, proposing an authority to which the state should be subservient. It threatens to restrict the power of the state, and its leaders are judged by standards they themselves cannot control. [Emphasis added]Internationally, the idea of human dignity is at the fore of international human rights documents. Thus, for example, the Preamble to the United Nations Declaration of Human Rights begins: "the recognition of the inherent dignity and of equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world." But, this Preamble is silent as to the source of this dignity and of these inalienable rights. One not need by regarded as a follower of Jesus Christ or an orthodox Christian to understand that the idea of inherent dignity and inalienable rights of all members of the human family can most easily and plausibly stem from a belief in God.
Yet, many beyond the United States are reluctant to give any special place to religion. Countries, and particularly international tribunals, such as the European Court of Human Rights, are preoccupied with the problems of a pluralistic society, and the assumed needs to treat all citizens equally no matter their beliefs. So, although there might be some lip service to the idea of freedom of religion, it is more often viewed as a species of freedom of conscience. Moreover, as Professor Trigg noted, "religion, it seems to some extent, can be protected only by appeal to secular norms, such as the importance of democracy and pluralism.One of the characteristics of postmodernity is the rejection of reason and logic, and the growing influence of existentialism. Doubt is a pervasive feature of modern critical reason, permeating into everyday life as well as philosophical consciousness. Claims which may be true, are in principle, always open to revision, and perhaps even abandonment at some later time. Systems of accumulated expertise represent multiple sources of authority, frequently internally inconsistent and divergent in their implications. Since ideas cannot be rejected, the individual or group making truth claims is marginalized and ultimately rejected as narrow-minded, bigoted, extreme, or an out-of-date traditionalist. And, this is exactly what is going on in the debate over the health care mandate for preventative healthcare for women.
Moreover, privatization is the process that produces a cleavage between private and public spheres of life and focuses on the private sphere as a special area for expression of individual fulfillment. Thus, as discussed in a recent symposium at Georgetown University's Berkley Center for Religion, Peace, and World Affairs, the battles are often pitted between the right of religious freedom and the assumed right of sexual expression, and now with the mandate, sexual expression legitimized and subsidized by the government. While privatization includes the opportunity for individual freedom, including freedom from the constraints of community, tradition, and other people, privatization is also limiting. So, in matters of religion, modern society allows freedom of religion, but only so long as it is confined to the private, personal preference, or to family, and private association. This sets up a sort of harmless spiritual reservation established by the architects of secular apartheid. So, in the context of the recent mandate for various forms of birth control for women, religious beliefs are not honored or respected, and the only manifestation of those beliefs under which exceptions to the mandate are allowed, are preaching to the faithful and the administration of the sacraments.
Although a concern for equality can visibly diminish religious freedom, it also can marginalize those individuals and institutions whose purpose for existence, including the advancement of the welfare of society, or which contribute to our well-being and enables us, individually and collectively to flourish. We all desire and expect a moral order of society. Simplicity in the law and its administration, will always be preferred, and consistent application of a law will be assumed to be fairer. So, I would submit that it is not just the religious protection issue which is at stake here, and in much of what is done in the name of equality and fairness and distributive justice.
It seems that there are a number of issues that are of some import here. Obviously, some may be uniquely American problems. But, others may also reflect competing interests in countries around the world.
The first, and most obvious one, which is trumpeted in the national media, is the state infringement of the Freedom of Religion clause in the First Amendment to the U.S. Constitution, which provides that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."
The second issue is that of religious freedom. The authors of the Constitution, including those who were skeptical of the truth of traditional theistic religion, did not doubt that the vitality of the legal system itself depended upon the vitality of religious faith, and in the United States in its early years, of the Protestant Christian faith. Alexis de Tocqueville wrote in 1835 in his Democracy in America, that "there is no country in the world where the Christian religion retains a greater influence over the souls of men that in America." As professor Harold Berman, of Harvard Law School and Emory Law School wrote 20 plus years ago:
In the past two generations the public philosophy of America has shifted radically from a religious to a secular theory of law, from a moral to a political or instrumental theory, and from a communitarian to an individualistic theory. Law is now generally considered -- at least in public discourse -- to be simply a pragmatic device for accomplishing specific political, economic, and social objectives. Its tasks are thought to be finite, material, and impersonal -- to get things done, to make people act in certain ways. Rarely, if ever, does one hear it said that law is a reflection of an objective justice or of the ultimate meaning or purpose of life. Usually, it is thought to reflect, at best, the community's sense of what is expedient, and more commonly, the more or less arbitrary will of the lawmaker. [I think it becomes even more questionable, when the exercise of arbitrary will is that of the executive, rather than the legislature, when there are constitutional limitations required by the separation and balance of power]
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The radical separation of law and religion in twentieth century American thought -- I am speaking now not of constitutional law but of jurisprudence, or legal philosophy -- creates a serious danger that law will not be respected. If law is to be measured only by standards of expediency, or workability, and not by standards of truth or rightness, then it will be difficult to enforce it against those who think that it does not serve their interests. It is usually said by those who espouse an instrumental theory of law that enforcement in the last analysis is always obtained by threat of coercive sanctions. This, however, an unsatisfactory argument. Far more important than coercion in securing obedience to rules are such factors as trust, fairness, credibility, and affiliation. It is precisely when law is trusted and therefore does not require coercive sanctions that it is efficient; one who rules by law is not compelled to be present everywhere with his police force.The third, is much broader than the consideration of the role of religion, the freedom of conscience inherent in both the freedom of religion and the rights associated with human dignity. It is the overall question that exists in any society, particular those which are regarded as democratic, the question of the role of government with respect to the general welfare of the governed, and the role of civil society, also grounded in the promotion of human flourishing and of the general welfare of the citizens. We see in The 2012 Index of Dependence on Government that in America, there has been increased dependence on government programs. The Index variables that grew most included housing, health care and welfare, and retirement. One of the most worrying trends in the Index was the coinciding growth in the non-taxpaying public, which jumped from 14.9 percent of tax filers in 1984 to 49.5 percent in 2009.
It is the conjunction of these two trends, higher spending on dependency creating programs and fewer taxpayers to pay for these programs, that concerns those interested in the American form of government. Americans' concerns are rooted in deeply held beliefs that the "life's blessings are more readily obtained by independent people and that growing dependency on government erodes the spirit of personal and mutual responsibility created through family and civil society institutions." According to the Index, more than 70 percent of federal spending in the United States goes to dependence programs.
As I have written previously, there is a confusion that arises as to the very nature of civil society when the government funds, and indeed, regulates the sector, or organizations within the sector. A number of months ago I wrote about this using the case of the Pulaski Community Action Office as an example. My sense is that the fundamental problem with defining civil society, and how it functions, is more a matter of research discipline, such as sociology, politics. law, economics, or legal and political philosophy.
The Pulaski Community Action Office is located in Pulaski County, in the mountains of southwest Virginia. It is a small poverty emergency assistance charitable organization. According to a story in the Washington Post newspaper in Washington, D.C., the first client on this particular day, 16 April 2011, was a young woman with tangled hair and smudged eyeliner, a single mother of two young children. She had lost her job at a local restaurant. As she reported to the aid worker, the Pulaski Community Action Office was her last resort. She had just received a termination notice because her electric bill had been unpaid and she was about to be evicted from her home. She needed $510.15 immediately to cover the past-due electric bill, and asked for help.
The aid worker told her that all she could provide was $35. Outside the door stood others talking about their needs. Pulaski, a town of 9,000, had lost 3000 textile workers when the factory closed. The local Walmart, the main street barber shop, and all eight restaurants in the downtown area had closed.
The Pulaski Community Action Office had been in town for 50 years, and had routinely handed out vouchers worth $1,000 each week, plus meeting other emergency needs of the people of that area on its annual budget of $7 million. Normally, 48 percent of its budget came from the federal government subsidies and other federal programs, 7 percent from the state budget, and in 2009, 15 percent came from the Obama administration' s stimulus money, a one-time influx of money. The rest came from donations from businesses and individuals. Essentially, what has been happening in Pulaski County is that over the years, because of federal and state funding, and then with the 2009 infusion of money from the stimulus law, the Pulaski Community Action Office started to lose its normal donor base and its ability to raise private donations from the public. With the worldwide economic downturn, government budgets were cut, businesses were closing, and individuals were losing jobs or their ability to be generous. With that, the Pulaski Community Action Office could no longer fulfill its charitable vision and mission as it had in the past.
This kind of story is repeated around the United States, and in countries all over the world. My question is whether or not civil society organizations, such as, the Pulaski Community Action Office, are truly charities, NGOs, public benefit volunteer organizations, or whether they are simply organizations that are serving as arms or programs of the government. What in many cases started as religiously founded and based charities, somehow became organizations dependent upon government largess and regulation.What the 2012 Index shows is that federal dependence-creating programs crowd out assistance from local government and civil society institutions, even replacing aid that used to come from family members. Research findings reported in this 2012 Index also reflected the fact that individual giving as a proportion of personal income declined by 13 percent between 1960 and 1976, while the proportion of philanthropic giving devoted to social welfare dropped by 9 percent. By 1974, governments were spending about 10 times as much on social services as were nonprofit agencies, even though nonprofit agencies were receiving close to half of their total revenues from governments
This rapid increase between 1960 and 1976 corresponded with the new commitment by the federal government to solve local social and economic problems which had been previously the responsibility of local governments, civil society organizations, communities and families. Although there was some slower growth during the 1980s and 1990s, the first decade of the new millennium saw the return to the growth rates of the late 1970s, with a recent growth rate unlike anything before.
As reported in this Index,
Dependence on the federal government for life's many challenges strips civil society of its historical and necessary role in providing aid and renewal through intimate relationships of family, community, and local institutions and local governments. While the Index does not measure the decay of civil society, it reflects a declining role in this most important aspect of society.Many years ago, Professor Stephen Carter of Yale University Law School wrote, in The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion, that during the early history of the United States, most of the charitable activity was performed by religious organizations, including churches, and charitable institutions operated by churches. As time progressed during the late 19th century and early 20th century, with increasing social legislation, government gradually took over the responsibility for social welfare, thus squeezing much of the religious sector out of the role of providing such services. Recognizing a place for religious institutions, governments granted tax exempt status to charitable organizations. By the the 1980s, with increasing pressure on government budgets, more of the so-called "safety net" fell on these tax exempt charitable institutions, including religious organizations. However, they have been unable to meet the demand, especially a certain demand based on a spreading sense of entitlement.
As Professor Carter pointed out, the federal court in New York held in its 1993 decision in New York County Board of Ancient Order of Hibernians v. Dinkins, that: "The First Amendment protects the right of individuals to hold a point of view different form the majority and to refuse to foster, in the way [the State] commands, an idea they find morally objectionable." As an aside here, part of the argument presented by the Obama Administration and supporters of the particular mandate at issue here, is that the majority (98 percent) of women support contraception. While there has been serious debate about that statistic, and indeed the methodology by which it was determined, the idea of a statistic of a majoritarian viewpoint fits right into the language of the court in New York County Board of Ancient Order of Hibernians v. Dinkins.
Although the surface issue was discrimination in the New York case, Professor Carter argued in his book that the underlying issue was "autonomy." For religions to be truly free, they must be able to engage in practices which the larger society might condemn. In this case, according to Carter, "the state has a perfect right to send a message that it is wrong to discriminate on the basis of sexual orientations . . . but government must not be allowed to conscript private organizations, least of all religions, to assist." To be autonomous means that religious groups "should not be beholden to the secular world, that they should exist neither by the forbearance of, nor do the bidding of, the society outside of themselves." This would not normally apply to charitable organizations that are not religiously based or associated with some religious group, such as, a church, synagogue, or mosque.
According to Tocqueville, as paraphrased by Professor Carter:
Translating Tocqueville's observations to the present day (and removing his pro-Christian bias), one therefore sees two chief functions that religions can serve in a democracy. First, they can served as the source of moral understanding without which any majoritarian system can deteriorate into simply tyranny, and, second, they can mediate between citizen and the apparatus of government, providing an independent moral voice. . . .
Like other intermediary institutions, religions that command devotion of their members actually promote freedom and reduce the likelihood of democratic tyranny by splitting the allegiance of citizens and pressing on their members points of view that are often radically different from the preferences of the state.Returning to the 2012 Index of Dependence on Government, one of the points made in conclusion was that:
Perhaps the greatest danger is that the swelling ranks of Americans who enjoy government services and benefits for which they pay few or no taxes will lead to a spreading sense of entitlement that is simply incompatible with self-government. Are Americans completely indifferent to history's many examples of republican government collapsing under the weight of just such populations.One of the flash points in this observation is that Americans are facing the largest number of retirements of workers at the same time that the number of "taxpayers" who pay no taxes is growing steadily.
Whether it is a woman's "reproductive rights" giving rise not only to the right to determine whether or not to have an abortion, or to take contraceptive pills, or the right of same sex individuals to marry, and thereby change the definition and language of marriage that has served all societies through two millennia or more, or the asserted right to assisted suicide or euthanasia, for example, the focus tends to be on the individual, or on individuals, until ultimately the rights may be invoked on the basis of a group. As U.S. Senator Barbara Boxer recently said in a television interview concerning the debate over the health care mandate for the availability of all FDA approved contraceptives, without cost to the woman, the right to insurance trumps religious rights and freedoms.
Professor Trigg, again:
The more the role of the individual is extolled, the more powerful the state has become, since the role of any protective institutions, even that of the family, to act as buffers between the state and the individual is eroded. The picture is of equal individuals who can be motivated only by secular, and egalitarian, reasons, acting under the watchful eye of a supposedly benevolent state. [But] [i]ndividual freedom is seen as the absolute precondition of democracy. It is what makes sense of any doctrine of human rights.While much of the focus here has been on the implications of government intervention into the belief, practice, and life of religious institutions, many of these concerns apply equally to the civil society sector and the work of nonprofit institutions and organizations.
Engraved on the walls of the Jefferson Memorial in Washington, D. C., are a number of well-known quotations of Thomas Jefferson, all of which are taken from his writings, some of which appear in edited form appropriate to engraving on the marble walls of the memorial. One of my favorites, which is apropos to one of the issues raised in this whole discussion of the relationship between civil society and government, and specifically in response to some of my "why" questions.
God who gave us life gave us liberty. Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God? Indeed, I tremble for my country when I reflect that God is just, that his justice cannot sleep forever. Commerce between master and slave is despotism. Nothing is more certainly written in the book of fate than that these people are to be free. Establish a law for educating common people. This is the business of the state on a general plan.I am not prepared to assert that these liberties, as gifts from God, are limited to the United States. Indeed, while countries around the world may not be ready to admit that the liberties we take for granted in a thriving democracy are gifts from God, if they are inherent in human dignity, they must be universal and not restricted to time and place.
George Washington, in his farewell address in 1796 said:
Of all the dispositions and habits, which lead to political prosperity, Religion and Morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, out to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of particular structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.
Some Questions
Do we as a people rely on religious beliefs and teaching, whether from divine revelation, natural reason, or tradition, for our understanding of moral principles, standards, and values by which we govern our affairs, or are we dependent on governments to arbitrarily define for our consideration and obedience the moral principles, standards, and values which governments, either through their exercise of power or as a result of majoritarian opinion, determine appropriate for society?
In absence of direct funding by governments, why should moral principles, standards, and values arbitrarily dictated for society be controlling to those organizations in civil society that provide public welfare, benefit, and religious services to those individuals and organizations in society for the advancement of human dignity and human flourishing?
In absence of direct funding by governments, why should moral principles, standards, and values arbitrarily dictated for society be controlling to those organizations in civil society that provide public welfare, benefit, and religious services to those individuals and organizations in society for the advancement of human dignity and human flourishing?
Do people around the world want a republic or country that encourages and validates a growing dependence on the state and a withering of civil society?
Do people, especially in America, want to further accentuate class lines between those who pay for programs that advance dependence on the state, and those who unquestioningly accept and expect the assistance from these programs?
Are people ready for a new kind of class warfare, the battle lines of which are drawn by these dividing lines?
And, in our efforts to be politically correct, especially in the area of social issues and politics, have we forgotten what is our primary concern in a world in which people do not share in the same sense of human dignity and and who live in poverty and undemocratic environments too often overlooked or ignored?
And, what are those motivations that drive the civil society sector, and particularly the religious component of that sector to address the needs of people around us and around the world?
What is a proper balance
between government regulation of the sector and the freedoms and liberties that should be enjoyed by the sector to do the work it is called to do?
And, in our efforts to be politically correct, especially in the area of social issues and politics, have we forgotten what is our primary concern in a world in which people do not share in the same sense of human dignity and and who live in poverty and undemocratic environments too often overlooked or ignored?
And, what are those motivations that drive the civil society sector, and particularly the religious component of that sector to address the needs of people around us and around the world?
What is a proper balance
between government regulation of the sector and the freedoms and liberties that should be enjoyed by the sector to do the work it is called to do?
