Conscience Politics in the Twentieth-Century United States

Endorsed by the OAH Committee on Academic Freedom

Thursday, April 2, 2020, 12:45 PM - 2:15 PM

Type: Paper Session

Tags: Legal and Constitutional; Politics; Religion

Abstract

This panel explores the history of a present dilemma. Corporations like Hobby Lobby assert conscience rights, as if they were individuals. Republican politicians routinely issue legislation or executive orders protecting hospital personnel from participation in abortion procedures. Mike Huckabee and Ted Cruz celebrated Kentucky clerk Kim Davis’s conscientious refusal to issue a gay couple a marriage license. Sincerely held conscience convictions have become an influential – and troublesome – political category in the contemporary United States. How did the word conscience become such a hot button issue? The process by which this category became foundational to our time is not natural, these papers argue, but historical and political.

The ascent of sincerely held beliefs into the political mainstream has been a complex and uneven process. The aim of this panel is to provide clarity about their origins and consequences. Conscience claims – an assertion that following a law goes against an internally held truth – originated in contests over conscription and only later migrated to the arena of reproductive politics. Crucial to understanding the rise of conscience claims is the interplay between war and sexuality in the twentieth century United States. Charles McCrary locates the genesis of sincerity as a legal category in the transformation of the draft laws during and just after the Second World War. The process by which the state shifted from exemption for strict pacifists out of peace churches to sincerely held belief, secular or religious, raised the initial dilemmas about how the state should handle conscience claims. He shows how a variety of actors from churches, government agencies, and the courts constituted the category. Peter Cajka demonstrates how simultaneous debates over contraception and conscription in the Catholic Church facilitated the rise of conscience rights at the end of the 1960s and beginning of the 1970s. Then his paper follows how debates over military service during the Vietnam War laid the groundwork for rise of conscience clauses in the realm of abortion. Ronit Stahl examines the dynamics by which Catholic hospitals were both secular spaces that provided government services and religious institutions that received exemptions from government regulations. Her paper shows how conscience politics roiled Congress, the court system, and the US Catholic Bishops in the mid-1970s. Her research shows just how thinly drawn are the lines between secular and religious conscience claims.

This panel demonstrates that war and reproductive rights are profoundly intertwined in American History. These presentations also touch on many of the themes that define the deep contradictions of American life after the Second World War: the individual and the group; internal moral conviction and the law; the secular and the sacred; and assertions of individual freedom alongside massive state programs of coercion. This panel raises two key questions: just how free should the deeply convicted individual American be from military service and programs of reproductive health? How does the political and legal system create exemptions for conscience-followers? These papers will help us to begin writing a history of the convoluted present.

Papers Presented

Sex, War, and Conscience: The Catholic Church and the Rise of Conscience Protections

In 1969, three dozen scholars gathered at Fordham University for a conference called “Conscience: Its Freedoms and Limitations.” The topic seemed to suggest itself. The debate over artificial birth control in 1968 had moved conscience language to the center of public discourses about sexual morality. The simultaneous rise of selective conscientious objection to the Vietnam War, conference planner William Bier noted, made “conscience central to civic life as well.” In the 1960s, a dual crisis in the Catholic Church (over birth control) and American society (over the Vietnam War) brought Catholics to converge on conscience, a concept they thought heralded a bright future for church and nation.

An initial confluence of debates about war and sex blended into one another almost immediately. In the winter of 1973, after the Supreme Court struck down state laws restricting abortions, Catholics transferred the concept of conscience immediately from anti-conscription debates to the anti-abortion movement. Father James McHugh, a high-ranking bureaucrat at the U.S. Conference of Catholic Bishops, wrote a memo in the spring of 1973 arguing that the failure to protect conscience during the draft proved that conscience rights must be vigorously and clearly asserted in response to the legalization of abortion.

American historians often treat the sexual revolution and the anti-war movement as separate affairs, but Americans experienced the two as of a piece. This paper demonstrates that conscience protections have their origins in a two-sided crisis: the coercion of bodies for certain ends in sexuality and in war.

Presented By
Peter S. Cajka, University of Notre Dame

The Church Amendment Reconsidered: Lost Assumptions of the First Federal Health Care Conscience Clause

In the fall of 1972, Gloria Taylor was pregnant, knew she would be having a caesarean section, and requested a tubal ligation during the same surgery. While her doctor was willing to perform it, the hospital refused to allow it, asserting that it violated the Ethical and Religious Directives for Catholic Hospitals (ERDs). Taylor sued, and a district court sided with her, arguing that the receipt of federal funds made the hospital a state actor rather than a religious one. The bishops were furious. If they could not prohibit sterilizations in accordance with Catholic doctrine, they said, they would start shuttering Catholic hospitals.

Several months later, in 1973, Congress passed the Church Amendment, the first federal health care conscience clause. It allowed doctors, nurses, and hospitals to refuse to perform abortions or sterilizations on the basis of religious or moral convictions without jeopardizing federal funding. As the foundation of subsequent federal and state conscience clauses, the Church Amendment operates as a powerful tool that enables healthcare providers and institutions to opt out of providing—and thereby restrict access to—politically contested medical interventions.

Through the legislative history of the Church Amendment and the legal history of religious hospitals, this paper examines how, over the twentieth century, courts naturalized Catholic hospitals as non-religious spaces while Congress granted exemptions to them as religious spaces. It shows, therefore, how corporate conscience rights emerged much earlier than typically assumed, through non-profit religious hospitals. It highlights how carefully crafted historical narratives and masked corporate identities quietly enabled a major religious and political pivot with consequences unforeseen by almost everyone—except New York senator Jacob Javits.

Presented By
Ronit Y. Stahl, University of California, Berkeley

“Call it conscience or God”: Defining Religious Belief, 1940–1948

The Selective Service Act of 1940 broadened the definition of conscientious objection and expanded the number of potential objectors. Under the previous law, objectors had to be members of historic peace churches, but the 1940 act required only that an individual object to all war because of his “religious training and belief.” This vague phrase led to thousands of difficult cases, and many men’s applications were denied. Many of them sought legal help to navigate the complex appeals process, and a number of organizations, including the American Civil Liberties Union (ACLU), provided aide and counsel. A few cases reached the federal appeals courts, and the Second and Ninth Circuits issued contradictory interpretations in United States v. Kauten (1943) and Berman v. United States (1946), respectively. In 1948 Congress amended the draft act to clarify its language.

This paper analyzes the collaborations and contestations that led to these pivotal cases. It shows how petitioners, their lawyers, and peace organizations worked together with and against the military, the Department of Justice, federal investigators, and the courts to “make law” together. The paper focuses on the landmark cases of Mathias Kauten and Herman Berman, analyzing them as well as their correspondences with the ACLU’s National Committee on Conscientious Objectors and the committee’s private memoranda about the cases. These materials are restricted and confidential until 2020, so this work will bring new perspectives and sources to the Kauten and Berman cases, which set the terms of debate for new legislation and major conscientious objection cases in the Vietnam War era.

Presented By
Charles McCrary, Washington University in St. Louis

Session Participants

Chair and Commentator: Megan Threlkeld, Denison University

Presenter: Peter S. Cajka, University of Notre Dame
Peter Cajka is a Postdoctoral Research Associate at the Cushwa Center for the Study of American Catholicism at the University of Notre Dame. He also teaches classes in the American Studies Department. He completed a Ph.D. in American History at Boston College with the help of a Dissertation Fellowship from the Louisville Institute. His work has appeared in Ohio History, American Catholic Studies, and US Catholic Historian. His book manuscript, Follow Your Conscience: The Catholic Church and the Spirit of the Sixties, is currently under review.

Presenter: Charles McCrary, Washington University in St. Louis
Charles McCrary is a Postdoctoral Research Associate at the John C. Danforth Center on Religion and Politics at Washington University in St. Louis. He earned his PhD in Religion from Florida State University in 2018. His work has been published in Religion, Soundings, Method and Theory in the Study of Religion, The Oxford Research Encyclopedia of Religion, and Religion and American Culture. His book-in-progress is tentatively titled Sincerely Held: American Religion, Secularism, and Belief.

Presenter: Ronit Y. Stahl, University of California, Berkeley
Ronit Y. Stahl is assistant professor of history at the University of California, Berkeley. She is the author of Enlisting Faith: How the Military Chaplaincy Shaped Religion and State in Modern America (Harvard University Press, 2017). In Fall 2018, she co-wrote the historians’ amicus brief in Jane Doe 2 v Trump, one of the federal cases challenging the transgender ban in the military. Her writing has also appeared in the New York Times, the Washington Post, and the Huffington Post. Her current book project, Troubling Conscience, explores religious freedom and health care in modern America.