The Conflict over the HHS Regulations — It Is Theological

February 28th, 2012 Post by

Readers of this blog are, by now, familiar with the ongoing conflict between various churches and political factions over the U.S. Department of Health and Human Services (hereafter HHS) regulations which would mandate that “all employers” provide contraceptives and abortifacients to their employees, regardless of moral or conscience objections. “All employers” is qualified by the exemption for “sectarian organizations,” which exemption probably means only “houses of worship,” although that is unclear at the present.

President Matthew Harrison’s forthright confession of the position of the LC-MS before the House Committee has been joined now by statements by all members of the LC-MS Council of Presidents, the faculty of Concordia Theological Seminary in Fort Wayne, and an eloquent testimony before the Heritage Foundation by the LC-MS Director of Life and Health Ministries, Mrs. Maggie Karner. For more information, statements, and videos about the synod’s position, click on this link.

Ever since the HHS regulations became public, I have been wondering who is behind them. Would any rational politician willingly jeopardize the goodwill of a majority of his fellow citizens for the sake of bureaucratic efficiency? I highly doubt it. So, then, who is on the other side of the HHS regulations, using the power of the U.S. government to coerce certain religious groups, which happen to be the largest religious groups by membership in the U.S.?

Today, I found out who is behind the HHS regulations. Even if they are not the ones who originated the regulations, they are publicly supporting those regulations which coerce certain religious groups. Click on this link to see who supports the HHS regulations.

The groups supporting the HHS regulations in this statement may be divided into four groups: 1) church-bodies; 2) institutions of theological education; 3) political action-groups within denominational traditions, which may or may not have official sanction; 4) non-profit organizations with no official religious connection, which support a liberal social agenda with respect to women and their interests.

In the first group, we find: a) the Central Conference of American Rabbis, the main denomination of “reform Judaism”; b) the Jewish Reconstructionist Federation, a more liberal group in “conservative Judaism”’ c) the United Synagogue of Conservative Judaism, the main denomination of “conservative Judaism”; d) the Unitarian Universalist Association; and e) the United Church of Christ.

In the second group, we find: a) the Episcopal Divinity School of Cambridge, Massachusetts; b) the Union Theological Seminary in the City of New York (hereafter UTS).

In the third group, we find various organizations representing Catholics, Jews, Disciples of Christ, Episcopalians, Methodists, and Muslims. I repeat that members of this third group do not have official sanction and may represent only a very small fraction of their respective church-bodies.

The only surprise, to me, was the support of the “United Synagogue of Conservative Judaism” for the HHS regulations. This denomination’s theological school is the Jewish Theological Seminary (hereafter JTS), across the street from UTS. A little research revealed that JTS began graduating female rabbis in 1987 and began admitting openly gay students in 2007. The acceptance of female rabbis at JTS led to the resignation of the world-famous JTS scholar David Weiss Halvini in the 1980s. The “conservative” name in this particular denomination is confusing to those who don’t understand the divisions in American Judaism.

No surprise, to me, was the support of UTS. I am a graduate of that institution (M.Phil., 1990; Ph.D., 1996) and I lived there as a resident doctoral student for four years in the department of church history. For those unfamiliar with UTS, its professors once included Philip Schaff, Charles Briggs, Reinhold Niebuhr, Paul Tillich, Wilhelm Pauck, and many other well-known names in American Protestantism. Dietrich Bonhoeffer also spent two sabbaticals there. Since the 1960s, UTS has become prominent as a leader in the civil rights movement, the feminist movement, and the gay liberation movement. This all fits within its long history of support for the “social gospel” movement.

The social gospel movement was summed up by the Rev. Professor Shailer Matthews of the University of Chicago, many years ago, when he said: “The great command which Jesus lays upon his followers is not to have their wrongs righted; but to right the wrongs of others” (Shailer Matthews, “The Gospel and the Modern Man,” p. 253; quoted in Reinhold Niebuhr, “An Interpretation of Christian Ethics” [n.p.: Seabury Press, 1979], p. 105). Matthews further stated “that to get justice for others by compelling the over-privileged to give it to them may be the quintessence of [Christian] love” (Matthews, p. 255; Niebuhr, p. 106).

When I was a student at UTS, one of the most frequent conversations was how women could obtain justice in American society–“justice” understood in a social gospel way. Based on those conversations at UTS, I think I understand those who support the HHS regulations. The essential doctrine of the social gospel, as stated by Matthews, is now being applied by classifying the male-dominated Catholic hierarchy, and the non-female-ordaining Jewish and Protestant clergy, as the “over-privileged” who must be compelled to give reproductive “justice” to women. Since men are the “over-privileged” who make women pregnant, such “justice” requires that the “over-privileged” men who control these religious institutions give reproductive justice to women, which includes free access to, and free use of, contraceptives and abortifacients. This explains why the religious leaders who signed the “Religious Institute” statement are in favor of the proposed HHS coercion of religious institutions and its violation of the First Amendment.

My purpose here is not to disagree with the social gospel or with its application to the present political conflict. My purpose is to show that a very strong religious motive is behind the demand that all non-exempt religious institutions offer free contraceptives and abortifacients to their employees. All of the Christians who signed on to the “Religious Institute” statement believe they are in compliance with the real religion of Jesus–too bad for the First Amendment!

This is a real theological conflict. The conflict between the creedal gospel and the social gospel is, truth be told, the major theological conflict in the Christian church today. The government should not take sides in this conflict, because that is definitely what the First Amendment calls an “establishment of religion.” Contraceptives and abortifacients can be offered to all people of the U.S. in other ways, if the government feels that it is important for public health. But when the government mandates this from religious institutions and coerces religious institutions, it is taking sides in a religious conflict. It is theological, after all!






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  1. Norman Teigen
    February 28th, 2012 at 20:00 | #1

    This essay is worthy of careful study and serious consideration. Thank you, Prof. Noland. Thank you for your reasoned work and thank you for not insulting us with the foolish exclamation ‘That We Are All Catholics Now!’.

  2. George in Wheaton
    February 28th, 2012 at 21:52 | #2

    Very interesting! I strongly suspected that the HHS had the support of “some” religious groups and was wondering who they were. This also explains why Pelosi right away challenged the testimony of the panel that included Harrison by asking “Where are the women?” I was also surprised to see that the ELCA or some sub-group within their organization was not on the list.

  3. helen
    February 29th, 2012 at 12:36 | #3

    I’m sure Obama’s HHS is well aware that ***A, methodists, liberal presbyterians and episcopalians are all on his side. (I confine my comments to “christian” groups.)
    These folks have an agenda. They have pockets of resistance and if pushed hard enough, some of their paying customers might still cut and run to the corresponding church which does NOT do women’s ordination, gay rights and abortions. [Although what more it would take, I find hard to imagine!]

    Also, at the end of the day, at least some of them have to realize that they are on the wrong path. “What to do!?”

    Well, that’s obvious, ‘pull everyone else down in the same mudhole, so that we’re all equally dirty.’
    Then they can say, “well, we’re no worse than everybody else.”

  4. helen
    February 29th, 2012 at 12:45 | #4

    I would like to know the exact proportion of Thrivent assets owned by LCMS and ***A.
    I suspect, as in the case of other liberal/conservative cooperation, more money is put in by LCMS and taken out by ***A, on the argument that they have more congregations…

    Can any of our “search experts” lend anything to prove/disprove my “theory”?

    [I'm suggesting a possible reason why ***a is being quiet (or keeping a low profile) right now.
    But remember, it's speculation. Don't throw a tantrum about it!] ;)

  5. Carl Vehse
    February 29th, 2012 at 14:16 | #5

    If the conflict violates a constitutional amendment it is, by definition, a political issue (although it certainly can have doctrinal ramifications). This political issue is going to be difficult to separate (or not bring up) in any doctrinal discussion or if synod officials request involvement by congregational members.

    It will also be difficult to ignore because of the seriousness of the political issue, and discussions of whether those who have pushed for the HHS decision are crossing over into acts of treason against the United States.

  6. Norman Teigen
    February 29th, 2012 at 14:42 | #6

    This discussion is off to a very good start. May I suggest some additional contributions?

    1) it would be worthwhile, I think, to hear from a current practicing physician about the procedures and prescriptions that have come under attack. What are the medical issues?

    2) it would also be worthwhile to hear from a current practicing attorney about the 1st Amendment issues which have been raised. How, exactly, does the HHS mandate violate the First Amendment?

    3) it would additionally be worthwhile to hear from a current practicing attorney with a solid background in American constitutional history, to define and explain what is meant by exemption for religious groups. What is a legitimate request for an exemption and what is not legitimate?

    4) it would be worthwhile to hear from a current practicing theologian (Professor Noland, perhaps) to explain how the passage from Acts (obey God rather men) has a bearing on the varied issues under discussion.

    5) finally, it would be worthwhile to hear from someone with a wide background in theology, law, medicine, and constitutional history to give some insight on whether Christians ought to become engaged in active civil disobedience as Colson, Dobson, and others have advised.

    Anyone who submits ideas with a reference to the phrase ‘We Are All Catholics Now!’ will receive an immediate failing grade for the course.

    Respectfully submitted,

    Norman Teigen
    ELS Layman

  7. Martin R. Noland
    February 29th, 2012 at 16:00 | #7

    Dear Mr. Teigen,

    Thanks for your comments and good questions. I hope some of the readers who have those expertises take them up.

    I will only speak to one issue, which is really covered in both questions 4 and 5. The question is “civil disobedience.”

    We have to remember that, at the very beginning of the Protestant era in Europe, Lutherans and Reformed were divided on this precise question. And we still are. In fact, I think it is the main point of division between Lutherans and Reformed, because it has proven to be so historically. Today the issue is not warfare and political sovereignty, but the lessons from the 16th and 17th century still apply, since they explain how orthodox Lutherans put their political theory of the Two Governments into practice.

    The chief example is the Thirty Years War. The Reformed had the experience in France of expulsion and persecution and the mass murder of 20,000 Huguenots on Saint Bartholomew’s Day. So they were understandably reluctant to trust any Catholic prince or emperor. Unlike Lutherans, the Reformed were not a legal religion anywhere but in England, Netherlands, and Switzerland.

    Most Lutherans felt that the cause of the Thirty Years War, i.e., the election and crowning of the King of Bohemia (Frederick V of the Palatinate) and the refusal of Bohemia and Calvinist estates to recognize the new Emperor (Ferdinand II) constituted high treason against the Empire. So the Lutherans remained neutral, until the Edict of Restitution (1629) and the destruction and pillage of Magdeburg (1631) made it clear that the Catholic armies intended to subjugate and destroy all Protestants, whether or not they supported the Bohemian rebels.

    I have been reading, for other reasons, the biography of Johann Gerhard by Erdmann R. Fischer (Repristination Press, 2001). Pages 111-112 talk about the consultation between Lutheran princes and theologians as the first stage of the Thirty Years War was heating up. The author notes that the elector of Saxony was considering whether he should join in a treaty with the King of Bohemia AGAINST the Emperor, and the criterion was whether he could do so in “good conscience.”

    It is evident that the leading orthodox Lutheran theologian of the day, Gerhard, advised against such a treaty. It does not explain why he urged this, but such a move would have been an act of high treason against the Empire, even though it would have allied the German Lutherans with Protestants and presumably would have been politically advantageous.

    During and after the war, the Lutherans were accused of “quietism,” i.e., not taking up arms for political causes that would benefit them. This became a constant hammer-blow of criticism by Calvinists, Reformed, and Pietists against Lutherans, and still continues today. Seeing as how Colson and Dobson come out of those backgrounds, and probably don’t understand Lutheran theology, I would expect them to criticize us for not joining their causes.

    All this leads to the conclusion that Lutherans have always been very concerned about being “law-abiding citizens” and “peace-loving neighbors,” even when that is disadvantageous. One Bible passage that applies here is Romans 12:18, “If it is possible, so far as it depends on you, live at peace with everyone.” So if “civil disobedience” (whatever is meant by that term) is contrary to the law, then Lutherans reject it. If “civil disobedience” is permitted by the law, then Lutherans may embrace it.

    If a particular law is contrary to the higher laws of the state (i.e., the US Constitution) or contrary to a clear and unambiguous law binding on Christians, as interpreted by Lutheran doctrinal standards, then Lutherans will challenge that law according the processes provided by the state. Since we have such processes of dissent in the U.S., we can and will use them when necessary. We have used those processes with success in the past (see http://steadfastlutherans.org/?p=10044).

    Cases of such dissent will be very rare for Lutherans, because our main interest is the Gospel, not the Law, thus the number of our “binding laws” that might come into conflict with the state are very few. The Reformed, however, see the purpose of the New Testament as giving a New Law, and that this is intended for society as a whole, not just Christians. Therefore they will frequently clash with the state, and be involved in political contests over many things.

    I hope this explains this issue and helps a bit!

    Yours in Christ, Martin R. Noland

  8. George in Wheaton
    February 29th, 2012 at 18:52 | #8

    Dear Pr. Nolan – with all due respect on your commentary regarding “reformed” views of church/state, please review some of the most recent blogs at http://oldlife.org/. You may find that they are in greater agreement with Lutherans’ 2K (or better yet, NL2K) than you might think.

  9. Pastor Thomas Clark
    March 1st, 2012 at 12:54 | #9

    Martin R. Noland :
    If a particular law is contrary to the higher laws of the state (i.e., the US Constitution) or contrary to a clear and unambiguous law binding on Christians, as interpreted by Lutheran doctrinal standards, then Lutherans will challenge that law according the processes provided by the state. Since we have such processes of dissent in the U.S., we can and will use them when necessary. We have used those processes with success in the past (see http://steadfastlutherans.org/?p=10044).
    Cases of such dissent will be very rare for Lutherans, because our main interest is the Gospel, not the Law, thus the number of our “binding laws” that might come into conflict with the state are very few. The Reformed, however, see the purpose of the New Testament as giving a New Law, and that this is intended for society as a whole, not just Christians. Therefore they will frequently clash with the state, and be involved in political contests over many things.

    Pr. Nolan,
    Your statement begs a question. If the government passes a law that requires a person to violate one of the Commandments, or prohibits the proclamation of the Gospel, (and the courts uphold the law) are we to obey the government? It does not seem to me that you address this possibility, (maybe I am being dense). While we might think that this is unlikely, it is a real possibility.

    I will give two for instances:
    1) What if the HHS regulations regarding “contraceptives” (including abortion causing drugs) are ruled constitutional. What do we do?
    2) What if a state bans the use of wine in Holy Communion? (As a Nebraska state senator tried to do a few years ago).

    I know that we would use the avenues of dissent (i.e. the courts), but what if at the end of the day the courts ruled these constitutional?

    It would seem to me that Acts 4:18-20 & 5:28-29, 40-42 are the passages we would need to look to in this case. In both cases Peter basically tells the Council, “We must obey God rather than men.” I believe that Acts 5:40-42 shows that while Peter and John disobeyed the council, they still submitted to it; “they beat them and charged them not to speak in the name of Jesus, and let them go. Then they left the presence of the council, rejoicing that they were counted worthy to suffer dishonor for the name. And every day… they did not cease teaching and preaching that the Christ is Jesus.” (ESV)

    I would submit that in both the examples that I cite above we would refuse to obey the government, but submit to whatever punishment the government deems fit.

    What do you think?

    Yours in Christ

    Pastor Clark

  10. Martin R. Noland
    March 1st, 2012 at 12:58 | #10

    Dear George in Wheaton,

    Thank you very much for pointing me to the website of D.G. Hart of “Nicotine Theological Journal” (NTJ) fame! I was not aware of his blog and enjoy his writing very much.

    The first issue of NTJ in his blog archives reminded me of the early issues of Todd Wilken’s “Doctrine and Practice.” Both were concerned that their theology (Hart-Presbyterian; Wilken-Lutheran) not only be orthodox, but also lived out in the life of the church. So I particularly appreciate what Hart has to say about family devotions and corporate worship, since on those points we highly agree! We would also agree with Hart in the matter of Christian freedom in the moderate use of alcoholic beverages and tobacco (see “No Pietists Allowed” tab above).

    I do not have enough time at the present to determine whether Hart’s “2K”, i.e., “Two Kingdom doctrine,” agrees with the Lutheran view with the same name, but I suspect not. At least what I have read so far in his blog leads me to believe that there are important differences. His 2k seems to be based on a division between sacred and secular, which is not what the Lutheran 2k is based on.

    This particular post is not about Reformed 2k views, so I would appreciate it if folks don’t go off on that tangent.

    The Lutheran “2k” is based on its doctrine of vocation, i.e., princes fight wars, judges determine cases, police arrest criminals, executioners hang criminals–because that is their “job”, and these jobs are necessary and approved by God. Pastors preach the Gospel, teach the 10 commandments to catechumens, visit the sick and aged, administer the Sacraments; deacons and deaconnesses care for the needy, orphans, and widows, administer the goods of the church; parochial school teachers teach and serve as Christian examples to children and youth–because that is their job.

    The Lutheran “2k” was officially stated, and is still accepted by the LCMS, WELS, and ELS churches, in the Augsburg Confession, Article XVI. If you read that, you will see that the Lutheran affirmation of the Left-Hand Kingdom is based on its doctrine of vocation.

    The present problem with the HHS regulations, from a Lutheran standpoint, is that Caesar is presuming to tell the Church how to do its job and what it can or can’t do within its own sphere of activity, based on a moral doctrine (i.e., a doctrine addressing issues of morality) that is in conflict with the Christian church. The Reformed will see it as a blurring of the sacred and secular. Catholics will see it in terms of the Catholic accomodation with secular democracies, as stated in Vatican II–and that now the US government wants not accomodation and cooperation, but complete submission of the Catholic church to secular governing authorities in even the most sensitive areas of doctrine and practice.

    Thus Reformed, Catholic, and Lutheran will all object to the HHS regulations, but for different reasons. “Liberal Protestants”–represented by the Episcopalians, Unitarians, and the United Church of Christ–will not object to the HHS regulations, because those regulations contain their own moral doctrine, and they want to impose that doctrine on everyone else, if they can get away with it.

    The “Religious Institute” statement I linked to above definitely proves that these “Liberal Protestants” are intrusive, coercive, and (truth be told) hostile to all other Christians. As I said in my previous post (http://steadfastlutherans.org/?p=10044), these “Liberal Protestants” are only 12.4% of the US Christian population and only 7.8% of the total US population. Why is the secular government letting them drive this debate and privileging their moral doctrine over everybody else in this country?

    Thanks, in any event, for Hart’s website. I will add that to my Favorites list!

    Yours in Christ, Martin R. Noland

  11. Martin R. Noland
    March 1st, 2012 at 19:00 | #11

    @Pastor Thomas Clark #9

    Dear Pastor Clark,

    Thanks for your comments and questions.

    Of course, “We should obey God rather than man,” but that doesn’t mean we are permitted to get involved in protests, sit-ins, threats to anyone, political agitations, much less anything more violent. There are bad examples in American history that should not be followed by devout Christiains.

    We Lutherans are and should be a “peace-loving people.” As individuals, when forced into an ethical dilemma, our only recourse is to refuse to do something we know is wrong, and then suffer the consequences if that happens. We do not “impose our own morality on others,” like many Evangelicals are wont to do. But we may always use the processes of dissent provided by the State, as I already said.

    Based on the history of our courts in the U.S. (i.e., judicial precedent), I am fairly confident that certain parts of the H.H.S. regulations will prove to be unconstitutional and invalidated. Which parts or when, I have no idea.

    The journal “Commentary” for February 2012 has an article describing how Obamacare will be reviewed in the Supreme Court starting March 26, 2012 with an opinion delivered in June. This is the normal way that our laws are reviewed, and the “dumb ones” struck down. There is a possibility that the entire Obamacare plan will be struck down; or parts of it; or the individual mandate; or the expansion of Medicaid; or the court may delay its opinion until 2015.

    The Lutheran church should not have any particular position on those secular matters, since there is the provision in the U.S. Constitution that the government provide “for the general welfare.” That is up to the State to figure out what that means and how to apply it. Our only objection as a Church is to the HHS regulations pertaining to religious institutions as that conflicts with their (or our) established moral doctrine.

    The Lutheran approach to the matter of political resistance was first expounded and tested during the Interims of the 16th century. An excellent book by David Mark Whitford, “Tyranny and Resistance: The Magdeburg Confession and the Lutheran Tradition” (St Louis: CPH, 2001) explains that business in detail, and I refer you and others to it for answers to your questions. It is too complex to summarize here; and a summary application will result in serious error.

    The main point to be learned from Whitford is that Lutherans always relied on other political authorities in the matter of political resistance. The term used in that book is “lesser magistrates,” which could mean mayors, governors, state legislators, judges, congressmen, etc. This idea influenced Theodore Beza, John Knox, the Dutch Republic, and English states in the 16th and 17th centuries.

    This is why the Lutheran Reformation is called the “magisterial Reformation.” Political consequences of the Lutheran Reformation, including resistance to the Emperor, were decided by and enacted by magistrates, princes, electors, judges, etc.

    The Anabaptists, in contrast, were a “popular Reformation,” i.e., the political consequences were put into the hands of any of the people who wanted to join in, who rioted, pillaged, raped, and caused horrible destruction of countryside and towns in the name of God. Ever since the horrors of Thomas Muenzer and the city of Muenster, Lutherans have been rightly skeptical of any political action of resistance “by the people.” “Civil disobedience” usually is used as a justification for threats or real violence by individuals, or by a mob. Communists, by the way, have praised the Anabaptists as their kin and forerunners!

    I hope that this answers your particular question. I don’t think additional explanation will be helpful, and I don’t want to argue.

    Yours in Christ, Martin R. Noland

  12. helen
    March 2nd, 2012 at 12:38 | #12

    @Martin R. Noland #10
    Why is the secular government letting them drive this debate and privileging their moral doctrine over everybody else in this country?

    Because the “secular government” is fronting for Planned Parenthood, perhaps?

  13. Johan Bergfest
    March 2nd, 2012 at 14:38 | #13

    Of course it’s about theology and Rush Limbaugh is the latest voice for theology in the debate.

  14. helen
    March 3rd, 2012 at 16:21 | #14

    Another “tweaker” heard from….

  15. March 3rd, 2012 at 18:31 | #15

    @Johan Bergfest #13

    It’s a shame that both sides keep getting sucked away from the real issue (freedom of religion).

    Rush was really rude, but isn’t she a single woman who expects others, even the Roman Catholic Church, to pay her expenses for having sex?

    (Oh, man! See how easy it us to get us off-topic? )

  16. LW
    March 4th, 2012 at 17:25 | #16

    @Martin R. Noland #11
    Rev. Noland,
    Thank you for your sound teaching. If by chance the Federal Government is supported by the Supreme Court in its decision that the LCMS must provide abortifacients as part of its insurance plan would it be alright for Synod to simply say we will no longer provide health insurance for our employees? We will make up for the lost benefits by compensating our employees so that they can buy their own health insurance. I don’t know what we would do for our employees and their family members who are uninsurable.

  17. Martin R. Noland
    March 5th, 2012 at 11:39 | #17

    Dear LW,

    Good questions. I expect that the executives and managers at Concordia Plan Services (CPS) are asking those questions right now. Since I don’t know much about insurance, except as a consumer, I’m afraid I can’t help you with your questions.

    You might give CPS a call and tell them that people are wondering what the options might be for the future. You can check their website from time to time (http://www.concordiaplans.org/). They also send a newsletter out quarterly to both church-workers and congregational officers, where I am sure they will keep everyone up-to-date. It would be irresponsible for them to “guess” about options, so you may have to wait until research and meetings get a clear picture on this whole matter.

    By the way, I have to say that, in my opinion, Concordia Plan Services is one of the best managed units in the whole synodical structure. You have to give them a lot of credit for managing an incredibly complex system, with really great benefits, for reasonable costs. And they are internally fiscally efficient, too, which is not just my opinion, but a reputation that they have within the national offices. We are really blessed to have CPS and its cohort of dedicated employees working for the LCMS.

    Yours in Christ, Martin R. Noland

  18. Old Time St. John’s
    March 5th, 2012 at 12:23 | #18

    @LW #16
    My understanding from watching President Harrison’s testimony is that the Concordia Plan is grandfathered, so the new laws do not apply to it at all at this point. He said that this was a costly decision that they made specifically to avoid the problem. Because of that, now as a matter of principle I think that our churches should use the Concordia Plan whereever possible.

  19. LW
    March 5th, 2012 at 12:28 | #19

    @Martin R. Noland #17
    Thanks for the helpful information. I hope this mandate is overturned and no drastic changes are required.
    .

  20. LW
    March 5th, 2012 at 12:40 | #20

    @Old Time St. John’s #18
    I heard that too, but was not sure if the grandfathering was temporary or not. If the government is able to grandfather religious freedom they are probably also able take away the grandfather clause.

  21. Old Time St. John's
    March 5th, 2012 at 14:18 | #21

    @LW #20
    The grandfathering is not the same as the one year ‘Figure out how to go against your consciences’ clause that was supposed to be a big concession to catholic schools and the like. It does not have an expiration date. But I agree with you–the free exercise of religion is a constitutionally guaranteed right, and as such is not granted by any administration nor can it be removed by one.

  22. Carl Vehse
    March 5th, 2012 at 17:19 | #22

    Have any Missouri Synod churches responded to President Harrison’s testimony before the House committee by hanging the U.S. flag and/or the Christian flag in their church upside down as a supportive “sign of distress”?

  23. Norman Teigen
    March 6th, 2012 at 08:04 | #23

    Here is something more on the subject, Pastor Noland. Perhaps you and your readers could clarify this issue for me: It is not syncretism and unionism for Lutherans to join in confession with Catholics and the Reformed against the HHS mandate.

    Norman Teigen
    Evangelical Lutheran Synod Layman

  24. Martin R. Noland
    March 6th, 2012 at 11:44 | #24

    Dear BJS Bloggers,

    Responding to the comments written in the last day or so:

    1) LW and Old Time St. Johns – re. “grandfathering.” What I remember President Harrison saying was that the CPS plan for now is “grandfathered.” This is what all LCMS employees who have CPS coverage were told when the initial outline of the government health care regulations were announced, I believe about a year ago. This is not news to us, but perhaps is news to those not involved in the management of congregations or church entities.

    As with any “grandfathering,” one minor change can void the whole status. Government entities typically use “grandfathering” as a way to overcome resistance to legislation. They typically don’t care what happens after that legislation is passed.

    The problem with “grandfathering” an insurance plan is that, as anyone knows from being in the Plans for any length of time, parts of the Plan change almost every other year. The reason for making changes is to make costs affordable and to be able to escape unreasonable charges by providers; i.e., to keep the cost of insurance moderated by a “free market.” When government gets involved in regulating a part of the economy to the point that there is no “free market” for that product or service, then the provider has a monopoly and can charge exorbitant rates. This would obviously be bad for congregations and church-workers, who are already complaining about the burden of health care costs.

    Again, you should not rely on me for these particular insurance questions. They will have to be answered by CPS. Go to: http://www.cps.org for more information and to contact their customer service department.

    2) “Carl Vehse” – comment #22 – this is very foolish Pastor Strickert. Hanging a flag upside down is disrespect to it and everyone whom it represents. You should ask Norm to delete your comment. We should disrespect neither the U.S. flag nor the Christian flag. If you delete your comment, I will delete this paragraph.

    3) Mr. Teigen – excellent question. As you may know, the issue of church fellowship, and its corollaries “sycretism and unionisn,” were the chief reason that the Wisconsin Synod and the ELS withdrew from fellowship with the LCMS. In the 1950s, both the theory (“Statement of the 44″ and its followers) and the practice of the LCMS in these areas was moving away from its original position.

    LCMS President John Behnken expressed regrets that he was not able to bring about some consensus in these matters, but he tried very hard. With Behnken’s support, a conference of world-wide confessional Lutherans known as the “Overseas Committee” produced “Fellowship in Its Necessary Context of the Doctrine of the Church” in 1961 (see Suelflow, ed. “Heritage in Motion,” [St Louis: CPH, 1998], pp. 111-113).

    The “Overseas Committee” concluded in that document that cooperation in the “marks of the church” must be preceded by real doctrinal agreement. Where that doctrinal agreement is not present, and the “marks of the church” are used jointly, there “syncretism” or “unionism” is present. This, at least, was Behnken’s position and that of the international churches in fellowship with the LCMS in the early 1960s (I think that included Brazil, Germany, Australi, and England).

    The present case is not “syncretism,” according to this definition, because the “marks of the church” are not being used jointly when the President of the LCMS and the representative of the American Catholic bishops testifiy before Congress.

    President Harrison’s meeting with WELS and ELS Presidents at the Emmaus Conference gives hope that we may be able to start talking about this issue of church fellowship again, and making mutual progress.

    The various statements of the LCMS about church fellowship since the Behnken era are:
    1) “A Lutheran Stance Toward Ecumenism,” CTCR, 1974.
    2) “The Nature and Implications of the Concept of Fellowship,” CTCR, 1981.
    3) “Inter-Christian Relationships,” CTCR, 1991.
    4) “The Lutheran Understanding of Church Fellowship,” Pres. Office and CTCR, 2000.
    5) “Guidelines for Participation in Civic Events,” CTCR, 2004.

    Also related to your question is:
    6) “Render Unto Caesar and Unto God: A Lutheran View of Church and State,” CTCR, 1995.

    I think all these documents can be obtained either through CPH (http://www.cph.org) or through the CTCR section of the LCMS (http://www.lcms.org).

    Document #6 answers the question of whether the church can get involved at all, in any way, in church and state issues. It uses the four-fold “connections” between church and state outlined by Robert Benne in his article “The Church and Politics” and in his “The Paradoxical Vision,” in order to clarify how the church might be involved in political issues. This statement is important: “direct political action by the institutional church involves the exercise of civil power and that power has always had a corrupting influence on the church” (p. 90).

    The present situation is not “direct political action” of this sort, because the government has decided to coerce the church, and the responses of the churches are defensive in nature, to protect what they already have and the “status quo” in their institutions and agencies. In the matter of HHS regulations, the Church is not trying to change the State; the State is trying to change the Church through the threat of legal penalties, fines, and who knows what else.

    Back to the issue of church fellowship. I have found in about thirty years of studying the problem, that the “Overseas Committee” approach follows the traditional Lutheran path. From their various comments, it is evident that is what they were trying to do. As Marquart says somewhere, “You have to start with the doctrine of the CHURCH, before you get to the related issue of Church FELLOWSHIP.”

    The recent publication of John Gerhard’s “The Church” by CPH (St Louis: CPH, 2010), vol. 25 in the “Theological Commonplaces” shows how important the “marks of the church” were in the period of Lutheran orthodoxy. About 2/3rds of the 705 page text is about the definition of the “marks of the church” both positively and negatively.

    I also remember reading Johann Baier’s dogmatics (another orthodox Lutheran, d. 1695; edition St Louis: CPH, 1879; vol. 3, pp. 665-672) that one example of “syncretism” is when public ministers and teachers of the heterodox church are tolerated in “religious matters.” Confessions quoted by Baier in this matter are: Ap VII/VIII, 48; Treatise, 41 & 42; FC SD VII, 33; AC VII, 2-4; FC SD X, 5-6, 31. I hesitate to explain more from Baier, since I am not a Latinist, and I would miss many nuances and details if I tried to translate it.

    I think that if our theologians (LCMS, WELS, ELS) start with reviewing our standard theologians on this topic (e.g., Luther, Chemnitz, Gerhard, Musaeus, Calov, Quenstedt, Walther, Hoenecke, Pieper), and reviewing the “Overseas Commitee” work, we will be able to come to significant agreement that has eluded us in the past. Thanks again for an excellent question, Mr. Teigen.

    Yours in Christ, Martin R. Noland

  25. Carl Vehse
    March 6th, 2012 at 16:59 | #25

    Rev. Noland,

    First, as former director of Concordia Historical Institute, you should be historically aware that “Carl Vehse” is not a nom de guerre likely used by a Lutheran pastor, which I am not.

    Second, as an American citizen, you should be patriotically aware that flying the U.S. flag upside down is not disrespectful to the flag or the United States it represents. The U.S. Flag Code, in 36 USC §176(a) Respect for flag, states:

    The flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.

    Given Missouri Synod President Harrison’s sworn statement regarding the Obama regime’s forced violation of conscience regarding “abortion-causing drugs,” used to end pregnancies and which have contributed to the genocidal slaughter of over 54 million unborn Americans over the last 35 years, this country is sinking (if not sunk) in dire distress and extreme danger to life and property.

  26. Norman Teigen
    March 8th, 2012 at 10:20 | #26

    This thread sends to be running out of gas. I would like to offer a follow-up to some of the questions which I raised earlier. I asked a physician, a member of an LC-MS congregation for some guidance on the issues. He said that the question of contraception, like any other health question, is between the patient and the physician.

    Secondly, there is the question of the constitution and the courts. [Disclaimer: I am not an attorney nor am I am constitutional scholar, I am simply a layman with membership in a Lutheran congregation with curiosity about the issues in question.] The discussions should begin with a review of the First Amendment. It seems to me that the freedom to believe is absolute but the ability to act on those beliefs is not.

    The first conflict on the issue of religious exemption was the 1878 case of Reynolds v. United States [The Mormon polygamy matter) . In recent years the cases were 1963 Sherbert v. Werner; 1972, Wisconsin v. Yoder, and 1990, Employment Division v. Smith.

    The terms which will need to be dealt with are: compelling interest, religious exemption, constitutional exemption model, statutory exemption model.

    I hope that the readers of this series of posts will study the issues involved. The issues call for clear exposition and explanation. Those who would degrade and shame others who do not share their extremism are doing all of us a disservice.

    Thank you Pastor Noland for your dignity and respect.

    Norman Teigen
    Evangelical Lutheran Synod layman

  27. Carl Vehse
    March 8th, 2012 at 11:41 | #27

    In describing the Missouri Synod reaction to the HHS edict, Pres. Harrison, over a two-week span, has gone from “objects” (2/3/12) to “we strongly object” (2/14/12) to “I’m here to express our deepest distress” (2/16/12) (reminiscent of a similarly expressed level of distress).

    The “deepest distress” expressed by Pres. Harrison concerns the moral and genocidal abomination (murder by abortion and abortifacients) dressed in a constitutional abomination (the deliberate trampling of the First Amendment of the Constitution by forcing church organizations to support, through their health insurance plans, such moral and genocidal abominations).

    The theological justification for such ‘strong objections’ against actions by government officials was previously voiced by another Missouri Synod President, Friedrich Pfotenhauer, who stated that “anything that touches moral issues is within the sphere of the church” (Der Lutheraner, February 15, 1916, p. 63).

    By raising Missouri Synod objections to the abomination of genocidal murder dressed in the abomination of an extremist and despotic Obama regime’s HHS edict, Pres. Harrison has boldly ventured into what is referred to as “direct and intentional action” (CTCR, 1995, pp. 86-87). In such a situation, as the CTCR describes, “failure to speak and under certain circumstances to act would be tantamount to the failure of the German church under Hitler.”

  28. Martin R. Noland
    March 8th, 2012 at 12:16 | #28

    @Carl Vehse #25

    Dear “Carl”,

    I apologize for confusing your identity. Of course that is easy to do, when you have a pseudonym.

    I checked through some of my old Lutheran Annuals yesterday, and discovered I confused your vocational identity with your father’s. I was a member at Immanuel, Olivette, MO for seven years, and during those years long-time members occasionally made mention of him, since he had been pastor of the church just west of ours on Olive Blvd, King of Kings in Chesterfield. Your father was a well-respected and loved man in the Missouri District, and was well-known in Saint Louis County LCMS churches.

    @Norman Teigen #26

    Dear Mr. Teigen,

    Thanks for your comments. As you have noted it will take a legal expert in the US Constitution to figure out where the HHS regulations will go. That is what we hire the judges on the US Supreme Court to do, but a sharp jurist might be able to let us know in advance the most likely outcome.

    It is interesting that the Mormon polygamy case “Reynolds vs. United States” was the first “religious exemption” case. That means that, from a legal standpoint, the Obama administration is putting the Roman Catholic prohibition of contraception in the same category as polygamy. I don’t know if that is their intent, but that is entailed in the Obama administration’s continued pursuit of its position and the support of most Democratic Senators for the same. So of all the candidates, Mitt Romney and his church might understand these issues the best–which I think is highly ironic!

    On Reynolds vs. United States, BJS bloggers can read what might be relevant in that case here, under the heading “Religious Duty Argument”:
    http://en.wikipedia.org/wiki/Reynolds_v._United_States

    The position of Thomas Jefferson cited there, that the government legislation “reaches actions only, not opinion,” would seem to give government powers of restraining “actions of religious duty.” But a sharp jurist would see a difference between restraining and compelling. The HHS regulations do not restrain the Catholic church from acting, they compel the Catholic church to act by purchasing contraceptives-abortifacients for their employees and by educating their employees in how to obtain the same. So on this basis, I don’t think Reynolds vs. United States is directly relevant.

    Directly relevant, in my opinion–again, I am not an attorney, is the law under Social Security that any self-employed member of a religious order that opposes both private and public insurance is exempt from social security, regardless of his work activity. This exemption applies only if the religious order was founded before 1950, and it has a plan for their members when they become dependent through disability or old age. This is not to be confused with ministers who file IRS Form 4361, because they are opposed to public insurance. The history and rationale behind the Social Security regulations exemption for religious orders is directly relevant here, and I think will factor into discussions about the HHS regulations.

    The Obama administration won’t get off the hook by saying, “Okay, we will give an exemption from the contraceptive mandate to all religious employees who are members of celibate religious orders.” The principal issue is whether or not religious employers will be able, in their contractual relationship with any employee–whether clergy or lay, to require that those employees behave publicly in ways that comport with the moral doctrines of that church.

    The fact is that, under current status, contraception and abortifacient pills are things that are done privately and cannot be put under surveillance by the church. But when contraception and abortifacients are obtained through and by means of the church, then they are not being obtained or used privately, and the church’s moral doctrine then applies. This is, at least, how I see the jurisprudence working on this issue.

    A person I would listen to, in this matter, is Judge Robert Bork, who respects the original intent of the US Constitution. I have not seen anything written by him to date on the topic. I am sure that the next year (2013) will bring many conferences on these subjects, and not just by Lutherans or Catholics.

    Yours in Christ, Martin R. Noland

  29. Dave Schumacher
    March 8th, 2012 at 17:15 | #29

    @Martin R. Noland #28
    Pastor Noland,
    Thank you for your analysis, especially where you state:
    “The principal issue is whether or not religious employers will be able, in their contractual relationship with any employee–whether clergy or lay, to require that those employees behave publicly in ways that comport with the moral doctrines of that church.”

    That is most helpful to me in understanding this issue.

    In Christ, Dave

  30. Norman Teigen
    March 9th, 2012 at 15:57 | #30

    I was wondering what anyone might have thought about the LC-MS doctor who told me that women’s health issues, including contraception, are between the doctor and the patient. Anyone?

    Norman Teigen
    Evangelical Lutheran Syod layman

  31. Martin R. Noland
    March 9th, 2012 at 16:34 | #31

    Dear Mr. Teigen,

    It looks like this post is about to fall off the bottom of the list, so I will answer your question, as best as I can.

    When you speak of an individual case, it is true that women’s health issues are between the patient and her doctor. That is a right to privacy, which no one is questioning. It is part of the doctor’s modern Hippocratic Oath.

    But when you speak of law, or regulations, or ethical practice in a general way, and not referring to individuals, then there are many other parties involved. E.g., the medical profession that licenses the doctor, his/her medical school, insurance companies, pharmaceutical companires, county/state/federal public health authorities, and the federal government in all three branches. Plus don’t forget about God and the church.

    The Hippocratic Oath (4th & 5th century B.C.) included a definite promise not to perform an abortion. Almost all the older doctors, now mostly retired, were against abortion for non-therapeutical reasons–at least all the ones I have known. In medical institutions today, lines are drawn on this issue. One of the issues involved in the HHS regulations is the conscience of doctors who refuse to prescribe contraception or abortifacients. For those doctors who have such issues of conscience, there IS more involved than a patient and the doctor.

    Yours in Christ, Martin R. Noland

  32. Norman Teigen
    March 9th, 2012 at 17:35 | #32

    This was a good way to end, Dear Pastor. thank you.

  33. Carl Vehse
    March 28th, 2012 at 07:31 | #33

    I doubt the HHS mandate issue has ended. But in the meantime there is a similar issue of support for murder-by-abortion being forced on Americans by the Obama regime and the Congress, who didn’t bother to read the the fine print before passing Obamacare.

    Dr. Gene Veith’s Cranach blog has an article, “A second abortion mandate in Obamacare,” referring to a National Review article, “What Rules Us.”

    The NR article states:

    “One way or another, millions of Americans will soon find themselves in plans that require these separate abortion payments as a matter of federal law.”

    Relying on the SCOTUS to overturn Obamacare is not a good bet, since it was the SCOTUS who legalized murder by abortion and has refused to overturn the genocidal decision ever since.

  34. Carl Vehse
    March 28th, 2012 at 08:26 | #34

    After his strong and confessional stand before a House committee stating the Lutheran opposition to the HHS mandate I will be waiting to hear what President Matthew Harrison has to say about yet another Obamination.

  35. Ed Engle
    August 11th, 2012 at 20:03 | #35

    It’s nice to see discussion about this topic that doesn’t (with a few notable exceptions)deteriorate into name calling or disrespect for elected government. As a layman, I hesitate to get into any sort of theological arguments with trained pastors, but I hope my comments will be accepted as sincere.

    There are certainly many legitimate concerns about the HHS decision. But “religious liberty” is a political concept, NOT a biblical one. If the church and its pastors want to oppose this in a public way, then it had better be from sound biblical and doctrinal principles. If, instead, we argue from a political point of view (i.e., religious liberty), then we have no particular moral authority and we are just one more person expressing one more political opinion.

  36. Carl Vehse
    August 11th, 2012 at 21:24 | #36

    The methods of addressing “legitimate concerns” was discussed in “Render unto Caesar… and unto God: A Lutheran View of Church and State” (A Report of the Commission on Theology and Church Relations of The Lutheran Church—Missouri Synod September 1995). Regarding the legitimate abortion concerns associated with the HHS edict, this excerpt from pp. 86-87 will help explain “direct and intentional action”:

    The Lutheran Church—Missouri Synod has rarely, if ever, ventured into the arena of Benne’s fourth connection between church and state by taking “direct and intentional action” with the explicit goal of changing or effecting policy in the civil sphere. The reasons for this (whether or not always expressly stated) are precisely those mentioned earlier: not only does such action have great potential for dividing, politicizing, and even corrupting the church, it also runs the risk of compromising and undermining the unique and primary mission of the church as defined by Scripture, and thus compromising and undermining the Gospel itself. Nevertheless, the Synod has at times taken specific actions that (it might be argued) go beyond Benne’s third connection of “direct and intentional influence.”

    One of the few social issues concerning which the Synod has been willing to take a (more or less) “activist” role is abortion. While presumably recognizing the risks and dangers of such an approach, the Synod has nevertheless concluded that the question of abortion is addressed so clearly by Scripture, that it is such an extraordinary social problem, and that this problem is so fundamentally tied up with what Scripture says about the God-given duty of the state, that failure to speak and under certain circumstances to act would be tantamount to the failure of the German church under Hitler.

  37. Carl Vehse
    August 12th, 2012 at 21:44 | #37

    In his opening article Rev. Noland concluded: “But when the government mandates this from religious institutions and coerces religious institutions, it is taking sides in a religious conflict. It is theological, after all!”

    While this conclusion emphasizes this attack by the Obama regime on religious institutions, it is a broader attack than that, as pointed out in an editorial, “HHS mandate: An attack on all people of faith,” written by President Harrison and Rev. Samuel Rodriguez, ordained pastor in the Assemblies of God and president of the National Hispanic Christian Leadership Conference, which was published in the August 9th online edition of the Washington Post newspaper.

    Their Aug. 9th editorial states:

    “While religious institutions have one year to comply, phase one of this mandate begins now as family [aka, laity] businesses and organizations had to comply by August 1. Already, some are going to court to fight this mandate – and in one case so far, winning – to ensure they are not forced to abandon their right of conscience and pay for services that violate their faith.”

    While the one case was not specified, there was a temporary injunction issued July 27th by U.S. District of Colorado Court Judge John Kane (a Carter appointee, of all people).

    According to a Denver news article, “Judge Sides With Colorado Company That Opposes Contraception“:

    “Senior U.S. District Judge John Kane issued an order Friday that bars the government from enforcing the requirement against Hercules Industries, Inc., a Denver heating and air conditioning company.

    “The judge, in an 18-page decision, cited the owners’ religious rights as the basis for his temporary injunction. The owners are Roman Catholics whose religious beliefs are consistent with the church’s teaching against contraception.

    “The injunction applies only to the one company and is in effect at least until the judge decides the outcome of the owners’ lawsuit which alleges the requirement violates their religious rights.

    “However, the mandate for birth control coverage as part of the Affordable Care Act generally applies overall to employers with 50 or more full-time workers and takes effect Nov. 1.

    “Other companies could cite religious freedom to ask federal judges to block the mandate.

    “For the purpose of his temporary injunction, Kane said the public interest in the free exercise of religion outweighs the act’s goals of improving the health of women and equalizing health insurance coverage of preventive services for women.”

    One hopes that the Missouri Synod will submit amicus curiae brief to the court supporting this and other lawsuits against the treacherous tyranny of the HHS edict.

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