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Religious Liberty -- For Whom? 

by James Hitchcock
May 28, 2004

In England a crowd assaulted a street preacher who posted a sign saying, "Stop Homosexuality." The police arrived and made an arrest -- of the preacher! He was convicted of insulting and harassing behavior. Also in England, an Anglican bishop was investigated by the police after he publicly suggested that homosexuals seek counselling.

Meanwhile the Irish Council for Civil Liberties has warned the Catholic Church of possible prosecution if it promulgates the Holy See's official statement on "same sex unions." In Canada a teacher has been suspended for
writing a letter to a newspaper saying that homosexuality is immoral.

The preacher was being deliberately offensive, and the teacher's letter no doubt upset any homosexuals among his students. But would there have been similar actions by the authorities if the preacher had attacked the Catholic
Church, or if the teacher had denounced "religious fundamentalists?" I know of no such cases.

These are only a sampling of numerous recent episodes in which, where homosexuality is concerned, governments are prepared to abrogate civil liberties. The American tradition of free expression so far has resisted these measures, but there is no grounds for complacency.

Just outside public view, in books and journals read only by scholars, there are influential American political and legal theorists who openly advocate the restriction of religious liberty, in order to prevent the "wrong" ideas from being circulated. In particular these theorists bluntly insist that parents have no right to inculcate their own beliefs in their children. (For a survey of this movement, see my article in the February issue of the journal First Things.)

The Church is paying heavily, both in money and in credibility, for having minimized the problem of priests sexually molesting boys. Historically, scandals of this kind often lead to restrictions on the freedom of those who acted irresponsibly, and this is another way in which the Church may now be forced to pay. The Massachusetts Supreme Court is famous for having found homosexual "marriage" to be a constitutional right. Recently, on a related matter, it has handed down a decision which is a direct threat to religious liberty.

The Jesuit order paid a large amount of money to high-school students molested by a Boston Jesuit. A criminal trial now looms, and the court has ordered the Jesuits to turn over records of confidential meetings between the priest and his superiors. It has never been entirely clear whether the seal of the confessional is protected in law, and it is even less clear whether a priest's meetings with his superiors, who have responsibility for his spiritual state, enjoy such protection.

However, the court's reason for requiring that the records be turned over is startling -- the possibility that they will include an admission of guilt by the priest and that this could be used to avoid a trial that would be traumatic for the victims. In other words, the accused is to be denied his day in court. His guilt is to be proved by statements he may have made in a situation which he had every reason to think was confidential, even though it is a firm principle in law that no confession can be used if the accused has not been warned of his rights.

If this decision stands, no priest will ever again be able to speak candidly to his superiors about the condition of his soul, for fear that eventually what he reveals will be made public and used in court. But that is not the most ominous part of the decision. The court justifies it on the grounds that no issue of religious liberty is involved, because turning over the confidential records does not inhibit the priest or his superiors "in their performance of any religious ritual or ceremonies of worship."

The implications of this are breathtaking. For almost seventy years courts have been expanding the scope of religious liberty. Now, by one stroke of the pen, Massachusetts reduces that liberty to merely "the performance of ceremonies." The decision reeks of the prejudice of the extreme secularist - religion is a matter of "meaningless rituals," and it cannot be allowed to play a public role. If the decision stands, all kinds of religious activities -- charity, education, moral witness -- will cease to enjoy constitutional protection.

James Hitchcock, professor of history at St. Louis University, writes and lectures on contemporary Church matters. His column appears in the diocesan press. His two-volume book on religion and the Supreme Court has just been published by Princeton University Press. E-Mail: Dr. James Hitchcock

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