Religious Freedom under Fire

by Melissa Moschella

Many people think it’s an exaggeration to claim that religious freedom is under fire in our nation today. Yes, the Department of Health and Human Services (HHS) issued a mandate that will force employers to provide insurance coverage for contraception, sterilization, and abortion-inducing drugs. And yes, the Catholic Church teaches that facilitating access to these products and services is wrong. But aren’t the Catholic bishops crying wolf, trying to make a mountain out of a molehill?

The answer to that question is a resounding no. The threats to religious freedom in our nation are real, and they’re serious. And things will get worse unless we act to defend our rights. The HHS mandate is one example of a larger, disturbing pattern of government disregard for this fundamental right. What is most worrisome is not that laws are being passed that burden the free exercise of religion, but the callousness with which this is being done. This essay will first review some of the many real threats to religious freedom in this country, and then address the moral and legal basis for religious freedom.

Background on the HHS Mandate

Before giving some of examples of this disturbing trend, however, let me just clarify a few things about the HHS mandate — what it is, why it violates religious freedom, and how it relates to the Supreme Court’s June 28 ruling about the health care law more generally.

First, the HHS mandate is a rule imposed by the Department of Health and Human Services, and the rule requires all employers to provide insurance coverage that will give their employees cost-free (i.e., no co-pay) access to contraceptives, sterilizations and abortion-inducing drugs like “Ella” and “Plan B,” which are usually called “emergency contraception,” but which sometimes work not by preventing fertilization, but by killing an embryo in the very early stages of its development (Ella, for instance, is the chemical equivalent of the well-known abortion drug, RU-486). The rule includes a very narrow religious exemption for “houses of worship” — that is, for religious organizations that primarily serve and employ their own members, and whose primary aim is the inculcation of religious belief. Those who fail to comply will have to pay a fine of $2,000 per employee each year.

The announcement of the rule was met by an outcry on the part of many, including Catholic bishops and other religious leaders, who objected to it on several grounds: First of all, some argued that contraception, sterilization, and abortion should not be considered “health care,” as these are intended to disrupt normal and natural fertility. Secondly, artificial contraception, sterilization, and abortion are seriously wrong according to Catholic moral teaching, and facilitating wrongdoing — even if you’re not engaging in it yourself — is also wrong. Third, the extremely narrow definition of religious organizations in the exemption denies the fact that religious practice can’t be limited to worshiping God behind closed doors, but extends to serving the common good more generally, and particularly ministering to those in need regardless of their faith. Furthermore, the exemption does nothing at all for thousands of individual believers — private employers, employees, and insurers — who will be required to provide or buy or offer coverage for services that they believe to be seriously immoral. So except for the few religious organizations that qualify for the narrow exemption, the mandate would force many individuals and organizations to pay for or otherwise facilitate access to products and services in opposition to their deeply held moral and religious beliefs.

In response to the public outcry, President Obama announced a so-called accommodation for religious organizations, according to which religious employers would not have to offer these “preventative services” directly, but instead the insurance companies themselves would reach out to offer those services free of charge. The “accommodation,” however, is simply an accounting gimmick — employees still get access to the objectionable services by virtue of their employment, and employers still pay for these services through the health insurance premiums. The gimmick is even more transparent for the many religious organizations that self-insure. At any rate, despite all the talk of an accommodation, the proposed rule was actually finalized, without change, in mid-February.

When it became clear that the White House was unwilling to compromise, and after legislative efforts to protect freedom of conscience failed, many Catholic individuals and organizations, along with other non-Catholic organizations that object to the abortion-drug aspect of the mandate, found themselves with no other recourse but the courts. As of now, 53 plaintiffs — including nonprofit organizations, Catholic dioceses, Catholic and Christian universities, and private business owners — have filed a total of 23 lawsuits throughout the country challenging the mandate on religious liberty grounds.

Those lawsuits are entirely separate from the case against the new health care law (the Affordable Care Act) as a whole. That case was primarily about whether the federal government had overreached the bounds of its authority by requiring almost everyone to buy health insurance through what’s called the “individual mandate” — which is entirely different from the HHS mandate — and also about the balance of power between states and the federal government with regard to Medicare. The Supreme Court’s June 28 ruling basically upheld the law in its entirety.

If the court had struck down the entire Affordable Care Act, the HHS mandate, which the act gave HHS the authority to make, would have automatically disappeared as well. But since the Court upheld the health care law, that just means that the religious liberty challenges to the HHS mandate move forward untouched.

Hannah Smith of the Becket Fund, one of the lawyers for the HHS mandate cases, has pointed out that the Supreme Court justices’ ruling actually leaves the door wide open for a successful legal challenge to the HHS mandate on religious freedom grounds. The most hopeful statement comes from Justice Ruth Bader Ginsburg, who wrote in her decision that “A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.”

While the health care law’s individual mandate does not interfere with any of these constitutional rights, the HHS contraception, sterilization, and abortion-drug mandate does interfere with the First Amendment right to free exercise of religion. Justice Ginsburg’s statement therefore seems to send a signal that the legal battles against the HHS mandate stand a very good chance of winning if brought before the Supreme Court.

That covers the basics about what the HHS mandate is, why it’s problematic, and what’s going on with the lawsuits that are challenging it. Now let’s examine why the mandate is evidence of government disregard for religious freedom, and why it’s part of a much larger, disturbing pattern of government encroachments on the free exercise of religion.

Pattern of Threats to Religious Liberty
HHS Mandate

Kathleen Sebelius, Secretary of the Department of Health and Human Services, admitted that she never seriously considered whether the contraception and abortion-drug mandate would run afoul of the First Amendment — indeed, when questioned about this, she displayed an appalling ignorance of the subject (nysun.com/editorials/sibelius-constitution/87805/). Obviously, the administration was aware that many people have religious and moral objections to these services — that’s why a religious exemption was included, as is common for laws of this sort. But the exemption to the HHS mandate is the narrowest ever in the history of federal law. The definition of religious organization in the exemption understands religion as a completely insular, private affair. Only religious organizations that primarily employ and serve those of their own faith, and that have as their primary purpose the inculcation of religious belief, are religious enough to qualify for this exemption.

According to the government’s definition, Mother Teresa’s nuns don’t qualify for an exemption because their ministry serves those in need regardless of religion. The same is true of thousands of Catholic charities, hospitals, schools, and other organizations across the country. As stated in the complaint filed by the Archdiocese of New York, to qualify for the exemption, “Catholic organizations would have to stop asking, ‘are you hungry?’ and ask instead, ‘are you Catholic?’ before extending services.”

By choosing this extremely narrow definition of a religious organization — and it must have been a conscious choice, because it’s such a radical departure from precedent — the government effectively sends the message that the only sort of religious activity that it will favor and protect is private worship. It effectively denies the fact that the practice of religion cannot be limited to one’s participation in an occasional worship service, but that genuine religious practice necessarily has an impact on one’s broader social, economic, and political activity. In other words, the HHS mandate’s narrow definition of religion sends the message that the government will protect freedom of worship, but not freedom of religion, understood as the broader freedom to live in accordance with one’s beliefs.

Human Trafficking Victims

A related example of callously putting the sexual liberation agenda ahead of religious freedom and the real needs of the most vulnerable in our society is the government’s decision to defund Catholic Migration and Refugee Services, which until this past fall had been a leading provider of aid to human trafficking victims across the country. A Washington Post article, “Health, abortion issues split Obama administration and Catholic groups” (October 27, 2011), revealed that the decision to direct funding away from the bishops’ conference was made by political appointees at the Department of Health and Human Services. The decision was made despite the fact that staff members in the department had recommended that the bishops’ service receive the grant, based on scores issued by an independent review board. Instead, grants were given to two other groups who had scored so low that they didn’t make the cut-off when evaluated by the independent review board.

The government declined to renew the bishops’ contract because Catholic Migration and Refugee Services won’t provide or refer for contraception and abortion. The victims of human trafficking, who lost the best-qualified provider of aid, suffer the most from this decision. In fact, because the two low-scoring groups weren’t ready to roll on time, hundreds of victims and their families were left without services.

Likewise, the people who will suffer if the HHS mandate survives are the sick and homeless and hungry that Catholic charities won’t be able to serve when the government’s crippling fines put them out of business or force them to cut back their operations.

One thing that is particularly troubling about the prevalent government attitudes toward religion is that the idea of separation of church and state has shifted from a legitimate desire to keep the government from entangling itself in the internal affairs of religious organizations to a justification of anti-religious secularism — pushing religion out of the public square and making life uniquely difficult for religious individuals and organizations. For instance, even worse than HHS’s failure to renew the Migration and Refugee Services’ contract is the fact that a Massachu- setts federal court actually ruled that it would be unconstitutional for the government to accommodate the conscientious objections of religious organizations by contracting them to provide services while exempting them from the requirement to offer contraception and abortion.

They argued that such an accommodation would be tantamount to government establishment of religion, which is clearly a politically motivated opinion that flies in the face of the best precedents in constitutional law and of the common practice of government partnerships with faith-based organizations to help those in need throughout our nation’s history. The bishops have appealed the ruling largely because it sets a dangerous precedent that would threaten the work of Catholic and other faith-based organizations across the country that cooperate on similar terms with government agencies at all levels.

Immigration

The disregard for religious freedom, and the narrow view of what counts as religious practice, is also evident in recent immigration laws in Alabama and Arizona. Last August, soon after Alabama passed the infamous House Bill 56 cracking down on illegal immigrants, a coalition of Catholic bishops and Protestant church leaders sued Republican Governor Robert Bentley in Parsley v. Bentley. Church leaders alleged that some of the law’s provisions, such as those that forbid “harboring” illegal immigrants, “encouraging” them to come to Alabama, or “transporting” them, would make it illegal to exercise fundamental aspects of Christian ministry, like providing immigrants with basic social services, celebrating the sacraments for them, educating them or giving them a ride to church. And unlike federal immigration laws, these state laws have no exemption for religious ministers.

The US Conference of Catholic Bishops also filed an amicus brief in Arizona v. United States, which was decided June 25. The parts of the Arizona law that were dangerous to religious liberty were struck down on unrelated grounds by the Supreme Court, and the same is likely to happen with the Alabama law as well. Nonetheless, what is troubling is that the states would enact these laws, and enact them without a religious exemption. This too reflects a limited and narrow view of religious exercise. It’s worth noting that the immigration law cases show that religious liberty is not a partisan issue — the Church defends religious freedom regardless of whether the threats to that freedom come from the right or from the left.

Pharmacists, Police, and Exemptions

Consider also the recent policies imposed in many states to force pharmacists to sell emergency contraceptives — which in some cases work by causing early abortions — including “morning after” and “week after” pills. In Illinois, the governor explicitly stated that the law’s purpose was to stop religion from “stand[ing] in the way of” dispensing drugs and to force pharmacies to “fill prescriptions without making moral judgments.” Pharmacists with religious or moral objections to these drugs should, he said, “find another profession.” Two pharmacists, who had each spent more than 25 years building a pharmacy career, decided to sue. The Becket Fund for Religious Liberty, whose lawyers defended the pharmacists, recounts that:

Similarly, when the city of Newark, New Jersey issued an order requiring police officers to be clean-shaven it exempted those who had medical reasons for not shaving. But when two Muslim officers sought an exemption because their faith demands that they wear beards, the city told them to comply or be fired. The officers also brought their case to court.

Both the pharmacists and the Muslim police officers won their cases, but the hostility toward religion exemplified in these regulations — and these are just two instances out of many — should not to be taken lightly. And it’s quite similar to what’s happening with the HHS mandate. Fourteen hundred employers with more than three million employees — employers ranging from McDonald’s to the Teamsters Union — have received exemptions from the mandate largely for economic reasons. Just like the pharmacy case in Illinois and the police-officer case in Newark, the government is more than willing to accommodate people for a host of non-religious reasons, but when exemptions are sought based on a religious or moral objection, they won’t budge.

Gay Rights

No summary of the dangers to religious liberty currently facing our nation would be complete without mentioning how the gay marriage movement, and the gay rights movement more generally, also brings with it a host of grave threats to religious freedom. Many people are aware of the fate of Catholic adoption agencies in places that recognize same-sex unions. In Boston, DC, San Francisco, and the state of Illinois adoption agencies were shut down because their unwillingness to place children with same-sex couples is considered illegal discrimination, despite social science research that clearly shows that children do better with a mom and a dad.

That’s just the tip of the iceberg. Christian church photographers have been sued — and lost — when they refused to photograph a gay wedding; likewise churches have been sued — and lost — for refusing to rent out their church halls for a gay commitment ceremony. A US District Court in California deemed religious speech expressing disapproval of homosexual acts as an infringement on the rights of other students. And a Massachusetts Appeals Court said that public schools can teach children that homosexual relations are morally good even if the parents object. The same has occurred with mandatory sexual education regulations for the New York City public schools — the recommended curriculum clearly aims at the normalization of homosexuality, among other things — as well as mandatory anti-bullying campaigns in schools throughout the country and the recent California law requiring all public schools to teach gay history.

Basically, the gay marriage movement wants to make “gay the new black,” to make sexual orientation exactly the same as race, as the California Supreme Court has explicitly stated. And since in contemporary jurisprudence racial equality trumps religious liberty in cases of conflict, that’s very bad news for religious freedom. So it’s no surprise that two Christian doctors in California who refused to artificially inseminate a woman in a lesbian partnership lost a discrimination lawsuit brought by the woman they refused to serve — in spite of the fact that the doctors even paid for the woman’s referral to other fertility specialists who then administered the treatments.

The implications of the new “civil rights” and “non-discrimination” laws being passed to protect gay rights are far-reaching. People who oppose same-sex marriage may effectively find themselves barred from many professions — such as law, medicine, psychology, counseling, or teaching — because they will be unable to get state licenses unless they affirm the moral equivalence of marriage and same-sex relationships.

In England, for instance, a Christian couple — with a stellar record of fostering children in the past — was denied a foster parenting license because, when asked what they would do if the five-year old they were going to foster developed same-sex attractions, they replied that they would love the child but not encourage him to act on such desires. The agency decided that the couple’s “anti-gay prejudice” made them unfit to be foster parents. When the couple fought the decision, the judge ruled that state must protect vulnerable children from being “infected” — that precise word was used — by Judeo-Christian values on sexual morality.

In the UK all of these problems began with human rights and equality and anti-discrimination legislation back in 1998 — those who sounded the warning bell early on, arguing that these laws were going to lead to religious freedom violations, were laughed at. Now, when a 69-year-old street preacher in the UK stands peacefully holding a banner that says “Stop homosexuality. Turn to Jesus,” and a crowd of 30 young people assault him, the preacher is arrested and convicted of a hate crime, while his assailants get off free.

So we need to be very wary of attempts to pass such laws in the US. Right now two (at least) are being pushed in Congress. The Employment Non-Discrimination Act would raise sexual orientation to a protected status, like race, for the purposes of employment non-discrimination laws. Many schools, universities, day cares, shelters, and other institutions would not be exempted. That means, for example, that a Catholic school would have to hire a gay teacher openly living a lifestyle in contradiction to Catholic teaching. Similarly, the Student Non-Discrimination Act would make “harassment” on the basis of sexual orientation illegal in schools, and harassment includes any speech expressing a negative moral judgment of homosexual acts — as we’ve seen already in the California and Massachusetts court cases mentioned above.

Of course, it sounds horrible to be against a non-discrimination law. And indeed it’s terribly wrong and deeply un-Christian to treat people unjustly or harass or bully them just because they experience same-sex attractions. But what these so-called non-discrimination laws want to do is make it illegal to express respectful disapproval of the homosexual lifestyle, of actions that one believes are immoral regardless of who performs them — and that’s another matter entirely.

It is clear that threats to religious freedom in this country are indeed real and serious, and will get worse unless we make a concerted effort to stop them.

The Basis for Religious Freedom

Religious freedom, which includes protection of conscience rights more generally, has been a core value in our nation’s history since even before the official founding of the United States. Many of America’s first European settlers came here in search of religious freedom. Some of the world’s first experiments in genuine religious toleration happened in the American colonies.

And freedom of religion, together with freedom of conscience, was a central concern of America’s founding fathers. Thomas Jefferson, for example, declared that “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enter- prises of the civil authority.”

George Washington himself likewise stated that “The conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be extensively accommodated to them.”

And James Madison, a key defender of religious freedom and author of the First Amendment, said: “Conscience is the most sacred of all property.”

The right to religious freedom is enshrined in our Constitution. The first amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Note that the Constitution says nothing about the separation of church and state. Indeed, at the time of the founding many states had established churches and the first half of the first amendment — the prohibition on laws “respecting an establishment of religion” — is best understood historically as forbidding the federal government from tampering with any state laws regarding religious establishments.

Today, as we’ve seen, that establishment clause is often read in a way that would make any public references to God or religion illegal — just think of the cases trying to strike “under God” from the Pledge of Allegiance — and even make it illegal to accommodate religious organizations providing important social services, as in the Massachusetts case about the government contract for the USCCB’s services to human trafficking victims. But that’s far from the original meaning of the clause.

Nonetheless, there are good and important aspects of establishment clause jurisprudence. A recent example is the Hosanna-Tabor case, in which the Supreme Court reaffirmed the “ministerial exemption,” which allows religious organizations to hire the ministers they want without having to worry about anti-discrimination laws. The government ought to stay out of the internal affairs of religious organizations — they shouldn’t, for example, have any say in who gets to be made bishop or who is appointed pastor of the local church. That’s one interpretation of the establishment clause that is good and valid, and that helps to safeguard religious freedom. The HHS mandate runs afoul of the establishment clause because it’s telling religious organizations how to carry out their ministry, and also because the extremely narrow exemption is treating some religious organizations as more religious than others, imposing an arbitrary government definition of what counts as “religious.”

The other aspect of the First Amendment’s protection for religious liberty is the free exercise clause: “Congress shall make no law … prohibiting the free exercise [of religion].” This means that it’s unconstitutional for the government to make it illegal for you to practice your faith unless there’s an extremely good reason — unless, say, your faith requires you to engage in human sacrifice or in acts of terrorism. This right can also be understood to protect freedom of conscience more broadly, even when uncon- nected to a specific organized religion. The HHS mandate, and many of the other affronts to religious liberty that I’ve mentioned, clearly run afoul of the First Amendment in this regard as well.

In addition to the First Amendment to the Constitution there is also a federal law — called the Religious Freedom Restoration Act (RFRA), passed by a bipartisan majority and signed into law by President Clinton — that provides additional legal support for religious freedom. RFRA states that the government can only burden religious exercise when there’s a compelling state interest at stake, and when the policy is the least restrictive means for achieving that interest. This law currently applies only to the federal government, although many states have enacted RFRAs of their own.

At any rate, the law does apply to the HHS mandate, which is an action of the federal government, and the mandate clearly fails to meet the test. The mandate is uncontroversially a burden on religion — a $2000-per-employee fine per year for failing to comply (Catholic Charities has 70,000 employees nationwide, so that means a whopping 140 million dollars in fines each year) — and even if one accepts the claim that the interest at stake is compelling, the means chosen are clearly not the least burdensome available. The government could easily give all women free access to contraceptives without conscripting religious employers into doing it for them.

Moral Basis for Religious Freedom

Many people mistakenly think that the basis for religious freedom is relativism. On the relativistic view, there’s really no truth in matters of religion; it’s just about opinions or preferences or feelings. Or if there is a truth on religious matters we really can’t know it. So we should let people do what they want. Religion in this view is like your favorite ice cream flavor, or, perhaps better, like your career choice; some religions suit some people better, other religions suit others better. And that’s that.

But that’s not the true basis for religious freedom. In fact, if religion were just a preference or a lifestyle choice, as many people think it is, that would take away the main reason for giving it special protection. Perhaps the treatment of religion as a hobby is precisely the reason why people are now having a hard time understanding why infringements on religious freedom are a big deal, or why people with religious objections have a right to exemptions.

The true basis for religious freedom — the reason why religious freedom is a moral right, and not just a legal right granted to us by the government — is that as human beings we have a grave obligation to seek the truth, and to follow the truth as we understand it. As John Henry Newman famously said, “conscience has rights because it has duties.” “Conscience,” according to Newman, “is a stern monitor,” not an excuse to do what we feel like, as it’s often treated today.

Conscience rights go to the core of what is to be a human person: the capacity to act based not only on desires or instincts, but on judgments about what is good and bad, right and wrong — and the moral responsibility that is inseparable from that capacity. To force a person to act contrary to conscience is to force him to violate his moral integrity. It is an assault on the person at his core, which is more devastating than physical harm. That is why heroic individuals — including the many martyrs we venerate in the Church, and even our nation’s founders — have chosen to risk or suffer deprivation, imprisonment, and even death rather than compromise on matters of conscience. Such individuals are inspirations to us all. But the governments they lived under are not.

That’s why America’s founders were so adamant about the protection of religious liberty and conscience rights as fundamental to a free and just society. And that’s why the Religious Freedom Restoration Act gets things exactly right when it forbids the government from burdening religious practice unless there really is no other way to achieve a genuinely compelling state interest.

Protecting Our Most Fundamental Right

So where does this leave us? It’s clear that there are grave, serious, and growing threats to religious freedom in our nation today. It’s clear, indeed, that it’s no exaggeration to claim that religious freedom is under fire. To preserve our rights and the rights of every citizen, we need to make our voices heard. Ignorance and complacency are our worst enemies.

James Madison offered some words of advice to his fellow patriots after the Revolution that are as relevant today as they were then: