Religious liberty is at a crossroads in America. On one side are the forces of secularism, who think that religions, like children, are best seen and not heard (and, in truth, not even seen that much). States like Illinois, California, and New York have been passing laws aimed directly at the ability of religious social-service agencies to act consistently with their faith. The recent decision by the Department of Health and Human Services to require Catholic institutions to provide contraceptive coverage as part of their health-care plans is only the latest move in this ongoing battle. On the other side are the religious institutions themselves, who are just now beginning to realize the threat such “health” or “human rights” initiatives pose to religious liberty.
The recent Supreme Court decision in Hosanna-Tabor Evangelical Lutheran Church And School v. EEOC gave some observers a cause of hope that such battles may be coming to an end. The Court, in a unanimous decision, ruled in favor of religious liberty. The case involved that most classic of religious liberty cases: Can the state determine how a church chooses its leaders and employees? The Obama administration argued that the state, in the name of anti-discrimination, should be able to force a religious organization to accept even those who do not agree with its teachings. The Court, relying on a traditional doctrine known as the “ministerial exception,” correctly ruled that the state could not delve into such areas of self-organization. Crucially, the Court recognized that the Constitution endorses a “special solicitude to the rights of religious organizations.” That is to say, because the Constitution recognizes religious rights in a special way, there is a judicial duty to recognize that those rights be protected to the fullest extent possible.
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In doing so, the Court affirmed the traditional understanding of religious liberty as “free exercise.” In normal English, “free exercise” should mean just that, the ability to freely exercise religious beliefs, either through religious services or in concrete action. This language is rooted in the text of the Constitution. The First Amendment states that Congress shall make no law respecting the establishment religion or prohibiting the free exercise thereof. But in the name of seemingly-neutral values such as “health” or “tolerance,” the state has reinterpreted this language to mean something much more narrow. The Obama administration has often referred to “freedom of worship” rather than “freedom of religion.” This language is quite different. The freedom of worship, while important, cabins the exercise of religion to the forms of ritual and liturgy. It leaves open vast areas of action to government regulation and control, including actions critical to religious persons’ understanding of how they should operate in a pluralistic society. After all, Christians in Egypt and Iran have, technically, freedom of worship — in hidden churches, perhaps, and under the watchful eye of the police state lest they do something inspired by their faith. That is not the free exercise of religion in the tradition of Anglo-American law.
Although the Hosanna-Tabor decision is a victory for religious liberty, not all the language in that case is helpful. In ruling for the church, the Court made a distinction between outward physical acts and questions of internal governance. Relying on the notorious 1990 case Division of Employment v. Smith, in which the Court upheld a drug law against individuals’ use of sacramental peyote, the Hosanna-Tabor decision reaffirmed the legal ability of the state to direct the outward activity of religious individuals or groups.
But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward, physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.
The Smith decision, and its rule that neutral “generally applicable” laws can be imposed even against religious groups, has been hotly contested since it was decided. In the abstract, the rule announced in Smith makes sense. If the general rule is to drive on the right side of the road, allowing an exception for those who decide to drive on the left makes no sense.
However, more recently, that common sense rule has been put to more dangerous uses. In the traffic laws, the government is acting as an umpire, determining the state of play for a safe and neutral public square. The more recent disputes see the government acting as a participant, favoring certain substantive outcomes over others, even when those others operate directly as an infringement on religious liberty.
The New York Times recently highlighted this very issue, in discussing the Catholic bishops’ belated recognition of the threat to religious freedom posed by the administrative state. This struggle focuses precisely on those “outward physical acts” that constitute the bulk of religious actions in the public sphere. At one level, the dispute is simply anti-Catholicism revived. Where once the proponents wore white sheets and demonstrated in favor of Protestant “Americanism,” now they lobby Congress and mutter about equality and “access to healthcare.” The object is the same, of course: to undermine the Church’s self-understanding of her mission and the concrete ways it is carried out. The great system of Catholic social services grew directly from this conception of religious freedom. In the face of hostility from the larger culture at integrating Catholics, the Church formed her own groups, including schools, hospitals, health care centers, and adoption agencies. They were not just for Catholics, which reflected the church’s universal mission and injunction to perform acts of charity.
On another level, however, the language being used is quite different, and in ways that should be troubling for all Americans. The new religious understanding presupposes charity can only be exercised by the state, and in ways authorized by the state. States such as California, Illinois, and New York have used laws pushing their own view of social-services to force the Church to either act contrary to her teaching or face legal action. In some cases, such as in Massachusetts, Catholic Charities simply shut down providing certain services. In others, such as Illinois, formerly Catholic charities have severed their relationship with the Church. There is no reason to believe that Catholic will remain the primary object of this new understanding.
The recent attack by the Department of Health and Human Services on Catholic institutions is a perfect example. In an infamous ruling, being challenged by one brave Catholic institution, Belmont Abbey College, the federal government mandated that health insurance provide coverage for contraceptives and other items that are contrary to Catholic teaching. The Department argues that it makes an exception to requiring religious institutions to carry insurance that would cover products or procedures contrary to the Catholic faith — but only for those institutions are staffed by and primarily serve, people of the same religion. So the old-age home for retired nuns is protected, but the busy hospital in a diverse urban center is not. Nor is a Catholic college, except where it employs and educates only Catholics. The Department’s position essentially eviscerates the Church’s ability to pronounce Her mission and to communicate it through the actions of the faithful. It reduces religion merely to another set of beliefs that can be expressed, in church, and in private, but not with any public consequence. And by placing the state’s resources and power behind those who think churches should bend to their will, either through a complaint to the government or a formal lawsuit, such a position destroys the American traditions of true tolerance and acceptance of diverse beliefs.
Such a conception of religion would be familiar to the Christian martyrs of Rome, or to Catholics behind the Iron Curtain or under persecution today. But it has nothing to do with the American tradition of liberty.