Defending Religious Liberty
The Public Square
R.R. Reno
FIRST THINGS, August/September 2012

Notre Dame teaches physics and philosophy, and so does the University of Chicago. Both raise money, field sports teams, and maintain their buildings. Aside from a few peripheral activities, how do they differ? Not much. So the Obama White House has concluded that places like Notre Dame are religious only in an indirect and attenuated sense. Insufficiently sectarian, as it were, they don’t qualify for the full protection of the Free Exercise Clause. Therefore, they must conform to the recently formulated HHS mandate that requires employers to provide insurance coverage for sterilization, contraceptives, and abortion-inducing drugs.

This treatment of religion is not entirely new. In the years after World War II, the courts reinterpreted the Constitution so as to prohibit generic prayers in schools and restrict pious displays on public property. Nobody denied the importance of religious liberty. The disputes turned in large part on what counts as religious. For a long time the consensus was that we could not establish a particular denomination or require adherence to a specific set of doctrines. But the consensus shifted, and the courts decided that for the purposes of establishment, which the Constitution prohibits, any religious expression is suspect. The outcome: a more secular public square.

Now, when it comes to the free exercise of religion, we’re seeing arguments that what counts as religious should be more narrowly defined: churches, yes, but religious schools and agencies, no. This also leads to a more thoroughly secular public square. The narrower view exposes formerly protected religious institutions to greater government control, compromising their ability to function in accord with their distinctive religious missions.

The Catholic bishops have reacted so strongly to the mandate because they see the implications. If the mandate is upheld, then precisely to the degree that Notre Dame and other Catholic institutions are engaged in serving society—educating, caring for the poor, healing the sick—they can be commanded to serve the purposes of the state. The fact that Catholic doctrine is not inwardly turned and sectarian, but has a great deal to say about the why and how of education, health care, adoption, and much more, is of no moment, at least not in the eyes of those seeking to subordinate Catholic social doctrine to the imperatives of the White House.

We can see the same effort to define religious identity more narrowly in the Justice Department’s arguments before the Supreme Court in the Hosanna-Tabor case. The central issue in that case was the “ministerial exemption,” a legal formulation that describes the special freedom that religious institutions enjoy, exempting them from various labor laws and regulations that would interfere with their discretion about whom to hire as ministers. For example, employment law prevents a company from discriminating on the basis of sex, but in the selection, training, and ordination of priests, the Catholic Church can.

In Hosanna-Tabor, the Equal Employment Opportunity Commission argued that the teacher who brought the suit was largely engaged in the activity of teaching secular subjects, and therefore was not exercising a uniquely religious ministry. She was a secular employee, not a religious one. Therefore, the religious school that had employed her was bound by the employment laws that were the bases of her lawsuit.

The logic of the EEOC’s case is plain to see. The narrower the ministerial exemption, the more control legislators and regulators have over intermediary institutions such as religious schools, hospitals, and social service agencies, something the EEOC lawyers argued is necessary to ensure that injustices are not perpetuated. The broader the exemption, the more control religious authorities have over institutions, ensuring that they remain true to their missions.

In a unanimous decision, the Supreme Court rejected the Justice Department’s arguments, reaffirming an expansive rather than constrained view of the ministerial exemption. The decision represents an important victory for religious freedom. The government cannot define who does and does not count as a minister. Hopefully the Court will come to the same conclusion about similar efforts by the Obama administration to define what does and does not count as a religious institution deserving of full constitutional protection.

No matter what the Supreme Court decides, these efforts to reduce religious freedom will not go away. In his contribution to a useful forum in Commonweal taking up the Catholic bishops’ recent statement on religious liberty, “Our First, Most Cherished Liberty,” William Galston makes an important observation. “It is a mistake,” he writes, “to speak of ‘freedom of religion’ as a fixed concept in American culture or constitutionalism. The phrase delimits a zone with a contested periphery.” As the social consensus changes, the boundaries of religious freedom are redrawn.

Many of the founders were at best ambivalent about the dogmas of Christianity. But they affirmed the general consensus of their time. “Of all the dispositions and habits which lead to political prosperity,” George Washington said in his Farewell Address, “religion and morality are indispensable supports.” Differences of dogma and doctrine aside, by this way of thinking, religion is a fundamentally good thing. Our elites in the twentieth century began to take a different view. Religion (read: Christianity) has too much power over society, they thought, and so it needs to be pushed out of the public square. That’s why the Establishment Clause was reinterpreted in a more expansive way.

This negative view of religion has become even more powerful and widespread. Today, many worry that religion leads to an uncritical dogmatism that conflicts with the spirit of critical inquiry and scientific culture. Religious conviction, they warn, promotes intolerance, and with intolerance comes conflict, and often violence. Even when peaceful, religion stands in the way of moral progress. Religion is at odds with an “inclusive” society, we’re told, because its traditional views on sex and marriage conflict with progressive goals of sexual liberation. As Christopher Hitchens put it, “Religion poisons everything.”

In American Grace: How Religion Divides and Unites Us, their recent book about contemporary religious belief and practice, Robert Putnam and David Campbell show that what Hitchens said so bluntly reflects what many secular people now think. Being themselves largely religious, most Americans think religion is a good influence on American life. However, “only about a quarter (24 percent) of the most secular tenth agreed that religion has had a positive influence on American life.” These folks don’t agree with George Washington. For them, religion, which again almost always means Christianity (and lately fundamentalist Islam), is among the evil legacies of a benighted past that our society must deal with. Moreover, this cohort has grown. A government survey in 1957 found that only 3 percent of Americans said they had no religious affiliation. By 2008, 17 percent said so.

Meanwhile, the rest of America has not followed suit. The percentage of those who say they attend church weekly (around 33 percent) has remained roughly the same over the last fifty years. This striking combination of a dramatic increase in irreligion with an equally remarkable continuity of religious commitment goes a long way toward explaining our culture wars, including the current collision between the Obama White House and the Catholic bishops. The secular 17 percent believe that they will inherit the earth, and they are angry that religious believers aren’t accepting their birthright. Yes, very angry, and willing to do what it takes to push aside the ongoing influence of traditional religious and moral beliefs.

In this context, religious believers should not put their trust in the supposed fair-mindedness of liberals. From their point of view, asserting greater government control over religious institutions is necessary to ensure justice, and involves a legitimate reinterpretation of the boundaries of religious freedom guaranteed by the Constitution. Moreover, although the current justices seem very concerned about protecting religious freedom, given the plasticity of constitutional interpretation, which tends to bend to elite opinion over time, we should not rely on the Supreme Court. Our secular elites increasingly tend to think that religion is a force for evil, and they will continually test the limits of the Constitution.

In this effort we must meet them head-on, not only in the courtroom but also in the public square. We need to assert not just our rights to religious liberty but also the benefits that our religious institutions extend to others. We need to bear witness to the many ways in which religious belief and practice are very, very good things for society as whole. That’s one reason why the Catholic bishops’ challenge to the HHS mandate is so important. Religious institutions of all sorts need to make their contributions to the common good in education, health care, and elsewhere precisely as religious institutions, and not as secular institutions that just happen to have been founded, supported, and run by religious believers.

About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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