Can Religious Freedom Be Saved?
Rolling back the Obama administration’s attack on freedom of conscience

Protesters gather outside the Health & Human Services building in Washington, D.C., March 23, 2012.


Can religious freedom be saved? Yes, and the outcry over the HHS mandate proves it. The administration had every reason to expect that its command to millions of American employers to offer their employees free contraception would elicit barely a yawn. Object to contraception? How 13th-century! Not even Catholics listen to their own Church about that!

And yet look where we are today. Protests in the streets. Congressional hearings. Letters from pulpits. Widespread outrage by men and women, across the political spectrum, of every faith and of no faith at all. And over what? The pill?

Of course not. The outcry rises from a profound sense — a profoundly American sense — that the administration’s diktat is simply beneath us all. We Americans don’t force Quakers to bear arms, because their consciences won’t bear it. We Americans don’t force Jehovah’s Witnesses to salute the flag, because their consciences rebel at it. And we Americans don’t force Catholics to hand out the “morning after” pill, because their consciences recoil at it.

Sometimes, however, our government needs a special reminder: federal litigation, for instance. That’s why the lawyers at the Becket Fund for Religious Liberty have, to date, filed four federal lawsuits arguing that the mandate violates the basic guarantees of religious liberty found in our Constitution and federal law.

And we are not alone. Others have filed similar lawsuits, including eight states. Just yesterday, the state of Alabama moved to join the Becket Fund’s lawsuit on behalf of EWTN, the largest Catholic media network in the world. This is an encouraging reminder that some public officials still believe our first freedom is worth protecting.

So, can religious freedom be saved? To paraphrase the president: “Yes, it can!”

— Kyle Duncan is general counsel at the Becket Fund for Religious Liberty.

I recently attended a fascinating Georgetown University conference of legal experts — such as Michael McConnell, Helen Alvaré, Melissa Rogers, and Martin Lederman — on the subject of religious freedom and the HHS mandate (the video should soon be available on the website of the Berkley Center’s Religious Freedom Project).

All the panelists agreed that religious-liberty issues were at stake, though there were deep disagreements about the nature and importance of those issues. One (I leave it to readers to guess who) implied that political calculations might be behind a White House decision to force religious institutions to provide services that are already widely available, at low cost and sometimes at no cost, through a veritable oriental bazaar of public and private entities, including government-subsidized Planned Parenthood clinics.

Why, this panelist wondered, would the Obama administration attempt to coerce religious institutions to provide insurance coverage for these widely available contraception, abortifacient, and sterilization services when some of those institutions (including the Catholic Church) considers the use of such services a grave moral evil? Another panelist, scenting an accusation of anti-Catholicism, averred that such a charge was “unworthy of a response.” Clearly the administration, acting because of a legal requirement, and under the advice of medical experts, was simply doing its job.

But doing its job includes protecting the Free Exercise clause of the First Amendment. It seems to me a reasonable and worthy question: Is the Obama administration seeking to dilute and devalue the Free Exercise clause? After all, the Justice Department recently argued before the Supreme Court in Hosanna-Tabor v. EEOC that the government has the power to limit the hiring and firing of clergy, and that the Free Exercise clause has nothing to do with the issue — an astonishing position that was swatted firmly to the turf by (somewhat surprisingly) all nine justices.

Moreover, even if you believe that the services in question are vital to the health of American women and the common good (see Humanae Vitae for a counterargument), it is simply implausible to insist that the government must provide something that is already ubiquitous, let alone force Catholic institutions to do it.

At least two panelists — Rogers and Lederman — believe the administration is acting in good faith. We shall see. On the other hand, we would do well to recall what Ben Franklin said to the Philadelphia matron who, when Franklin emerged from the Constitutional Convention, asked, “What have you achieved?” “A republic,” answered Franklin, “if you can keep it.” Religious freedom will remain strong if — and only if — the American people apprehend its value and fight to keep it.

— Thomas F. Farr is director of the Religious Freedom Project at the Berkley Center for Religion, Peace, and World Affairs.