Politics & Policy

Can Religious Freedom Be Saved?

Protesters gather outside the Health & Human Services building in Washington, D.C., March 23, 2012.
Rolling back the Obama administration’s attack on freedom of conscience

On the second anniversary of passage of the president’s landmark health-care legislation, citizens are gathered at statehouses around the country and outside the Department of Health and Human Services in Washington, D.C., to protest the coercive HHS mandate.

This is a debate about religious freedom in America. But with people arguing over what exactly the mandate is and whether an actual compromise has been reached, the question arises: Is the HHS mandate debate really about religious liberty, and if so, how can religious liberty be saved? This is not the first threat to religious freedom we’ve faced. But is it unprecedented? How can this moment be one of both education and action?

We asked our experts to weigh in.

#ad#GERARD V. BRADLEY

On any account of the facts about the Department of Health and Human Services mandate and its effects upon religious institutions, the Obama administration is threatening religious freedom in a very big way. Whether the threat is “unprecedented” is a different question — and a hard one to answer. The federal government’s unforgiving campaigns against polygamy and racism have been very big deals, too, at least if you were a member of the LDS Church in the late 19th century or a student at Bob Jones University in the late 20th. Whether they rank higher on the Richter scale of religious-liberty threats depends mostly on whether one thinks they were justified. And that depends mostly on what one thinks of monogamy and racial equality, and of the government’s proper authority to promote them.

Gauging the present threat depends upon what one thinks of contraception and of the government’s role in promoting it. More specifically, it depends on what one thinks of the Obama administration’s goal. Its goal is obviously not what it claims its goal to be: to promote universal access to contraception. Access to contraceptives is already nearly universal, and it could be made universal in many ways that do not tread upon religious freedom. The administration’s goal is chiefly to stigmatize as irrational the view that contraception is immoral, and to isolate that view as strictly the creature of sectarian doctrine, without any claim of traction upon respectable — that is, “reasonable” — public debate.

Some people might say that the mandate’s goal is gender equity or something of that sort. These people are right — so long as they agree that the relevant meaning of “gender equity” is precisely the opportunity for women to live in a society where contraception is the furniture of everyday life, no more morally significant or remarkable than the papaya-juice vending machine that stands right next to the condom and Plan B dispenser in the junior-high hallway. The only difference is that you will have to pay for the papaya.

Gerard V. Bradley is a professor of law at the University of Notre Dame.

CHUCK COLSON

This is a huge religious-liberty question. It isn’t about contraceptives or even abortifacients. It’s about whether the United States government can limit the free exercise of religion by telling us which of our beliefs are entitled to conscience exemptions. It would be one thing if this came through the courts; still another thing if it were passed by Congress. But this edict is handed down by unelected government bureaucrats.

We cannot for one moment allow government bureaucrats to dictate the parameters of church doctrine. As a Christian, I believe our doctrine comes from the very clear and authoritative word of Scripture. It has been tested and practiced over the years; it has withstood the challenges. This, in our opinion, is God’s truth.

As one of the three co-authors of the Manhattan Declaration, I helped write those words at the end of the document: that we will render ungrudgingly to Caesar what is Caesar’s, but we will never under any circumstances render to Caesar what is God’s.

We wrote the Manhattan Declaration, now signed by 525,000 people, not as a petition but as a covenant. We have covenanted with one another to engage in civil disobedience if the government attempts to compromise what our founders believed was the most essential liberty to be protected: freedom of religion, freedom of conscience. That’s why it is often called “the first freedom.” If this edict stands, all freedoms will be in peril.

This is a momentous issue. There have been other threats to religious liberty by legislation and sometimes by court order — but never at the whim of an unelected government official.

God help us if we start giving government officials the right to dictate our conscience.

— Chuck Colson is founder of the Colson Center for Christian Worldview.

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KYLE DUNCAN

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!

#ad#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.

THOMAS F. FARR

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.

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MATTHEW J. FRANCK

Religious liberty knows no party. It is not the possession of Republicans or Democrats, any more than religion itself is. People of faith — people who for the best of reasons should be alert to the necessity of religious freedom — can be found on every side of every issue: fiscal policy, crime and punishment, immigration, our foreign wars, even the hotly contested “social issues” of abortion and same-sex marriage.

But liberty — freedom of every kind, including religious freedom — is always threatened whenever government becomes more powerful in directing the course of our lives. And when people of faith hold the reins of an increasingly powerful government, they are no more immune to its temptations and corruptions than anyone else.

#ad#So when President Obama asks how he, a religious man himself, can be accused of a kind of “war” on religious freedom, I don’t doubt he is mystified by the accusation. But that does not mean it is an unjust one. The president is the architect of the greatest increase in governmental power over the lives of individual Americans since the New Deal: the “Affordable Care Act,” or Obamacare, signed into law two years ago. That’s the law that enabled HHS Secretary Kathleen Sebelius to decree that, except for the most narrowly defined religious employers, every employer in the country would have to pay for insurance that covers free contraception, abortifacients, and sterilization procedures. That includes religious schools, colleges, hospitals, charities, and social-service agencies. And the administration’s so-called “accommodation” is so far just a promise to talk some more about this after the November election — as if they’ll be interested if they are victorious then.

The president and the secretary, because they see no merit in anyone’s moral opposition to contraception, sterilization, or abortion, likewise seem to have no respect for anyone’s claim that religious liberty is at stake in this matter. Contraception and access to abortion are great public goods to Obama and Sebelius. For the sake of such great public goods, coercive mandates on American citizens are, to them, the most natural course of action. Since they cannot conceive of moral or religious opposition to these alleged goods on the part of any rational person, there is no principled reason to make room for claims of religious freedom. Contraception and abortion are non-negotiable goods for them. Other people’s religious freedom? That’s negotiable. Or at least the definition of “religious institution” is, so it seems.

Some people on our side of the issue say that the Obama administration’s rhetorical strategy, of portraying its opponents as waging a “war on women,” is deeply cynical. I disagree. I think they are utterly sincere in this belief, given their own profound commitment to a certain view of what women need, want, and deserve. It’s a badly mistaken view, but they sincerely believe it. And in matters like this, sincerity is much more dangerous than cynicism.

Our Founders knew this. They knew that power, and a sincere conviction of one’s own rightness, can make for a deadly cocktail. That’s why they protected religious freedom and religious conscience in the Constitution. The freedom to act on one’s conscience, a freedom enjoyed by individuals, churches, institutions, and employers and employees of every kind, “religious” or not, means the right to say “no” to political power when it commands you to do what you believe you can’t morally do.

Religious conscience is now under threat by the federal government to a degree unseen for many years. But threats like this often have a salutary effect: the lessons learned in defeating them. The other side has the White House and the media. We have the truth, the Constitution, the law, and the voting booth. I’d say it’s a fair fight!

— Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.

DAVID FRENCH

The United States has endured and persevered through numerous attacks on religious freedom, some quite targeted and quite vicious. Let’s not forget, for example, the anti-Mormon “extermination order” of 1838 or the less violent but still vicious anti-Catholic Blaine Amendments of the late 19th century. The present controversy is less about subordinating one religion to others than it is about subordinating all religious liberty to sexual liberty.

The sexual revolution has always clashed with orthodox religious faith. After all, Judeo-Christian tradition limits sexual activity to the bounds of marriage. Yet we’ve long since passed the point where traditional religions could impose their will through the force of law. Contraceptives are legal everywhere, and even sodomy has even been elevated to the status of a constitutional right.

One would think that in these legal changes one would find the makings of an uneasy truce. The revolutionaries have the right to behave as they desire, while the religious have the right to believe (and act) as their consciences dictate. Yet as is often the case, revolutionaries won’t settle for mere victory when domination is in their grasp.

With the Obama HHS mandate, the federal government is creating the mirror image of the 1940s, with religious entities now coerced into participating in and even funding the sexual revolution. It’s not enough that men and women have the right to purchase contraceptives, now they have a right to get them for free.

But to create such a right, one must decisively and finally subordinate religious freedom to something else, an unwritten construct of a radical and debased culture that feels entitled to pleasure without obligation, cost, or consequence.

I suppose that the language of the Bill of Rights should now carry a disclaimer: “Subject to the sexual needs of the ruling class.”

— David French is a senior counsel at the American Center for Law and Justice and co-founder of Evangelicals for Mitt.

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EDWARD T. MECHMANN

In his encyclical The Gospel of Life, Pope John Paul II warned of the dangers of a totalitarian form of democracy — in which laws are enacted that violate the fundamental moral law, and endanger authentic freedom and dignity.

The Affordable Care Act takes a dangerous step in that direction. To understand this, we must look behind the details of mandates, “accommodations,” and “compromises.” We must recognize that the ACA embodies a totalitarian mindset that is fundamentally incompatible with liberty.

#ad#All individuals and institutions in America will be brought into line with a state-approved anti-life ideology that views fertility as a threat, pregnancy as a disease, and children as a burden to be eliminated. Churches and religious organizations will be defined by the government and vulnerable to penalties if they dissent or resist. Faith-based institutions will be subject to intrusive investigation by officials who will pass judgment on the nature and legitimacy of their religious purpose and the beliefs of their staffs and the people they serve. Religious people will be coerced into speech and actions that endorse and promote things they find morally reprehensible. Even members of religious communities, such as the Sisters of Life, will be forced to violate their sacred vows or face punitive fines.

The temptation is to tinker around the edges of this threat, make compromises, and protect narrow institutional interests. But all that does is delay the inevitable, and lull us back into denial. Surely we have passed that point, and instead have reached what biographer Eric Metaxas has called a “Bonhoeffer moment” — a time to stand firmly but lovingly in defense of religious liberty, even to the point of suffering. We cannot let things go farther down the path to totalitarian democracy. We must speak the truth with love, and resist by all lawful means.

Edward T. Mechmann is assistant director of the Family Life/Respect Life Office at the Archdiocese of New York.

VINCENT PHILLIP MUÑOZ

Beneath the talking points of “rights of women to control their bodies” and “robust exemptions for faith-based institutions” lies a deeper, structural threat to religious liberty, a threat that neither side of the current HHS controversy squarely confronts.

In the 20th century, Americans accepted a massive expansion of the role of government. Good reasons existed for us to do this. Racial injustice, poverty, and excessive inequality infected the country.  

But in our efforts to make the lives of citizens more equal and more humane, we lost focus on the proper role of government and let it become more dangerous. We invited the state to regulate more and more aspects of our everyday lives, such as what products we bought at the grocery store, the terms of our employment at our places of work, and how we could use our own land and resources. We have become so accustomed to government regulating our private lives that a large segment of the population understands freedom as something the government provides, not as something that government respects.  

Religious freedom cannot long survive when government is thus understood and acts accordingly. Religion seeks to guide individuals in the ways they live their lives. The more the government does this, the less religion can do so.  

Many on the left would rather have government direct Americans’ lives than religion. They trust government; they fear religion. When religion and government conflict, they favor government. It’s not that they are necessarily opposed to religious freedom, but they are for government action and what it can accomplish. The Left threatens religious freedom because, for most liberals, it is not a priority.

Those on the other side of the HHS controversy are calling for government to accommodate religious institutions and their affiliates more extensively. When religion and government conflict, they favor exemptions from government action. But this is like addressing the problem of chronic flooding by buying some homeowners boats. It does not address the loss of liberty for those who lack religious objections to burdensome laws. More fundamentally, it does not solve the problem of government overflowing its proper bounds. The pro-exemption position fails to understand that it is the increasing tide of government action that threatens religious liberty.

Big government and religious freedom are necessarily opposed. If the current HHS controversy does not teach us that lesson, the ever-increasing activity of government will continue to erode our religious liberty.

— Vincent Phillip Muñoz is the Tocqueville Associate Professor of Political Science and Law at the University of Notre Dame and author of God and the Founders: Madison, Washington, and Jefferson.

#page#

ALAN SEARS

The First Amendment to the U.S. Constitution announces and protects the freedom of religion: our first liberty. For more than two centuries, this amendment and our nation’s courts have acknowledged this right as one recognized but not created by any government. In other words, from the founding to now, Americans and their leaders have taken “Congress shall make no law” to mean the government is restrained from interfering with internal matters of the church and of religion, including doctrine and rights of conscience.

However, via the HHS abortion-pill and contraceptive mandate, this administration has run roughshod over our first liberty and assigned government the new role of deciding which entities are “religious enough” for First Amendment protections and which aren’t, while decreeing that most private citizens have no say in how they may follow their beliefs.

So while President Obama’s HHS may provide an opt-out for your local church, there will be no similar option for the local medical center or university that is run by a religious ministry, even though the distinguishing mark and purpose of both the medical center and the university are their equally strong faith commitments. And we must note that religious hospitals and universities predate any governmental role in either field.

With one fell swoop, the Obama administration has placed itself in the position of final arbiter of what does and doesn’t constitute religious faith and practice. In this way, they have trampled the rights of the conscience of every American, because they have interjected a man-made standard for religiosity that curtails the protections of the First Amendment by government fiat.

This is an attack on religion, an attack on the rights of conscience, and an attack on freedom itself. And while Obamacare was the first salvo President Obama fired on this particular front, it was his abortion-pill and contraception mandate that commenced a full-scale battle.

— Alan Sears, a former federal prosecutor who held various posts in the departments of Justice and Interior during the Reagan administration, is president and CEO of the Alliance Defense Fund.

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