Defending Religious Freedom - The Struggle Continues

Paul Adams

Now that any hope has been dashed that the Supreme Court would sink the HHS mandate that employers cover abortifacient drugs, sterilization, and contraception, along with the rest of Obamacare, the fight for religious freedom assumes even more urgency.  The "contraception mandate" is facing legal challenges of its own, of course, but past SCOTUS rulings on the First Amendment do not inspire confidence. 

So the struggle continues.  Fortnight for Freedom has produced some good commentary from bishops, law professors, philosophers, and theologians.  Here is a sample.

Bishop Philip Tartaglia of Paisley, Scotland, notes that “The question of religious freedom has arisen stealthily and rapidly in the United Kingdom.”  He quotes a public statement by the Equality and Human Rights Commission Chief, Trevor Phillips, who famously said that religious beliefs end “at the door of the temple.”  This is the same narrowing of religious freedom to “freedom of worship” in the Obama administration’s rhetoric.  As Bishop Tartaglia says, 

So the view expressed by Trevor Phillips that religious faith should not be allowed to enter the public square raises huge questions about the nature of the state. Phillips appears to endorse the notion of a state that fills all civic space and reaches out to control other institutions present within the state. It is a notion of the state with a rather limited understanding of subsidiarity. It is Big Government at its worst. It appears to have no respect for institutions, such as the family and the Church, which pre-exist the state, which straddle the private-public domain, and which have their own internal constitution. This is a state moving toward a kind of soft totalitarianism.

Against this secular-liberal totalitarianism, Paisley asserts,

Religious freedom is more than freedom to worship, but is also the freedom to express and teach religious truth. It must include the freedom to evangelize, catechize, and serve the needy according to a religious community’s own precepts. Religious freedom is thus intertwined with freedom of expression, thought, and conscience. Believers should not be treated by the government and the courts as a tolerated and divisive minority whose rights must always yield to the secular agenda.

As Bishop Frank Dewane of Venice, Florida argues, 

Part of “living out” our Catholic Faith is to serve all people in need. However, in order to be exempt from the Mandate, Catholic organizations will be forced to stop serving non-Catholics and fire non-Catholic employees (even though Catholic schools and social services are open to all). Catholic organizations would no longer simply ask, “are you hungry?,” but instead, “are you Catholic?” before extending services.

Helping all people in need is rooted in our Faith, it is who we are–our very identity. This identity and way of living out our Faith, however, will soon be outlawed. Since the poor and those in need have always been the primary recipients of Catholic charity, they too have much to lose as a result of this governmental decision.

At Mirror of Justice, a blog dedicated to Catholic legal theory, Rick Garnett, of Notre Dame Law School, links to a paper of his on “Religious Freedom and the Nondiscrimination Norm,”  which makes some important distinctions between wrongful and just discrimination in the context of religious freedom.  

This is an important issue since a law that, say, forbids circumcision of infants, as a recent German court ruled, imposes an unequal burden on those for whom the procedure is a matter of preference and on those for whom it is a religious obligation.  Melissa Moschella argues this point in an excellent post at The Public Discourse.  Mark Shea draws our attention to the campaign against circumcision, with its combination of liberal progressivism and anti-Semitism, in Germany and San Francisco.  “It is only post-Christian secular leftism that takes it upon itself to command Jews not to circumcise and Catholics to pay for somebody else’s contraception as a specific attack on their conscience out of spite.”

Also at The Public Discourse, the Witherspoon Institute’s blog on ethics, law, and the common good, Dwight Duncan, Professor of Law at the University of Massachusetts School of Law-Dartmouth, recalls the history of Americans’ and their British ancestors’ dedication to religious freedom.

Not by accident did the First Amendment begin with religious freedom, protecting it from infringement in two ways: first, by prohibiting an official, governmentally sponsored religion (“Congress shall make no law respecting an establishment of religion’) and second, by protecting the people in their free exercise of religion (“or prohibiting the free exercise thereof.”).

What do these clauses mean? They don’t mean that Americans’ right to religious freedom is a right to believe whatever we want to believe. Even North Koreans have that right, because as a practical matter no one can force someone to believe or not to believe something. The free exercise of religion means the ability to act on those beliefs. To practice our religion in private or in public. To proclaim our religion to others, if we wish. To spend our money in furtherance of our own religion, and not in furtherance of anyone else’s. To promote what we think is moral, and not to promote anything we think is immoral. These are all necessary consequences of the idea of religious freedom.

But religious freedom must be exercised and defended, he argues.  Use it or lose it.  We are at a critical historical juncture.

It’s a bit of a Paul Revere moment. Only this time it’s not the British that are coming. It’s Big Brother. Or, if you prefer, think of Rosa Parks. We can go along and sit quietly in the back of the bus, or we can stand up for human dignity and the rights of conscience. When it comes to our precious heritage of religious freedom, we must either use it or lose it.

At First Things, George Weigel discusses the linkage between two social justice priorities for the Catholic Church in the United States: the defense of life at all stages and in all conditions, and the defense of religious freedom for all.  And at the same site, Ian Tuttle draws on Cardinal Dolan’s new e-book, True Freedom: On Protecting Human Dignity and Religious Liberty, to remind us that men and women of conscience nationwide share a solemn and urgent “Duty to Preserve Religious Liberty.”