Uphold Conscience Protection: Religious Freedom’s Contribution to the American Experience and Threats to its Survival

 
 

Religious communities are an essential part of the fabric of America, even over and above the vital services they provide to weak and vulnerable members of our communities; we must protect their conscience rights against legal coercion.

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It is impossible to understand the American experiment without understanding the role that the free exercise of religion has played in our nation’s founding and in its flourishing. We are not a people who have merely “tolerated” religious commitments as eccentricities or only upon the condition that they remain hidden from public view. Rather, we have understood the debt our nation owes to fundamental principles of human rights that have their origins in overlapping theological and philosophical commitments. Particularly today, we know how religion plays a role in securing the family life that provides an irreplaceable foundation for a healthy, prosperous, well-formed citizenry.

We are also grateful to religious institutions for providing services to our most vulnerable citizens, services that government cannot duplicate, because of the thick moral commitments that suffuse them. We understand, too, the role that religion plays in inspiring untold numbers of daily, private interactions that law could neither effectively command nor police, but that are essential for creating a society in which human beings’ intrinsic dignity is both recognized and served. Finally, we recognize the prophetic role that religious institutions and persons have played during our history, when they have identified human rights’ violations and called for both a change of heart and changes in the law.

At the time of our founding, Thomas Jefferson wrote that “Almighty God hath created the mind free. ... All attempts to influence it by temporal punishments or burthens ... are a departure from the plan of the Holy Author of our religion.” He also wrote that the “moral duties which exist between individual and individual in a state of nature accompany them into a state of society, ... their Maker not having released them from those duties on their forming themselves into a nation.” In other words, God has entrusted human beings, alone and in society, with the crucial task of seeking the truth and of living in accordance with it. The state has no authority to interfere with or to direct this pursuit. Our founders’ convictions about religious freedom found their way into our Constitution as the First Amendment of our Bill of Rights.

Over the course of our history, Americans came to understand that the state’s lack of jurisdiction over questions of ultimate meaning entailed not only allowing individuals to believe privately in a transcendent reality, or to worship as they believed, or even to pray privately and perform good works. Rather, it also entailed recognizing that religion is also exercised in the form of associations that provide services to vulnerable citizens of every background in accordance with religious principles. Throughout American history, religious citizens were not only permitted, but even encouraged, to let their religious convictions inform their work, and their contributions to public debates were understood to have important consequences for our understanding of human rights and dignity.

Americans have also historically recognized religious providers’ valuable contributions in the areas of education, healthcare, and general social services. Religious ministries often lead the way in reaching out to the most unpopular or invisible groups, whether persons with AIDS, immigrants, poor single mothers, the severely disabled, or the dying. Ironically today, these ministries are branded as bigoted and misogynistic by interest groups claiming “rights” to sexual expression of any sort, while these same ministries labor daily to piece together the lives of those directly harmed—whether by sexually transmitted disease, non-marital pregnancies, or abortions—by the exercise of such “rights.”

Institutional religious ministries also serve another valuable function, less often noticed. They act as a force for assimilation, through their services to new immigrants and inner-city students, and in their hiring and serving people who do not share their faith affiliation, especially in their healthcare and social service ministries. In their encounters with millions of diverse clients, these ministries bring invaluable wisdom about human needs to the public policy table on many issues such as healthcare, abortion, post-abortion distress, marriage, euthanasia, immigration, poverty, war, and the moral guidelines for scientific research.

Despite this record of accomplishment, religious individuals and institutions are threatened today by various social and legal forces. First, it seems that both citizens and leaders often forget or take for granted the crucial role that religious freedom has played in our nation’s founding and flourishing. We no longer clearly grasp the relationship between our enjoyment of social peace and prosperity and our long tradition of religious freedom.

Second, among elite academic and media voices, there seems to be a particular animus against Christian adherence to classical norms regarding the dignity of the human person in connection with sex, marriage, and the family. Christians have been especially condemned for their staunch refusal to agree that abortion is a “right,” for their insistence that children’s interests—not adults’—should guide marriage law, and for their refusal to accede to the trivialization of sex and the degradation of women implicit in governments’ approach to birth-control distribution and sex education. Leading Supreme Court opinions, as well as federal statutes and regulations, are more inclined than ever to posit the existence of a “right” to any form of sexual expression, on the grounds of either “privacy” or “equality.” This increasingly aggressive stance is often the cause of the most virulent attacks upon religious freedom.

Third, during the passage of the 2010 health care law (the Patient Protection and Affordable Care Act or PPACA), longstanding, bipartisan agreement to shield the religious freedom of healthcare providers—especially where abortion is concerned—broke down. Democrats in the Senate and then in the House either proposed or ultimately acceded to conscience provisions significantly weaker than those available in past federal laws. Very recently, the Obama administration realized religious institutions’ worst fears by mandating all forms of birth control, and some forms of abortifacient drugs, as mandatory “preventive healthcare” services under the PPACA. Under this regulation, religiously affiliated healthcare institutions that attempt to hire or serve people of other faiths are denied conscience protection. It is almost unnecessary to point out the irony, the shortsightedness, even the cruelty, of such a denial.

Fourth, in the struggle over same-sex marriage, some lawmakers are increasingly hostile to moral and practical arguments about the unique goods intrinsic to opposite-sex marriage, and to citizen demands for conscience protections. It appears that lawmakers are responding more to cultural and media elites who express overt hostility to religion, or they are simply confused about the true meaning and purpose of marriage and the family. Some groups and politicians supporting same-sex marriage brand religious ministries to the poor and vulnerable as “bigotry” and threaten the very existence of those ministries, during a time when the government would be hard-pressed to fund additional services itself. Witness the harassment, and in some cases termination, of Catholic adoption agencies that refuse to pair children with same-sex couples.

Fifth, the expansion of state power, combined with a “creeping” notion of human or civil “rights,” also jeopardizes religious freedom today. Government regulation has spread to nearly every sphere of life and thus imposes more constraints upon a wide variety of religious ministries. At the same time, “rights” language is increasingly applied to human “wants” rather than “needs.” It is used to promote individualism and particular ideologies, rather than universally recognized attributes of human life or dignity. This increase in regulation, combined with “rights creep,” leads directly to refusals to grant religious exemptions, on the ground that people have human “rights” to consensual sexual expression with any other person, or to kill an unborn child, and that “rights” do not permit exemptions for the sake of conscience.

All of these forces are combining to threaten religious freedom at a time when we can ill afford to lose the unique voices and contributions of religious citizens and institutions. Objections to religious freedom on the grounds that religious behaviors and services are “eccentric” or “dangerous” or “against human rights” are contradicted by our historical experience with religious freedom. Furthermore, citizens and lawmakers are quite capable of distinguishing between claimed religious messages or behaviors that might threaten human lives or the common good (e.g., human sacrifice) and those that are merely different means to a good end (e.g., exhortations to practice sexual restraint, or to preserve the centrality of children’s well-being in marriage law). On the grounds of preserving peace and prosperity, strong families, and a robust network of private charitable institutions, and on the grounds of resisting the totalizing inclinations of government, federal and state laws protecting religious voices and ministries—in health care, education, and especially family life—must be enacted and enforced today.

The health of religious freedom in the United States is in large part entrusted to the Congress, to the president, and to state governments. In the near term, our lawmakers need to ensure the passage and enforcement of legislation that at the very least:

  • Fixes the PPACA to provide conscience protection for all health care providers, sponsors and insurers.
  • Enables religious ministries to continue to operate in accordance with their religious conscience to provide the kinds of educational, health care, and other social services to the vulnerable communities they serve.
  • Requires all entities receiving government funds to avoid discrimination on the basis of religious conscience.

A more generous disposition toward religion would be even better—better not only for religious citizens and ministries, but better for the most vulnerable Americans, for American families, and for the nation’s future. For a genuinely healthy national future—for a future in which America nurtures healthy children, personal and group initiative, and volunteerism, while avoiding stultifying bureaucracy and governmental totalism—it is imperative that the next president and next Congress have a firm and intelligent grasp on the real blessing that is our tradition of religious freedom.

Helen Alvaré is an associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute. This essay is part of the 2012 Election Symposium. Read all of the entries here:

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