Many people think it’s an exaggeration to claim that religious freedom is under fire in our nation today. Yes, the Department of Health and Human Services issued a mandate that will force employers to provide insurance coverage for contraception, sterilization, and abortion-inducing drugs. And yes, the Catholic Church teaches that facilitating access to these products and services is wrong. But aren’t the Catholic bishops crying wolf, trying to make a mountain out of a molehill?
The answer to that question is a resounding no. The threats to religious freedom in our nation are real, and they’re serious. And things will get worse unless we respond in defense of our rights. The HHS mandate is one example of a larger, disturbing pattern of government disregard for this fundamental right. What is most worrisome is not that laws are being passed that burden the free exercise of religion, but the callousness with which this is being done. In today’s essay I will list some of the many real threats to religious freedom in this country. Tomorrow’s essay will address the moral and legal basis for religious freedom.
Pattern of Threats to Religious Liberty
Kathleen Sebelius, Secretary of the Department of Health and Human Services, admitted that she never seriously considered whether the contraception and abortion-drug mandate would run afoul of the First Amendment—indeed, when questioned about this, she displayed an appalling ignorance of the subject. Obviously, the administration was aware that many people have religious and moral objections to these services—that’s why a religious exemption was included, as is common for laws of this sort. But the exemption to the HHS mandate is the narrowest ever in the history of federal law. The definition of religious organization in the exemption understands religion as a completely insular, private affair. Only religious organizations that primarily employ and serve those of their own faith, and that have as their primary purpose the inculcation of religious belief, are “religious enough” to qualify for this exemption.
On the government’s definition, Mother Teresa’s nuns don’t qualify for an exemption because their ministry serves those in need regardless of religion. The same is true of thousands of Catholic charities, hospitals, schools, and other organizations across the country. As stated in the complaint filed by the Archdiocese of New York, to qualify for the exemption, “Catholic organizations would have to stop asking, 'Are you hungry?' and instead ask, 'Are you Catholic?' before extending services.”
By choosing this extremely narrow definition of a religious organization—and it must have been a conscious choice, because it’s such a radical departure from precedent—the government effectively sends the message that the only sort of religious activity that it will favor and protect is private worship. It effectively denies the fact that the practice of religion cannot be limited to one’s participation in an occasional worship service, but that genuine religious practice necessarily has an impact on one’s broader social, economic, and political activity. In other words, the mandate’s narrow definition of religion sends the message that the government will protect freedom of worship, but not freedom of religion understood as the broader freedom to live in accordance with one’s beliefs.
Human Trafficking Victims
A related example of callously putting the sexual liberation agenda ahead of religious freedom and the real needs of the most vulnerable in our society is the government’s decision to de-fund Catholic Migration and Refugee Services, which until this past fall had been a leading provider of aid to human trafficking victims across the country. A Washington Post article revealed that the decision to direct funding away from the bishops’ conference was made by political appointees at the Department of Health and Human Services. The decision was made despite the fact that staff members in the department had recommended that the bishops’ service receive the grant, based on scores issued by an independent review board. Instead, grants were given to two other groups who had scored so low that they didn’t make the cutoff when evaluated by the independent review board.
The government declined to renew the bishops’ contract because Catholic Migration and Refugee Services won’t provide or refer for contraception and abortion. The victims of human trafficking, who lost the best-qualified provider of aid, suffer the most from this decision. In fact, because the two low-scoring groups weren’t ready to roll on time, hundreds of victims and their families were left without services. Likewise, the people who will suffer if the HHS mandate survives are the sick and homeless and hungry that Catholic charities won’t be able to serve when the government’s crippling fines put them out of business or force them to cut back their operations.
One thing that is particularly troubling about the prevalent government attitudes toward religion is that the idea of separation of church and state has shifted from a legitimate desire to keep the government from entangling itself in the internal affairs of religious organizations, to a justification of anti-religious secularism—pushing religion out of the public square and making life uniquely difficult for religious individuals and organizations. For instance, even worse than HHS’s failure to renew the Catholic Migration and Refugee Services’ contract is the fact that a Massachusetts federal court actually ruled that it would be unconstitutional for the government to accommodate the conscientious objections of religious organizations by contracting with them to provide services while exempting them from the requirement to offer contraception and abortion. They argued that such an accommodation would be tantamount to government establishment of religion, which is clearly a politically motivated opinion that flies in the face of the best precedents in constitutional law and of the common practice of government partnerships with faith-based organizations to help those in need throughout our nation’s history. The bishops have appealed the ruling, largely because it sets a dangerous precedent that would threaten the work of Catholic and other faith-based organizations across the country that cooperate on similar terms with government agencies at all levels.
The disregard for religious freedom, and the narrow view of what counts as religious practice, is also evident in recent immigration laws in Alabama and Arizona. Last August, soon after Alabama passed the infamous House Bill 56 cracking down on illegal immigrants, a coalition of Catholic bishops and Protestant church leaders sued Republican Governor Robert Bentley in Parsley v. Bentley. Church leaders alleged that some of the law’s provisions, such as those that forbid “harboring” illegal immigrants, “encouraging” them to come to Alabama, or “transporting” them, would make it illegal to exercise fundamental aspects of Christian ministry, such as providing immigrants with basic social services, celebrating the sacraments for them, educating them, or giving them a ride to church. And unlike federal immigration laws, these state laws have no exemption for religious ministers.
The U.S. Conference of Catholic Bishops also filed an amicus brief in Arizona v. United States, which was decided in late June. The parts of the Arizona law that were dangerous to religious liberty were struck down on unrelated grounds by the Supreme Court, and the same is likely to happen with the Alabama law as well. Nonetheless, what is troubling is that the states would enact these laws, and enact them without a religious exemption. This, too, reflects a limited and narrow view of religious exercise. It is worth noting that the immigration law cases show that religious liberty is not a partisan issue—the Church defends religious freedom regardless of whether the threats to that freedom come from the right or from the left.
Pharmacists, Police, and Exemptions
Consider also the recent policies imposed in many states to force pharmacists to sell emergency contraceptives—which in some cases work by causing early abortions—including “morning after” and “week after” pills. In Illinois, the governor explicitly stated that the law’s purpose was to stop religion from “stand[ing] in the way of” dispensing drugs and to force pharmacies to “fill prescriptions without making moral judgments.” Pharmacists with religious or moral objections to these drugs should, he said, “find another profession.” Two pharmacists, who each had spent more than twenty-five years building a pharmacy career, decided to sue. The Becket Fund for Religious Liberty, whose lawyers defended the pharmacist, recounts that:
At trial the state was totally unable to support its rule. The state had no evidence of even a single person who had been unable to get the drugs in question. In fact, the evidence showed that there were many neighboring pharmacies willing to sell the products, which were also available over the internet. Worse, the government admitted that pharmacies could avoid this rule for “common sense business” reasons, but not for religious reasons. Refusing to sell the drugs because you want to make more money was allowed; refusing to sell because of religion was not.
Similarly, when the city of Newark, New Jersey issued an order requiring police officers to be clean-shaven, it exempted those who had medical reasons for not shaving. But when two Muslim officers sought an exemption because their faith demands that they wear beards, the city told them to comply or be fired. The officers also brought their case to court.
Both the pharmacists and the Muslim police officers won their cases, but the hostility toward religion exemplified in these regulations—and these are just two instances out of many—should not to be taken lightly. And it’s quite similar to what’s happening with the HHS mandate. Fourteen hundred employers with over 3 million employees—employers ranging from McDonald’s to the Teamsters Union—have received exemptions from the mandate largely for economic reasons. Just like the pharmacy case in Illinois and the police-officer case in Newark, the government is more than willing to accommodate people for a host of non-religious reasons, but when exemptions are sought based on a religious or moral objection, it won’t budge.
I could go on at length giving more examples of growing disregard for religious freedom and the many threats to free exercise of religion in our nation today. But no summary of the dangers to religious liberty currently facing our nation would be anywhere near complete without mentioning how the gay marriage movement, and the gay rights movement more generally, also brings with it a whole host of grave threats to religious freedom. Many people are aware of the fate of Catholic adoption agencies in many places that recognize same-sex unions. In Boston, San Francisco, Washington, D.C., and the state of Illinois, those agencies were shut down because now their unwillingness to place children with same-sex couples is considered illegal discrimination, despite the growing body of social science research that clearly shows that children do better with a mom and a dad.
That’s just the tip of the iceberg. Christian photographers have been sued—and lost—when they refused to photograph a gay wedding; likewise, churches have been sued—and lost—for refusing to rent out their church halls for a gay commitment ceremony. A U.S. District Court in California deemed religious speech expressing disapproval of homosexual acts as an infringement on the rights of other students. And a Massachusetts Court of Appeals said that public schools can teach children that homosexual relations are morally good even if the parents object. The same has occurred with mandatory sexual education regulations for the New York City public schools—the recommended curriculum clearly aims at the normalization of homosexuality, among other things—as well as mandatory “anti-bullying” campaigns in schools throughout the country and the recent California law requiring all public schools to teach “gay history.”
Basically, the gay marriage movement wants to "make gay the new black,” to make sexual orientation exactly the same as race, as the California Supreme Court has explicitly stated. And since in contemporary jurisprudence racial equality trumps religious liberty in cases of conflict, that’s very bad news for religious freedom. So it’s no surprise that two Christian doctors in California who refused to artificially inseminate a woman in a lesbian partnership lost a discrimination lawsuit brought by the women they refused to serve—in spite of the fact that the doctors even paid for a referral to other fertility specialists who then administered the treatments.
The implications of the new “civil rights” and “non-discrimination” laws being passed to protect gay rights are far-reaching. People who oppose same-sex marriage may effectively find themselves barred from many professions—such as law, medicine, psychology, counseling, or teaching—because they will be unable to get state licenses unless they affirm the moral equivalence of marriage and same-sex relationships.
In England, for instance, a Christian couple—with a stellar record of fostering children in the past—was denied a foster parenting license because, when asked what they would do if the five-year-old they were going to foster developed same-sex attractions, they replied that they would love the child but not encourage him to act on such desires. The agency decided that the couple’s “anti-gay prejudice” made them unfit to be foster parents. When the couple fought the decision, the judge ruled that state must protect vulnerable children from being “infected”—that precise word was used—by Judeo-Christian values on sexual morality.
In the United Kingdom all of these problems that began with human rights and equality and anti-discrimination legislation back in 1998—those who sounded the warning bell early on, arguing that these laws were going to lead to religious freedom violations—were laughed at. Now, when a 69-year-old street preacher in the UK stands peacefully holding a banner that says “Stop homosexuality. Turn to Jesus,” and a crowd of thirty young people assault him, the police arrest the 69-year-old and he’s convicted of a hate crime, while his assailants get off free.
So we need to be very wary of attempts to pass such laws in the United States. Right now two (at least) are being pushed in Congress. The Employment Non-Discrimination Act would raise sexual orientation to a protected status, like race, for the purposes of employment non-discrimination laws. Many schools, universities, day cares, shelters, and other institutions would not be exempted. That means, for example, that a Catholic school would have to hire a gay teacher openly living a lifestyle in contradiction to Catholic teaching. Similarly, the Student Non-Discrimination Act would make “harassment” on the basis of sexual orientation illegal in schools, and harassment would of course be read to include any speech expressing a negative moral judgment of homosexual acts—as we’ve seen already in the California and Massachusetts court cases mentioned above. Of course, it sounds horrible to be against a non-discrimination law. And indeed it’s terribly wrong, and deeply un-Christian, to treat people unjustly or harass or bully them just because they experience same-sex attraction. But what these so-called non-discrimination laws want to do is to make illegal the expression of respectful disapproval of the gay lifestyle, of actions that one believes are immoral regardless of who performs them—and that’s another matter entirely.
One hopes it is now clear that threats to religious freedom in this country are indeed real and serious, and they will get worse unless we make a concerted effort to stop them. In tomorrow’s essay, I will switch gears and explain the basis of religious freedom both legally and morally.
Melissa Moschella recently earned her PhD in politics from Princeton University.