In today’s increasingly secular society, the threat to religious freedom comes not at the point of a sword, but from imposed values at odds with the truth that there is a Creator who has given us certain inalienable rights that government is supposed to secure, not supplant. People of faith in America may not be seeing squads of soldiers pounding on their doors in the dead of night, demanding that they renounce their faith or be dragged off. But they are being confronted by lawmakers, bureaucrats, regulators, human rights commissions, and even college deans demanding that they submit to so-called “neutral laws of general applicability” that venerate such concepts as toleration, non-discrimination, and “choice.”
“And it’s okay,” say these modern arbiters of twenty-first century enlightenment, “if you don’t want to comply.” But the catch is that you won’t be able to earn a living in your chosen profession, or you may have to pay a fine, or your club or association or church will simply have to meet somewhere else away from the rest of “polite society.”
Yes, today’s barbarians seek not to end the free exercise of religion with a single knock-out blow, but rather to strangle it until it either cries “Uncle” or suffocates.
In this essay I offer a quick overview of how today’s threats to our religious freedom play out in the issues of life, marriage and sexuality, and the freedom of association.
The key targets of the Left with respect to the rights of conscience in the health-care field have been nurses and pharmacists who object to being involved in abortions or providing contraceptives, including possible abortion-causing drugs, because of their deeply held beliefs that pre-born lives are sacred.
In Illinois, just last month, a state court of appeals upheld the right of some pharmacists to refuse to provide the Plan B contraceptive, which is believed to be a possible abortifacient. Although Illinois has a “right of conscience” statute covering pharmacists, you may recall that former Governor Blagojevich issued a mandate ordering pharmacists to provide Plan B, and if they had religious objections to doing so, they should “find another profession.” The Illinois courts disagreed.
In the state of Washington earlier this year, a federal district court found a free exercise violation in that state’s attempt to enact rules that would force pharmacists to likewise provide Plan B and other drugs in violation of their conscience rights. The trial judge noted the close cooperation between the governor’s office, the state pharmacy board, and Planned Parenthood to create a rule whose “predominant purpose” was to “stamp out the right to refuse.”
Nurses with religious objections to participating in abortion procedures at state-owned or state-supported hospitals have also been threatened with loss of their jobs. In one case from Mt. Sinai hospital in Brooklyn in 2009, a nurse was required to assist in an abortion procedure against her conscience, and the federal courts denied her any legal remedy whatsoever. A state lawsuit is pending. In another case arising at the University of Medicine and Dentistry of New Jersey in 2011 involving 12 pro-life nurses, it took the quick action of the Alliance Defending Freedom (ADF) to stop the strong-arming by hospital administrators.
Most disturbing of all, the federal government has now taken a prominent role in threatening religious conscience rights on a nationwide scale. The Secretary of Health and Human Services has issued what has become known as the “HHS mandate”—a definition of the “preventive services” under the 2010 law known as the Affordable Care Act. The HHS mandate requires most employers to provide employee health plans that include coverage for sterilizations, contraceptives—including Plan B, Ella, and other possible abortion-causing drugs—and even abortion counseling. The mandate includes only a weak “religious” exemption from the mandate’s requirements that appears to cover only churches, leaving most other religious institutions, religious non-profits, and secular for-profit businesses under compulsion to comply. Heavy fines await those employers who refuse to comply.
The mandate’s deadlines for compliance (the first of which passed on August 1, 2012) have forced religious employers of all types to initiate lawsuits seeking protection for their conscience rights. Already over 30 lawsuits have been filed involving over 90 plaintiffs. Rather than recognize the overwhelming tide of objections to the mandate’s impact on conscience rights, the Administration has doubled down, filing motions to dismiss these lawsuits on standing or ripeness grounds.
In the case of one secular company, however, the administration’s hardball litigation tactics have proven ineffective. Hercules Industries is a Denver heating and air conditioning company owned by a Catholic family and run according to the owners’ faith principles. The owners object to the mandate’s sterilization and contraceptive requirements, which violate Catholic doctrine. The company was able with ADF’s help to obtain an injunction this past July against the mandate’s enforcement, at least on a temporary basis as the company’s lawsuit proceeds. The government argued that a secular company, such as Hercules, by definition “cannot engage in religion,” even though the owners’ faith principles are evident throughout the company’s corporate documents and policies. Federal district court judge John Kane called the question of a corporation’s religious rights an “issue of first impression,” but if it is resolved in Hercules’s favor, the judge held that the mandate would likely violate the federal Religious Freedom Restoration Act. Passed overwhelmingly by Congress in 1993, RFRA prohibits the federal government from imposing a substantial burden on the free exercise of religion unless it has a compelling interest, and the burden is imposed using the least restrictive means available.
As more employers face compliance deadlines or monetary penalties, and the administration refuses to budge on the mandate, look for even more legal challenges to be filed.
Marriage and Sexuality
In the area of marriage and family, there is no doubt but that the increasing proliferation of so-called non-discrimination laws, civil unions, and same-sex marriage has resulted in the denial of religious liberty. Just ask Catholic Charities, which, since 2006, has chosen to get out of the adoption business in Boston, Washington, DC, San Francisco, and Illinois rather than be forced to place children with same-sex parents as required by the laws of those jurisdictions.
In New Mexico, a husband and wife photography business was fined over $6,600 for refusing, on religious grounds, to photograph a lesbian commitment ceremony. Although New Mexico has neither same-sex marriage nor civil unions, the state’s Human Rights Commission held that the couple violated the state’s non-discrimination laws that cover sexual orientation, and refused even to consider the couple’s religious liberty claims. That case is currently at the New Mexico Supreme Court after losing in two lower courts, and I’m hopeful that ADF is going to pull out a victory there.
In New Jersey, a United Methodist facility known as Ocean Grove Camp Meeting Association was similarly charged with violating the state’s non-discrimination laws for refusing to host a civil union ceremony in its beachfront pavilion in 2007. That case is still ongoing, but part of a state tax exemption was also revoked from the facility for its action. Take note of the tax exemption issue. If same-sex marriage becomes the law of the land by edict of the Supreme Court next year, watch to see what happens down the road to the 501(c)(3) exemptions of those organizations whose beliefs and practices contradict the new reality.
In Vermont, Illinois, Hawaii and elsewhere, bed and breakfast inns run by people of faith have been targeted for discrimination complaints and lawsuits because the owners have refused to rent rooms or facilities for civil union or same-sex marriage events.
Freedom of Association
The federal courts’ recent treatments of associational freedoms focus on religious groups on college campuses as well as the rights of churches to meet in public buildings and hire their ministers without government interference.
Public colleges and universities have for a long time been a hotbed of political correctness. Whether it’s out and out hostility to religion by professors, or speech codes, or disputes over campus club membership restrictions, there is no end to the possibilities for attacks on religious freedom on campus.
In 2010, the Supreme Court got involved in a case over the associational rights of the Christian Legal Society (CLS) at the UC Hastings College of Law involving the club’s requirements concerning biblical belief and sexual behavior outside of the biblical definition of marriage. An LGBT group on campus complained, and the university then denied CLS official recognition. Although the facts and legal arguments are too detailed to present here, the bottom line is that the Court upheld what is called an “all comers policy” that the University had imposed on its campus clubs: all comers, regardless of whether they agree with a club’s foundational principles or not, must be allowed to join and even run for leadership positions. Since CLS could go off campus and enjoy all the associational freedom it desired, Justice Ginsburg held, its First Amendment rights were not violated. Being “banished” from campus life now seems to be the price for exercising your freedom of religion.
The Bronx Household of Faith has been in a long-running battle with the New York City Board of Education over the rental of public school facilities on weekends for church services. New York receives about 10,000 requests from community groups each year to rent out school facilities for evening and weekend events. Since the early 1990s, the City has been doing its best to deny churches the right to meet in its schools, alleging supposed “separation of church and state” problems. For about 17 years and counting, ADF has been defending this poor little neighborhood church against the ever-changing policies and arguments of the Big Apple. The church has lost in court on its viewpoint discrimination claim, but policy changes over the years now mean that though the City could still win under the free speech clause, it could lose under the “free exercise” clause of the First Amendment, according to a federal district court judge's recent ruling. Stay tuned.
Finally, last January, in Hosanna-Tabor Evangelical Lutheran Church and School vs. EEOC, the Supreme Court unanimously rejected the federal government’s incredibly wrong-headed argument that the First Amendment religion clauses do not protect a church’s ministerial hiring decisions. Chief Justice Roberts charitably referred to the government’s argument as “untenable” and “remarkable.”
In a world where the government believes that the First Amendment’s religious freedoms don’t apply to churches, religious organizations, non-profit and for-profit businesses, health-care providers, and anyone outside the four walls of a church building, we are all at risk. In a world where such people and organizations are relegated to second-class status off campus, or told to find a different line of work, or find a sign on public facilities that says “religion not welcome here,” we have entered an era not of tolerance, but intolerance.
On a hopeful note, we should thank legal organizations like ADF for defending us against the rising tide of laws, regulations, and policies that have the effect of infringing our religious freedoms. But we can’t leave it all up to them. We need to link arms and do the necessary grassroots-level work necessary to shore up our religious freedom at national, state, and local levels.
Bruce Hausknecht is the judicial analyst for CitizenLink, the policy arm of Focus on the Family.