Taking Liberties with “Religious Liberty”

by Maura Jane Farrelly

The U.S. Conference of Catholic Bishops has established a new Ad Hoc Committee on Religious Liberty – born from the conviction that religious liberty in the United States is being “compromised” by liberal lawmakers, and that it is in danger of becoming a “second-class right.”

According to Washington Post columnist E.J. Dionne, the bishops' primary concern is with a recent decision by the Department of Health and Human Services to require private health insurers to pay for prescription contraceptives – including the so-called “morning after pill,” which critics say is really just an “abortion drug.” The HHS was tasked with making this decision as part of the new health-care overhaul law, and the department did include an exemption for those insurance plans that have been purchased by “religious employers.” But according to Dionne, “the exemption was so narrow that it largely left out Catholic hospitals, universities and other church-affiliated institutions.”

The HHS announcement is, indeed, troubling, and the Catholic bishops have every reason to demand that Church-purchased plans be exempted fully from the requirement. The truth, though, is that the bishops' new committee on religious liberty is about much more just contraception and the Patient Protection and Affordable Care Act – which the U.S. Conference of Catholic Bishops opposed. Laurie Goodstein at the New York Times was more accurate when she told her readers that the bishops had “opened a new front in their fight against abortion and same-sex marriage” by “recasting their opposition as a struggle for 'religious liberty' against a government and a culture that are infringing on the church's rights.”

But the bishops are recasting more than just their opposition to homosexuality and same-sex marriage; they are attempting to recast our collective understanding of what religious liberty is. In 1689, John Locke insisted that liberty of conscience could be maintained only when the civil magistrate recognized that his power “extends not to the establishing of any articles of faith or forms of worship” and that “every man's soul belongs unto himself and is to be left unto himself.” It is this reasoning that stands behind both the Establishment and the Free Exercise clauses of our First Amendment.

The bishops, however, are claiming more than just that lawmakers are failing to leave every Catholic's soul “unto himself,” and that a handful of states “established” a creed, of sorts, when the states legalized same-sex marriage. Indeed, the bishops have made it clear that their understanding of religious liberty goes beyond the question of establishment or free exercise to include the obligation of support.  

Under the aegis of “religious liberty,” they have claimed that Catholics' rights were violated when Massachusetts, Illinois and the District of Columbia eliminated funding for Catholic Charities' adoption services and canceled foster-care contracts with the organization. Catholic Charities does not place children with same-sex couples who are legally recognized as married or civilly-joined in those states.

The bishops also claim that Methodists' rights were violated when the state of New Jersey eliminated the tax-exempt status of the Ocean Grove Camp Meeting Association, because the group will not rent its facilities out for legally-sanctioned same-sex civil union ceremonies. Association leaders estimate that the loss of the tax-exemption will cost the group $20,000 annually. Finally, the bishops have hinted that the Obama Administration is violating religious liberty when it encourages relief organizations that receive funding through USAID – organizations like Catholic Relief Services – to offer HIV prevention programs that include the distribution of condoms.

Does the “free exercise” clause really mandate tax exemptions for religious organizations? Does religious liberty require that a state contract that is offered to one religious group be offered to all religious groups, even those groups that subscribe to a belief system that denies the validity of the civil law? These are questions that I would like to see the American news media engage – particularly since Freewill Baptists in Pike County, Kentucky, voted last week to bar an inter-racial couple from membership in their congregation, as reported on this blog. Although the Sandy Valley Conference of Freewill Baptists eventually voided the decision because not everyone in the congregation had participated in the vote, a question still lingers: Should a church with racist beliefs lose its federal tax exempt status, since under the provisions of the 1964 Civil Rights Act “no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance”?

It would be nice to see E.J. Dionne — along with other journalists — pose that question to the U.S. Conference of Catholic Bishops' Ad Hoc Committee on Religious Liberty.

Maura Jane Farrelly is Assistant Professor of American Studies and Director of the Journalism Program at Brandeis University. In the past, she was a reporter for Voice of America and Georgia Public Radio. Her first book, Papist Patriots: The Making of an American Catholic Identity, was recently published by Oxford University Press.

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