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[Guest post] Religious Liberty and the Constitution

In this space, my friend @Nadz posted an interesting commentary entitled Tax The Churches. The ongoing discussions have been quite lively, and I've been following them with great interest. Since I also have some views on the subject, I thought I'd add my two cents to the collection plate.

Recently, Daniel Jenky, the bishop of Peoria, Illinois, did not hesitate to play the persecution card in the dispute with the Obama administration over required health insurance coverage of birth control. Evoking the history of "terrible persecution" of the Church, he said: "Hitler and Stalin would not tolerate any competition with the state in education, social services and health care. Barack Obama — with his radical, pro-abortion and extreme secularist agenda — now seems intent on following a similar path." In an effort to clarify the statement, a diocese spokesperson said, "We certainly have not reached the same level of persecution. However, history teaches us to be cautious once we start down the path of limiting religious liberty." (She did not explain just what the bishop regarded as the Church’s current "level of persecution" by the administration.)

Jenky’s remarks are only a bit more extreme than standard rhetoric from bishops and other conservative Catholics, who now routinely talk of an "attack" or "war" on religious liberty. Are things really this bad? Or are we seeing a perhaps politically motivated "tempest in a holy water fount? To get some perspective, let's take a look at the main rational arguments — as opposed to rhetorical appeals — that the bishops and their supporters put forward.

The argument is based on the right of conscience. It agrees that all employees of a Catholic organization have a right in conscience to practice birth control, but that the organization also has a right in conscience not to pay for (or otherwise facilitate) the practice. The nub of the argument is that an organization’s not offering birth control as part of its health insurance does not take away an employee’s right to birth control; it would at most make it a bit more difficult to obtain. By contrast, the administration’s requirement that the organization offer birth control coverage does eliminate, in this case, its right not to support the practice.

This argument makes a valid point, but omits the rights of a third party: the government, which has a right (and duty) to set up rules for the common good of the nation. In some cases, this right takes precedence over the rights of conscience. The government has the right, for example, to force people to serve in wars they think are unjust or pay taxes to support activities like birth control that they think are immoral. Organized religions have, in our system, greater rights to conscientious exemption than individuals, but there is no absolute immunity that keeps a religion’s claim of conscience from being trumped by the government’s right to "provide for the general welfare." Once we take account of the government’s right, we see that this argument does nothing to show that Catholic organizations' rights outweigh the rights of the government in this case.

This argument correctly points out that the government — in the sense of the executive branch — should not be the sole judge of what rights of religious freedom a particular religiously affiliated organization may have. But it is equally wrong to claim, as the argument suggests, that the Church itself should be the ultimate arbiter of its own claims. Nor does it make sense to claim that every effort of the government to restrict religious rights should be rejected on the grounds that it is a step toward the total undermining of religion. One could just as well argue that every restriction on individual liberty is a step toward totalitarianism.

This argument expresses the main case made by Catholic bishops and their supporters against the Obama administration’s birth control mandate. They correctly assert two basic truths: that religious people and institutions have rights to act according to the dictates of conscience, and that there are limits on the government’s right to interfere with those rights. But they ignore the complex question of how to balance the right of government to do its job of promoting the general welfare against the right of religious believers to be true to their consciences. They fail to show that, in this case, the government is wrong. At best, the arguments show that there is a need to ask the courts to resolve these complex questions.

There may be a cogent case against the government’s position. But there is no slam-dunk appeal to outrageous violations of the First Amendment, such as genuine instances of persecution or a war on religion would provide. Rather, there are arguments based on complex (and contestable) legal considerations — for example, interpretations of the 1993 Religious Freedom Restoration Act — turning on the question of what sort of burden of proof the government has to show that its requirement is necessary to achieve its legitimate goal. The bishops may have a viable legal case against the Obama administration. But they have no case for a call to the barricades.

Posted at 15:50 by Rich Stelt   [/guest/rich]   Comments | Perm Link |
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