The future of religious liberty in America

17 May

From a speech by First Things editor Dr. R.R Reno.  Good read published in Imprimis, from Hillsdale College:

RELIGIOUS LIBERTY is being redefined in America, or at least many would like it to be. Our secular establishment wants to reduce the autonomy of religious institutions and limit the influence of faith in the public square. The reason is not hard to grasp. In America, “religion” largely means Christianity, and today our secular culture views orthodox Christian churches as troublesome, retrograde, and reactionary forces. They’re seen as anti-science, anti-gay, and anti-women—which is to say anti-progress as the Left defines progress. Not surprisingly, then, the Left believes society will be best served if Christians are limited in their influence on public life. And in the short run this view is likely to succeed. There will be many arguments urging Christians to keep their religion strictly religious rather than “political.” And there won’t just be arguments; there will be laws as well. We’re in the midst of climate change—one that’s getting colder and colder toward religion.

Recent court cases and controversies suggest trends unfriendly to religion in public life. In 2005, a former teacher at Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Michigan, filed an employment lawsuit claiming discrimination based on disability. The school fired her for violating St. Paul’s teaching that Christians should not bring their disputes before secular judges. The subsequent lawsuit revolved around the question of whether a religious school could invoke a religious principle to justify firing an employee. The school said it could, drawing on a legal doctrine known as the ministerial exception, which allows religious institutions wide latitude in hiring and firing their religious leaders. It’s in the nature of legal arguments to be complex and multi-layered, but in this case the Obama administration’s lawyers made a shockingly blunt argument: Their brief claimed that there should be no ministerial exception.

The Supreme Court rejected this argument in a unanimous 9-0 vote. But it’s telling nonetheless that lawyers in the Justice Department wanted to eliminate this exception. Their argument was straightforward: Government needs to have broad powers to address the problem of discrimination—in this case disability—as well as other injustices. Conceding too much to religious institutions limits those powers. Why should the theological doctrines of the Lutheran Church—Missouri Synod, or of any other church, trump the legal doctrines of the United States when the important principle of non-discrimination is at stake? It is an arresting question, to say the least—especially when we remember that the Left is currently pushing to add gay marriage to the list of civil rights.

Concerns about the autonomy of religious institutions are also at work in the Obama administration’s tussle with the Catholic Church and her religious allies over the mandate to provide free contraceptives, sterilization, and abortion-inducing drugs. After the initial public outcry, the administration announced a supposed compromise, which has been recently revised and re-proposed. The Obama administration allows that churches and organizations directly under the control of those churches are religious employers and can opt out of the morally controversial coverage. But religious colleges and charities are not and cannot. To them, the administration offers a so-called accommodation.

The details are complex, but a recent statement issued by Cardinal Dolan of New York identifies the key issue: Who counts as a religious employer? It’s a question closely related to the issue in the Hosanna-Tabor case, which asks who counts as a religious employee. Once again the Obama administration seeks a narrow definition, “accommodating” others in an act of lèse majesté, as it were. The Catholic Church and her allies want a broad definition that includes Catholic health care, Catholic universities, and Catholic charities. The Church knows that it cannot count on accommodations—after all, when various states such as Illinois passed laws allowing gay adoptions, they did not “accommodate” Catholic charities, but instead demanded compliance with principles of non-discrimination, forcing the Church to shut down her adoption agencies in those jurisdictions.

Cardinal Dolan’s statement went still further. For-profit companies are not religious in the way that Notre Dame University is religious. Nonetheless, the religious beliefs of those who own and run businesses in America should be accorded some protection. This idea the Obama administration flatly rejects. By their progressive way of thinking, economic life should be under the full and unlimited control of the federal government.

Religious liberty is undermined in a third and different way as well. For a long time, political theorists like John Rawls have argued that our laws must be based on so-called public reason, which is in fact an ambiguous, ill-defined concept that gives privileged status to liberalism. In 2010, Federal District Court Judge Vaughn Walker overturned Proposition 8—the ballot measure that reversed the California Supreme Court’s 2006 decision that homosexuals have a right to marry—citing the lack of a rational basis for thinking that only men and women can marry. “The evidence shows conclusively,” he wrote, “that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.” He continues by observing that many supporters of Proposition 8 were motivated by their religious convictions, which—following Rawls—he presumes should not be allowed to govern public law.

This line of thinking is not unique to Judge Walker. The influence of Rawls has been extensive, leading to restrictions on the use of religious reasons or even religiously-influenced reasons in public debate. In striking down Texas sodomy laws, Supreme Court Justice Anthony Kennedy noted that moral censure of homosexuality has “been shaped by religious beliefs.” The idea seems to be that moral views historically supported by religion—which of course means all moral views other than modern secular ones—are constitutionally suspect.

Here we come to the unifying feature of contemporary challenges to religious freedom—the desire to limit the influence of religion over public life. In the world envisioned by Obama administration lawyers, churches will have freedom as “houses of worship,” but unless they accept the secular consensus they can’t inspire their adherents to form institutions to educate and serve society in accordance with the principles of their faith. Under a legal regime influenced by the concept of public reason, religious people are free to speak—but when their voices contradict the secular consensus, they’re not allowed into our legislative chambers or courtrooms.

Thus our present clashes over religious liberty. The Constitution protects religious liberty in two ways. First, it prohibits laws establishing a religion. This prevents the dominant religion from using the political power of majority rule to privilege its own doctrines to the disadvantage of others. Second, it prohibits laws that limit the free exercise of religion. What we’re seeing today is a secular liberalism that wants to expand the prohibition of establishment to silence articulate religious voices and disenfranchise religiously motivated voters, and at the same time to narrow the scope of free exercise so that the new secular morality can reign over American society unimpeded.

Read the rest here

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