How the contraceptive mandate and re-definition of marriage affect freedom of religion
Questions and answers about religious liberty
Monday, July 1, 2013
*US Conference of Catholic Bishops
This is the second of a two-part blog taken from educational materials prepared by the U.S. Conference of Catholic Bishops. This is the second year the bishops have asked Catholics to observe the Fortnight for Religious Freedom, beginning June 21 and concluding July 4. The box lists the Fortnight for Freedom events taking place in archdiocesan parishes.
Why does the mandate to cover sterilization and contraceptives, including abortion-causing drugs, violate religious liberty?
In short, it is the element of government coercion against conscience, and government intrusion into the ordering of Church institutions. As Archbishop William Lori of Baltimore, USCCB Chairman of the Ad Hoc Committee for Religious Liberty, testified to Congress: "This is not a matter of whether contraception may be prohibited by the government. This is not even a matter of whether contraception may be supported by the government. Instead, it is a matter of whether religious people and institutions may be forced by the government to provide coverage for contraception or sterilization, even if that violates their religious beliefs." (Oral Testimony Before the Judiciary Committee of the U.S. House of Representatives, Feb. 28, 2012.)
Little Flower Church in Coral Gables, St. Gregory Church in Plantation and St. Patrick Church in Miami Beach kicked off their Fortnight for Freedom celebrations with Masses and adoration June 21 and 22. Upcoming events include:
- Little Flower, 2711 Indian Mound Trail, Coral Gables: candlelight vigil Wednesday, July 3, at 7:30 p.m. For information call Jena Getchell, 786-484-3367.
- St. Gregory, 200 N. University Drive, Plantation: candlelight ceremony for religious freedom, Wednesday, July 3, 8 p.m. For information call Mary Sturm, 954-851-3345.
- Discrimination against small church congregations: In 1994, New York City's Department of Education (DOE) denied the request of the Bronx Household of Faith and sixty other churches to rent space from public schools on weekends for worship services, even though non-religious groups could rent the same schools for scores of other uses. The City has been investigating what the churches do in the public schools and has made its own assessments of whether the meetings constituted a "worship service" or not. In June 2012, a federal district court issued a permanent injunction, ruling that the City's policy violated the Free Exercise Clause and the Establishment Clause of the U.S. Constitution. While the DOE's discrimination would not frequently affect Catholic parishes, which generally own their own buildings, it would be devastating to many smaller congregations. It is a simple case of discrimination against religious believers.
- Christian students on campus: In its over-100-year history, the University of California Hastings College of Law has denied student organization status to only one group, the Christian Legal Society, because it required its leaders to be Christian and to abstain from sexual activity outside of marriage.
- Religious speech in the public square: In Minneapolis, the city's Park and Recreation Board effectively exiled a group of Christians handing out Bibles during the Twin Cities Pride Festival to an isolated "no pride zone"—a remote and virtually untraveled corner of the city park where the festival was taking place. In Phoenix, a local resident was told that, in order to informally share his Christian faith at South Mountain Community College, he would have to pay a fee, take out special insurance, and give the school two weeks' notice. In Cheyenne, members of the Wyoming State Building Commission have complied with a federal court order by admitting they unconstitutionally violated the free speech rights of WyWatch Family Action by first approving, then removing the group's pro-life signs from a gallery at the state capitol. However, officials then began seeking other ways to silence pro-life speech, including prohibiting all outside groups from participating in the gallery.
- Religious worship in one's own home: A Santeria priest in Texas was unable to perform certain religious rituals in his own home because of discriminatory state action. In an important ruling under the Texas Religious Freedom Restoration Act, a unanimous panel of the U.S. Court of Appeals for the Fifth Circuit found in favor of the Santeria priest. The court held that city ordinances forbidding the slaughter of certain animals prevented the Santeria priest from performing ceremonies essential to his faith, causing a substantial burden on his religious exercise.
- The ministerial exception: The U.S. Department of Justice (DoJ) attempted to undermine religious liberty in Hosanna Tabor v. EEOC, by attacking the "ministerial exception." The ministerial exception allows religious organizations the right to choose their own ministers without government interference. The DoJ could have taken the position that the ministerial exception, though generally providing strong protection for the right of religious groups to choose their ministers without government interference, didn't apply in the case before the court. Instead, DoJ needlessly attacked the very existence of the exception, in opposition to a vast coalition of religious groups urging its preservation through their amicus curiae briefs. Fortunately, the Supreme Court in a 9-0 decision agreed with religious groups in reaffirming the ministerial exception and rejecting DoJ's position as "extreme," "remarkable," and as having "no merit."
Current Concern: HHS mandate
Under the Administration's "compromise," the Church does not have to pay for those services. Why does this not satisfy church concerns?
The Administration's central claim is that contraceptive services are "free" because they save money on childbirths that enrollees in the plan would otherwise have – but that just means premiums paid by a religious organization for live births will pay for contraception and sterilization instead. A proposed "accommodation" for religious organizations covered by the mandate, while not in final form, offers to have insurers or other third parties impose the objectionable coverage – but this only deprives the employer of the ability to provide coverage to its employees that is consistent with its values, and it disregards the conscience rights of both insurers and employees.However the funding is worked out, the simple offer of health coverage by a religious employer will become the "trigger" for ensuring that all its employees receive morally objectionable services in their health plan.
Is this an effort to deny women access to fundamental reproductive services?
Access to contraceptives is already widespread. The great majority of employer-sponsored health plans already include contraception, and even without coverage, birth control pills can be obtained at low cost. The relevant question is whether religious organizations should be forced to facilitate the provision of services that are in direct violation of their teachings, in disregard of the First Amendment and federal laws respecting religious freedom.
Many young women say they can't afford to pay for birth control and these other medical services. Is the Church position discriminating against poor women?
Not at all. This is not about health coverage for the unemployed, or for those who must rely on the government for coverage (for example, by Medicaid). It is about people who are employed by the Catholic Church and its various ministries, which are typically generous in the health benefits they provide to their employees. Those who choose to work for the Catholic Church—and no one is forced to do so— know that they are working for a community with its own guiding mission and values, and many work for the Church precisely for that reason. It is unreasonable to expect the Church to violate its own teachings by facilitating and funding sterilization, abortion-inducing drugs, and contraception. As Archbishop Lori testified before Congress, this would be like coming to a kosher deli and demanding to be served a ham sandwich.
The vast majority of Catholics practice artificial birth control. Some argue that the church is out-of-step with modern family realities?
Again, the issue isn't whether individuals practice artificial birth control. Our teachings may not be popular, but that doesn't mean that the State can force us to violate our own teachings in our own institutions.
Some argue that the issue is about fairness and equity between men and women. Many of these insurance programs cover Viagra for men, but not protection for women. Isn't that hypocritical?
Viagra is not a contraceptive for men, so that's not a valid comparison. In fact, the HHS doesn't mandate men's contraceptives or vasectomies either. The relevant issue is whether the State should force the Church to violate its profoundly held beliefs.
Aren't you making too much of this "religious freedom" issue?
Religious liberty is a cornerstone of our democracy. The HHS mandate fundamentally alters the fragile balance between government and religious groups created by the framers of our Constitution. The same First Amendment that protects religious freedom protects freedom of the press. We wouldn't stand for the State telling newspapers or news programs what to write or whom to interview.
The HHS mandate has become a major political issue. Does opposition to the mandate put the church in league with the Republicans?
This is a bipartisan issue that affects all Americans. Legislation to correct this problem has enjoyed bipartisan support in both houses of Congress. We are asking all citizens—Democrats, Republicans, Independents, people of any faith or none at all—to let their views be known to all their elected representatives and to stand up for religious freedom and the First Amendment.
Current Concern: Redefining Marriage
How are marriage and religious liberty connected?
Marriage (the union of one man and one woman as husband and wife) and religious liberty are two distinct goods that are also related to each other. The protection of each good follows from the duty to protect the inviolable dignity of the human person. But even more directly, the legal protection of marriage as the union of one man and one woman also protects the religious freedom of those who adhere to that vision of marriage.
How could changing the legal definition of marriage have any effect on religious liberty?
Changing the legal term "marriage" is not one change in the law, but rather amounts to thousands of changes at once. The term "marriage" can be found in family law, employment law, trusts and estates, healthcare law, tax law, property law, and many others. These laws affect and pervasively regulate religious institutions, such as churches, religiously-affiliated schools, hospitals, and families. When Church and State agree on what the legal term "marriage" means (the union of one man and one woman), there is harmony between the law and religious institutions. When Church and State disagree on what the term "marriage" means (e.g., if the State redefines marriage in order to recognize so-called same-sex "marriage"), conflict results on a massive scale between the law and religious institutions and families, as the State will apply various sanctions against the Church for its refusal to comply with the State's definition. Religious liberty is then threatened.
But would ministers really be forced to officiate at the "wedding" of two persons of the same-sex?
This question is a red herring. In other words, it is a false caricature of the real concerns about religious liberty, and is actually used to distract from the real concerns.It is unlikely in the extreme that the State will force ministers and churches to officiate same-sex "marriage" ceremonies, although it is easily foreseeable that many church ministers and communities could be sued in court over this question. There are, however, other more probable and pervasive concerns.
What's the real threat to religious liberty posed by same-sex "marriage"?
The legal redefinition of marriage can threaten the religious liberty of religious institutions and individuals in potentially numerous ways, involving various forms of government sanction, ranging from court orders compelling action against conscience, to awards of money damages and other financial penalties, to marginalization in public life:
- Compelled Association: the government forces religious institutions to retain as leaders, employees, or members those who obtain legalized same-sex "marriage"; or obligates wedding-related businesses to provide services for same-sex "couples."
- Compelled Provision of Special Benefits: the government forces religious institutions to extend any special benefit they afford to actual marriage to same-sex "marriage" as well.
- Punishment for Speech: preaching, political action, or conversation reflecting moral opposition to same-sex "marriage" represents actionable "harassment" or "discrimination," or forbidden "hate speech".
- Exclusion from Accreditation and Licensure: those who adhere to the definition of marriage are excluded from participation in highly regulated professions and quasi-governmental functions, as licenses are revoked and religious institutions lose accredited status.
- Exclusion from Government Funding, Religious Accommodations, and Other Benefits: those who adhere to the definition of marriage are excluded from receiving government grants and contracts to provide secular social services, and from various tax exemptions.
Yes. Examples include, but are not limited to, the following: the extension of married student housing to same-sex "married" couples (a Catholic college in MA); the extension of spousal employment benefits to same-sex "domestic partners" (Catholic Charities in Portland, ME); the loss of funding and licenses to provide adoptions for refusal to place with same-sex couples (Catholic Charities in Massachusetts, Illinois, DC, and San Francisco); the imposition of tax penalties for preaching about marriage amendments (Montana); and the loss of state tax exempt status for a religiously-affiliated camp (New Jersey). These threats have been manifest in other countries as well, often to an even more persistent and invasive extent.
Doesn't a religious exemption protect institutions and individuals if they believe that marriage can only be between a man and a woman?
Sometimes. A religious exemption may provide protections, but so far those protections have been drawn very narrowly and fail to cover known risks.More broadly, because "marriage" so pervades the law, it is difficult to foresee all circumstances where religious freedom conflicts may arise. But even further, no religious exemption—no matter how broadly worded—can justify a supportive or neutral position on the redefinition of marriage (see CDF, 1992, no. 16). Such "redefinition" is always fundamentally unjust, and indeed, religious exemptions may even facilitate the passage of such unjust laws. Protecting marriage protects religious liberty; the two are inseparable.
