Beyond the Fortnight: Emerging challenges to religious freedom in the United States
The promotion and defense of religious freedom has fast become a top priority of the Catholic Church in the United States. Threats to this fundamental right are widespread, grave and growing, both at home and abroad. The Catholic bishops of the United States are duly alarmed by this trend, and we have responded by defending our principles, educating on the facts and, most of all, with prayer.
The centerpiece of this effort is the Fortnight for Freedom, two weeks of focused attention on religious liberty. The Fortnight begins and ends on holidays rich with significance in the Catholic and American traditions of religious liberty—the vigil (June 21) of the feast of the martyrdom of Sts. Thomas More and John Fisher, and Independence Day. The Fortnight also begins and ends with a Mass, the source and summit of the Christian life. In between, dioceses and parishes across the country are sponsoring study groups, processions, ecumenical and interfaith prayer services and a host of other creative activities to promote a greater understanding of religious liberty.
With the annual Fortnight and other activities of the U.S. Conference of Catholic Bishops’ Ad Hoc Committee for Religious Liberty, the bishops are planting the seeds of a movement for religious freedom. In due time, and with God’s help, this movement will bear fruit among the laity in the realm of policy and law, in the form of more protective legislation, regulations and jurisprudence.
If Catholics are fortunate, we may see some of those fruits sooner rather than later, but overall we are taking a long-range approach. We are not dealing with a single threat that admits of a discrete solution, but a complex of threats that share deeper causes. In this long-term effort, the bishops’ central task is to spread the teaching of the church on religious freedom.
Seeds of the Movement
In the “Declaration on Religious Freedom” (“Dignitatis Humanae”), the Second Vatican Council forthrightly declared that “the human person has a right to religious freedom,” which means that all people “are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.”
Successive popes have reaffirmed the church’s commitment to this principle. Writing to the secretary general of the United Nations in 1978, the newly elected Pope John Paul II asserted that religious freedom “is the basis of all other freedoms and is inseparably tied to them all by reason of that very dignity which is the human person.” Pope Benedict XVI has also emphasized its primacy. Speaking to the diplomatic corps in January 2012, Benedict called religious freedom “the first of human rights, for it expresses the most fundamental reality of the person.” Then, during his visit to Lebanon later in the year, Benedict described religious freedom as a “sacred and inalienable right” and the “pinnacle of all other freedoms.”
Most recently, before a crowd of 200,000 in St. Peter’s Square on the eve of Pentecost, Pope Francis warmly embraced Paul Bhatti, brother of Shahbaz Bhatti, a Pakistani government official assassinated in 2011 after urging reform of anti-blasphemy laws. “We must promote religious liberty for all people,” Francis proclaimed. “Every man and woman must be free to profess his or her faith, whatever it may be.” That same day, the Holy Father raised the issue of religious freedom in his meeting with Chancellor Angela Merkel of Germany.
Challenges Far and Near
These papal exhortations have not occurred in a vacuum, but as expressions of growing concern. A report published in September 2012 by the Pew Research Center’s Forum on Religion & Public Life analyzed the infringement of religious beliefs and practices around the world. The study found that 75 percent of the world’s population lives in countries where governments, social groups or individuals restrict people’s ability to freely practice their faith.
Americans fortunately do not face the kind of violent religious persecution seen in many countries, like Egypt, Iraq and Myanmar, to take just a few recent examples. The United States has enjoyed a long tradition of strong legal protections for religious freedom, from the religion clauses of the First Amendment and the Religious Freedom Restoration Act at the federal level, to similar laws at the state level. Recently, however, this tradition has been challenged by actions that, while not as dramatic as what is happening in other countries, nonetheless entail coercion against conscience. For example, we have seen a troubling tendency to reduce religious freedom to the freedom of worship within the four walls of a church, synagogue or mosque. This view finds expression in laws that would protect only houses of worship from coercion against conscience, while leaving other religious people and groups subject to such coercion.
All people of good will must resist this trend. While religious freedom certainly includes freedom of worship, it also includes the freedom of persons to live out their faith whatever their role in society—in social service ministries and in the marketplace, in the culture and in the public square. Religious beliefs that shape our entire lives, both inside and outside the sanctuary, have been the cornerstone of so many monumental causes—from the abolition of slavery, to women’s suffrage, to the civil rights movement. While the voice of the Rev. Martin Luther King Jr. rang out from the pulpit of Ebenezer Baptist Church, it also rang out in the streets of Birmingham and Selma and Washington, D.C. True religious freedom includes the freedom to proclaim and practice religious faith, not just in private but in public as well.
Recent limitations on religious freedom in the United States have affected hospitals, schools, colleges, family-owned businesses and individual believers living out the Gospel. For example, a few states have passed laws to forbid actions that state legislatures regard as the “harboring” of undocumented immigrants but that the church regards as basic Christian charity and pastoral care to those immigrants. In Alabama, Catholic bishops, along with Episcopal and Methodist bishops, filed suit against such legislation. Fortunately, federal courts have blocked some of these misguided laws—albeit on other grounds—but the church must remain vigilant so that the Catholic mission to provide food, shelter and other care to anyone in need does not become a criminal offense.
Victims of human trafficking have also suffered at the hands of extreme secularism. The U.S. bishops’ Migration and Refugee Services has built a sterling reputation as a service provider based on years of expertise actively working to serve victims of modern-day slavery. In 2006 M.R.S. began administering a federal program to provide intensive case management to this most vulnerable population.
But in 2011, despite years of excellent performance, the federal government changed its contract to require M.R.S. to facilitate contraception and abortion as a condition of keeping the contract. Even though the Catholic agency’s application earned a far higher objective score from the government’s independent grant evaluators than two other applicant-organizations that were awarded grants, it was still denied because of its refusal to violate Catholic teachings. Thus not only was M.R.S. excluded from a government program because of its religious beliefs, but victims of human trafficking were also denied the services of the most qualified contractor.
The Health and Human Services mandate is probably the best-known and most controversial threat to religious freedom in the United States today. This is the requirement, imposed by executive-branch regulation under the 2010 health care reform legislation, that almost all employers nationwide—including religious charities, hospitals and schools—fund or facilitate insurance coverage of sterilization, contraception and abortifacients, as well as education and counseling promoting these, for employees and their children.
Only houses of worship, and a very tight perimeter around them, are exempted from the mandate as “religious employers.” Initially, H.H.S. proposed to define exempt “religious employers” by a more complex regulation, and now it proposes a simpler one. But in both cases, the exemption is just as narrow—and reflects just as much the trending view, noted earlier, that the freedom of religion is nothing more than the freedom of worship.
We are fast approaching Aug. 1, 2013, the date the mandate will become effective against our indispensable ministries of service. These entities are unmistakably religious and unmistakably employ people, yet are not deemed “religious employers” by H.H.S. Therefore, they are not exempted but instead “accommodated.” Though the “accommodation” is complex and in some respects still incomplete, it suffers from at least two major problems: first, when “accommodated” employers provide their employees with general health coverage that does not include the problematic items, the employer thereby also provides employees a “free ticket” for separate coverage of those items; and second, in at least some cases, if not all, the accommodated employer subsidizes those “free tickets” through its premiums. Although a proposed regulation would require insurers to certify that they have not charged the employer “directly or indirectly” for the contraceptive coverage, the government’s sole theory for how the contraception coverage is funded when the employer has an insured plan entails at least “indirect” funding by the employer.
Employers who resist this compulsion to facilitate and/or fund goods or services that violate Catholic teaching will face potentially crippling fines. If they stop providing health insurance to employees altogether, they will face fines of up to $2,000 per employee per year; if they continue providing excellent health care plans to their employees, but exclude the objectionable coverage, they face fines of $100 per employee per day.
Enforcing Redefined ‘Marriage’
The only arguably greater challenge to religious liberty in the United States would be a decision of the U.S. Supreme Court redefining legal marriage, as a matter of federal constitutional law, to include people in same-sex relationships. If this happens, then in every area of the law where church ministries or faith-based businesses are regulated, and where marital status matters—such as in employment, housing, education, adoption and so many other areas—the state will force the church to treat as married those it cannot. And if these organizations resist, federal, state and local governments could penalize them by withdrawing their licensing and accreditation, their government contracts and benefits and their access to public facilities. Despite the fact that the church strongly affirms the equal dignity and worth of all persons, regardless of sexual inclination, Catholics’ principled refusal to treat same-sex relationships as “marriages” would be punished as if it were rank bigotry.
Thus we would see nationwide what we have already seen in states that have redefined marriage. Catholic Charities affiliates in the District of Columbia and Illinois, which refused to place children with same-sex couples, were driven out of the adoption services business almost immediately upon the redefinition of marriage or establishment of civil unions. In Massachusetts, justices of the peace must now perform same-sex “marriages”—even if they have religious or moral objections—or face a claim of personal liability for discrimination. More recently, Delaware expressly imposed a similar requirement when it redefined marriage. In other states, owners of family businesses that provide wedding-related services like photography and flowers have been sued by people in same-sex relationships, or even the state attorney general, for their refusal to participate in same-sex wedding events.
With the Fortnight now upon us, the effective date of the H.H.S. mandate is scarcely a month away. And the Supreme Court is likely to issue its decisions in the two same-sex “marriage” cases during the Fortnight. These two key moments for religious liberty in the United States—and, perhaps providentially, their proximity to the Fortnight—help to illustrate the ongoing need for it. The Fortnight alone will not—and cannot—solve these grave religious freedom problems, but it can help slow their growth and lay the foundation for their resolution in generations to come.