Meeting Contemporary Challenges to Religious Freedom

on April 5, 2014

Photo Credit: protectreligiousfreedom.com

Can America’s highly valued religious freedom be accommodated in the public square in the face of early twenty-first century challenges? This was the topic, focusing particularly on the Hobby Lobby case heard by the Supreme Court, of a joint presentation by the Religious Freedom Project of the Berkeley Center for Religion, Peace, and World Affairs of Georgetown University and Baylor University’s Institute for Studies of Religion. Held on March 24, the day before the case was heard, it consisted of a conversation between Kenneth Starr, President of Baylor University, and Alan Dershowitz, legal scholar and professor for many years of Harvard Law School, and was followed by panel discussion.

Thomas Farr, Director of the Religious Freedom Project, introduced the event by saying it “celebrates a new partnership between two great faith based universities,” and noted the Project’s definition of religious freedom as “the right of every person to believe or worship, or not, and if one is a religious believer, to act on the basis of belief in the life of the nation both as an individual and as a member of the community.” Farr explained that “religious freedom as we understand it is not merely a private right to worship, it entails the right to engage in civil society and community, in business, in politics on the basis of one’s religious beliefs. Religious liberty is not a mere claim of privilege by religious people, rather it is a pillar of stable democracy.”

Starr began his conversation with Dershowitz by asking whether the First Amendment applies to corporations, and, if so, whether it applies to for-profit corporations. Starr noted that Hobby Lobby is a “great American story.” Begun in 1970s, through “hard work” and “they would say, God’s providence” it now has over 500 stores. Owned entirely by the Green family, Hobby Lobby is a closely held, “mom and pop” business firm. The Green family runs their business as much as possible on what they understand to be Christian precepts, and is essentially “mission work.” The contraceptive mandate issued by the Health and Human Services Department as part of implementation of the Affordable Care Act (Obamacare) requires them to pay for certain abortifacients (drugs that induce abortion), and so there is a “conflict of visions” between the federal government and the Green family. The Religious Freedom Restoration Act of 1993 (RFRA) is the law Hobby Lobby and other conscientiously objecting employers cite for legal protection. It requires a “compelling government interest” for the government to place a “substantial burden” on religious liberty. Does RFRA therefore “provide an exemption” for them, Starr asked?

Dershowitz responded that he disagrees with the Green family’s opinions about birth control and supports Obamacare, but regards the Green family claim of religious liberty as a separate issue. He believes that “no intelligent, reasonable person will want to distinguish between a business owned by an individual and a business which has become an ‘S’ corporation” (a corporation in which the owners, not the corporation, pay taxes on the corporation’s earnings). While the Obama Administration claims that the distinction between a corporation and its owner shields the owner from moral responsibility for the corporation’s action, Dershowitz finds this to be “an absurd argument being made by the government.” The government’s attempt to make this argument is “trivial” and “silly,” he said. Whether or not liberty of conscience exists through an individual or a corporation “is [itself] a religious issue.” If one’s religion says that a person’s actions through a corporation are bound by religious law, then the religious adherent is “bound by that.” Should a court say that an individual is not responsible for actions taken in the name of a corporation he or she controls, the court would itself be in violation of the First Amendment’s free exercise clause (by defining correct religious obligation).

Starr claimed that “every American who loves freedom should be applauding” the RFRA. He noted that President Clinton’s signing statement “was so powerful, was emotional.” Clinton referred to Stephen L. Carter’s Culture of Disbelief, and its argument that elite opinion endeavors to keep religious belief out of the public square, and that Clinton also identified religious freedom as “our first freedom.”

Dershowitz said however, that no one should profit from religious accommodation. There ought to be way “to make you pay what you would pay, but for your religious views.” He suggested that accommodated businesses should have to pay a general tax in lieu of tax from which they are exempt. On the other hand, he felt that it is proper that people pay to exercise their religious views. “It’s not easy to be a person of God,” he said, and “it’s not inexpensive, either.” While Dershowitz believes employees desiring the benefit of the government’s contraception/abortifacient mandate should have it, he considers conflicts between religious belief and governance to be dangerous and believes it is “far better” if an accommodation with religious belief can be worked out. Dershowitz then asked Starr if he would be uncomfortable, as pro-life partisan, with the government paying directly for contraception/abortifacients rather than objecting employers. Starr responded that his disagreement with state policy would then be at a different level. With the government paying directly, religious persons are no longer being required to violate their conscience, which is the important point. Any objection to the government paying for contraceptives or abortifacients is then a disagreement about use of tax dollars, the government’s own money. Starr also noted that religious employers are hardly asking for any unique exemption, since many non-religious exemptions to the contraceptive/abortifacient mandate have been granted, especially “grandfathered” plans which are not affected by the mandate.

Large in the controversy about religious freedom are not abstract principles, but opinions about specific religious beliefs, the practical implications of which are threatened by state policy. Starr referred to West Virginia Board of Education vs. Barnette, in which the Supreme Court said that the government cannot determine what is orthodox. However, he claimed, deeply religious people feel “embattled,” and now believe an orthodoxy is being imposed which is hostile to their beliefs. Starr said that there is a widespread feeling among such people that the spirit of state neutrality of West Virginia Board of Education vs. Barnette is no longer in American “politics and culture.”

Starr seemed to be referring to such controversial areas in contemporary society as religious exclusivism and traditional sexual morality. In these areas the wider society influences the government to indeed, define an orthodoxy for the nation. Dershowitz responded that religious Americans are simply losing the war of ideas with secularists, especially among young people. He predicted that in these areas, religious rights will lose to other claims of rights, and religious people need to make their beliefs seem good to others. This, however, is to dispense with the claim of religious freedom, since freedom of conscience, or any other freedom is pointless, if it can be set aside when others object. The primacy of conscience against performing actions believed immoral must be asserted, even if others find the religious conscience offensive and painful. On the positive side, Dershowitz did agree, when Starr used abortion as an example, that a person should not be required “to participate in a procedure that utterly offends” his or her conscience. But he seemed not to understand that the other major area of religious objection to liberal social policy, the requirement to facilitate homosexual behavior (as opposed to merely serving homosexual customers) is regarded by many religious believers as sinful, not something merely distasteful.

In a subsequent panel, Kyle Duncan of the Becket Fund for Religious Liberty defined “substantial burden on religious freedom” as “the pressure the government puts on someone to violate their faith.” This pressure comes in the form of ruinous fines and the requirement that an organization completely restructure its operations. While the government claims “distance and attenuation between owners and actual use of contraceptives,” it offers no clear definition of substantial burden. Ira Lupu of George Washington University agreed with Dershowitz that the government may not define what is proper religious duty; that has to be determined by individual religious believers. Helen Alvere of George Mason Law School emphasized that the specific contraceptives objected to by Hobby Lobby are indeed abortifacients, i.e., they kill newly conceived human beings to achieve the desired birth control. While the government uses the language of “attenuation” to claim religious persons are not personally responsible for the use of such drugs, Alvere said that well established theological analysis clearly shows that it is “material cooperation with evil.” Duncan said the narrow exemption given to houses of worship and certain religious organizations amounts to a government recognition of “a real moral problem.” The government is clear about the action of abortifacients in killing newly conceived unborn children, and its statements in the Federal Register indicate it wants these drugs used more often and more effectively. It is therefore attempting to make employers complicit in the use of abortifacients. The burden of proof, Duncan said, lies with the government to prove that the contraceptive mandate is a compelling state interest overriding the claim to religious exemption by religious employers. People have generous health benefits as part of employer based insurance in any case, and the government must show a genuine economic crisis in purchasing the desired contraceptives and abortifacients.

Looking to the future, Lupu said that religious objection to paying spousal benefits for same-sex couples will inevitably appear in court cases in the near future, especially if Congress passes the Employment Nondiscrimination Act (ENDA). He said the RFRA was passed as a very broad protection for religious freedom without addressing controversies it would reasonably entail. Alvare responded, however, that there were efforts when RFRA was passed to “carve out” civil rights/antidiscrimination law as being exempt from the legal force of RFRA, but those legislative efforts were tuned back. She also said with respect to the contraceptive/abortifacient mandate that more empirical evidence, as opposed to rhetorical claims, are needed to support the government’s claim of a compelling state interest to require that employers cover contraceptives and abortifacients.

In response to an audience question, Duncan said that a common objection to conscience protections for employers, that Jehovah’s Witnesses or Christian Scientists might claim conscience protection against supplying coverage for blood transfusions or all medical coverage, in fact has no actual cases to back it up. There is not now a “blood transfusion mandate” he observed, and if there were, it seems unlikely that the government would provide many non-religious exemptions, as it has done with the HHS mandate.

Important in the contraceptive/abortifacient controversy is public perception of whose freedom is being curtailed. While employers are being required to take action they believe immoral, the Obama Administration’s rhetoric would make it seem that employees are being denied their rights. Duncan said that the Hobby Lobby and other HHS mandate cases are not the result of “employers deciding to withhold benefits because they’re mean,” but due to a great increase in government power via the Affordable Care Act, in which the government requires employers to fund goods that they believe are morally objectionable. Anyone who values religious freedom therefore, should welcome cases that seek, in this great expansion of government power, to determine “what the government can make us do and what the government can make us not do.”

It could well be added to Duncan’s observation about what the government properly can and cannot make its citizens do that the answer to that question depends on the purpose of government. If it is proper for the state to define the good life, then many mandates about how people should behave are entirely proper. But defining the good life is considered by most religions to be their proper function. Religious freedom rests in large measure on the intuition that people should not be required to take action they believe is wrong. And that mandates a modest role for government, as it has traditionally had in Anglo-Saxon liberalism.

  1. Comment by Phil on April 6, 2014 at 6:14 pm

    No mention of the revelation that Hobby Lobby’s pension plans have been investing in companies that make the very products Hobby Lobby is claiming it can’t provide for employees on religious grounds. I’m disappointed more Christians have addressed this issue and larger implications it has on blind conservative Christian allegiance to the principles of capitalism.

  2. Comment by Rick Plasterer on April 9, 2014 at 4:05 pm

    Phil,

    This may be a revelation to Hobby Lobby as well. I understand that they covered abortifacients in their medical insurance until 2012, when it was pointed out to them. Paying directly for abortion causing goods and services is, however, different from having companies in your investment mix that supply them. Some might consider themselves sufficiently removed from involvement with immoral goods and services to retain investments that include them, but I believe Hobby Lobby would be wise to disinvest in these companies, just as it changed its medical plan.

    Rick Plasterer
    IRD

  3. Comment by Marco Bell on April 11, 2014 at 7:46 am

    Complicity by any other name, is still the same.
    So I guess companies like Hobby Lobby will have to continually assess their portfolios, and continually make adjustments, so that eventually, they will resemble the Fundamentalist sects of the middle-east…chaste, pure, isolated and broke!

    Good luck with that!

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