Matthew J. Franck
The Witherspoon Institute

Individual, Community, and State: How to Think About Religious Freedom

MATTHEW J. FRANCK is the director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute and professor emeritus of political science at Radford University. He received his B.A. from Virginia Wesleyan College and his M.A. and Ph.D. from Northern Illinois University. A regular contributor to the Washington Post, First Things, and National Review, he is the author of Against the Imperial Judiciary: The Supreme Court vs. the Sovereignty of the People and Strict Scrutiny: Sense and Nonsense on the Supreme Court (forthcoming).
The following is adapted from a lecture delivered at Hillsdale College on September 11, 2012, during a conference on “The Supreme Court: History and Current Controversies.”

THERE IS A GROWING awareness among Americans that religious freedom in our country has come under sustained pressures. In the public square where freedom of religion meets public policy, it becomes clearer all the time that there is a high price to be paid for being true to one’s conscience. This is no tale of Chicken Little—although a chain of chicken sandwich restaurants based in Atlanta is part of the story. Let me give you a few examples.

In our universities, those citadels of toleration, we find that toleration can be sharply limited. At the Hastings College of Law in San Francisco, the student chapter of the Christian Legal Society was denied any status on the campus because it would not abandon its requirement that members commit themselves to traditional Christian norms regarding sexual morality. The U.S. Supreme Court, in a 5-4 ruling in 2010, held that the student group’s rights were not violated by a “take all comers” policy. Following this lead, Vanderbilt University has rewritten its student organizations policy and effectively chased every traditionally Christian student group off campus, denying them regular access to campus facilities. And at the University of Illinois, an adjunct professor of religion, hired to teach a course on Catholicism, was let go because a student complained about his patient explanation of the Catholic Church’s natural law teachings on human sexuality. (He was later restored to his teaching duties, but at the expense of the Newman Center, not on the state payroll.)

In our states and localities, we see other kinds of pressures. Authorities in Washington state and Illinois have attempted to force pharmacists, against their conscience, to dispense “morning after” pills when other pharmacists short distances away make these abortifacients available. New York City has barred church congregations—and them alone—from using public school buildings outside school hours. In New Mexico, a Christian wedding photographer was fined for violation of a state “human rights act” because she refused to take the business of a same-sex couple who claimed to want her services at their civil union ceremony. And in Massachusetts, Illinois, San Francisco, and the District of Columbia, the adoption and fostering agencies of Catholic Charities have been shuttered because they will not place children with same-sex couples, as the local authorities demand.

In our courts, we see the First Amendment turned on its head or simply disregarded, in active hostility to the place of religion in our public life. The U.S. Seventh Circuit Court recently ruled that a Wisconsin public high school could not rent space for its annual graduation exercises in a local church, lest it be seen as “endorsing” religion and “coercing” its students to view Christianity in a positive light. In 2010, Judge Vaughn Walker of the U.S. District Court in San Francisco ruled that Proposition 8, preserving marriage in the California constitution as the union of one man and one woman, was unconstitutional. He held that the affinity between traditional religion and the moral case against same-sex marriage was reason enough to strike down the popular referendum, and went so far as to say that religious doctrines holding homosexual acts to be sinful are in themselves a form of “harm” to gays and lesbians. In this he followed the lead of the Iowa Supreme Court, which held in 2009 that the state’s law restricting marriage to a man and a woman was an expression of a religious viewpoint, and for that reason unconstitutional.

Finally, we have listened to Obama administration officials, including the President and the Secretary of State, speak of “freedom of worship” as though it marked the full extent of freedom of religion. The President famously spoke at the University of Notre Dame’s commencement in 2009, but in that speech, he treated religious opinions that disagree with his views on abortion and other social issues as fundamentally irrational, and thus to be relegated to the private sphere and ruled out of order in our public debates. Having succeeded in persuading Congress to repeal the “Don’t Ask, Don’t Tell” policy for the military, the administration has been strongly opposed to legislation that would protect the conscience rights of chaplains and other service-men and women who continue to hold and to express the view, on religious grounds, that sexual relations are morally permitted only in a marriage between a man and a woman. In the recent term of the Supreme Court, the administration’s lawyers took the position that there should be no “ministerial exception” on religious-freedom grounds, for employers such as religious schools, from federal anti-discrimination laws. Church schools and other religious institutions, they argued, have only as much protection as non-religious groups do on “freedom of association” grounds—as though the religion clause of the First Amendment added no ground whatsoever for a unique religious freedom claim. In the best religious freedom news of the year, the administration lost this case 9-0 in the Supreme Court, which held that the Obama Justice Department’s view was “remarkable,” “untenable,” and “hard to square with the text of the First Amendment itself.”

And of course there is the infamous Health and Human Services “contraception mandate,” the cause of the most pointed confrontation in recent memory between a presidential administration and major figures in America’s religious communities. Under the HHS mandate, an administrative rule authorized by the 2010 Affordable Care Act, every employer with more than 50 employees must provide group health insurance that includes, in the category of preventive medicine for women, no-cost coverage of sterilization services and FDA-approved prescription contraceptives—including those that are better understood as abortifacients because they can act to destroy embryos rather than merely prevent conception. A narrow exemption was included for religious employers that are non-profit, exist to inculcate “religious values,” and primarily employ and serve members of their own religious community. This meant that while churches and other houses of worship would be exempted, countless religious schools, universities, hospitals, and charitable institutions would not. Under pressure, the administration has promised a future “accommodation” for a broader range of religious institutions, with an ill-defined “safe harbor” until the new arrangement becomes effective in August 2013. At that time, these institutions’ employees would still be entitled to the same “preventive services,” but with insurers rather than employers responsible for the costs. Some religious institutions, such as the University of Notre Dame, are self-insured for their employee health plans, and there is no sign yet regarding how their situation could be addressed. And who can be fooled by the promise that insurance companies rather than employers are paying for the coverage, and that employers will somehow have clean hands in a three-cornered contractual relationship in which these services are guaranteed?

It is no wonder that the U.S. Catholic bishops formed an Ad Hoc Committee for Religious Liberty last year; and that they published a major statement on religious freedom in March; and that they organized a “Fortnight for Freedom” to pray for religious liberty in June and July. Recognizing the threat to themselves as well, particularly in the mandated coverage of abortifacient pharmaceuticals, a number of evangelical Protestant institutions have joined in the litigation against the HHS mandate, while Jewish, Mormon, and Muslim leaders have joined in formal protests. There are, at last count, 28 separate lawsuits pending in federal courts around the country, involving more than 80 separate plaintiffs.

Perhaps the most interesting case involves, not a religious school, hospital, or charity, but Hercules Industries of Colorado, a private company that makes heating and air conditioning equipment. Its sole owners are the Newlands, a family of Catholics who object to providing the mandated coverage to their employees, against the dictates of their conscience as informed by their faith. The argument of the Obama Justice Department in the case is astonishing. It is that no one can claim, on behalf of an incorporated business he owns, any right of religious freedom or conscience that can trump a requirement of the law. Period. The members of the Newland family may have religious scruples, but the business they own cannot be conducted in accord with those scruples. Once individuals opt for incorporation of a business, they lose the freedom of religion so far as the actions of that corporation are concerned. Luckily, a federal judge in Colorado has entered a preliminary injunction barring enforcement of the HHS mandate against Hercules Industries while litigation continues. But the all-out character of the administration’s disregard for claims of conscience is a grave portent of things to come.