Has the Obama Administration declared war upon religious freedom in the United States?
This is not as extreme a question as it appears at first blush.
What initially appeared to be a series of unrelated act is now taking on the color of a conscious strategy to eliminate the ability of religious groups to control any aspect of their lives outside the barest of liturgical practices.
In interests of full disclosure and to avoid allegations of plagiarism, I need to take a short detour to explain the genesis of this story.
At this point you have to make a decision whether or not you wish to read on.
I’m not a Glenn Beck fan. When he’s on his game he and his sidekicks produce some of the funniest radio in the history of the medium. When he’s flogging gold, survival rations, and non-genetically modified seeds, and expounding on the unmitigated evil that was Woodrow Wilson portraying a rather obscure book, Philip Dru: Administrator as filling the role of The Prince and Mein Kampf in Wilson’s political life I think he treads perilously close to lunacy. Where I live, Beck is rebroadcast at 6pm. So just as I’m cranking up my truck (Dodge Ram 1500 which my colleague Leon H. Wolf terms a “nice truck for a girl”) for the ride home, he’s coming on. Two nights ago he read the letter from Archbishop Timothy Dolan, which I quote later in this story, and I started thinking about the rest of this. So a hat tip to Beck and The Blaze.
To go back to the beginning I suppose we have to go back to April, 2008 and then-Senator Obama’s fundraising trip to San Franciso where he waxed eloquent on the miserable piss-ant lives led by people in flyover country who were bitterly clinging to religion and guns, also known as the First and Second Amendments to the U.S. Constitution. This was a clue many of us picked up on as indicating the way a President Obama would govern.
In October of 2011 the US Supreme Court heard a religious freedom case brought by the Equal Employment Opportunity Commission against Hosanna Tabor Evangelical Lutheran Church and School on behalf of a teacher and lay minister who had been dismissed. The central issue was whether a religious tenet, in this case a general prohibition on Lutherans taking grievances against their church outside a synod tribunal, was protected from government interference. The US Government argued that it wasn’t.
What is enlightening about the case is not so much the opinion but the rather stunning argument made by the US Solicitor General’s office, in the person of Leondra Kruger, and the equally stunning response by a Justice, Elena Kagan, who had sympathy for the government’s case. From page 37 of the transcript.
JUSTICE KAGAN: Do you believe, Ms. Kruger, that a church has a right that’s grounded in the Free Exercise Clause and/or the Establishment Clause to institutional autonomy with respect to its employees?
MS. KRUGER: We don’t see that line of church autonomy principles in the Religion Clause jurisprudence as such. We see it as a question of freedom of association. We think that this case is perhaps one of the cases —
JUSTICE KAGAN: So, this is to go back to Justice Scalia’s question, because I too find that amazing, that you think that the Free — neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church’s relationship with its own employees.
You read that correctly. The Obama Administration does not consider that he rules a religious organization establishes for its employees to be grounded in either the Free Exercise Clause or the Establishment Clause.
When you have Elena Kagan siding with Antonin Scalia something is very wrong with your argument.
The next data point to consider is the ongoing controversy over whether the Catholic Church will serve God or Mammon.
This started, of course, with the decision by HHS Secretary and noted Catholyc Kathleen Sibelius to compel Catholic organizations, even those which were self-insured, to provide contraceptives as part of their health insurance plan.
That mandate was made under the guise of “women’s health,” that peculiar branch of medicine which has determined that every naturally occurring happening in an adult woman’s life, from menstruation to ovulation to childbearing to menopause, is a medical problem to be managed with the appropriate drugs or surgical procedure. That so many “feminist” women sign on to essentially declaring their gender a malady to be treated has always struck me as peculiar but that is a story for a different day.
One doesn’t have to take a position either for or against contraception to understand that 1) the overwhelming super duper majority of Americans don’t work for either the Catholic Church or its subsidiary organizations, 2) that no one is forced to take employment with one of those organizations, 3) that the Catholic Church has openly and notoriously opposed contraception since the 1st Century AD (in fact, until the Lambeth Conference of 1930 that was a univeral Christian belief), and 4) the Church is not saying employees cannot use contraception only that they have to buy their own. That the Obama Administration chose to draw a line in the proverbial sand on this issue indicates that they were not interested in the defense of any principle larger than establishing the primacy of state power.
The ongoing dicussions between the US Conference of Catholic Bishops and the administration have broken down due to either the bad faith or obtuseness shown by the Administration. The resulting is this extraordinary letter from New York Archbishop Timothy Dolan, and president of the USCCB, to his brother bishops this week:
At a recent meeting between staff of the bishops’ conference and the White House staff, our staff members asked directly whether the broader concerns of religious freedom—that is, revisiting the straight-jacketing mandates, or broadening the maligned exemption—are all off the table. They were informed that they are. So much for “working out the wrinkles.” Instead, they advised the bishops’ conference that we should listen to the “enlightened” voices of accommodation, such as the recent, hardly surprising yet terribly unfortunate editorial in America. The White House seems to think we bishops simply do not know or understand Catholic teaching and so, taking a cue from its own definition of religious freedom, now has nominated its own handpicked official Catholic teachers.
If your eyes didn’t glaze over during the brief discussion of Hosanna Tabor you will recognize a common theme between the government’s position in that case and Archbishop Dolan’s complaint. In both cases, the government is insisting that it’s judgment be substituted for religious doctrine even when applied to religious-based organizations.
If you put these two things in context with the NYT op-ed various lefties were touting over the weekend I’m beginning to think there is a coordinated effort by the Administration to stamp out religious freedom as it has been understood. Just a taste:
An obvious starting point is with the 98 percent of sexually active Catholic women who, just like other American women, have exercised their own consciences and availed themselves of birth control at some point during their reproductive lives. So it’s important to be clear that the conscientious objection to the regulation comes from an institution rather than from those whose consciences it purports to represent.
This is simply an exercise is sophistry. The echo of the “enlightened voices” argument can be heard in the trumpeting of the risible claim that 95 or 98 or 117 percent of all Catholic women use contraception and wear super short kilts, white knee stockings, and black patent leather shoes. Even if all Catholic women were hookers this would not invalidate the Church’s teaching on prostitution and require the Church to subsidize the behavior any more than Charlie Whitman having been an altar boy called into question the permissibility of murder and required the Church to buy sniper rifles (though I will note that requiring the Church to buy rifles has a helluva more substantial Constitutional basis than telling it what its employee health plans must cover).
If this logic holds true, then the Church cannot refuse to provide health insurance that covers abortion and euthanasia because some percentage of people who engage in both will inevitably be Catholic.
Again, flashing briefly back to Hosanna Tabor the Solicitor General wasn’t able to explain to Breyer’s satisfaction why setting aside the religious doctrine issue in this case would not result in the EEOC being able to make the Catholic Church open its priesthood to women. This was the exchange:
JUSTICE BREYER: Suppose that’s the central tenet. Suppose you have a religion and the central tenet is: You have a problem with what we do, go to the synod; don’t go to court. And that applies to civil actions of all kinds. All right? So, would that not be protected by the First Amendment?
MS. KRUGER: Justice Breyer, two points —
JUSTICE BREYER: Your view is it’s not protected?
MS. KRUGER: It’s not protected. But I’d like — I think there are two responses that are relevant to how this Court will resolve that question in this case. First of all, if the Court were to accept the rule that Petitioner would ask it to adopt, we would never ask the question whether or not the church has a reason for firing an employee that’s rooted in religious
doctrine. Their submission is that the hiring and firing decisions with respect to parochial school teachers and with respect to priests is categorically off limits. And we think that that is a rule that is insufficiently attentive to the relative public and private interests at stake, interests that this Court has repeatedly recognized are important in determining freedom of association claims. [Emphasis mine]
JUSTICE BREYER: So that, in fact, if they want to choose to the priest, you could go to the Catholic Church and say they have to be women. I mean, you couldn’t say that. That’s obvious. So, how are you distinguishing this?
So we see clearly what is at stake. To those who would say that the government would never press a suit against a church over the qualifications it would impose on its clergy, history does not support that view. In 1979 and Army captain, Kathleen Wilder, sued to in federal court to be allowed to attend the US Army Special Forces Qualification Course. She won. While in the course in 1980, she was dropped for cheating, a charge she disputed, and sued again in federal court to get credit for completing the course. She won.
Though people often snort at slippery slope arguments, I’ve found them to be very predictive in real life. In my time as an investigator for the Department of the Army Inspector General I never encountered someone who was caught in their first bad act. Rather, when you started unraveling the skein of lies and deceptions you inevitably saw the same pattern. A small act. A larger act. And so on.
If this HHS regulation survives court challenge, we will have crossed a Rubicon and the First Amendment will never again mean what it does today.