Category Archives: Religious Liberty

Defining “Religious Liberty”

Tomorrow, the South Bend City Council will consider amending its Human Rights Ordinance to include protections against discrimination based on sexual orientation.

HR Ordinances–while relatively toothless in Indiana–express a municipality’s intent to discourage some people from picking on other people based solely upon their religion, race, gender and other markers that are irrelevant to the question whether those people can pay the rent or perform the duties required for the job.

I’ve agreed to serve as a sort of “expert witness” at the Council hearing, and as a result, over the last week or so I’ve been copied with the various arguments being made in opposition to the proposal. As often happens when I find myself immersed in indignant justifications of homophobia, I’m increasingly feeling like an inhabitant of the Twilight Zone.

One example is the “legal memo” submitted by the Alliance Defense Fund. I’ve seen most of its arguments before–it’s pretty much a retread of similar arguments made when other Indiana cities passed similar measures. The ADF insists that Indiana municipalities lack the authority to pass such ordinances–despite the fact that over the past decade or so several have done so, and none have been challenged. The memorandum mis-characterizes court cases, and engages in the other tactics lawyers resort to when they find themselves on the losing side of a legal argument.

I understand those tactics; at one point or another, we all find ourselves desperately trying to find a legal basis for what are really policy arguments.

The jaw-dropping argument, however, and the most ridiculous claim in the entire 30+ page “brief,” is a claim that the religious exemption is inadequate because it does not protect “religiously motivated” discrimination.

Let’s think about that for a minute.

The proposal before the South Bend Council contains an exemption for religious organizations. This exemption, in my opinion, is entirely appropriate–if your religion disapproves of gay people, or unwed mothers, or atheists, the Free Exercise Clause of the First Amendment forbids government from forcing your church or other religious organization to employ such people. The law requires that we accommodate even beliefs that are at odds with basic American values.

Apparently, however, protecting the right of religious organizations to follow the dictates of their faith–even when those dictates are inconsistent with civil rights laws–isn’t sufficient. According to the ADF argument, if I truly believe gay people are sinners, that belief alone should allow me to discriminate with impunity–If I can’t fire employees I discover are gay, if I can’t refuse to rent to GLBT folks, the government is denying me religious liberty.

This is similar to the argument that anti-bullying legislation infringes the “free speech rights” of the bullies. The argument is apparently that I should be able to pick on gay people—or black people, or women, or Muslims–if I say my motivation is religious.

There’s a yiddish word for that argument: Chutzpah.

Obviously, an exemption for “religious motivation” would eviscerate the law. But this is part and parcel of the worldview of those who oppose equal civil rights for GLBT folks. Stripped of the “legalese” and rhetorical devices, that argument is simple: legislation that is inconsistent with my particular religious beliefs is a denial of my religious liberty.

The religion clauses of the First Amendment require government to be neutral between religions, and between religion and non-religion. To use a sports analogy, government is supposed to be an umpire, not a player. But there are citizens who simply cannot abide the notion of a neutral government–who experience “live and let live” and civic equality as affronts to the primacy to which they feel entitled. In that peculiar worldview, a government that insists on fair play for gay people is a government that’s denying them religious liberty.

I can hear the theme from “Twilight Zone” as I type…..

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Rabbinic Wisdom

Rabbi Sandy Sasso has an important column in this morning’s Star.

There has been a lot of heat–and considerably less light–generated by the requirement that health insurance companies make contraception available free of charge to employees of Catholic universities and hospitals. Much of that heat has been deliberately stoked–a politically cynical  ploy intended to rile up faithful folks by accusing the administration of religious hostility.

As the good Rabbi reminds us, the conflict between laws of general application and the beliefs of religious groups is not new. Employers who are Jehovah’s Witnesses and Christian Scientists, among others, must offer their employees coverage for procedures their own beliefs prohibit. As she further reminds us, there is a critical difference between telling the faithful they must do something that violates their conscience–use or pay for contraception, in this case–and telling them they may not impose their beliefs on employees who do not share them.

These questions of conscience are inevitable in a country that is constitutionally obliged to respect diversity while acting to advance the common good. At some point, individuals must obey that “inner voice” that tells them not to participate in evil. No one celebrates the obedient German who was “just following orders.” On the other hand, even fewer of us celebrate the zealot who insists that the law must reflect his particular beliefs to the detriment of others who disagree.

If my religion teaches that I must sacrifice my first-born, the government is not required to respect that belief. On the other hand, if I am a competent adult member of a sect that rejects transfusions, the government should respect my right to refuse that procedure, no matter how grave the consequences.

In between, there is plenty of opportunity for good faith dispute.

Last night, at dinner with friends, our host told us a story about his relative who lives in a very small town in Southern Indiana. Her teenage daughter had horrific menstrual cramps, and the doctor prescribed birth control pills to control the pain. When my friend’s cousin went to the only drugstore in town, the pharmacist refused to fill the prescription. Even though the woman explained that the purpose was medical, not sexual, the pharmacist was adamant that filling a prescription for contraception for a sixteen-year-old violated her conscience.

Should pro-life police officers be excused from protecting abortion clinics? What about anti-gay firefighters who are called to extinguish a blaze at a gay bar? Where do we draw the line? Some people will view the “conscience exemption” for pharmacists as an appropriate accommodation. Others will argue that if an individual is unwilling to provide the services the profession exists to provide , she should find a different profession.

There are legitimate, unavoidable conflicts between conscience and the common good in a free society. Playing cynical political games does not advance our ability to deal with those challenges.

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Whose “Conscience”?

Several Facebook friends recently posted the same cartoon: a pregnant woman lying on an examination table getting a sonogram is looking at the machine’s screen as her doctor moves the sensor over her belly. She asks “What’s that other thing in my uterus?”  The doctor replies “The State of Texas.”

The reference is to one of the latest assaults on women, legislation that would require any woman wanting an abortion to undergo a medically unnecessary sonogram. Since the vast majority of abortions occur within the first trimester, when a fetus is difficult to detect, this procedure requires the insertion of a sensor into the uterus through the vagina. In other words, it requires that the woman be penetrated.

In Virginia, proponents of this requirement defeated an amendment that would have required the woman to consent to that penetration.

Words fail.

Let me try to understand where we are, in the brave new 21st Century. It is a violation of religious liberty to require health insurers to offer birth control coverage to women who want it. It’s a violation of conscience to require a pharmacist to dispense birth control to a willing buyer if his religion disapproves of its use. But it isn’t a violation of personal and religious liberty to compel a woman to be penetrated by a device during a medically-unnecessary procedure before she can exercise a constitutionally-protected right to terminate a pregnancy.

We’re lucky women still have the right to vote.

And speaking of voting–the phrase “use it or lose it” has never seemed more apt.

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Irony-Challenged Santorum

In the dust-up over contraceptive coverage, Rick Santorum–along with a number of other GOP (male) elected officials–has condemned the Obama administration’s “assault” on “religious liberty.” This charge has produced some truly ludicrous moments; yesterday, for example, the news was filled with photos depicting the witnesses at a trumped-up congressional hearing into the pernicious effects on religious liberty of the requirement that health insurers cover contraception. The witnesses were all male.

But Santorum easily wins my vote for the most audaciously irony-challenged of these protectors of religious liberty.

Santorum is one of those Christian Nation folks who believes that his religious beliefs should dictate public policy; in his 15th-Century view, violations of religious liberty occur when the law fails to follow his version of God’s plan. Santorum’s God doesn’t like gay people, so Santorum believes the law should deny GLBT folks basic civil liberties, let alone the right to marry. Santorum’s God doesn’t believe in abortion, so no one else should be able to have one, no matter how dire the circumstances or how different that woman’s own belief system.

And with respect to contraception, as a fellow Catholic recently wrote:

“This confluence of politics and religion brings me right to Santorum’s public policy opposition to contraception. In his public (and apparently private) life, Santorum has, in effect, hewed to the Vatican line that so-called “artificial” contraception constitutes an “unnatural” frustration of the natural end of the sex act. But, like most good politicos Santorum hides his Catholic animus to contraceptive rights. Notably, he takes cover in legalisms. He opposed Griswold v. Connecticut—the judgment guaranteeing contraceptive right to married couples—because he disagreed with the Court that right of privacy exists in the Constitution. Beyond its cramped legalism, I find this maneuver devious. Santorum dare not say what truly moves him in this debate—namely his unswerving loyalty to the Vatican’s proscription of “artificial” methods of birth control and family planning as against nature.”

During his tenure in the U.S. Senate, Santorum consistently voted to impose his own religious views on others, and he is admirably forthright about his intentions to “Christianize” America should he be elected President. He is breathtakingly oblivious to the true meaning of religious liberty. (Hint, Rick: religious liberty means that you are entitled to live in accordance with your beliefs, but others are equally entitled to live by theirs.)

I am rooting for a Santorum Presidential candidacy. He is the perfect embodiment of today’s GOP base. If Romney is the nominee, and gets crushed, the Republican base will simply conclude he wasn’t conservative enough. A Santorum-Obama contest would allow the general public to send a decisive and needed wake-up message to the culture warriors who have captured one of America’s major political parties.

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Religious Liberty, Contraception and Gay Rights

Amazing—and embarrassing—as it may seem, the American Taliban is once again waging battle against sex. This time, their target is contraception.

Their fig leaf is a definition of “religious liberty” that neither the nation’s Founders nor the courts would recognize—the same definition that they employ in their ongoing war against civil rights for gays and lesbians. Short form: giving rights to women and gays would violate their religious liberties.

A brief recap: When the Obama administration issued regulations for employer-provided health insurance, the regulations required that such coverage include birth control. Churches were exempt from the requirement (an exemption that is required by the First Amendment), but religiously-affiliated institutions like hospitals and universities were not. More than half of the states already had such a requirement, and those employers had been complying for years without any discernable fuss or claim that these rules somehow represented a “war on religion.”

Enter the forces for “religious liberty” aka the Catholic Bishops and the GOP. Their argument was that making religious employers pay for insurance that included birth control was a violation of their freedom of conscience. Under years of Supreme Court precedent, it wasn’t, but the Administration moved to accommodate their sensibilities by requiring the insurance companies to offer the coverage at no cost directly to women, removing the employer from the equation.

As I write this, the Bishops and the (ascendant) Santorum wing of the Republican Party are not mollified, despite the fact that Catholic nuns and a significant majority of American Catholics are fine with it. According to their arguments, simply making birth control available to employees of religiously affiliated employers is itself a violation of their religious liberties.

I know I harp on the public’s lack of civic and constitutional literacy, but this is another perfect example.

When the Pilgrims landed at Plymouth Rock, they wanted the “liberty” to impose the correct religion on their neighbors. The idea that Church and State could be separated was unknown to the Puritans who first settled in the new country; the freedom they wanted was the freedom to “establish” the True Religion, and form a government that would require their neighbors to live in accordance with that religion.

A hundred and fifty years later, however, the men who crafted the Constitution for the new nation were products of a dramatically different worldview. The philosophical movement we call the Enlightenment had given birth to science, privileged reason over superstition, and reconsidered the proper role of government. Liberty—religious or otherwise—had come to mean the right of individuals to live their lives in accordance with their own consciences, free of the coercion of the state and free of what the founders called “the passions of the majority.”

Our Constitution may have been a product of the Enlightenment, but we still have a significant number of Puritans in America, and what we sometimes call the “culture wars” are yet another conflict between those two very different visions of liberty.

The Rick Santorums of the world aren’t just against equal rights for gays and lesbians, they aren’t just anti-abortion and anti-birth control (Santorum himself has gone on record saying that birth control should not be available because it allows people to engage in “wrong” sexual behavior). They are deeply Puritan: anti-science, anti-reason, anti-diversity. That they are absolutely convinced of their own possession of the Truth is less disconcerting than their even stronger conviction that “liberty” means they should have the right to make everyone else live by their Truth.

These are the same irony-challenged theocrats who are running around proposing legislation to prevent imposition of “Sharia law.”

I’d guess they don’t have mirrors. Or a capacity for self-reflection.

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