By GRETCHEN KEISER, Staff Writer | Published July 4, 2013
DENVER—Most of us have to admit we’re not able to recite passages from the U.S. Constitution verbatim or explain to someone else what’s at stake in the debate over religious liberty.
We hear public figures disagreeing. We read that leaders in the Catholic Church have filed an unprecedented number of lawsuits to defend the right of Catholic institutions not to violate their religious consciences, while a federal health care mandate requires that they do just that—or pay crushing fines.
Across the country, Catholic universities and hospitals, media outlets like EWTN, Catholic Charities and other social service ministries, and private business owners who in the past have been legally able to have their workplace reflect their religious conscience, now are in court. They are there because that’s their only option.
And the plaintiffs are not just Catholics.
Yet, many people of good will sit on the sidelines or even argue against the institutions and individuals fighting for religious liberty.
One reason for this indifference and polarization may be that the issue is complex. Another may be that—intentionally or unintentionally—the debate is being colored by misinformation and slogans that don’t illuminate the facts.
Here are three controversial aspects of the religious liberty debate and the response by proponents of sustaining religious liberty. The information comes from a religious liberty panel comprised of Bishop Thomas Paprocki of Springfield, Ill., and attorney L. Martin Nussbaum, who specializes in representing churches and ministries from many denominations. It was held at the Catholic Media Convocation in Denver on June 20.
The First Amendment protects the free exercise of religion, not simply freedom of worship.
Since 2010, top U.S. officials, including President Barack Obama and then U.S. Secretary of State Hillary Clinton, have used the term “freedom of worship” rather than “freedom of religion” in public statements both in the United States and overseas. In 2010 a bipartisan U.S. Commission on International Religious Freedom (USCIRF) noted the change in terminology in its annual report and expressed concern that it could represent a change in support for religious freedom abroad.
Leonard Leo, chairman of the USCIRF, wrote in April 2010, “Since the initially strong language on religious freedom used in President Obama’s Cairo speech, presidential references to religious freedom have become rare, often replaced at most with references to ‘freedom of worship.’ The same holds true for many of Secretary of State Clinton’s speeches. This change in phraseology could well be viewed by human rights defenders and officials in other countries as having concrete policy implications.”
“Freedom of worship is only one aspect of religious freedom,” Leo said.
To attorney Nussbaum, this distinction reappears in the U.S. Health and Human Services’ mandate. The mandate requires all employers to provide and pay for their employees’ contraception and abortion-inducing medications and voluntary sterilization. The only tiny exemption that was granted was for religious institutions that were “worship-oriented,” Nussbaum said. Religious institutions like universities, hospitals, social service agencies, etc., were not treated as religious employers, even though these church institutions are guided by religious faith and the mission of these institutions is to live out the essence of the Christian faith.
The First Amendment to the U.S. Constitution guarantees the free exercise of religion, not simply freedom of worship, he said. “It is very clear that the laws (of the United States) protect more than worship,” Nussbaum said.
Discrimination is permitted under religious freedom. It’s not bigotry.
The practice of religious freedom in the United States permits discrimination against people who fall within “protected classifications” in other areas of the law, attorney Nussbaum said. As some examples, Nussbaum said, an African Methodist Episcopal Church can choose an African-American as pastor instead of an Irishman and the Metropolitan Community Church can favor a gay person in leadership over a straight person. The Catholic Church can choose to ordain only men to the clergy.
Yet religious conscience protections are being eroded in many arenas, and the claim is made that the religious beliefs being practiced amount to discrimination.
For example, in November 2011 several Catholic bishops in Illinois, including Bishop Paprocki, had to end their diocesan adoption and foster care programs, which had been in place for 50 years. They were forced to because of the way Illinois state law was interpreted after the state recognized civil unions of same-sex couples.
The state then required Catholic Charities agencies to provide their adoption and foster care services to same-sex couples as well as married heterosexual couples. Peter Breen, an attorney for the Thomas More Society, who represented Catholic Charities agencies, said the state officials refused to abide by protections for religious social service agencies written into the Civil Union Act.
The agencies had a long-standing practice of referring prospective adoptive and foster parents who were cohabiting—regardless of sexual orientation—to other agencies or the Department of Children and Family Services.
Now the state interpreted that policy as discriminatory to same-sex couples, and a local judge ruled that the state could begin canceling its foster care and adoption contracts with Catholic Charities.
Since the courts refused to grant a stay allowing the adoptions and foster care programs to continue while appeals were pending, the dioceses were forced to close the programs.
Bishop Paprocki, who is both a civil and a canon lawyer, said the Diocese of Springfield had long practiced a policy, consistent with its faith, of not placing children with unmarried couples, regardless of sexual orientation.
While there were “50 other agencies” that had state contracts and could have counseled same-sex couples, “the state was saying very clearly, ‘You have to do it.’”
“We were being accused of bigotry,” Bishop Paprocki said.
Nearly 2,000 children, some in the process of being adopted, were being cared for under foster care programs of these four Illinois Catholic dioceses. The five decades of service provided by these Catholic agencies was abruptly terminated, simply because of the way the Illinois civil union law was interpreted and the decision of a local judge.
Nussbaum called this “a breathtaking event … to say to Catholic Charities … you are unfit to place children” for adoption and foster care.
Religious freedom doesn’t lead to chaos.
James Madison in 1773 heard Baptist preachers preaching through the bars of a jail in Culpepper County, Virginia. They had been thrown in jail for not having a license to preach under the English Act of Toleration. Madison recognized that religious toleration was insufficient as a right if it permitted some to preach and led to others being jailed because their expression of faith was not the dominant one. In subsequent years, this Founding Father of the country further developed this understanding of the free exercise of religion that is enshrined in the First Amendment. In its twofold significance, the First Amendment states that government shall “make no law” establishing a religion or prohibiting the free exercise of religion.
That is the most distinctive thing about our country, and over the passage of more than 200 years of American history, it hasn’t led to chaos, attorney Nussbaum said.
Madison called religious freedom “the luster of our country.” That description is cherished by those who point out that the free exercise of religion is the first right guaranteed in the First Amendment to the U.S. Constitution.
“We steward this freedom,” Nussbaum said. “If we don’t steward it, it may not be there for our kids.”