Debate over religious liberty broke into a roar in January.
On the one hand, by a unanimous decision Jan. 11, the Supreme Court upheld the right of a religious school to fire a teacher who had sought protection under the Americans with Disabilities Act.
Yet, just nine days later, the U.S. Department of Health and Human Services finalized regulations requiring employers nationwide — including religious charities, hospitals and schools — to pay to include coverage of artificial contraceptives, abortifacients and sterilizations in their employee health-care plans. Religious employers, including dioceses and churches, whose primary aim is to spread their religious values and which both primarily employ and serve members of their own religion, would be exempt from the rule.
While they welcomed the Supreme Court decision, the U.S. Conference of Catholic Bishops and other religious organizations have vowed to fight the HHS decision. The outcry over the HHS decision is just one of several religious-liberty battles expected to rage during 2012.
In New York, court arguments continue over implications of the state’s 2011 legalization of same-sex marriage. Additionally, Catholic public-policy advocates continue to sound the alarm about the proposed Reproductive Health Act’s lack of conscience protections for health-care institutions opposed to abortion. The act is again pending in the state Legislature.
Meanwhile, Pope Benedict XVI warned of "radical secularism" threatening religious freedom in the United States.
"Of particular concern are certain attempts being made to limit that most cherished of American freedoms, the freedom of religion," the pope said in his Jan 19 address to U.S. bishops who were in Rome for their ad limina visits. "Many of you have pointed out that concerted efforts have been made to deny the right of conscientious objection on the part of Catholic individuals and institutions with regard to cooperation in intrinsically evil practices. Others have spoken to me of a worrying tendency to reduce religious freedom to mere freedom of worship without guarantees of respect for freedom of conscience."
The pope called on the U.S. church to counter cultural currents that, on the basis of individualism, "promote notions of freedom detached from moral truth."
Roots of religious freedom
Pope Benedict said America’s consensus on the nature of reality and the moral good has long been shaped by faith and a commitment to ethical principles derived from natural law.
"Today that consensus has eroded significantly in the face of powerful new cultural currents which are not only directly opposed to core moral teachings of the Judeo-Christian tradition, but increasingly hostile to Christianity as such," he said.
Yet freedom of religion remains enshrined in the U.S. Constitution. The First Amendment begins by stating, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The first part of this statement (known as the establishment clause) prohibits the establishment of a state religion or religions, while the second part (known as the free-exercise clause) prohibits government interference in religion, explained Richard E. Barnes, an attorney and executive director of the New York State Catholic Conference.
"The founders of our country made it the First Amendment because it was so critical to their thinking of the rights of the populace," Barnes said, noting that these First Amendment guarantees of religious liberty have been interpreted over the years to belong to both individuals and institutions.
"Religious liberty is a fundamental civil right in the sense that it is the right an individual has to practice religion and to live out their faith, but it is also the right of religious institutions to function freely in society," he said.
Barnes noted that institutions that function as employers or property owners may sometimes be required to balance religious freedoms against other concerns. For instance, he noted, U.S. courts have ruled that public schools may sometimes restrict the religious freedoms of employees to avoid imposing the employees’ religious beliefs on students, which some have argued would be a violation of the establishment clause.
And religious freedom is not just an American concept, noted Thomas Farr, director of the Religious Freedom Project at the Berkley Center for Religion, Peace and World Affairs and a visiting associate professor of religion and international affairs at Georgetown University’s Edmund A. Walsh School of Foreign Service. In its 1965 Declaration on Religious Freedom, Dignitatis Humanae, he noted, the Second Vatican Council cited religious freedom as a necessary component of human dignity, asserting that no one should be forced to act in a way contrary to his or her own beliefs.
"Without religious freedom — full religious freedom — nobody can be said to be living a fully human life," said Farr, a former American diplomat. "From that, a great deal flows."
He noted that recent studies also have linked religious freedom with positive measures of economic, social and political development.
"To me, the case is pretty powerful (for religious liberty)," Farr said.
Court calls for liberty
The Supreme Court likewise made the case for religious liberty Jan. 11 in its ruling on Hosanna-Tabor Evangelical Lutheran School v. Equal Employment Opportunity Commission. In that case, teacher Cheryl Perich, whom the court defined as a commissioned minister, developed narcolepsy and went on disability. After a period of time, her employer, Hosanna-Tabor Evangelical Lutheran School, asked for her resignation, saying she would be unable to return to work. Perich refused to resign and was subsequently fired. She filed a claim with the EEOC, which sued the school, alleging that Perich’s firing was retaliatory. The school argued that the First Amendment barred the suit because it concerned a religious institution and one of its ministers.
The Supreme Court agreed.
"Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision," said Chief Justice John Roberts, writing for the majority opinion. "Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs."
Writing a concurring opinion, Justice Clarence Thomas noted, "A religious organization’s right to choose its ministers would be hollow, however, if secular courts could second-guess the organization’s sincere determination that a given employee is a ‘minister’ under the organization’s theological tenets."
Justices Samuel Alito and Elena Kagan concurred, but argued that the ministerial exception should not just apply to ordained ministers but to any employee "who leads a religious organization, conducts worship services or important ceremonies or rituals, or serves as a messenger or teacher of its faith."
It is difficult to predict how the Supreme Court’s decision in this case could affect any litigation in New York, said Barnes of the New York State Catholic Conference. But he said it is clear that in the court’s eyes, religious institutions have special protections that supersede individuals’ rights as employees.
Catholic organizations quickly pointed to the Supreme Court’s ruling as they decried HHS regulations finalized Jan. 20 that — under the 2010 Affordable Care Act — require employers to pay for artificial contraceptives, abortifacients and sterilizations as part of their employee health-insurance plans. The regulations are scheduled to take effect Aug. 1, 2012, but nonprofit employers who currently decline to offer coverage for these services due to religious beliefs would have until Aug. 1, 2013, to comply with the regulation, HHS Secretary Kathleen Sebelius said in a Jan. 20 statement.
"This decision was made after very careful consideration, including the important concerns some have raised about religious liberty," Sebelius said. "I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services. The administration remains fully committed to its partnerships with faith-based organizations, which promote healthy communities and serve the common good. And this final rule will have no impact on the protections that existing conscience laws and regulations give to health care providers."
Catholic organizations point out that the narrowness of the religious exemption means that such organizations as Catholic Charities and Catholic hospitals that primarily serve non-Catholics will have to comply with the regulation. According to Sebelius’ statement, employers that do not cover artificial contraceptive services will be required to provide notice to employees of the availability of such services at community health centers, public clinics and hospitals with income-based support.
Arguing in support of the HHS decision, the American Civil Liberties Union said that a lack of coverage for artificial contraception in insurance plans amounts to discrimination.
"With today’s action, the administration refused to give religious employers the right to discriminate," said a statement from Laura Murphy, director of the ACLU’s Washington Legislative Office.
Catholic leaders counter that the HHS the decision violates individuals’ and institutions’ religious liberty.
"Never before in our U.S. history has the federal government forced citizens to directly purchase what violates our beliefs," said Cardinal Daniel N. DiNardo of Galveston-Houston and chairman of the U.S. bishops’ Committee on Pro-Life Activities. He made the comment during the Jan. 22 opening Mass for the National Prayer Vigil for Life, according to Catholic News Service.
Cardinal DiNardo added that the issue is "the survival of a cornerstone constitutionally protected freedom that ensures respect for conscience and religious liberty."
"To force American citizens to choose between violating their consciences and forgoing their health care is literally unconscionable," said a statement from Cardinal-designate Timothy M. Dolan, Archbishop of New York and president of the U.S. Conference of Catholic Bishops. "It is as much an attack on access to health care as on religious freedom. Historically this represents a challenge and a compromise of our religious liberty."
Catholic leaders have vowed to fight the decision and encouraged Catholics to contact their elected representatives.
Religious-liberty challenges also will be filed over New York state’s 2011 legalization of same-sex marriage, Barnes predicted.
"There will probably be claims of conflicting rights for probably the next 10 years or more," he said.
One immediate legal question arising from the law’s passage concerns whether town clerks must sign marriage licenses for same-sex couples if doing so violates the clerks’ religious consciences. Several town clerks stepped down from their posts upon passage of the bill.
In one instance, Rose Marie Belforti, town clerk of Ledyard in Cayuga County, sought religious accommodation by arranging for a deputy to sign the licenses of same-sex couples, but one couple reportedly is considering a lawsuit over her refusal to serve them immediately.
Barnes said the question of whether the accommodations are acceptable may be settled in the court system.
"I think there’s very good legal basis for the argument that these officials do not have to violate their own religious conscience in the performance of their jobs as long as some reasonable accommodation can be made," he said.
The ACLU, on the other hand, has said it believes that such refusals amount to discrimination.
The state Catholic conference also is concerned about conscience protections for institutions that object to performing abortions, noted Kathleen M. Gallagher, director of pro-life activities for the conference and director of the Catholic Action Network.
Gallagher said the proposed state Reproductive Health Act (A-6112 and S-2844) could strip Catholic health-care institutions of the ability to opt out of performing abortions or dispensing artificial contraception and abortifacients. Refusal to comply with the requirements of the proposed legislation could jeopardize their state licenses, she said.
Although the Reproductive Health Act includes conscience protections, those protections are aimed at individual doctors and nurses, not such institutions as hospitals, Gallagher said.
"We believe the bill is still seriously lacking in terms of conscience protections for religious institutions," said Gallagher, who noted that the state Catholic conference also had several other serious objections to the bill, including concerns that it could permit late-term abortions to be performed in clinics, force Catholic hospitals to provide abortions or other services, and make abortions immune to any state regulation or restriction.
She said the Legislature also has several other pending bills that, if passed, would endanger conscience rights in the state. For instance, one would force pharmacists to fill all prescriptions, even if the pharmacists have arranged for religious accommodations to avoid filling artificial contraceptives, abortifacients or other prescriptions to which they have objections in conscience.
New York’s civil rights law currently protects the religious freedoms of employees in many instances, Barnes said.
"That is based on the principle that people are not forced to surrender their deeply held beliefs when they go into the workplace, and employers do not necessarily have the ability to determine an employee’s beliefs or to define them," Barnes said.
The state Catholic conference has long called for enhanced conscience protections for individuals or institutions that object to activities, procedures or state mandates regarding abortion, euthanasia, embryonic research, human cloning and same-sex marriage. Barnes noted that religious-liberty protections could help prevent court battles over religious freedom. Yet he acknowledged that such legislation stands no better than a 50-percent chance of passing in the Legislature.
Nevertheless, he said, "I think it’s important for us to continue to advocate for it because it continues to highlight the problem and it keeps the conversation alive."