Joseph Knippenberg at First Thoughts finds a telling quotation from Leondra Kruger, Assistant to the Solicitor General, arguing at the Supreme Court in the Hosanna-Tabor case:
The government’s interest extends in this case beyond the fact that this is a retaliation to the fact that this is not a church operating internally to promulgate and express religious belief internally. It is a church that has decided to open its doors to the public to provide the service, socially beneficial service, of educating children for a fee, in compliance with State compulsory education laws.
Mr. Knippenberg points out that this mindset helps explain why the government is requiring religious institutions except for churches to provide their employees free Morning After pills and birth control devices, even if doing so violates their religious beliefs:
The reasoning here is perfectly consistent with the thought animating the narrowly-drawn exemption to the widely reviled contraceptive mandate. Whenever a church or house of worship ceases to be simply inward-looking, when it in any way engages or serves the wider public, it becomes subject to much the same sort of government regulation as any secular entity. Relgious freedom is a purely private freedom. The moment you enter the public sphere, you’re subject to regulation. The public sphere is by definition secular, not pluralistic, with its tone, terms, and limits set by governmental authority. . . .
The logic of its argument in these two cases is that any religious institution that is public-serving has to behave in many instances (those determined by the state) like every other public-serving organization. The religious presence in the public square can’t be distinctive except in ways the government permits.
Pursued consistently across the board (and the Obama Administration hasn’t yet done this), this approach would gravely threaten religious freedom. It’s one thing to say (as some have, though I disagree with them), that if you take public dollars, you have to be thoroughly secular in your operation. Anyone can escape the secularizing effect of public money by refusing to accept it. It’s quite another to say that if you serve the public, your religiosity can’t permeate your efforts and your organization. This would require almost every religious organization I know of to choose between reaching out as a bearer of good news and a helper of widows and orphans and remaining faithful to the very understanding that inspired its outreach. Under these circumstances, a church can’t remain a church.