How does that HHS mandate ruling affect American religion?

THE RELIGION GUY EXPLAINS:

So far, no-one has yet posted a question on the June 30 U.S. Supreme Court decision allowing certain religious exemptions from the Obama Administration’s birth control mandate. So The Guy is posting his own analysis of an important case that highlights the nation’s religious, moral, legal, and political divisions.

The case involved the Hobby Lobby craft stores and two smaller businesses wholly owned by evangelical Protestant families. They believe that because human life begins at conception it’s sinful to pay for intrauterine devices (IUDs) and “morning-after” pills that may constitute early abortion by (a disputed point) preventing implantation of fertilized eggs. Other Christians disagree. Justice Alito’s opinion for a spare 5-4 majority said such “closely held” commercial companies enjoy religious freedom protection just like churches and individuals.

Two religious denominations that favor total birth control coverage charge that the Court violated liberty rather than respecting it. The president of the Unitarian Universalist Association said the ruling “dangerously diminishes the religious, moral, and legal rights of every American, but especially women,” and decried “the growing use of the religious freedom argument as a tool of discrimination and oppression.” Reform Judaism’s top four officials jointly declared that the Court majority “denies the religious liberty” of these women employees and “the compelling interest of ensuring all women have access to reproductive health care.”

The Protestant businesses were supported by the Catholic and Mormon churches, numerous evangelical groups, Orthodox Jews, a prominent Muslim educator, 107 members of Congress (mostly Republicans), and 20 of the 50 states. The president of the U.S. Catholic bishops said the Court upheld “the rights of Americans to live out their faith in daily life.” The public policy spokesman for America’s largest Protestant body, the Southern Baptist Convention, hailed “an absolute victory for religious liberty” and for “common sense and conscience.”

The Baptist also accused the Obama Administration of “cavalier disregard of religious liberty” and lamented that not long ago no-one could have imagined such an attack on religious rights. That might sound overwrought, but traditionalists express alarm that getting all contraception without cost would overrule Constitutional protection of conscience. An April Kaiser Health poll showed 55 percent of Americans think companies should cover birth control “even if it violates their owners’ personal religious beliefs.” More broadly, last year’s Newseum poll found 34 percent believe the First Amendment “goes too far” in upholding citizens’ freedoms, up from 13 percent in 2012.

A few technicalities: Many articles said this ruling denies “access” to birth control, but the Court guaranteed that 49 years ago. Rather, the issue is whether women employees must pay $500 to $1,000 for IUD placements or the modest cost of the pills. Hobby Lobby opposes only those two methods and, like most Protestants, has no problems with the 16 other birth control options in the federal mandate. (The Affordable Care Act passed by Congress doesn’t actually mandate birth control coverage, which the Obama Administration added later.) Though some ridicule the idea that companies have rights the way individuals do, the Court cited well-established precedents for treating corporations as ”persons” for legal purposes.

The ruling was based on the Religious Freedom Restoration Act, which was passed overwhelmingly by a Democratic House and Senate and signed by President Clinton in 1993, when the two political parties were more united on religious matters.

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Gasp! NYTimes covers the heart of Kennedy’s argument!

Let’s hear it for The New York Times, a newspaper that can always be trusted to get key information on both sides of hot religious and cultural debates into print.

Wait. Say what?

Actually, in contrast with the CNN Belief Blog editorial that our own Jim Davis parsed this morning, the basic Times news report on the Supreme Court’s Town of Greece, New York v. Galloway, Et Al decision (.pdf) does a pretty good job of allowing readers to hear voices on both sides of this important debate.

The bottom line: This story managed to mention one of the most crucial questions facing the justices, which is, “Is nonsectarian prayer possible?” And after that question comes another church-state puzzle: Who is in charge of determining whether any given believer’s sort-of-free speech is nonsectarian enough to pass muster with state officials?

As always, the crucial swing vote in this 5-4 decision belonged to America’s uncrowned king, Justice Anthony M. Kennedy, a pro-business moral-libertarian country-club Republican who is to some degree an American Catholic.

Readers quickly learn some important facts:

Justice Anthony M. Kennedy, writing for the majority, said that a town in upstate New York had not violated the Constitution by starting its public meetings with a prayer from a “chaplain of the month” who was almost always Christian and who sometimes used distinctly sectarian language. The prayers were ceremonial, Justice Kennedy wrote, and served to signal the solemnity of the occasion. …

Justice Elena Kagan said in dissent that the town’s practices could not be reconciled “with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.” …

She did not propose banning prayer, Justice Kagan said, but only requiring officials to take steps to ensure “that opening prayers are inclusive of different faiths, rather than always identified with a single religion.”

The situation in Greece, N.Y., is pretty familiar. Town officials insist that all kinds of people are welcome to line up to give prayers — atheists included — but, as the story notes, in practice “almost all of the chaplains were Christian.” Some believers have even made references to offensive concepts such as Jesus dying on the cross.

This has, of course, offended some citizens who have lawyers.

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Dear Sun editors: Do you favor a state-endorsed faith or not?

Anyone who has been paying attention to American public life in recent decades knows that lots of people are getting very uncomfortable with that whole First Amendment thing.

Many people are especially uncomfortable with free, even offensive speech about religion in any setting connected with government, public life, tax dollars, etc. Some even act as if religious speech is uniquely dangerous, in comparison with speech about other topics.

This is a serious issue and one that journalists cannot avoid covering, in these times.

The key church-state principle is that the government is not supposed to favor a particular religion. Thus, state officials are supposed to avoid getting involved in decisions — “entangled” is the big word — about which religions and doctrines are acceptable and which ones are not. They are supposed to err on the side of free exercise, but without allowing officials to openly favor one set of religious doctrines over another.

But what happens when some state officials consistently use their free speech rights in ways that offend the religious views of others (in effect establishing a favored, state-endorsed religion)? That’s when people of good will need to evoke “equal access” principles.

Now, I realize that equal access principles — another product of the amazing left-right church-state coalition in the Clinton era — are primarily used in disputes linked to schools and the use of other public lands and facilities. But every now and then you see disputes of this kind show up in other settings. Take, for example, the drama that The Baltimore Sun is currently attempting to cover in nearby Carroll County. Here is the top of the report:

A divided Carroll County board of commissioners voted Tuesday to no longer invoke Jesus Christ in prayers before government sessions, a measure one commissioner said “binds me to an act of disobedience against my Christian faith.”

The measure passed by a 3-2 vote amid legal pressure for the board to stop sectarian references in invocations. A federal judge in Baltimore last month issued an injunction against the practice, which is being challenged in court by some county residents who say the prayers disregard their beliefs. The commissioners resolved Tuesday that prayers may still reference “God,” “Lord God,” “Creator” and “Lord of Lords,” among other monotheistic names. But they must be non-sectarian and led by board president David Roush, who voted in favor of the change.

Richard Rothschild, one of two commissioners who opposed the resolution, said it would force him “to refuse to acknowledge the Son of God,” a statement that drew shouts of “Amen” from the handful of residents on hand.

“I humbly and respectfully declare that I cannot and will not sign a document that forward binds me to enact disobedience against my Christian faith,” Rothschild added.

So what is the problem here, from the point of view of the board’s majority?

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Hobby Lobby, the Little Sisters of the Poor and the NYTimes

As a rule, conflicts between church and state are extremely complex and often produce headaches, even among those who have years of experience working in such dangerous intellectual terrain. Frankly, I have no idea how general-assignment reporters can handle this stuff without the help of thick research folders and very experienced editors.

Today’s New York Times article on the Hobby Lobby case is, in my opinion, a better than average effort when it comes to church-state coverage in the mainstream press. This is important because the Hobby Lobby case is quite strange, since it focuses on whether the leaders of for-profit corporations can argue that their institutions are protected by religious liberty. In other words, this is a “church-state conflict” — I added the distancing quote marks — that does not involve a church.

This report does, however, oversimplify one or two important pieces of the maddeningly complex HHS mandate story. I’ll get to that shortly.

So what went right? I thought that the top of the piece was especially strong:

WASHINGTON – Hobby Lobby, a chain of crafts stores, closes on Sundays, costing its owners millions but honoring their Christian faith.

The stores play religious music. Employees get free spiritual counseling. But they do not get free insurance coverage for some contraceptives, even though President Obama’s health care law requires it.

Hobby Lobby, a corporation, says that forcing it to provide the coverage would violate its religious beliefs. A federal appeals court agreed, and the Supreme Court is set to decide on Tuesday whether it will hear the Obama administration’s appeal from that decision or appeals from one of several related cases.

Legal experts say the court is all but certain to step in, setting the stage for another major decision on the constitutionality of the Affordable Care Act two years after a closely divided court sustained its requirement that most Americans obtain health insurance or pay a penalty.

So Hobby Lobby is clearly not a non-profit, religious voluntary association, like a Catholic school, an Orthodox Jewish clinic or a Pentecostal homeless shelter. So why is this case complex? Why is this even an issue?

This is where the Times report is quite strong. You see, there was that 2010 decision called Citizens United, the one the Obama White House detests so much because of its impact on campaign financing, the one that said corporations have free speech rights.

The question now is whether corporations also have the right to religious liberty. In ruling for Hobby Lobby, the United States Court of Appeals for the 10th Circuit said it had applied “the First Amendment logic of Citizens United.”

“We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression,” Judge Timothy M. Tymkovich wrote for the majority.

A dissenting member of the court, Chief Judge Mary Beck Briscoe, wrote that the majority’s approach was “nothing short of a radical revision of First Amendment law.”

But Judge Harris L. Hartz, in a concurrence, said the case was in some ways easier than Citizens United. “A corporation exercising religious beliefs is not corrupting anyone,” he wrote.

However, the religious owners of such a corporation may in fact be denying basic health care to their employees — employees of a company that is ultimately seeking profits, rather than operating under the defining umbrella of a doctrinal mission statement.

Then again, Hobby Lobby is not your normal corporation, as the story notes, because founder David Green and his family control it through a privately held corporation. At this point, Hobby Lobby has “more than 500 stores and 13,000 employees of all sorts of faiths.” It faces federal fines of $1.3 million a day if it fails to offer “comprehensive” health-care coverage, as defined under Obamacare.

So what is missing from this otherwise detailed and rather balanced report?

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Taking a legal walk in a church’s non-religious woods

For decades, I have been covering stories involving clashes between religious organizations and state and county tax officials. The key plot elements in these legal dramas usually include:

* The church is a growing nondenominational Christian group. In other words, an independent congregation with little or no access to national church-state lawyers.

* Neighbors are worried about the church’s expanding facilities and the impact on traffic.

* Tax officials want more revenue. Duh.

* There is some question about whether some of the land is being used in a way inconsistent with the church’s non-profit status (think concerts, athletic events, food festivals, etc.)

At the moment, The Washington Post is covering a pretty typical battle in nearby Prince William County. The top of the story is very straightforward — then hits the key snag in the case.

Behind New Life Gainesville church in western Prince William County, there’s a gravel path that leads to a thick grove of tall pines and rippling streams.

As far as New Life leaders are concerned, that land is part of their church and should enjoy the same tax-exempt status as the building that holds the arched-ceiling chapel. But county officials have a different view: They say the woods aren’t used for religious purposes and should be taxed. When the county sent a $1,000 property tax bill, church leaders were not happy.

“Giving glory to God … is not taxable,” said Pastor Mike Hilson, who recently joined New Life Gainesville, formerly Fireside Wesleyan Church.

Prince William officials say that taxing some land owned by religious institutions is nothing new and that they are simply following state law, which mandates that only land that is “exclusively” for religious use is tax-exempt.

That’s interesting. So the issue isn’t that the church is using the land in any way that violates its non-profit status. The growing congregation is not, at this point, using the land at all. So if the church held regular prayer walks through the grove it would suddenly become religious?

Late in the story, the Post team notes another relevant wrinkle in this case:

Both sides in the Prince William debate agree that for-profit ventures on church land — such as a cafe or rental housing — should be taxed. But leaders at New Life Gainesville say the woods behind their church do not bring in any revenue. And because the land is in a protected rural area, the church cannot divide off the taxed land and sell it.

“The idea we’re going to throw a Starbucks back here is kind of ridiculous,” Hilson said.

County officials say they are simply following existing laws at the local level. Meanwhile, Virginia leaders are concerned about clarity in the state’s laws.

The Post also quotes a local-level expert, who rather predictably notes the following:

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Foggy beliefs lead to church-state crisis in hospital

One of my graduate-school professors had a saying that summed up one of the central truths of church-state law in the United States of America. Your religious liberty, he liked to remind students, has been purchased for you by a lot of people with whom you would not necessarily want to have dinner.

What did he mean by that?

It is rare for cases involving the beliefs of mainstream religious groups to reach the U.S. Supreme Court. Methodists and Baptists and Reform Jews and other cultural mainliners rarely clash with the principalities and powers of the state because, well, their beliefs tend to be viewed as safe and normal. Most of the edgy cases that draw the borders of First Amendment law are linked to the beliefs and actions of folks whose faith claims are viewed as suspect by run-of-the-mill believers.

We’re talking about Pentecostal and Christian Science believers who don’t want to take their young children to see a doctor, because they believe in divine healing — period. How about people who handle deadly snakes during worship services? Native Americans whose rites have, for generations, required them to consume mind-altering substances declared illegal by our legal authorities? How about Jehovah’s Witnesses and their belief that God does not want them to receive blood transfusions (a doctrine that has led to important research into low-blood-loss surgical techniques).

Want to have dinner and talk theology with these folks?

Methinks that few journalists would answer in the affirmative. Still, it’s important to know that courts have, time and time again, defended the rights of a wide range of religious groups, so long as their actions were not consistently linked to fraud, profit or a clear threat to life and health. It’s this last element that has caused such fierce debates, especially when the religious beliefs of parents appear to threaten the lives and health of their own children.

Thus the key, when covering these stories, is to provide as much factual detail about the doctrines and practice of the believers at the heart of the controversy. What do they believe? What do their scriptures — written or oral — teach? How long has this group practiced this ritual or acted on a given doctrine in a particular way?

I thought about all of that when reading a recent Elkhart Truth article about a controversy in a local hospital. Here’s the top of this hard-news report:

GOSHEN – Joyce Gingerich, an oncology nurse at IU Health Goshen Hospital, had two options — get a flu shot or lose her job.

It was a tough choice, but Gingerich and seven others at the hospital stood their ground and refused to receive the vaccination. …

“I knew that I could not compromise my personal belief system for a job,” explained Gingerich, who had worked at the hospital on and off since 1987. “It was really sad to leave that job. In all my years of nursing, it was my favorite.”

In early September, IU Health Goshen Hospital informed its staff that flu shots would no longer be optional. Beginning this year, all of the hospital’s staff, affiliated physicians, volunteers and vendors are required to receive a flu vaccination or apply for an exemption. The hospital’s requirements came as a recommendation from the U.S. Centers for Disease Control and Prevention, or CDC, the American Medical Association and other major regulatory health agencies, according to hospital spokeswoman Melanie McDonald.

“As a hospital and health system, our top priority is and should be patient safety, and we know that hospitalized people with compromised immune systems are at a greater risk for illness and death from the flu,” McDonald said. “The flu has the highest death rate of any vaccine preventable disease, and it would be irresponsible from our perspective for health care providers to ignore that.”

OK, looking at this from a religion-story point of view, as well as from a church-state legal perspective, what are the most important questions that need to be answered in this story?

Let’s start with the obvious: Are her beliefs rooted in a specific, ongoing commitment to a religious tradition? What are its teachings? What scriptures or laws are linked to this conscience claim? If this person is taking this stand on her own, then how did she arrive at it.

Now, the fact that there are SEVEN nurses caught in this bind make it a near certainty that specific religious traditions and doctrines are involved.

So what do readers find out?

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Got news? That other 2012 Supreme Court case

Does anyone out there in GetReligion reader land remember that narrow U.S. Supreme Court decision that cleared the way for arguments to continue about the Obama administration’s health-care law? On one level, that decision was about money and taxes, but buried down in one of the opinions written on the winning side was a highly significant, yet mostly overlooked, quote linked to the religious-liberty battles that dominated the religion-news beat in 2012.

At the time, I wrote a GetReligion post that pointed readers toward that important material buried deep inside the blog world at The Washington Post:

“I think the court’s decision makes clear Obama is still subject to legal challenges and that the Supreme Court is willing to entertain that the HHS regulations violate the rights of religious freedom,” said Hanna Smith, senior counsel at the Becket Fund, a D.C. firm involved in some of the 23 pending lawsuits against the White House. The lawsuits all focus on opposing a mandate announced by the Department of Health and Human Services after the law was passed.

Mark Rienzi, another Becket attorney, said in a phone conference call that the ruling today only spoke to whether Congress had the right to pass the act — not on the details of how it’s implemented. …

The attorneys honed in on two parts of Thursday’s ruling. One, from the majority opinion, said: “Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution.”

The second, from Justice Ruth Ginsberg, (sic) said “A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.”

The key is the Ginsburg quote, especially since it came from one of the most important voices on the court’s left wing.

In my mind, I coupled that quote with another Supreme Court decision that received some attention. However, to my surprise, this other decision didn’t make it into the list of the year’s Top 10 stories produced by the Godbeat pros voting in the poll posted by the Religion Newswriters Association.

I’m talking about that 9-0 decision in which the court defended the “ministerial exception” that allows churches and religious organizations to take doctrine into account when hiring and firing employees. Yes, the U.S. Justice Department actually argued against religious groups on that issue. Yes, the court then voted 9-0 against the White House on that religious-liberty issue.

Yes, I still think that was one of the most important religion-news stories of the year. I ranked it No. 2 on my RNA ballot.

Bobby has served up scores of interesting links and viewpoints wrapping up Godbeat 2012, but I thought I would show GetReligion readers my whole ballot — in the form of last week’s column for the Scripps Howard News Service.

I started with a blast from a prominent pulpit in Dallas:

‘Twas the Sunday night before the election and the Rev. Robert Jeffress was offering a message that, from his point of view, was both shocking and rather nuanced.

His bottom line: If Barack Obama won a second White House term, this would be another sign that the reign of the Antichrist is near.

Inquiring minds wanted to know: Was the leader of the highly symbolic First Baptist Church of Dallas suggesting the president was truly You Know Anti-who?

“I am not saying that President Obama is the Antichrist, I am not saying that at all,” said Jeffress, who previously made headlines during a national rally of conservative politicos by calling Mormonism a “theological cult.”

“What I am saying is this: the course he is choosing to lead our nation is paving the way for the future reign of the Antichrist.”

That’s some pretty strong rhetoric, until one considers how hot things got on the religion beat in 2012. After all, one Gallup poll found that an amazing 44 percent of Americans surveyed responded “don’t know” when asked to name the president’s faith. The good news was that a mere 11 percent said Obama is a Muslim — down from 18 percent in a Pew Research Center poll in 2010.

Could church-state affairs get any hotter? Amazingly the answer was “yes,” with a White House order requiring most religious institutions to offer health-care plans covering sterilizations and all FDA-approved forms of contraception, including “morning-after pills.” The key: The Health and Human Services mandate only recognizes the conscience rights of a nonprofit group if it has the “inculcation of religious values as its purpose,” primarily employs “persons who share its religious tenets” and primarily “serves persons who share its religious tenets.”

America’s Catholic bishops and other traditional religious leaders cried “foul,” claiming that the Obama team was separating mere “freedom of worship” from the First Amendment’s sweeping “free exercise of religion.” In a year packed with church-state fireworks, the members of Religion Newswriters Association selected this religious-liberty clash as the year’s top religion-news story. Cardinal Timothy Dolan of New York, the point man for Catholic opposition to the mandate, was selected as the year’s top religion newsmaker – with Obama not included on the ballot.

The story I ranked No. 2 didn’t make the Top 10 list. I was convinced that the 9-0 U.S. Supreme Court decision affirming a Missouri Synod Lutheran church’s right to hire and fire employees based on doctrine could be crucial in the years — or even months — ahead.

So let’s move on to the rest of my version of the RNA Top 10 list, after the HHS mandate conflict.

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Pod people: Can the MSM find centrists in gay-rights wars?

As a journalist, there are few things that I find more interesting than listening to the views of liberal thinkers who ask questions that make liberals nervous, or upset, and conservative thinkers who ask questions that make their fellow conservatives nervous, or upset.

As a rule, I am pro-sweaty palms when it comes time to cover heated debates in the public square.

Thus, I have long been fascinated with the following passage in an essay at The Advocate by the gay commentator Jonathan Rauch. This is a rather long section of the piece, in which he discusses strategies in support of gay marriage, yet taking religious liberty concerns into account:

Two important strategic changes would go a long way toward doing that. First, accept legal exceptions that let religious organizations discriminate against gays whenever their doing so imposes a cost we can live with. Second, dial back the accusations of “bigot” and “hater.”

In the gay community, taking any kind of nonabsolutist attitude toward discrimination is controversial, to say the least—largely because we carry in our heads the paradigm of racial discrimination. In today’s America, though, the racial model is overkill for gays. Injustice persists, unquestionably, but the opposition is dying on its feet and discrimination is in decline. And, unlike white supremacism, disapproval of homosexuality is still intrinsic to orthodox doctrines of all three major religions. That will change and is already changing (younger evangelicals are much more accepting of same-sex relations than are their parents), but for now it is a fact we must live with.

Before we shrug and reply, “So what if it’s religious? It’s still bigotry, it’s still intolerable,” we need to remember that religious liberty is America’s founding principle. It is embedded in the country’s DNA, not to mention in the First Amendment. If we pick a fight with it or, worse, let ourselves be maneuvered into a fight with it, our task will become vastly harder.

Rauch wrote that in 2010 and I have wanted to write a column about that essay ever since.

Here was a prominent gay voice advocating a strategy for compromise that would (a) make it more likely for the gay-rights cause to survive a U.S. Supreme Court test and (b) one that undercut some of the arguments made by the more radical voices on the cultural right, simply by conceding that religious-liberty concerns are real in these debates. He is calling for gay-marriage, or civil gay unions, with conscience clauses strong enough to protect religious organizations, very broadly defined, and the rights of individual religious believers. In effect, he is saying to the cultural left, “We are winning. We must not botch this.”

So I wrote a Scripps Howard News Service column on this topic, focusing on the potential for compromises that protect religious liberty. The column was also inspired by the recent blue-sky remarks by Catholic conservative George Weigel, in which he suggested that it might be time for the Catholic Church — yes, and by implication religious traditionalists in other flocks, be they Jewish, Muslim, Protestant or whatever — to get out of the business of signing off on civil marriages, period.

All of this ended up being the hook for this past week’s Crossroads podcast. Click here to listen to that.

Meanwhile, Rod “friend of this blog” Dreher responded with the sad, but realistic note, that recent events have made Rauch’s commentary even less mainstream, on the left, than it was when he wrote it.

Yes, there is a religion-news, mainstream journalism hook in what Dreher has to say.

Rauch is right, but he’s not as right today as he was in 2010, when he wrote that piece for The Advocate. By which I mean that I don’t think it’s nearly as much of a liability to gay rights supporters to be seen as religious liberty opponents as it once was. That’s in part because the mainstream media have not explored the inherent clash between gay rights and religious liberty, and conservatives opposed to gay marriage have for some reason chosen not to make much of an issue of it.

It is certainly true that the loudest voices on the cultural right have been just as reluctant to talk about compromise as the liberal voices involved in all of these shouting matches.

So what’s up with the rest of my Scripps Howard column? In this case, I think — to set the stage for the podcast — the best thing I can do is run the second half of my piece, which focuses on the views of a conservative who is studying the compromises and then on the views of another pro-gay marriage thinker who also sees the reality of the coming high-court showdown on religious liberty.

So here goes, opening with the viewpoint of Stanley Carlson-Thies, director of the Institutional Religious Freedom Alliance, that Weigel’s strategy is powerfully symbolic, but beside the point.

Even if traditional religious leaders attempt to legally separate Holy Matrimony from secular marriage, it is still the government’s definition of marriage that will decide a variety of issues outside sanctuary doors, especially in public life.

“The other question, ” he said, “is whether those on the cultural left will be willing, at this point, to settle for civil unions. … We will need people on both sides to work together if there are going to be meaningful compromises.”

One divisive issue in these gay-marriage debates overlaps with current fights over White House mandates requiring most religious institutions to offer health-care plans covering sterilizations and all FDA-approved forms of contraception, including so-called “morning-after pills.” These Health and Human Services requirements recognize the conscience rights of employers only if they are nonprofits that have the “inculcation of religious values” as their primary purpose, primarily employ “persons who share … religious tenets” and primarily serve those “who share … religious tenets.”

Critics insist this protects mere “freedom of worship,” not the First Amendment’s wider “free exercise of religion.”

Here is the parallel: In gay-marriage debates, almost everyone concedes that clergy must not be required to perform same-sex rites that violate their consciences.

The question is whether legislatures and courts will extend protection to religious hospitals, homeless shelters, summer camps, day-care centers, counseling facilities, adoption agencies and similar public ministries. What about religious colleges that rent married-student apartments or seek accreditation for their degrees in education, counseling or social work? What about the religious-liberty rights of individuals who work as florists, wedding photographers, wedding-cake bakers, counselors who do pre- or post-marital counseling and other similar forms of business?

These are only some of the thorny issues that worry many activists on both sides of the gay-rights divide. Law professor Douglas Laycock, then of the University of Michigan, provided this summary in a letter (.pdf here) to the governor of New Hampshire.

“I support same-sex marriage,” he stressed. Nevertheless, the “net effect for human liberty will be no better than a wash if same-sex couples now oppress religious dissenters in the same way that those dissenters, when they had the power to do so, treated same-sex couples in ways that those couples found oppressive.

“Nor is it in the interest of the gay and lesbian community to create religious martyrs in the enforcement of this bill. … Every such case will be in the news repeatedly, and every such story will further inflame the opponents of same-sex marriage. Refusing exemptions to such religious dissenters will politically empower the most demagogic opponents of same-sex marriage. It will ensure that the issue remains alive, bitter, and deeply divisive.”

So what journalistic issues should we discuss here, since your GetReligionistas strive (and often fail) to prevent folks in the comments pages from yelling at each other about the political and religious issues at the heart of these issues?

In this case, I will simply ask two two-part questions: Have you seen, in mainstream news coverage, the centrist, compromise-friendly viewpoints of people like Rauch, Laycock and others (because they are out there) and, if so, where did you see them? If you have not seen their viewpoints represented in mainstream coverage, then why is that and is that void good, in the long run, for public discourse on these crucial issues?

Enjoy the podcast.


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