Elevating Progressive Goals over Religious Freedoms

How willing are we to allow freedom to our neighbors? Americans think we are very willing. Liberty of conscience, economic liberty, freedom from compulsion and excessive supervision by government and our communities—these ideas are in our political DNA.

So when the Obama administration levied an executive mandate on Catholic employers to provide employee health insurance that covers contraception, Americans rallied around the Catholic Church. Influential Democrats in Congress now oppose their president's mandate. Several of Patheos' own columnists and bloggers have taken up the issue, pressing for Catholic institutions (including charities and schools) to be exempted from the contraception mandate.

I agree with all these people. The mandate is wrong. Catholic institutions should not be required to purchase employee health insurance on a basis that violates church teaching and the beliefs of millions of Catholics.

But how absolute is the principle of exemption for religious belief? Why should it be the arbiter of one case and not another? It is easy to find recent cases in which Americans have considered religious belief subordinate to one dictate of law or another. I wrote about two in July 2011. One was the case of a lesbian couple who sued the owners of a Vermont inn because the owners—devout Catholics—declined to host the couple's same-sex wedding reception.

That case is in the Vermont court system now. Although there is, in theory, a religious exemption to Vermont's non-discrimination law for public accommodations (e.g., inns), the Vermont Human Rights Commission filed a motion with the county court in October urging the judge not to rule in favor of the inn owners. The Human Rights Commission put the matter as follows:

The commission believes that a ruling . . . favorable to the defendant on constitutional grounds would have a profoundly negative effect on its on-going enforcement program . . .

[T]he state commission's interest "in this matter is to successfully defend these statutory prohibitions against discrimination from constitutional attack."

So in this case, invoking religious freedom of conscience is described by a state commission as a "constitutional attack" on Vermont's anti-discrimination law—even though the Vermont law includes an explicit religious exemption. The judge is allowing the lawsuit to proceed, and on February 8, he ordered the inn owners to turn over ten years' worth of business records requested by the American Civil Liberties Union, which is representing the lesbian couple.

In another case I wrote about last summer, that of a lawsuit by a lesbian couple against the Methodist-owned Ocean Grove Camp Meeting Association in New Jersey, a state judge issued a ruling in January. The judge made the following point:

There is no question that respondent [Ocean Grove] is fundamentally a religious organization, free to frame its mission without governmental oversight or intrusion . . .

But he posited limits on the freedom of religious organizations (see link above for citations of precedent):

I do not believe that the facts pose a true question of religious freedom, but were they to, the matter would not be governed by the high bar of "strict scrutiny," but by a much lower standard that tolerates some intrusion into religious freedom to balance other important societal goals . . .

In this case, the important societal goal was identical treatment by the Ocean Grove Camp Meeting Association of same-sex and opposite-sex couples.