In the nation’s capital, two very different views of law are playing themselves out.
The District of Columbia has recently proposed legislation — ironically titled the Human Rights Amendment Act of 2014 — that threatens religious liberty. A companion law, the Reproductive Health Non-Discrimination Act, expands the nondiscriminatory language in the Human Rights Amendment Act.
The first law repeals the so-called Armstrong Amendment, a 1989 exemption, which was enacted to shield religious schools in the district from the requirement that they recognize school groups that contravene Catholic teaching. Without that exemption, Church-affiliated schools would have been forced to recognize or support groups who did not support Church teaching and might even oppose it. The 1989 exemption affirmed that these Church-affiliated institutions had the right to act as they believed and not have the state decide how they should act.
The second law expands on the initial scope of the Human Rights Act by extending nondiscrimination to include an employee’s “reproductive-health decisions,” including abortion. That is, the legislation, if signed into law by Mayor Vincent Gray, and not otherwise nullified by the Congress, could require religious organizations to cover costs for procedures that violate their religious principles. This law continues a theme that has been expressed in laws across the nation, most infamously in the “contraceptive mandate” imposed by the U.S. Department of Health and Human Services but overturned for closely held private corporations by the Supreme Court in the recent Burwell v. Hobby Lobby case.
At first glance, both laws seem innocuous. By using the words “health” and “nondiscrimination,” the laws seem to be squarely in the mainstream of popular opinion. Reasonable people, the laws seem to say in their very titles, can’t be opposed to things like health or nondiscrimination, right?
However, there is more to the story. In reality, these laws clash with the way Americans typically have viewed the role of law and the legal protections for religious-exercise rights.
Both of the D.C. laws are directed at individuals and institutions that don’t share the values of secular elites — or at least as those elites represented by the D.C. City Council, which passed the laws in December. The laws are animated by a belief that religious teaching and religious action are two separate things and that laws can affect the latter without infringing on the former.
This tactic reflects the thinking of legal experts who use the phrase “freedom of worship” rather than “freedom of religion” or, as the U.S. Constitution phrases it, the “free exercise” of religion. Our constitutional tradition protects more than belief. One must be able to exercise religion.
Exemptions such as the one that has remained in effect in the District of Columbia for a quarter century were viewed as a reasonable way to accommodate religious belief without preventing governments from implementing legislation to advance what it deemed to be important societal goals.
Laws such as the Human Rights Amendment Act, instead, turn this traditional understanding of religious liberty on its head. These laws render religious exercise less important than religious belief; accordingly, the law can force institutions and people to act contrary to their religious tenets because they are still “free” to believe whatever they wish. But this is an exceedingly superficial way to treat religion as it is actually lived. Many, if not most, religious people do not separate their beliefs from their conduct, even if that conduct falls short in some ways. And in fact, many cannot: Catholics, for example, are enjoined not just to believe in the Gospel, but to live it in their daily personal and professional lives and to be witnesses to the faith. Other religions operate in the same manner. The D.C. laws represent a modern notion that contends it can enforce an artificial distinction between religious belief and exercise.
Indeed, these laws embrace contradictory principles. In the name of “human rights,” they have defined “acceptable” positions on controversial social issues, and they force all religious believers to adhere to this received wisdom: Religious believers are not permitted to align their practice with their own beliefs.
This pressure from such laws to force religious institutions to act contrary to their beliefs has a serious ill effect; it threatens to eliminate distinctive religious voices from public debate. Thus, such laws repudiate the critical role that civil institutions have played in the American system of ordered liberty: They mediate between the individual and the government, and thus limit the power of the state.
If law can force religious believers to conform to government policy, their voices becomes muted. Institutions run according to religious principles cannot offer a true alternative — Christians would say “witness” — to the secular state. This is a danger too often neglected by Catholics, who figured the state was friendly enough to religion to justify a partnership, assuming that the sheer number of Catholics would help preserve the Church’s interests in religious liberty. That judgment has since been refuted by the shifting demands imposed on churches by government entities.
Government now has more clearly moved into an adversarial role with respect to religious entities and organizations attempting to do their work, pushing instead its own vision of social goods. Many Catholic social-services agencies have already become little more than adjuncts to the state; for example, their witness dissipates in direct proportion as they act in accordance with secular values. Catholic charities are already hemmed in by laws at the federal level that try to distinguish between “social services” and “religious activities,” and how they may be combined, as a condition to receive federal aid. Indeed, the whole point of such laws is to force religious witness out of public debates over health care, education and other areas of social policy.
But these laws highlight another troubling trend. They embody the view that current, if shifting, values, such as a particular understanding of “health” or “equality,” can trump constitutionally protected rights like the free exercise of religion.
The reason why the Constitution privileges some rights is precisely because the Founding Fathers recognized them as uniquely important and as serving larger social goods beyond passing arguments of the day. Moreover, as the Supreme Court found in its 2014 ruling in favor of Hobby Lobby, the Health and Human Services mandate violated the Religious Freedom Restoration Act, which asks the state to use the “least restrictive means” to accomplish secular goals, such as equality or “reproductive freedom.” The goal is not to impinge on the freedom of religious believers.
The D.C. Council’s laws will likely be challenged, and the high court’s ruling in Burwell and other key-free exercise cases suggests that such laws could be overturned.
But Catholics and other believers should understand that attempts to pass laws hostile to religious freedom will continue and must not be ignored. They represent a very real threat to the practice of religion in our land.
Gerald J. Russello is editor of The University Bookman.
Corrections: This article originally had incorrectly named the Human Rights Amendment Act and inaccurately described the Armstrong Amendment. The Register regrets the errors.