Print Edition: March 8, 2015
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Nine state-level religious-freedom caucuses gear up for new challenges to First Amendment rights.
BY JOAN FRAWLEY DESMOND
WASHINGTON — Capitol Hill has been the focus of legislative efforts to overturn the federal contraception mandate and strengthen conscience rights, but state legislators are also moving quickly to address emerging threats to the “first freedom.”
Now, a bipartisan group of 120 state legislators is banding together to form religious-freedom caucuses in nine states. This development has been fostered by the American Religious Freedom Program, a project of the Washington-based Ethics and Public Policy Center.
Tim Schultz, the state legislative policy director for the American Religious Freedom Program, confirmed during an Oct. 10 interview that judicial and legislative efforts to constrain the First Amendment rights of religious groups and ordinary citizens were on the rise.
State legislators need resources to help them address “a new but highly important issue,” Schultz told the Register. “Legislative expertise has yet to be developed, and few have a comprehensive background on this.”
The newly established religious-freedom caucuses in Arizona, Colorado, Florida, Idaho, Kansas, Missouri, New Hampshire, Oklahoma and Tennessee will bring state lawmakers together during legislative sessions. This movement will help lawmakers develop bills that can stand up to both constitutional challenges and well-financed attacks from political coalitions that may view the free exercise of religion as an obstacle to the promotion of “reproductive rights” or “marriage equality” for same-sex couples.
“We are here to provide resources,” said Schultz. “We anticipate that legislators in one state will also provide guidance to those in another.”
State Rep. Debbie Lesko, R-Glendale, who authored a bill that allows the state’s religious employers to opt out of the federal contraception mandate, will be part of this legislative brain trust aiding the new religious-freedom caucuses.
Last May, despite fierce lobbying from Planned Parenthood and its allies in the Arizona State Senate, Lesko’s bill exempting religious employers from compliance with the U.S. Department of Health and Human Services' mandate was signed into law by Republican Arizona Gov. Jan Brewer.
“The majority of Arizona legislators support religious freedom. But the key to getting the bill approved by the block that resisted it in the Senate was to change the language so that the bill only covered religious employers,” Lesko told the Register, expressing regret that more expansive conscience protections covering non-religious employers weren’t feasible.
Lesko acknowledged that clear support for First Amendment rights from Brewer and most state legislators smoothed the bill’s passage.
But the legislative victory has come at a significant personal and political cost. Lesko said she was personally targeted by the bill’s opponents, and she has struggled to overcome what she describes as the ongoing mischaracterization of its purpose and impact.
On its website, Planned Parenthood directed its supporters to: “Stop House Bill 2625 — This bill discriminates against women so that our birth control doesn’t have to be covered by our employer if he or she has a religious objection. What about our religious beliefs? Where are our freedoms?”
During Lesko’s campaign for re-election, her opponent has echoed arguments by the American Civil Liberties Union and Planned Parenthood against the bill, and the lawmaker fears it could lead her constituents to rethink their support for her.
Lesko’s opponents charge that her bill would allow employers access to their employees’ private medical information. That charge arises from language in the bill, which exempts objecting religious employers from providing contraception coverage, but provides access to contraception for medical reasons. This medical exception has been used to characterize the bill as an intrusion into the privacy of employees.
“The main problem, and it still continues to be a problem, is that my legislation has been so distorted that people still misunderstand it,” said Lesko, the majority whip in the state Legislature.
However, her legislation drew strong backing from the Arizona Catholic Conference. The lawmaker, a member of the Lutheran Missouri Synod that was an early ally of the U.S. bishops’ anti-mandate effort, said, “The Catholic Church is doing a good job of spreading the truth to their parishioners.”
Last year, after a number of troubling government actions at the federal and state levels prompted the bishops’ concerns about emerging threats to the free exercise of religion, Cardinal Timothy Dolan of New York, the president of the U.S. Conference of Catholic Bishops, launched a national effort to educate the faithful about the importance of defending the “first freedom.”
That jump-started campaign has sparked homilies and congressional testimony, legal challenges and academic conferences.
The mission for the Church and its allies is to explain the importance of religious liberty as a core human and constitutional right and to promote legislative and legal remedies that resist intrusive government actions, including the federal contraception mandate, which requires private employers to provide co-pay-free contraception, abortion drugs and sterilization in their health plans.
During a Sept. 10 address in Washington, Cardinal Dolan signaled that the bishops’ conference would not let up on its campaign against the HHS mandate.
“To say it again, the wide ecumenical and interreligious outrage over the HHS mandate is not about its coverage of chemical contraceptives and abortion-inducing drugs — in spite of the well-oiled mantra from our opponents — but upon the raw presumption of a bureau of the federal government to define a church’s minister, ministry, message and meaning,” stated Cardinal Dolan during an address on religious freedom at the John Carroll Society.
Across the country, Church leaders have adopted a two-track strategy for addressing First Amendment issues — file legal challenges against the mandate and other intrusive laws and advocate for legislation like Lesko’s that secures broader religious exemptions and stronger conscience protections. Both approaches are needed because judicial rulings on First Amendment cases can be unpredictable, say constitutional scholars.
Threats to religious liberty often accompany legislation and judicial rulings designed to secure same-sex “marriage” and access to abortion, contraception and other services judged by the Catholic Church and some other churches as immoral.
“There is no doubt that the [federal contraception] mandate has driven public attention on this issue in a way that has intensified the focus of public legislators on religious freedom,” said Schultz of the American Religious Freedom Program.
Most of the time, he said, voters assume First Amendment cases are addressing “classic Establishment Clause issues involving public displays of religious belief” like placing crèches and crosses on government property.
“But the new action is the area of the free exercise of religion,” which involves, for example, the right of diocesan adoption agencies to place children in homes with married couples of the opposite sex, Schultz said.
He said that the American Religious Freedom Program would not take a position on “any of the great issues that touch religious freedom, like same-sex ‘marriage’ and abortion. But when society wants more liberalized laws, we don’t want the baseline on religious freedom reduced — no matter what social changes occur.”
Florida State Rep. Steve Precourt, R-Orlando, a Catholic who has joined the religious-freedom caucus in the state Legislature, is among the growing number of lawmakers working on First Amendment issues close to home.
During the 2012 campaign season, Precourt has worked to galvanize support for Amendment 8, the Religious Freedom Act, legislation designed to address weak language on the free exercise of religion in the Florida Constitution.
The measure, Precourt told the Register, is the fruit of years of constitutional analysis, debate and negotiations, and it has been strongly promoted by the Florida Catholic Conference.
Legislators began working on the issue after two faith-based organizations lost their contracts with the Florida Department of Corrections following a legal challenge filed by the Council for Secular Humanism, which cited the state Constitution’s broad prohibition on government funds going to religious organizations.
Precourt said he feared that the rising number of such cases will force the closure of Catholic hospitals, agencies and other essential programs that minister to the needy and sick.
Archbishop Thomas Wenski of Miami, the president of the Florida Bishops’ Conference, shares Precourt’s concern.
“Today, our Florida Constitution includes the language of the so-called Blaine Amendment, a relic of 19th-century anti-Catholicism. In 1875, Congressman James Blaine, influenced by the anti-immigrant, anti-Catholic Know Nothing movement of the 19th century, sought to amend the U.S. Constitution to effectively shut down Catholic schools, which were being built in great numbers as an alternative to 'Protestant' public schools,” stated Archbishop Wenski in a commentary that is posted on the archdiocese’s website.
Said Archbishop Wenski, “If voters approve the Religious Freedom Act, our Florida Constitution will be more aligned with the U.S. Constitution and, at the same time, will allow religious entities to continue to participate in public programs.”
Precourt is doing everything in his power to make that happen.
“Our message,” he said, “is that this issue is about discrimination against people of faith: They should be allowed to compete in the marketplace.”
Joan Frawley Desmond is the Register’s senior editor.
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