In 2012, when the U.S. Supreme Court handed down its unanimous ruling in a landmark First Amendment case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, Chief Justice John Roberts traced religious liberty to the Magna Carta, which embraced this right as the first freedom.
Writing for the court, Roberts affirmed the right of a Lutheran school to make employment decisions affecting those engaged in its religious mission, without government interference, and he noted that First Amendment protections were designed to bar the state’s intrusion into church administration.
"The Establishment Clause prevents the government from appointing ministers," stated Roberts, "and the Free-Exercise Clause prevents it from interfering with the freedom of religious groups to select their own."
Now, as Catholics in the United States prepare for the Supreme Court to address two more high-profile religious-liberty cases, and lawmakers in 13 states consider strengthening statutory protections for religious believers, it’s worth remembering that the framers saw the "first freedom" as a check to state power — not as a "fig leaf" for discrimination, as some now allege.
That point is important, because some opponents of strong religious-liberty protections are arguing that the threat to American freedoms — specifically, newly established "reproductive rights" and marriage "equality" — comes from churches and individual religious believers. "The bosses want to deny your birth-control coverage," announced one story attacking legal challenges to the Health and Human Services’ contraception mandate on Planned Parenthood’s website.
On March 25, that charge will be scrutinized by the Supreme Court, when it hears oral arguments for HHS lawsuits brought by Hobby Lobby and Conestoga Wood, two closely held for-profit companies.
The justices’ comments and questions will offer at least a hint of how they will rule on the merits of these cases.
One Catholic CEO, Autocam’s John Kennedy, who was among the first for-profit plaintiffs to challenge the mandate in court, will be reviewing the oral arguments with keen interest. Elsewhere in these pages, we report that Kennedy, after losing his appeal to the 6th Circuit, was forced to comply "under protest" — or face massive financial penalties. But the struggle hasn’t shaken Kennedy’s belief that the mandate poses a direct attack on his religious freedom. The "government [believes it] should tell us what is right and wrong," he told the Register.
In individual states, the religious-freedom battle is playing out with a different script — at least in the short term. About 13 state legislatures, heeding the concerns of their religious constituents and leaders, are considering a range of proposed laws that incorporate elements of the federal Religious Freedom Restoration Act. RFRA directs government not to pass laws that substantially burden religious freedom without a compelling state interest. When that threshold has been met, the law calls for the least restrictive means of advancing that interest.
In recent years, efforts to strengthen federal and state protections of religious liberty have come under fire from Planned Parenthood and its allies, who warn of a "war on women" waged by social conservatives. Now, homosexual-rights groups have joined the debate, and they assert that such laws provide a "pretext" for a "denial of service" by small-business owners who oppose marriage "equality."
In February, after Arizona’s Legislature unanimously passed two amendments designed to clarify provisions of the state’s RFRA, civil-rights groups and marriage "equality" activists attacked the bill as a "license to discriminate." They demanded that Gov. Jan Brewer veto the bill and prepared for a boycott campaign against the state. The National Football League signaled that it might change the location of the 2015 Super Bowl, scheduled to take place in Glendale, Ariz.
However, a group of top constitutional scholars sent a letter to Brewer that insisted the bill did not say that businesses can discriminate for religious reasons.
"It would provide that people are covered when state or local government requires them to violate their religion in the conduct of their business, and it would provide that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion," the letter stated.
Most advocates of marriage "equality" or "reproductive rights" who want to secure specific freedoms at the expense of religious liberty do not see that their efforts could ultimately weaken their own freedoms as the government fills the vacuum created by the retreat of religious charities and schools.
Indeed, the American system of ordered liberty has depended on a robust role for civil institutions, including churches and faith-based groups, which stand between the individual and the state — and thus mitigate government overreach.
Now, more than ever, Catholics need to support efforts to bolster religious freedom and explain why our experiment in ordered liberty requires robust protections for churches and individual believers. But it’s also important to remember that the fight for the "first freedom" is not an end in itself and is linked to a deeper truth.
"In the end, we defend religious liberty in order to live the deeper freedom that is discipleship in Jesus Christ," stated Archbishop Charles Chaput of Philadelphia in his July 4, 2012, homily for the closing Mass of the first "Fortnight for Freedom" at the Basilica of the National Shrine of the Immaculate Conception in Washington. "What good is religious freedom, consecrated in the law, if we don’t then use that freedom to seek God with our whole mind and soul and strength?"