The High Court’s Religious Liberty Dodge
BY Gerald J. Russello
October 21-27, 2007 Issue | Posted 10/16/07 at 1:08 PM
The Supreme Court recently had two chances to defend religious liberty, but it decided to dodge the issue instead.
As its term opened this past October, the Court refused to consider two decisions from lower courts that had ruled against religious believers. The first case directly concerned Catholics: In Catholic Charities of the Diocese of Albany v. Dinallo, the New York state courts had ruled that under a 2002 law, Catholic hospitals can be forced to provide contraceptives as part of their insurance plans, even if that violates the institutions religious teachings.
The New York law, unfortunately, is not an anomaly. Laws like this exist in almost half of the states. Because Catholic health care services are the largest or only such facilities in a given area, these laws obviously had these institutions in mind. Moreover, it is clear that in some states, such as California, such laws were deliberately directed at Catholic institutions.
A similar background for any other law would have been a clear sign for a court to strike it down. Indeed, in the homosexual rights case Romer v. Evans, the court struck down a law prohibiting preferences for homosexuals because the court found that the law was inspired by an improper “animus.”
The same analysis applies here, even more strongly, as there was less evidence of such animus in Romer, while in California at least it was clear that Catholics were the target of the law.
The second case, Faith Center Church v. Glover, was no less troubling.
A federal appeals court in California ruled that a public library was allowed to discriminate against an evangelical group who wanted to use the library for its meetings, which included a worship service. The court ruled that the county library system could prohibit “worship” as unconstitutional, while allowing other forms of communication, such as “speech about religion,” political events or other community programs.
As the dissenting judge in the 2-1 decision points out, this decision requires library boards to decide what constitutes worship and what counts as “speech,” a task that itself raises serous First Amendment issues. It would be too easy for the county library board to restrict legitimate expression.
Because the Supreme Court has let these rulings stand, they will remain the law as troubling reminders of the increasing hostility to religious expression in public life. For the two cases are opposite sides of the same coin.
Glover says that, although members of a community whose taxes support the library may not use it for religious purposes, the Catholic Charities case forces religious institutions to pay for activities that violate their religious beliefs.
In other words, religion is to be kept out of our public spaces except under carefully controlled circumstances; and when allowed in, religions must be expected to subsidize their opponents.
There is no natural limit to this logic, which has little connection to the actual First Amendment or the history of religious liberty.
If a legislature can force a Catholic hospital to provide insurance coverage to its employees for contraceptives in the name of health or equality, it can also force Catholic hospitals to provide them to patients. And indeed, recently the Catholic bishops determined not to fight a Connecticut law requiring Catholic hospitals to dispense emergency contraceptive pills to rape victims.
The issue is not really about the merits of particular policies, but rather the question of who determines the place of religious liberty in our constitutional system.
For example, the New York law exempts “religious employers” from the requirement to provide contraceptive coverage, but only if the “purpose” of that employer is to “inculcate religious values” and whose employees and customers are primarily of the same religion.
That blinkered definition describes no Catholic hospital in the United States, whose staffs and patients are drawn from the surrounding communities and comprise many different religious traditions. Moreover, under the law, legislatures and judges decide whether a Catholic hospital’s purpose is the “inculcation of religious values.”
But this analysis ignores both the ecclesial and evangelical importance of serving as a witness to non-Catholics, and also that Catholics are enjoined by their faith to comfort the sick and perform corporeal works of mercy, which include running hospices, hospitals and other charitable organizations.
If that is not a “religious value,” what is?
Though there will be much talk of how “conservative” this Court is, especially given the majority of Catholic Justices on the Court, the reality is more complex.
Judging from the refusal to review Glover and Catholic Charities, the future may continue to be disturbing for religious believers.
Gerald J. Russello is a fellow
of the Chesterton Institute
at Seton Hall University.
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