The Religious Freedom Files
More U.S. and Canadian church-and-state battles erupt.
TOWSON, Md. (CNS) — John Garvey is convinced that religious freedom will be the most important issue facing the Catholic Church in the United States over the next half century.
“This is so because our culture is evolving in ways that are indifferent and sometimes even hostile to religion,” said Garvey, president of The Catholic University of America in Washington.
The sexual-abuse crisis has particularly wounded the Catholic Church, he said, contributing to a loss of moral authority. In the past decade, he said, legal restrictions aimed at the Church garnered a sympathetic hearing. The Church now finds itself in the same position as religious minorities, he said.
“In fact, its position is worse,” Garvey said, “because when a state like the Commonwealth of Massachusetts enacts laws that are aimed at the Church, it may not seem discriminatory to people because a majority of the legislators who passed the laws were baptized as Catholics.”
Religious people have traditionally sought shelter in the Constitution, he explained, “and that’s an area where the shade has been diminishing in the last decade.”
Garvey spoke May 10 at an inaugural lecture on religious liberty, hosted by Archbishop Edwin O’Brien of Baltimore at Calvert Hall College High School in Towson. The gathering attracted an estimated 150 people.
Garvey focused much of his talk on the 1990 Supreme Court ruling Employment Division v. Smith. The ruling held that the First Amendment protects religious actors against discrimination, Garvey said, but not against laws that are neutral and generally applicable.
David Kinkopf, an attorney with Baltimore-based Gallagher, Evelius & Jones who represents the Archdiocese of Baltimore, argued that the Smith ruling is inadequate in protecting church liberty: “If Congress passed a general law reinstating Prohibition — absolutely outlawing alcohol (even for sacramental use) — Congress would be free to do that under the Smith doctrine. It could criminalize something that’s so central to our sacramental life.”
“Time and time again,” he added, “this neutrality isn’t a sufficient protection of religious liberty.”
Garvey and Kinkopf pointed to several recent challenges to religious freedom. One was the recent law passed by the Baltimore City Council that required pro-life pregnancy centers in the city to post signs indicating that they did not provide abortion or birth control. Similar signs were not required of Planned Parenthood requiring that organization to state what services it didn’t provide.
Archbishop O’Brien challenged the law in federal court as a violation of the First Amendment.
U.S. District Court Judge Marvin Garbis ruled Jan. 28 in Baltimore that it is unconstitutional to require pro-life pregnancy centers to post signs with language mandated by the government. The judge wrote that whether a provider of pregnancy-related services is “pro-life” or “pro-choice,” “it is for the provider — not the government — to decide when and how to discuss abortion and birth-control methods.”
The case is making its way up the federal courts.
“We ought to be concerned about the government — under threat of criminal prosecution — forcing private speakers to provide a government-mandated message,” Kinkopf said.
Kinkopf said land-use cases are another area where religious liberty can be at risk. When the Archdiocese of Baltimore sought to demolish an apartment building to make way for the Pope John Paul II Prayer Garden, it ran into difficulty with historic preservationists. If the city would have failed to allow the Church to demolish the building, Kinkopf said, it would have violated the Religious Land Use and Institutionalized Person Act. The city allowed demolition to proceed.
“The case really turned on the question of whether there was a substantial burden on the religious exercise of a person, including a religious assembly or institution,” Kinkopf said.
Garvey cited other cases where religious liberty runs into laws that compel religious institutions to do something against their beliefs or obey laws that apply to everyone. Examples include abortion counseling at Catholic hospitals, same-sex adoption and contraceptive coverage in health insurance.
Archbishop O’Brien noted that Pope Benedict XVI has spoken out strongly on the importance of defending religious liberty around the world — stipulating that the right to religious freedom should be viewed as an agent of the fundamental dignity of every human person.
The archbishop said, “Let’s uphold this right through the work of our own vocations and preserve it for future generations.”
And further north, the Supreme Court of Canada heard arguments pitting parental rights in the education of their children against Quebec’s mandatory “Ethics and Religious Culture” program.
The case has raised alarms across Canada among Catholic educators, who fear that relativism is threatening the right to a truly Catholic education.
The Ethics and Religious Culture program has replaced religious education in all Quebec schools, public as well as private, and is compulsory.
If parental rights are impeded, “that impinges on the rights to have a Catholic education,” said John Stunt, executive director of the Canadian Catholic School Trustees’ Association, one of seven interveners in the case brought against the Quebec government by a Roman Catholic couple from Drummondville, who requested their two children be exempted from the program.
The couple’s identity is protected by a publication ban.
“This could have wide-ranging problems with what the government can do in the way of taking away religious freedom when it comes to our schools,” said Nancy Kirby, president of the Ontario Catholic School Trustees’ Association.
“What is at stake is what Pope Benedict XVI calls the dictatorship of relativism,” said Jean-Yves Cote, who represented the Christian Coalition for Parental Rights in Education. “That’s what we are dealing with here in (this) case.”
The coalition, which represents the Catholic Civil Rights League, the Association of Catholic Parents of Quebec, Faith and Freedom Alliance and the Association of the Coptic Orthodox Community of Greater Montreal, maintains that the program is “ideological” with a “coercive element.”
Iain Benson, attorney for the Canadian Catholic School Trustees’ Association and the Canadian Council of Christian Charities, asked the court if the parents have a right to dissent. He described parents as a “check on state power” and warned that if the decision “goes the wrong way” more parents were likely to become fearful of multiculturalism and withdraw their children from public schools, leading to the isolated cultural “silos” the course is meant to prevent.
Mark Phillips, one of the two lawyers representing the parents, told the court the government insists the program is “about teaching tolerance and diversity.”
In an interview after the court hearing May 18, Phillips said the parents have nothing against those objectives, but they fear the course is “a form of indoctrination” seeking to cultivate a worldview and a framework for ethics that is different from their Catholic faith.
Questions from the justices concerned whether the burden should be on the parents to prove harm or whether the state had the onus to prove its course was neutral on religion.
“The ERC course is not merely teaching about some other religions,” Cote explained to the court. He spoke of “a hidden agenda of putting all the religions in the same basket and trying to implement the idea in the mind of the child that all are equal and none of them is true.”
“That idea is very dangerous for our kids,” he added. “The ERC is relativistic, an obvious threat to the Catholic faith.”
Benoit Boucher, arguing for the Quebec attorney general’s office, told the court the program is neutral on religion and that it teaches that “deep values are not to be judged; they are to be respected.”
The program does not involve comparisons or weighing of the relative merits, but instead teaches respect for diversity and the beliefs of others, he added.
However, Cote countered that, for Catholics, “tolerance is about accepting all persons, but not about accepting all ideas. That would go directly against our faith. That distinction is not understood by the attorney general.”
“This course requires the student to question his own beliefs constantly in the context of a group dynamic,” said Jean Morse-Chevrier, president of the Association of Catholic Parents of Quebec. “The whole course is done in dialogue in groups where you have to question the other person’s arguments and have to question what they got from their parents, what they got from their religion.”
The coalition has raised privacy concerns for the children and their families under such an approach.
A court ruling is expected in several months.