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Last Week’s Congressional Hearing on Religious Liberty: A Disturbing Presentation by a Catholic Bishop Raises Questions About the Separation of Church and State

Last week, the Subcommittee on the Constitution of the Judiciary Committee of the United States House of Representatives held a most curious hearing on “religious liberty.”  Those testifying included the Rev. William C. Lori, the Catholic Bishop of Bridgeport, CT and the Chair of the United States Conference of Catholic Bishops’ newly-instituted “Ad Hoc Committee on Religious Liberty”; Colby May, Director and Senior Counsel of the American Center for Law & Justice; and the Rev. Barry Lynn, Executive Director of Americans United for Separation of Church and State.

There was no actual topic for the hearing, other than the generic topic of “religious liberty,” a malleable term that was made to fit each speaker’s current legislative agenda.  The oddest of the three presentations was that delivered by Lori, who employed the Roman Catholic Church’s definition and theory of “religious liberty” as though the members of Congress could simply forsake the Constitution, and instead embrace the teachings of the Roman Catholic Church.

Lori’s presentation should be disturbing to anyone with even a basic knowledge of the U.S. Constitution, as I will explain.

Why Lori’s Presentation Should Give All Americans Cause for Concern

To begin, Lori’s sources for defining and explaining “religious liberty” included Pope Benedict XVI, Pope John Paul II, and the Second Vatican Council, as opposed to, say, the United States Supreme Court.

Moreover, there appears to be little room for non-believers in Lori’s religio-centric worldview.  According to him, “[R]eligious liberty is inherent in our very humanity, hard-wired into each and every one of us by our Creator.”  For those who do not believe in his “Creator,” this would come as a surprise at many levels.

His description of religious liberty, viewed through the Catholic Church’s lens, partook of the current fashion of treating religious believers as though their beliefs should always trump societal interests.  For instance, Lori claimed that “individuals ‘are not to be forced to act in a manner contrary to [their] conscience’ nor ‘restrained from acting in accordance with their conscience.’”  This, however, is an incoherent standard that would forbid the prosecution and punishment of fanatical Islamic terrorists, of the child rapists and polygamists of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, and of the “faith-healing” parents who watch their children die of treatable medical ailments.

In America, however, the law can and does, in fact, force religious believers to act contrary to their religious beliefs when they are harming others, and thank God that is so.

Another Item on the Religious Agenda: Opposition to Contraception

After these initial statements, Lori got down to the legislative nitty-gritty that I assume was the true impetus for the hearing in the first place.  The Catholic bishops’ problem, at least as suggested by Lori, is not really about religious liberty.  Rather, their core problem is that they have lost the public debate over contraception.

Normally, legislators fall all over themselves to curry the favor of the bishops (apparently believing that doing so will increase their re-election chances).  But when a significant majority of the American public takes a different view than the bishops have adopted, the bishops no longer have as much power.  And when it comes to contraception, a sizable majority of the American public, Catholic and non-Catholic, believes that the use of contraception is perfectly appropriate. The majority’s views on the issue of contraception, therefore, are not in line with the bishops’ attempts to forestall its use.

The Catholic hierarchy opposes the use of contraception, and does not want Catholics to use it.  Of course, it is their prerogative to hold such views, and to try to persuade their members to follow their precepts.  However, they now want the federal government to assist them in ensuring that people do not use contraception.  Fortunately, however, Lori’s list of grievances only documents the Catholic Church’s prior failures to convince politicians and most Americans to embrace this plainly and solely religious view.

The Church is especially critical of federal law in this area. First, federal health care law requires most private insurance companies to cover contraception and sterilization. There is an exception for religious employers when the religion’s tenets forbid taking such measures, but apparently, that is not enough for Lori and the Catholic bishops. They want to allow—or perhaps even force—private plans employed by secular employers not to cover contraception or sterilization, too.

This is a weak argument, because there is nothing in federal law that requires anyone to use contraception or sterilization.  The government does not force women to swallow birth control pills, or to undergo forced surgical procedures to tie their fallopian tubes.  Rather, the legal rule is that if women choose for themselves to use contraception or undergo sterilization, then the insurance company will have to cover the cost.

The bottom line, then, is this:  Were the bishops succeeding in persuading their flocks to forego pregnancy prevention (and thus to have an unlimited number of children), then they wouldn’t need to ask anyone—insurance company or government—to halt the funding of birth control or sterilization.  Apparently, when persuasion doesn’t work, the bishops opt for the political means of increasing financial pressure to make others forego the pills and procedures that they otherwise would have chosen according to their own faiths or secular outlooks.

Second, Lori complained that Health and Human Services had added to its government contracts for services involving the victims of human trafficking and unaccompanied refugee minors a requirement that the service organization must provide a “full range” of reproductive services, including abortion and contraception.

Let’s pause to think about this unbelievable stance. Certain organizations are saving the victims of human trafficking, which is all too often sex trafficking.  The bishops want to serve such victims, but without offering abortions and contraception as options.  So what does their organization do when faced with a raped and pregnant teenager who is not Catholic, and wants to terminate the birth?  Impose its beliefs on that victim, offering her no other option than to have her rapist’s child?  Why should the government pay for that?

If the bishops’ religious beliefs make them unfit to serve the victims of human trafficking, then there is no religious liberty violation if the bishops cannot receive government funding for providing that service.  There is no constitutional right to government funding of religious mission.

Another Disturbing Agenda Item:  Opposition to Allowing Scientists to Decide Which AIDS Prevention Programs Are the Most Effective

Third—and this one is stunning—Lori actually complained that the State Department is not willing to fund private agencies engaging in AIDS prevention unless those agencies provide comprehensive prevention programs.  For example, the State Department prefers to fund organizations that will distribute condoms and provide birth control, rather than funding those that refuse to do so.

In this era of government deficits that are threatening the very fiber of our society, it is truly remarkable that any religious organization could demand the “right” to receive government funds to address the international disaster that is AIDS, despite the fact that their beliefs prohibit them from employing what scientists have determined are the best means of preventing the spread of the disease.

Preaching the rhythm method and abstinence is simply no substitute for what science has told us on this issue.  If the bishops seek to divert the tide of AIDS within their own religion’s restrictions, nothing is preventing them from raising the funds that are needed privately.  Again, the government is not threatening religious liberty by funding only those service providers who will deliver the services needed.

Additional Complaints by the Bishops:  Taking Aim at DOJ’s Decisions Not to Defend DOMA, and Not to Strongly Support a Broad “Ministerial Exception”

Fourth, the bishops are concerned that the Department of Justice has declined to defend the Defense of Marriage Act, because according to the DOJ, it is an act of bigotry.  The bishops do not want to be called bigots.

Fifth, they are unhappy that the Department of Justice did not take a strong position in favor of the “ministerial exception” in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which I discussed in a prior column for Justia’s Verdict.  Instead, the DOJ argued in favor of enforcement of the federal anti-discrimination laws, which is the job of the government’s lawyer after all.  Again, the bishops lost the political battle over what the government would argue, but that defeat does not amount to a violation of religious liberty.

The Church Should Focus on Genuine Religious Liberty Violations, and Not on Attempting to Enshrine Religious Tenets in Public Policy

In summing up his remarks, Lori had a novel suggestion. If “conscience” clauses are not enlarged to ensure that insurance companies and religious mission organizations can avoid making contraception available, then Lori thinks that Congress should create a new private cause of action that would permit these organizations to sue.

Now, if there were a genuine religious liberty violation at issue here—say, a violation of the First Amendment—the Church could sue without any initial action by Congress.  But because there is no right to win political battles over public policy, such as the fight as to whether contraception should be provided in insurance plans or in publicly funded programs, the bishops would need this new private cause of action in order to sue.

This is the ultimate concession that Lori’s testimony was not about “religious liberty” as that term has been defined by the United States Constitution.

Marci A. HamiltonMarci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts, www.RFRAperils.com, and statutes of limitations for child sex abuse, www.sol-reform.com. Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is hamilton02@aol.com.
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  • http://www.facebook.com/barbara.l.terry Barbara Lynn Terry

    The First Amendment to the United States Constitution GUARANTEES that not respect an establishment of religion. Yet, the Republican House of Representatives is constantly doing this in violation of their oath office to protect and enforce the Constitution of the United States. To invite Catholic relgious figures to give testimony at a congressional hearing, IS respecting and establishment of religion. There are way too many religious figures testifying before the House of Representatives these days. It is time we the people took back our country, our rights, and impeach elected representatives who fail to understand that they are there to protect our rights according to the Constitution. Yet, the Republicans make light of these rights, and make their own agenda in violation of our rights according to the Constitution. “We the people, in order to form a more perfect union, do establish this constitution …” The founding fathers of our great nation are turning over in their graves at the constant rights violations the Republican party is heaping on the American people.

  • Grapevineag

    Ms. Hamilton, apparently you missed the part about him being a Bishop.  You are concerned because he gave his testimony on religious liberty from the viewpoint of a Bishop and the Catholic Church?

    Did you expect him to go forth and give a lawyer’s constitutional analysis?  Apparently you did.  What he had to say is exactly what is, or should be, the point of these hearings- to understand the issue from the viewpoint of those it affects.

    I guess it’s easy to miss such an obvious point when one is mired in the everyday politics of slash and burn self protectionism.

  • Zachary

    Ms. Hamilton: you are misconstruing many of the Church’s positions on these issues – it seems that you have taken your contempt for the Church and veiled it in lazy legal analysis. One of the questions Sibelius needs to answer is, if the Federal government is less effective at administering aid than private organizations, then either it should thank the private organizations for doing what the Fed has failed at doing (presumably why these kind of funding of private organization programs exist in the first place), or try to handle all of these trafficking cases on its own.

    But we both know the Fed is unable to adequately meet the needs of its citizens.

    Instead, Sibelius has conditioned funding of private organizations on accepting (in the name of tolerance) a world-view that relies more on social engineering that teaching a crazy idea like…virtue. The Church seems like the mature one in this situation – seeking to care for the whole person rather than throwing a pill at them or sending them to the local PP. Now granted, different people will differ regarding the above values, but isn’t that the point? The Church shouldn’t be coerced into accepting some liberalized ethic just because it’s better at serving the needs of the vulnerable than the Fed.

    Oh, and there are other options besides: (1) pill or abortion, OR (2) unlimited babies everywhere. It’s called a citizenry raised in a virtue-oriented society that encourages responsibility and true care of the poor and disadvantaged – not just a quick chemical or surgical “fix.” A long way off, but you can dream of your social-engineered dystopia and I’ll dream of my country returned to virtue.

    • Anon.

      The Catholic Church and its charities can do what they want  They don’t have to ask for federal funds.  If they choose to do so, then they should follow the rules set up by our government.  

      • Jj5498

         I interpret separation of church and state as forbidding the public sector from contracting out social services to private entities with a faith mission. Such entities most definitely have a right to exist, but will have to subsist on voluntary contributions by the faithful. There are legitimate problems of conscience posed by citizens having to pay taxes to support government departments, and grants to private nonprofits lacking a faith mission such as PP, that act in ways that offend the citizens concerned.

      • Jj5498

         I interpret separation of church and state as forbidding the public sector from contracting out social services to private entities with a faith mission. Such entities most definitely have a right to exist, but will have to subsist on voluntary contributions by the faithful. There are legitimate problems of conscience posed by citizens having to pay taxes to support government departments, and grants to private nonprofits lacking a faith mission such as PP, that act in ways that offend the citizens concerned.

    • Anon.

      The Catholic Church and its charities can do what they want  They don’t have to ask for federal funds.  If they choose to do so, then they should follow the rules set up by our government.  

    • Anon.

      The Catholic Church and its charities can do what they want  They don’t have to ask for federal funds.  If they choose to do so, then they should follow the rules set up by our government.  

  • Joe Simmons

    Rev. Lori’s presentation should not be disturbing to anyone with even a basic knowledge of the U.S. Constitution.

    Rev. Lori is not making laws, he is expressing his point of view. Individuals are not compelled to express views supported by the Constitution – whether they are directly speaking to members of Congress or yelling in the streets. It is certainly not rare that someone expresses a view in a hearing that is not supported by the Constitution nor is good policy. You seem most troubled because his view is religious. I hope the hearing included a diverse roster of views and I applaud the committee for including strident voices like that of Rev. Lori. It’s too easy to only hear the voices you want to hear.

    I certainly don’t agree with much of what he said, as you’ve described. Nor do I agree with a lot of what the MPAA and RIAA (and a great many other organizations) tell Congress nor do I think the policies advocated by all such groups are necessarily constitutional. Perhaps if a victim of gun violence testifies for a ban on firearms, we can talk about the disturbing questions that are raised because of the apparent ignorance of the 2nd Amendment and Supreme Court precedent. Or maybe that strident voice will add to a fuller understanding of the issue because they are not hedging their expression based on a self-righteous self-application of constitutional standards.

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