Church and State

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 Hamilton, a Justia columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her latest book is Fundamentalism, Politics, and the Law (Palgrave Macmillan 2011) (co-edited with Mark J. Rozell). Her email is

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