Clarifying the Basics of Religious Freedom

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By Michael J. Gerson

Under pressure, the Obama Administration has modified its ruling requiring religious charities, hospitals and universities to provide insurance coverage that includes contraception, sterilization and abortion-inducing drugs.  Now the insurance companies themselves will be mandated to provide coverage. 

The Administration has moved in the right direction, but not very far.  The direct mandate was withdrawn.  But an indirect mandate remains.  Religious institutions are still forced to purchase insurance coverage from companies that are required by federal law to violate the conscience of those religious institutions.  The Administration has attempted a political accommodation.  But some very deep issues of religious liberty and constitutional law remain, which will be sorted out in the courts and in Congress. 

This controversy has had some useful side effects.  It has caused religious people to examine and defend the most basic principles of religious liberty.

First, religious liberty is owed, not just to individuals, but to institutions.  It is not enough to say that citizens have the right to believe whatever they want.  They also have the right to participate in religious groups that maintain their identity and standards.  As the Supreme Court affirmed in the recent Hosanna-Tabor case, the Constitution protects religious institutions more vigorously and comprehensively than it does other types of voluntary associations.  A church or denomination deserves a higher order of deference than a Chamber of Commerce or a social club. 

America’s founders made this provision because they viewed religious liberty as the first freedom—the basis for all other protections of conscience.  And this liberty is not individualistic.  It includes the protection of religious institutions against the aggressions of the state.  That is a principle worth defending. 

Second, government cannot get around these constitutional protections simply by declaring some religious institutions to be secular in purpose. This is perhaps the most disturbing element of the Administration’s contraceptive ruling – a portion of the mandate that has not changed.  The Administration continues to claim that religious institutions that serve and employ non-members are not really religious institutions at all.  Since they are secular in purpose, they are subject to strict federal regulation.  But religion is more than worship and Bible reading.  True religion, in the Christian tradition, is expressed by service to believers and non-believers alike. The Administration has adopted a privatized view of faith that removes many limits on federal power. 

If a Christian charity, for example, is defined as a secular institution, could it be mandated to cover the provision of abortions? Could it be forbidden to hire according to its beliefs and moral standards?  Should a religious charity really be treated under federal law like a 7-11 or an Apple Store?  These are the disturbing implications of the government’s current approach.  And religious institutions have every right to be concerned what this precedent means for the future. 

Sometimes it takes a political debate to clarify important principles. Our response to these events should not be anger or hysteria—which also violate our identity as believers.  But we are called to the patient, persistent defense of religious freedom—for ourselves, for others and for future generations.     

—Michael J. Gerson is nationally syndicated columnist who appears twice weekly in The Washington Post and is the author of Heroic Conservatism (2007) and the co-author of City of Man: Religion and Politics in a New Era (2010).  

To respond to the author of this Commentary: capcomm@cpjustice.org

Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion.