Religious exemptions: An experiment on our liberties — Part 2
by Ken Burrows
In Part 1 on the subject of religious exemptions last month, we discussed why “religious freedom” and “freedom of conscience” are not absolutes to which all other principles in our pluralistic society must defer every time these freedoms are invoked to justify exemptions. We discussed why we need a separation between religion/conscience claims that affect only the individual claimant and those that go on to impermissibly harm others, concluding that freedom to practice your religion does not confer freedom to impose it on others, especially in light of our church-state separation principles.
We pointed out that today’s religious exemption demands arise in large measure from recent Supreme Court decisions related to requirements for contraceptive coverage in health plans and the constitutional protection of a right to same-sex marriage. These demands to be exempt are largely motivated by religious positions on those issues, with the alluded to “conscience” most often drawn from and equivalent to a religious faith holding on the issue. Indeed, Kim Davis, the noted Kentucky County Clerk who refuses to issue same-sex marriage licenses with her name on them, says issuing such licenses would violate her conscience because “it is about marriage and God’s word.” Similarly, the Little Sisters of the Poor, a group of Catholic religious women who operate homes for the elderly poor, point to Church teaching to demand they be exempted from providing—or even allowing to be provided—contraceptive coverage to their employees, no matter what the employees’ own religious beliefs may be.
Because it is a key component of the ongoing conflict, we will now look more closely at the meaning of “conscience” as it applies to these exemptions, and whether such conscience is so clear and unchanging, so flawless and “spiritual,” that it should be given unquestioning sanction to truncate the rights and freedoms of others by permitting religious exemptions.
Religion is both selective and selected
There are, to begin with, two reasons specific to the unique character of religion that underscore why an untempered deference to religious conscience is open to question in a free society.
First of all, religion—unlike, for instance, race or gender or age—is a freely chosen attribute and therefore, while its private practice should be safeguarded, it should not enjoy unlimited protection if and when it conflicts with legal principles such as equal rights and equal protections that all citizens enjoy, regardless of which faith, if any, they practice. The voluntary and selective nature of religious belief, at a minimum, warrants great care in determining how much deference it is owed. This is not altered in any way by the conviction of some religious adherents that they have no choice, that their religious belief is mandated by God. Because that perceived mandate itself is a freely chosen belief.
Secondly, we should resist over-accommodation of religion’s demands vis-à-vis citizens’ rights in the public sphere simply because, while religion deals with things of the supernatural, the construct and creeds of religion are manmade. They are created by humans, they are diverse, they change over time, they are susceptible to human error, and they have too often contravened individual freedom.
For churches, to err is human
Conservative religionists of the past, for instance, were known for equating women’s movements for suffrage, divorce reform, and married women’s property rights with being anti-religious and even atheistic, simply because these campaigns parted ways with traditional church orthodoxy. Religious conservatives even contended in the 1800s that for a woman to be given a voice that counted equally with a man’s in public decisions was to wage an assault on centuries of theological teaching. The sad fact is this description of equality being an assault on prevailing theology was true.
Continuing how prone to error moralists can be, consider religious leaders near the turn of the 18th century who were so annoyed at Enlightenment thinkers and others for embracing scientific advances that they argued against smallpox vaccination, saying this was a sin that interfered with God’s plan for an individual to die of the disease.
The Catholic Church has been a vocal and powerful opponent of both same-sex marriage and contraception. There are an estimated 67 million Catholics in the U.S., comprising roughly 20% of the population. This faith’s influence on laws and policies is unmistakable, and its adherents often align both their private morality and public priorities with Church teaching.
A close examination of this Church’s history, however, offers ample evidence of its susceptibility to error, and its changeability, and its penchant to violate freedoms—all of which vast numbers of the faithful may be unaware. How many know, for instance, that in spite of the “God-given” or “from time immemorial” adjectives it has often applied to marriage, the Catholic Church for its first millennium had no formal sacrament of marriage?
Looking far back in history, we have the highly revered St. Augustine, much of whose influence on Catholic Church teaching continues in the present. He professed that humans contract the disease of sin through the process of conception, which in turn led to the doctrine of original sin that endures in the Church today. He said man was so inherently corrupted he could not be trusted to govern himself at all, so submission to authority, including even that of the state, was therefore acceptable. Recall Augustine was essentially contemporaneous with Constantine’s establishment of Christianity as the official state religion in the early 4th century.
Almost a millennium later, another highly regarded Catholic theologian, Thomas Aquinas, said any sexual intercourse position where the man was not on top was a sin, and he evaluated the idea of contraception by saying incest was preferable to birth control because it left intact the possibility of fertilization.
In the realm of civic rights, Pope Gregory XVI (papacy from 1831 to 1846), writing in his papal bull of 1832 in reaction to growing intellectual sophistication of the times, said that liberty of conscience is madness and any efforts on behalf of freedom of the press, freedom of assembly, or even freedom of religion is heretical (one assumes by the last of these he meant freedom to choose a religion other than Catholicism).
Pope Pius IX (1846 to 1878) was hostile to any advance he deemed as encroaching on religious authority and sought to stifle modernizers by declaring the new doctrine of papal infallibility. He said it was “anathema” to accept human sciences if they opposed church doctrine. He issued his Syllabus of Errors in 1864, attacking, among many other things, democracy and freedom of speech.
Pope Leo XIII (1878 to 1903), annoyed by advances in science and individual freedoms, declared that “it is quite unlawful to demand, to defend, or to grant unconditional freedom of thought, of speech, of writing, or of religion.” Note that such declarations were being made decades after America established such freedoms as constitutional guarantees.
This is not to say such views persist in the 21st century, but rather to document how flawed and even dangerous religious teachings can be, especially when inserted into the lay world. This is also not to say individual believers should not be entitled to such religious convictions for themselves if they so choose, but rather to demonstrate how dubious it is to give such convictions the deference that empowers them to restrict other peoples’ rights and freedoms.
A question of consistency also presents itself. Where churches may effusively esteem conscience on one hand, they’ve been known to freely, even uncharitably, dismiss it on another.
In the very issue of same-sex marriage, for example, a large number of conservative Christians said in a 2009 “Manhattan Declaration” that while immunity from religious coercion “is the cornerstone of an unconstrained conscience,” they insisted in the same document that it is the duty of law to recognize one-man-one-woman marriage as an “institution ordained by God.” But law is coercive. What does such a stance on marriage say about safeguarding the “unconstrained conscience” of others who believe differently about marriage?
Or consider end-of-life health care decisions. The U.S. Conference of Catholic Bishops document “Ethical and Religious Directives for Catholic Health Care Services” states that “the inherent dignity of the human person” and “the free and informed judgments” made by patients concerning use of life-sustaining procedures should always be respected. But it also states “A Catholic health care institution will . . . not honor an advance directive that is contrary to Catholic teaching.”
This means advance end-of-life instructions, DNR (do not resuscitate) orders, and directives in living wills—matters arrived at by the individual’s conscientious choice—can be dismissed by a Catholic institution if their stipulations are contrary to Church teaching, even if the patient is not a Catholic. Since about 1 in 6 patients in the U.S. are treated in Catholic-affiliated hospitals, many can find themselves caught up in conflicts between Catholic dogma and their own conscientiously chosen health care decisions, being bound by religious tenets they do not personally accept and made to suffer for it. Where is the respect for their conscience?
When Brittany Maynard, with the support of her family, made the choice to end her life with relatively greater comfort and dignity than her prognosis would otherwise have allowed, she certainly must have studied her conscience long and hard, with genuine sincerity, in making that choice. The official reaction of a number of conservative church leaders was to say that what she had done “is never right.” One did not hear anything at all from these critics about the sacredness of Brittany’s conscience, and it’s safe to assume they would have denied her the conscientious choice she made if they could have.
So the fact is that in this purportedly sacrosanct sphere of “freedom of conscience” that drives much of the religious exemptions movement, many churches and the faithful over whom they hold sway do not always practice what they preach. They follow what could be called a pattern of cafeteria conscience—deeming it inviolable when it coincides with their own beliefs, dismissible when it does not. And yet it is on this uncertain and inconsistent basis that the Kim Davises among us claim religious exemptions to obeying equal rights and equal protection laws, and the right to discriminate against others as a result.
Conscience . . . or conformance?
Because conscience conforming to church teaching is so pivotal to many religious exemption claims, it is, finally, necessary to point out that a church’s own conscience can be prone to confusion. Another major exemption battleground illustrates this well, the one dealing with contraceptive health coverage for employees. Some employers, for their stated religious reasons, want to withhold contraceptive coverage from employees, even when employees themselves do not share the “religious conscience” of the employer.
Houses of worship and other entities devoted strictly to faith activities are already exempt from having to provide such coverage. But what about religiously-affiliated institutions such as hospitals, colleges, and charities? These nonprofit groups have the option of asserting that paying for contraceptives violates their religious beliefs, at which point they can sign a document indicating so, and then other parties such as insurers agree to arrange for and pay for the services. The employer then has no active involvement in providing the contraceptives.
Even here, however, some of these employers (such as the Little Sisters of the Poor) contend their very signing of the religious conscience form makes them participants in providing contraception. Since these employers have been allowed to lodge their protest, follow their conviction, and remove themselves from providing contraception, this additional resistance seems more parsimonious than principled. It is clearly less about protecting conscience and more about seeking to withhold a benefit from others that does not conform to the employers’ own conscience.
And notably, since many of these organizations and institutions receive public funding in support of the services they provide, there emerges once more a concern about violating the principle of church-state separation.
A confused conscience
This sort of over-reaching imposition of religion onto others is reminiscent of Pope Pius XI’s (papacy from 1922 to 1939) argument that contraception is an offense against God and nature, and because he deemed it to be against the “natural law,” he said the Church’s prohibition should be binding on everyone, including non-Catholics. This led bishops at the time to mount campaigns to prevent Margaret Sanger from even talking about birth control.
What is rarely mentioned in today’s contraception exemption arguments is the fact the Catholic Church itself, beginning with commissions formed under the progressive and pastoral Pope John XXIII (1958 to 1963) and continuing under the more conservative Pope Paul VI (1963 to 1978), confronted its own confusion on the subject of contraception and came remarkably close to abandoning its long-standing prohibition. One commission of nearly 60, including church leaders, theologians, and carefully selected members of the Christian Family Movement, concluded change was needed. Indeed, when the 19 theologians on the commission voted, 12 said it was time for the Church to revise its stance. When a follow-up vote was taken, the margin was 15-4 in favor of change.
Stunned by this sentiment, the Vatican limited the final commission to 16, all of them bishops. But even that tactic designed to sustain orthodoxy failed. Nine of the 16 voted for change, three voted against change, and four abstained. Pope Paul was said to be torn on what to do. Then a conservative cardinal, Alfredo Ottaviani, cautioned him that any change would be an admission the Church had erred for centuries on the issue of contraception, which would undermine the power and prestige of the papal office. This more than anything else led Pope Paul to reject multiple majority votes favoring change, and he went on to maintain the Church’s contraception ban in his encyclical Humanae Vitae. But even as he did this, he said only four days after issuing the encyclical that it was “not a complete treatment” of the subject, and it is a matter to which “the Church could and perhaps should return with a fuller, more organic treatment.”
So we see that even within an institution often regarded as unchanging and inerrant in what it teaches, there exist ripples of dissent in the ranks and uncertainty in some of the highest echelons. Claimants to religious exemptions regarding contraception point to their conscience, as derived frequently from their church’s conscience (this often being Catholic), as the guidepost they must follow. But knowing the history of contraception in the Catholic Church, it’s fair to ask if the institution really knows what its own conscience is on this.
But to be clear once more, this is not to say believers can’t embrace these religious convictions for themselves. It is to say that the tenuousness and controversy attending “religious conscience” is all the more reason why that kind of conscience cannot be allowed to diminish the individual rights and liberties that people of divergent faiths, or no faith, are guaranteed by our secular Constitution and our principles of pluralism and equal treatment.
Founders had it right
To sum up, the mere fact that one voluntarily claims moral fidelity to institutions and teachings with demonstrable variability, flaws and inconsistencies is not an adequate justification to allow negatively impacting others who do not share that fidelity.
There are multiple reasons why “religious freedom” and “freedom of conscience” claims should not confer any foregone license to let religion rule and grant the religious exemptions the claimants ask for. Such an easy deference puts our pluralistic principles in peril. It subverts equality. In contradicts our Founders’ intent and our history. It countenances error and harm to others. Perhaps most importantly, it invites the church to intrude upon the state, enabling it to override laws and policies that are the non-religious business of we the people. When this happens, it is not so much a high road to freedom of religion as it is a descent into religion over freedom, which would resurrect the very thing our Founders waged a revolution to be rid of.
James Madison wrote a Detached Memorandum not long after completing his presidency, in which he recalled a past effort to insert the name “Jesus Christ” into the preamble of the Virginia constitution. The effort was defeated. Madison, himself a somewhat religious man, said it would have implied a restriction of liberty to those
professing his religion only. He went on to say: “The better proof of reverence for that holy name would be not to profane it by making it a topic of legislative discussion, and particularly by making his religion the means of abridging the natural and equal rights of all men.”
That’s a prophetic observation to contemplate by those who would claim religious exemptions some 200 years later.