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The New Era of Religious Liberty Print E-mail
By Gerald J. Russello   
Thursday, 02 May 2013

It is a truism among legal scholars that the jurisprudence of religious liberty has long been a near-hopeless mess. Almost seventy years ago, the Supreme Court imported into the Constitution the phrase “wall of separation of church and state,” which has caused endless confusion – since that “wall” was in the mind of no Founder other than perhaps Jefferson, who in any event was in France when the First Amendment was drafted.  In response to a perceived need to address this “wall,” the Supreme Court and lower federal courts have devised various tests, standards, and thresholds to interpret the constitutional guarantee of freedom of religion.

Added to the confusion is the Courts importation of the Amendments protections against the states, even though the text itself begins, “Congress shall make no law. . .” Thus, in religion, as in so many other areas, the federal courts have usurped the democratic process that once allowed citizens of the several states to govern their affairs. And on top of  this heavy-handedness lies the secularism of the judiciary and legal elite, which has transformed religion from the first liberty to a begrudged and increasingly threatened privilege.

It was not so long ago, however, that, even with this disarray, those concerned with religious liberty were confident in its preservation. The Court, in cases like Rosenberg v. University of Virginia and the earlier Witters v. Washington Department of Services for the Blind confirmed that religious institutions and groups could receive the same benefits available to other, nonreligious recipients.  

State courts have a more muddled history, but they have been active as well, ruling on their own constitutional and statutory provisions, which may differ in crucial respects from the First Amendment. Many states have so-called “Blaine” amendments for example, which are intended to limit support for “sectarian” (historically Catholic) schools. However, even there, state courts (the most recent being Colorado) are finding that religious persons can support religious institutions if they so choose without raising an issue of excessive and unconstitutional state “entanglement.” 

And yet the confusion remains, to religions detriment. Courts across the country have been ruling against religious institutions. As the rulings on contraceptive coverage and similar topics show, the courts remain hostile to claims that religious institutions are autonomous at least when that autonomy clashes with a government “value,” such as “health care.”

How to explain these differing paths?  On closer inspection, both groups of cases are based on the same assumption:  choice conquers all. In many of the school-funding or benefits cases, the determining factor for the courts has been that the benefit passes through another party, usually the parents, who may choose to use the benefit at a religious school or program, but need not. This inoculates the program from constitutional challenge.

       Orestes Brownson by George P. A. Healy, 1863

The same principle seemingly applies when the state switches from umpire to participant, as in the contraception cases.  (The definitive work on the intellectual underpinnings of this shift is Robert Vischers Conscience and the Common Good.) The right of a person to choose contraceptive coverage, for example, often has inoculated a statute requiring such coverage from constitutional challenge.

Cases in states such as California and New York challenging mini-mandates have failed because the courts find it difficult to reject the premise that state action to further choice is constitutionally problematic. In this way of thinking, a neutral benefit should be provided to all, who may then choose whether to use it. 

This solution is superficially attractive, but ultimately dangerous. The “neutrality” in the first set of cases is not the same as in the other. In the contraception cases, the state puts its thumb on the scale by furthering a value that it “neutrally” imposes on all, whether the religious beliefs of people or institutions forced to comply are compatible with that value or not. The school cases do not present that issue at all, and allow all who can receive the benefit to use it as they see fit.

Courts have not yet fully articulated the consequences of this reasoning, though others have. The great American Catholic thinker Orestes Brownson put the case to his countrymen in 1845 in this way:  

Has the State the right to legislate for conscience,  to subject conscience to its laws? Certainly not. The principle of our American government is, confessedly, that conscience is free, that where conscience begins, there the authority of the State ends. And it must be so, if we enjoy religious liberty as distinguished from religious toleration. Toleration presupposes the right on the part of government to force conscience, but that for certain prudential reasons it forbears to do so; but religious liberty asserts the absolute freedom of conscience before the State, and denies the right of the State, or of any human power whatever, to force it, or in any sense to intermeddle with  what concerns  it. In this country, the government, according to its profession, does not merely tolerate; it acknowledges religious liberty. Then it confesses that its sovereignty ends where conscience begins. Then I owe no allegiance to the State in matters of conscience; and then it has no right to command me to do what my conscience forbids; and I have the right, in all cases in which it so commands me, to refuse to obey it. If you deny this, you deny religious liberty, and assert for the temporal power the right to force conscience.

The new era of religious liberty – in choosing choice over conscience – promises to be perhaps less confusing, but more threatening to believers. 

Gerald J. Russello’s edition of Christopher Dawson’s Religion and Culture is due out in August from the Catholic University of America Press.
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Comments (7)Add Comment
written by Dave, May 02, 2013
I don't know at all that we are moving into a new era of religious liberty. The toleration being shown is really nothing more than a mask that must be worn increasingly less, under which lies an implacable hatred not of religion, but of Christianity. Witness the reports that DoD is making it increasingly difficult -- court-martialable-- for Christians to share their faith in any meaningful way. Witness the President's now-open contempt, in contrast to his 2009 ND speech, for us who oppose abortion, and his insistence that the HHS mandate be fully introduced on August 1. Witness the DoD Powerpoint presentation that lumps in Catholics and evangelicals with religious extremists. No, this is not a new era of religious liberty: it augurs the beginning of open persecution of any religion or religious practitioner that does not offer incense to Caesar. The stage is being set for those who do not admit the primacy of the State in all matters to be declared enemies of the State and haters of the common good. If anyone sees this view as overly pessimistic, I have ears to hear.
written by Titus, May 02, 2013
Might we please get a citation for the Brownson quote? His works are valuable, but rare to find.
written by Dennis, May 02, 2013
"Thus, in religion, as in so many other areas, the federal courts have usurped the democratic process that once allowed citizens of the several states to govern their affairs. "

One of the few salutary results of Operation Rescue's 1991 Summer of Mercy in Wichita was seeing pro-life laity flush federal judge Patrick Kelly out of the Church. He was a nominal Catholic who ruled time and again in favor of George Tiller and against Operation Rescue. He saw to it that dozens of protesters were jailed daily. The bishop of Wichita at the time was a mere cipher in the discussion, who taught that we should not descend into bad manners to protest abortion, let alone illegality.

But as the months wore on, parishoners would acost Kelly after Sunday Mass and abuse him verbally. His parish priest delivered a homily against the immoral conduct of the local judiciary. Eventually, Kelly publicly left the Church and became, if I remember, an Episcopalian, where he was welcomed with open arms.

Laity who could not get a hearing in Kelley's courtroom got one as he hustled to his car after Mass. And the Church was cleansed of at least one hypocrite. It was a tiny if salutary exercise in self-government.
written by Walter, May 02, 2013
I find myself in agreement with Manfred's comment yesterday. Another column with good insight and analysis, but collectively these columns beg broader questions: What's a good Catholic to do when the best days of civilization seem to be behind us? And how will a mindset that most naturally gravitates to "what's wrong with the world and the church" bring people to Christ?

We no longer live in the idyllic pre-Machiavellian era, or the halcyon pre-"Wall of Separation" era, or the utopian pre-Enlightment era, or the heavenly pre-Vatican II era, or the civilized pre-Obama era. So I would humbly offer the following for the year 2013:

1. Follow Jesus' great commandment, Luke 10:25-28
2. Like Jesus, meet people and power structures where they are. Jesus changed the world in 3 years despite living under a brutal Roman occupation and a dysfunctional religious hierarchy.
3. Don't lose the Christian virtue of hope. Without it, we are at risk of believing that we must save ourselves. As St. Padre Pio said, "Pray, hope and don't worry."
4. Be thankful that God created us to live now, in the 21st century, not 150 years ago. He put us here and now for a purpose. Try to find some modicum of joy amidst the Church's current trials.
written by Mark L, May 02, 2013
Thank you Walter for that, I needed it.
written by Micha Elyi, May 04, 2013
“Witness the President's now-open contempt, in contrast to his 2009 ND speech, for us who oppose abortion”
--Dave (May 02, 2013)

All of Obama's promises come with an expiration date. Every. Single. One.

“Behold, I am sending you like sheep in the midst of wolves; so be shrewd as serpents and simple as doves.” (Matthew 10:16 NAB)

I can't find the part where Jesus told anyone to be as naive as pigeons. Can anybody help?
written by gerald russello, August 04, 2013
Thanks for all the comments, and apologies for the delay. The Brownson quote can be found in Brownson's Quarterly Review, Vol. II (1845), and on Google Books.
As for what Catholics should do, I do agree somewhat with Dave that increased marginalization and persecution is a strong possibility, but the way to respond is to cleave closer to the Church and its traditions, be a witness to Her and religious liberty for all.
Thanks for all the comments.

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