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 Court’s importation of the Amendment’s 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 religion’s 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 Vischer’s 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.