In 2012 Bishops Join Fight to Repackage Discrimination as ‘Religious Freedom’

Four days before Christmas, the U.S. Conference of Catholic Bishops paid for a full-page advertisement in the Washington Post, co-signed by dozens of leaders of Catholic institutions. But the ad offered no holiday cheer. Instead, it aggressively highlighted the Bishops’ pointed confrontation with the Obama administration: either amend a regulation requiring employer health insurance plans to provide contraception without a co-pay, or stand accused of religious discrimination.

The Bishops’ opposition to the Department of Health and Human Services rule—which they describe as mandating “preventive services” (scare quotes in original)—was to date the most public salvo from their Ad Hoc Committee on Religious Liberty. That effort was launched last June because, in USCCB president Timothy Dolan’s ominous words, “never before have we faced this kind of challenge to our ability to engage in the public square as people of faith and as a service provider. If we do not act now, the consequence will be grave.” At the Bishops’ annual meeting in Baltimore this past November, Dolan took his charges into conspiratorial territory, telling reporters that “well-financed, well-oiled sectors” were attempting to “push religion back into the sacristy.”

Unlike recent efforts to address poverty or “urge” Congress to extend unemployment benefits, this campaign will not essentially consist of clerics issuing recommendations. Staffed with ten of the Bishops’ brethren, the Ad Hoc Committee will be assisted by the USCCB’s former top lawyer and now Associate General Secretary, Anthony Picarello, who served on Obama’s first Advisory Council to his Office of Faith-Based and Neighborhood Partnerships. A staff lawyer and a lobbyist have also been hired and assigned to the effort.

Testifying before the House Judiciary Committee Subcommittee on the Constitution last October, Bishop William E. Lori, chair of the Ad Hoc Committee, described LGBT equality and access to reproductive care as “serious threats to religious liberty,” that “represent only the most recent instances in a broader trend of erosion of religious liberty in the United States.” The problem, he went on, is like a disease that must be treated immediately, “lest the disease spread so quickly that the patient is overcome before the ultimate cure can be formulated and delivered.”

Louise Melling, deputy legal director of the American Civil Liberties Union, sees the Bishops’ framing as “significant,” noting that, “They’re really trying to put a spin on what’s happening, and they’re hoping that they can convince people that their rights are the ones being violated.”

This argument is “not true as a matter of constitutional law on religion,” Melling added. “It masks entirely what’s going on… what they’re really asking for is to use religion to discriminate and they’re asking that they not have to comply with laws at the expense of peoples’ health and equality and well-being.”

2012: A Banner Year in the Faux Religious Discrimination Wars

With the USCCB and the religious right both framing these issues as dire religious persecution, and given the potency of the issue for Republicans on the campaign trail, 2012 is shaping up to be a banner year for conservative assaults on laws and policies they see as infringing on their religious freedom.

Rick Perry, in the most parodied ad of the election cycle thus far, claimed that “you don’t need to be in the pew every Sunday to know there’s something wrong in this country when gays can serve openly in the military but our kids can’t openly celebrate Christmas or pray in school.” He then pledges to end “Obama’s war on religion.”

Newt Gingrich has for some time subscribed to fabricated theories that anti-American secularists aim to drive religion from the public square. Speaking at televangelist and Christians United for Israel founder John Hagee’s church last March, he said, “I am convinced that if we do not decisively win the struggle over the nature of America, by the time [my grandchildren are] my age they will be in a secular atheist country, potentially one dominated by radical Islamists and with no understanding of what it once meant to be an American.”

In announcing the Secular Coalition for America’s presidential scorecard, the group’s president, Herb Silverman, said, “it’s frightening to see that at least half of the candidates don’t have a basic understanding of the principle of separation of church and state on which our country was founded.” The group singled out Gingrich in particular, noting that his statements demonstrate “hostility toward secular Americans and an unwillingness to separate his religious beliefs from his previous and prospective roles as an elected official.”

A Presidential Commission on Religious Liberty?

The National Organization for Marriage, the anti-LGBT group that has pressed the argument that same-sex marriage amounts to religious persecution of Christians, put out a “marriage pledge,” which was subsequently signed by both Gingrich and Perry, in addition to Rick Santorum, Michele Bachmann, and Mitt Romney. The pledge includes, among other “concrete actions,” a promise to establish a presidential commission on religious liberty. Three days after signing, Gingrich released a 20-page white paper laying out his plan to institute a Presidential Commission on Religious Freedom on the very first day of his presidency. Gingrich’s document maintains that “the foundations for religious freedom in America are being eroded” as “[t]he meaning of the First Amendment has been twisted to fit a post-modern world.”

Echoing the religious right’s longstanding assault on “activist judges,” he blames “abuses” on litigants he claims fill the courts “with hundreds of cases based on anti-religious misconceptions, which are then reinforced by judges determined to impose their own views on other citizens.” (It’s worth noting that Gingrich’s attacks on the constitutional separation of powers, including calls to investigate and impeach judges whose views differ from his, and even a suggestion that federal marshals be called in to round them up, have been roundly condemned, even by conservative legal experts.)

“Gingrich’s commission looks like another one of his attempts to intimidate federal judges, trash the separation of powers and run roughshod over the independent judiciary,” said Rob Boston, Senior Policy Counsel for Americans United for the Separation of Church and State. “The United States enjoys the highest degree of religious liberty of any nation in the world. Gingrich and his allies talk about threats to religious freedom, but what they really want is the right to use government to shove conservative/fundamentalist/ultra-orthodox social views down everyone else’s throats.” 

Investigations Have Begun

The investigations have already started on Capitol Hill, where Republicans’ ears are cocked for controversies they can gin up to paint the Obama administration as anti-religion. In his Congressional testimony, the USCCB’s Lori laid out a list of grievances, nearly all related to reproductive care access and LGBT equality, about which he fretted, “if the label of ‘bigot’ sticks to our Church and many other churches—especially in court, under the Constitution—because of their teaching on marriage, the result will be church-state conflicts for many years to come.”

In an equally hyperbolic statement, USCCB president Dolan has charged that the administration’s decision not to defend the Defense of Marriage Act in court could “precipitate a national conflict between church and state of enormous proportions.”

The Church has an ally in Rep. Darrell Issa (R-CA), chair of the House Committee on Oversight and Government Reform. Late last year, he convened a hearing on whether the Department of Health and Human Services discriminated against the Church when it determined that contractors serving victims of human trafficking would be required to refer victims of sexual assault for a full range of obstetric and gynecological care, including abortion, contraceptives, and sterilization. Because the USCCB does not refer for these services, its $2 million contract was not renewed, setting off a firestorm of accusations that the Obama administration is anti-Catholic.

Republican Chris Smith, a longtime crusader against access to reproductive care services, charged that “the Obama administration’s bias against Catholics is an affront to religious freedom and a threat to all people of faith.” The administration, he added, discriminated against the USCCB “solely because [the USCCB] fundamentally respects the innate value and preciousness of an unborn child and refuses to be complicit in procuring his or her violent death by abortion.”

Constitutionally speaking, though, the Republican claim that the HHS action amounts to religious discrimination is “very weak,” said Marci Hamilton, First Amendment expert and a professor at the Cardozo School of Law. “There is no constitutional right to have government funding tailored to your religious requirements.” Rep. Gerald Connolly, a Virginia Democrat and a Catholic, pushed back at Issa’s hearing, noting that while the USCCB isn’t obligated to provide services it finds objectionable, “when HHS is disbursing taxpayer money to meet certain public policy objectives—in this case life-saving ones—then taxpayers should have a reasonable expectation that their money is being invested wisely.”

What’s more, the notion that the federal government has somehow discriminated against Catholics is rendered even more absurd by the hard numbers: in 2011 alone, according to the federal government database at www.usaspending.gov, Catholic Charities received over $753 million in federal funding. Meanwhile, the Obama administration has not, as the president promised on the campaign trail, reformed faith-based funding to ensure, among other things, that groups receiving taxpayer aid do not discriminate in hiring. It seems that there is a more compelling argument to be made that federally-funded religious groups are actually given a license to discriminate by the government, not that they are discriminated against.

Threats to Abandon Social Services

From a political angle, though, the Bishops know their audience: the Obama administration, through its version of George W. Bush’s Office of Faith-Based and Neighborhood Partnerships, has repeatedly emphasized the importance of faith-based organizations providing social services, particularly during tough economic times. In Massachusetts, the District of Columbia, and most recently in Illinois, Catholic Charities has shut down its adoption services entirely rather face the mere possibility of placing children with same-sex couples.

The contraceptive co-pay rule, as written, exempts houses of worship. But the Bishops insist that any Catholic institution—including hospitals, colleges, and universities that employ Catholics and non-Catholics alike—should be exempt from providing such coverage. In the pre-Christmas Washington Post ad mentioned earlier, the Bishops threatened that the requirement as written would “force Catholic organizations that play a vital role in providing health care and other needed services either to violate their conscience or severely curtail those services.” They conveniently avoid discussing the fact that many Catholic institutions already voluntarily provide insurance coverage for contraception.

Nonetheless, Republicans, with a handful of Democratic co-sponsors, have introduced the Respect for Rights of Conscience Act, which would amend the Affordable Care Act to allow any health insurance plan to decline coverage of any service that is deemed contrary to the religious beliefs of the employer or sponsor of the plan. Sarah Lipton-Lubet, policy counsel for the ACLU, says the bill is “drastically broad” and that it “undermines the very notion of health insurance, and could make the coverage standards in the ACA meaningless.”

A Growing Alliance of Catholics and Evangelicals

By framing efforts to prevent government establishment or privileging of particular religions as infringements on religious freedom, the Bishops’ religious liberty campaign is the latest evidence of the strengthening of the alliance between the Catholic Church and the evangelical right, whose precepts were laid out in the 2009 Manhattan Declaration, which stated:

[W]e are especially troubled that in our nation today the lives of the unborn, the disabled, and the elderly are severely threatened; that the institution of marriage, already buffeted by promiscuity, infidelity and divorce, is in jeopardy of being redefined to accommodate fashionable ideologies; that freedom of religion and the rights of conscience are gravely jeopardized by those who would use the instruments of coercion to compel persons of faith to compromise their deepest convictions.

These “fashionable ideologies” and “instruments of coercion” are later in the document less euphemistically alluded to as “despotism” and “tyranny.” In the parlance of the Manhattan Declaration, “such persons claiming these ‘rights’ are very often in the vanguard of those who would trample upon the freedom of others to express their religious and moral commitments to the sanctity of life and to the dignity of marriage as the conjugal union of husband and wife.”

While evangelicals do not generally share the Catholic Church’s prohibition on contraceptives, sixty conservative religious leaders have nonetheless sent a letter to President Obama and Health and Human Secretary Kathleen Sebelius, arguing that objections to the mandate are not limited to Catholics. The signers, including representatives of the National Association of Evangelicals, Focus on the Family, the Southern Baptist Convention, the National Hispanic Christian Leadership Conference, and Orthodox Jewish groups, wrote “to stress that religious organizations and leaders of other faiths are also deeply troubled by and opposed to the mandate and the narrow exemption.”

Two colleges (Belmont Abbey, which is Catholic, and Colorado Christian University, which is evangelical) have sued the Department of Health and Human Services. In a statement on the Colorado Christian lawsuit, the Becket Fund for Religious Liberty, which represents both institutions, noted that although not all evangelicals oppose the use of contraceptives, they do consider certain methods of birth control, including Plan B emergency contraception, to be an “abortifacient.” (It is not.)

Ron Paul has joined the fray as well, applauding the Becket Fund for challenging what he called the “sinful and tyrannical” contraceptive coverage requirement

The president of Colorado Christian, Bill Armstrong, claimed in the Becket Fund statement that the “mandate forbids us from practicing what we preach.” And that, apparently, includes not just opposition to abortion, but a conservative claim that “big government” infringes on religious liberty: “How can we train our college students to advocate for limited government and personal freedom—especially religious freedom—if we don’t fight this unparalleled attack on those very principles?”

In short, don’t be surprised if the “religious freedom” argument finds its way into conservative arguments about “big government” in 2012. It’s not just for the religious right anymore.

Sarah Posner, author of God’s Profits: Faith, Fraud, and the Republican Crusade for Values Voters, covers politics and religion. Her work has appeared in The Washington Post, The Guardian, The Atlantic, The American ProspectThe NationSalon, and other publications. Follow her on TwitterRSS feed Email