‘Religious Freedom’ Rally Sets Stage for 1st Amendment Collision

“I want to start out by reading to you recalling the words of some old, white, dead European men,” said Peggy Hagen, sarcastically emphasizing the last five words to ensure that her disdain for feminism was registered. Hagen, the organizer of Friday’s Stand Up for Religious Freedom rally held outside Democratic Rep. Elijah Cummings’ Ellicott City, Maryland constituent office, proceeded to read from the Declaration of Independence, using a small walkie-talkie as a makeshift bullhorn.

“Our liberty, our freedom of religion, inalienable, granted by God, and enshrined in our Constitution, is under attack,” Hagen added, parroting the talking points of the national effort by anti-contraception activists who staged 140 simultaneous rallies across the country on Friday. Hagen, a waitress at Carrabba’s who told me she wasn’t particularly political before she learned of the Obama administration’s contraception coverage requirement in January, called the contraception benefit “coercion,” an “infringement of our conscience and our religious freedom,” “indefensible,” and “unjustifiable before God.”

When Hagen pointed out that Cummings, a Baptist and son of a minister, was among the mandate’s “strongest supporters,” a woman in the crowd of about 250 shouted, “he’s going against God!”

A rally of this sort in historic Ellicott City, which is composed largely of a few narrow blocks of cafes, bars, shops, and a railroad museum, was an oddity. Some driving by honked and yelled “Obama rocks,” while others walked by incredulously or registered approval of President Obama. Cummings’ district includes Baltimore and this stretch of Howard County south of the city, which is less urban and more white. But while Maryland is a heavily Democratic state (as is Cummings’ district), the Maryland Catholic Conference, the national Stand Up for Religious Freedom coalition, and the local anti-choice group Defend Life, had spread the word about the rally, attendees said.

Hagen, a Third Order Lay Missionary of Charity (Mother Teresa’s order), told me she chose Cummings’ constituent office as a rally site because “he’s the one who sponsored Sandra Fluke to speak. This is to show that no, he does not speak for all women, women do have a voice and women do not stand for this.” Cummings, the ranking member on the House Oversight and Government Reform Committee, heard Fluke’s testimony as part of a separate panel convened by Democrats after the Committee’s chair, Rep. Darrell Issa (R-CA), blocked her from testifying.

In an attempt to turn the tables on the Democrats’ complaint that Issa’s opening panel was made up entirely of men, Hagen insisted that women like her are being silenced by Cummings. At the rally, there were men and women of all ages—some older, some with school-age kids, some with babies in strollers. In noting that some women were unable to attend the rally, Hagen lamented, without irony, “we women, we cannot win… we are working or we are home with the babies.”

“We are united with men,” said Hagen in her speech. “They are not our oppressors.”

Earlier in the week, Cummings had published an op-ed in the Baltimore Sun, explaining, “I chose Ms. Fluke to speak for the millions of women across the country who are affected by the new rule,” and that, “as the son of a minister from a small church in Baltimore, I understand the position of the faith-based community on this issue. I know—both through my faith and my legal training—that we have an obligation as a nation to make accommodations, where appropriate, to avoid undue interference with the practice of religion in this country.”

Conservative claims of infringement of religious freedom, as Cummings pointed out, are on shaky constitutional footing. Although Catholic Charities lost challenges to similar policies in state courts in California and New York, several Catholic and evangelical universities have sued HHS in federal courts around the country, charging that the contraception coverage requirement violates their religious freedom. While a federal court has yet to rule on the mandate, a ruling issued late Friday night demonstrates how the claim of infringement of religious freedom undermines the First Amendments prohibition on government establishment of religion. 

In that case, the American Civil Liberties Union had challenged an HHS policy allowing the USCCB, which received funding under the Trafficking Victims Protection Act, to refuse to refer victims of rape and sexual assault for contraceptive and abortion services. Although the Bishops and their Republican allies argue that requiring them to refer women and girls for reproductive health services amounted to a government interference with their religious freedom, Judge Richard Stearns held that allowing them to refuse to make these referrals amounted to an impermissible government endorsement of religion.

While that case would not require courts outside of Massachusetts to reach the same conclusion, or to reach the same conclusion in the lawsuits against the insurance coverage requirement, it does provide a roadmap for how a court would weigh a Free Exercise claim against an Establishment Clause claim.

A Catholic Affair

Although it featured Protestant ministers, the Ellicott City rally was principally a Catholic affair. When Bishop Mitchell Rozanski, the Seaton Vicar of the Archdiocese of Baltimore, led the group in Catholic prayer, virtually everyone in the crowd prayed aloud along with him. The mention of Baltimore Archbishop William Lori, the chair of the US Conference of Catholic Bishops Ad Hoc Committee on Religious Liberty, drew approving applause.

Joining Rozanski as speakers were an Episcopal priest, the Rev. Terrance Sweeney, and a Methodist minister, the Rev. Frank Revell of Cokesbury Memorial United Methodist Church in Abingdon, whose wife, he told me, had recently converted to Catholicism. Sweeney, of St. Timothy’s Church in Catonsville, Maryland, told me he came to the rally because of a “series of events” and “general administration policies” that have “encroached on the First Amendment and the pursuit of happiness.” When I asked him what, other than the contraception coverage requirement, fell into that category, he said, “a whole plethora of regulations,” and vaguely referred to environmental regulations, economic policy, and foreign policy that were “moving in the direction of a nanny state,” a “Western European social model.”

The contraception coverage requirement, Sweeney said in his speech, was “abnormal” and “not how things should be.” He warned of a “brand new form of bondage” due to people who “want to dip their hands into the government treasury.”

While Sweeney’s speech sounded like it was ripped from a Tea Party hymnal, Hagen’s rhetoric, along with that of Sandra Nettina of the anti-choice group 40 Days for Life, was a textbook example of unscientific anti-contraception propaganda peddled by the Catholic Bishops and their supporters. Nettina claimed the number of abortions increase with greater access to contraceptives, a trope commonly used to assert that contraception fails and therefore does not decrease the number of unintended pregnancies. This claim echoes statements made by the Bishops themselves, as well as anti-contraception groups, that birth control doesn’t work and is harmful to women’s health.

Hagen recommended the website of George Mason University law professor Helen Alvaré, a former counsel to the USCCB and current advisor to Pope Benedict XVI’s Pontifical Council for the Laity. Just the day before, Alvaré spoke on a panel discussing the Department of Health and Human Services mandate sponsored by Georgetown University’s Berkeley Center for Religion, Peace, and World Affairs, along with leading constitutional law experts. At that event, Alvaré argued that the Institute of Medicine recommendation, on which the HHS mandate is based, was made by “a panel stacked with abortion advocates” who “completely ignor[ed] all the evidence being put out over the last 30 years.” That “evidence,” Alvaré maintained, demonstrates that government-subsidized birth control causes “the immiseration of women.” That the Obama administration based its policy on the IOM’s recommendations, Alvaré charged, raises the possibility that it was acting out of “animus” toward the Church.

An “Unwelcoming” Womb

Inside the building that houses Cummings’ office, I met two women from the rally who hoped to speak with the Congressman. Even though the office is a satellite constituent office, the women seemed to believe that Cummings’ absence was due to the rally. “He would not take the chance of being here,” said Mary Ellen Cote.

“Tell him we’re praying for him,” she told Cummings’ receptionist.

Cote had learned of the rally at an event sponsored by Defend Life, a local anti-choice group that deploys “prayer warriors” to medical clinics (or, as Defend Life prefers to call them, “abortion mills”). The group also demonstrates in heavily trafficked intersections in the Washington DC area to promote its position likening abortion to the Holocaust, lynching, and genocide.

Cote praised an appearance by the anti-contraception activist Steven Mosher at a Defend Life seminar as “awesome,” and echoed Mosher’s claim that “we don’t have enough population.” She told me that, as a “kid of the ’60s” she wasn’t always opposed to contraception, but that “the more we know, the more know how bad it is.”

Now she “knows” that the pill, “makes women more like men. Free to have affairs with no consequences.”

Its harms, she insisted, included creating a “womb that is unwelcoming,” and diverting women from “other ways” of avoiding pregnancy, such as “chastity” or “self-control.”

“It’s a losing battle to go against God,” said Cote’s friend, who declined to give her name. “Scripture says life begins at conception, so we’re giving control to Him, not to man, not to government, not to ourselves.”

Ignoring the Establishment Clause

While Hagen and her allies at the rally seem to think the government must yield to their religious beliefs about contraception—and to the anti-scientific spin of an activist like Alvaré—the ruling in the ACLUs case over the sex trafficking contracts shows just how courts could rule against them on Establishment Clause grounds.

Hagen insisted to me that it was precisely because Catholic beliefs are so deeply held that the government must be required to exempt Catholic organizations from the contraception coverage requirement. But Judge Stearns found that a government alteration of policy to bend to the deeply held religious beliefs of a particular religious denomination is exactly what the Establishment Clause prohibits.

The Stand Up for Religious Freedom rallies emphasized the Free Exercise Clause and their own “religious freedom,” but they ignore, most certainly not by accident, the principle upon which Judge Stearns’ decision rests: “[t]o insist that the government respect the separation of church and state is not to discriminate against religion; indeed, it promotes a respect for religion by refusing to single out any creed for official favor at the expense of all others.