The Panic Over Whether Religion Is “Even Legal”

There’s a new ripple of panic this week about religious freedom. In the National Review, Kathryn Jean Lopez, reacting to the American Civil Liberties Union’s lawsuit against the US Conference of Catholic Bishops, asks: “Is religion even legal?” Lopez worries that the lawsuit, which seeks to hold the USCCB liable for providing substandard medical care at Catholic hospitals owing to directives prohibiting abortion services, is “essentially against the concept of Catholic health care.”

Is Catholic health care different from regular health care? The New England Journal of Medicine, whose editors I presume know quite a bit about health care, have this to say about the Affordable Care Act’s contraception coverage, comprehensive health care for women, and religious freedom:

More important, planned pregnancy affords women and their children a better quality of life: it gives younger women the opportunity to complete school, start careers, and establish stable relationships, and older women the ability to add to their families only when they have the capacity to care for them. Finally, a full panel of contraceptive services saves money for the state, as evidenced by gathered data and empirical modeling. Simply put, there is a compelling public health value in preventing unwanted pregnancy.

In working with women to prevent unwanted pregnancy, physicians need the full panel of FDA-approved contraceptive methods. If that panel is limited by a woman’s inability to pay — if the method deemed optimal for her is unavailable because her health insurance does not cover it — then the religious freedom of her employer will have interfered with the provision of high-quality medical care to her. In this context, the welfare of the patient must trump the religious convictions of her employer. After all, it is the woman, not her employer, whose health is at risk. (emphasis mine)

Yet “secularism,” Lopez contends, “would have you surrendering your conscience as soon as you leave a house of worship … to run a business, to run a hospital, to pay taxes. That’s what’s playing out in these ongoing and increasing lawsuits over religious liberty.”

The conservative National Catholic Register worries not just about the contraception mandate, but also about cases such as that of the Christian baker or caterer who must equally serve gay and straight couples—not because legalized same sex marriage requires it, but because state anti-discrimination laws do. One person’s discrimination is another person’s religious freedom, apparently. From the Register:

Those with vision understand that all this has been orchestrated for the purpose of driving religion from the public square entirely. This has always been the goal. Gay marriage? Who cares really? At most, gays represent 2% of the population and those who actually wish to be married are only a small subset of that already small subset. So why has this gay marriage push been the main focus of secularists and progressives for the last 20 years? Simply to push religion out of public policy entirely.

The panic embedded in that account of the gay rights movement is driving Republican lawmakers to try to make laws prohibiting actions that haven’t happened, and won’t. Sen. Mike Lee (R-UT), introduced legislation this week, the Marriage and Religious Freedom Act, which would prevent the Internal Revenue Service from revoking the tax-exempt status of churches who oppose same-sex marriage. (A similar bill was already introduced in the House.) 

“We need not just statements, but we need legislation to protect religious liberty from this kind of potential threat,” Lee told the Examiner. “What I would like to do is make sure that we go out of our way to protect churches from adverse action that could be taken against them as a result of their doctrinal views of the definition of marriage,” he added, in response to a non-existent threat that the Obama administration will retaliate against opponents of marriage equality.

“This basic freedom is under attack by the current administration. This bill will protect groups from administrative attacks, such as additional hurdles with taxes or obtaining federal grants or contracts,” said Sen. David Vitter (R-LA).

The United States Conference of Catholic Bishops says the bill would “bar the federal government from discriminating against individuals and organizations based upon their religiously-motivated belief that marriage is the union of one man and one woman or that sexual relations are properly reserved to such a marriage. The Act provides broad protections against adverse federal actions directed toward individuals and organizations that act on such beliefs.” 

This panic builds on the one from last spring, in which evangelical groups charged the IRS was subjecting them to “viewpoint discrimination.” But the historical issue driving this—the revocation of Bob Jones University’s tax exempt status in the 1970s, because of its ban on interracial dating—became an issue because the University was discriminating against non-white students, not because it believed the Bible prohibited interracial dating. Similarly, the government is entitled to enforce anti-discrimination laws if an institution is actually discriminating against a protected person, such as a caterer discriminating against a gay person in a state whose civil rights laws consider sexual orientation a protected class. They’re not prosecuted for their beliefs, they are prosecuted for their actions. What’s more, the government does not inquire into a church’s beliefs when considering whether to grant or revoke tax exempt status. 

It serves the interests of the religious freedom panic squad to portray a danger of squelching their religious beliefs, and pretend the government is against them solely because of what they believe, not because of what they do. It almost makes you forget other people are involved.


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