During the first three years of the Obama administration, the federal government has dramatically turned against religious liberty, prompting Timothy Cardinal Dolan, archbishop of New York, to observe that “never before have we faced this kind of challenge in our ability to engage in the public square as a people of faith and as a service provider.” The administration has ignored the concerns of religious (and nonreligious) citizens by conscripting taxpayer dollars to support organizations and individuals whose work involves the destruction of unborn human life and by erecting obstacles to the charitable work of religious bodies.
In November 2009, President Barack Obama, and shortly thereafter Secretary of State Hillary Clinton, abandoned the phrase “freedom of religion” when discussing administration priorities in favor of “freedom of worship.” The new, narrower term evoked the benign observance of private rites rather than the messy demands of public faith. It was a deliberate and telling change, one that helps to explain a protracted, and in many ways unprecedented, campaign against the faithful.
It began on his third day in office. President Obama restored funding to organizations overseas that provide abortions and moved to reinstate funding to the United Nations Population Fund, which supports China’s one-child policy, a program that involves coerced abortion. Three months after his inauguration, he authorized federal funding for stem-cell research that relies on and creates future incentives for the destruction of living human embryos. In an indication of what was to come, the president ignored the objections of citizens who do not want to see their tax dollars used to support abortion.
In July 2009, the administration’s Equal Employment Opportunity Commission (EEOC) reversed its own conclusion and accused Belmont Abbey College, a Catholic liberal arts college, of violating federal employment laws against “gender discrimination” because it refused, on religious grounds, to pay for artificial birth control in its employee health plan.
The health-care reform bill that President Obama signed into law in March 2010 lacked long-standing restrictions on abortion funding and failed to include sufficiently robust conscience protections for pro-life health-care providers. In February 2011, the Department of Health and Human Services (HHS) rescinded regulations offering conscience protections for health-care providers and replaced them with a more limited and ambiguous set of rules. Most recently, the Obama administration has threatened to strip all Medicaid funding—necessary to provide health benefits to the poor— from any state that withholds taxpayer dollars from abortion providers.
The Obama administration’s HHS altered the grant process for the National Human Trafficking Assistance Program to favor applicants who offer referrals to “family planning services” and abortions. When the Catholic bishops’ highly regarded Migration and Refugee Services sought to renew its government grant, its application received the second-highest score and a recommendation of funding from an independent board of career HHS staff. But political appointees close to Secretary Kathleen Sebelius intervened to overrule the department’s professional staff, and the funding went to two applicants who scored substantially lower than MRS but who were willing to provide referrals for abortion and contraception.
In August 2011, the Department of Justice (DOJ) filed a brief in the Supreme Court arguing that the religion clauses of the First Amendment do not entail any “ministerial exception” protecting religious institutions from governmental interference in decisions regarding who serves as a minister to the faithful. The DOJ did grudgingly concede that churches have the same “freedom of association” as “a labor union or a social club,” but no more. This argument was so extreme that not a single justice of the Supreme Court accepted it—not even President Obama’s former solicitor general, Justice Elena Kagan—and the court rejected the Obama administration’s arguments 9–0.
That same month, pursuant to the new health-care law, HHS issued guidelines requiring all non-grandfathered health plans to provide “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling.” Pro-life groups protested, pointing out that some of the covered “contraceptives” can (according to the FDA’s own labeling) prevent or disrupt implantation, thus causing the death of a newly conceived embryonic human being. Many also objected because they believe the use of artificial contraception and sterilization is contrary to the ends of human sexuality, rightly understood.
The administration attempted to deflect these concerns by carving out a very narrow “conscience exception” that covered only “a house of worship and its employees in ministerial positions.” An organization can be included in this exception, the administration said, if it “(1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section 6033(a)(3)(A)(i) or (iii) of the Code.” Section 6033(a)(3)(A)(i) and (iii) refer to churches, their integrated auxiliaries, and conventions or associations of churches as well as the exclusively religious activities of any religious order. Any religious charity that did not exclusively serve members of its own church—everything from Catholic Relief Services to the Salvation Army—would receive no exception. The interim final rule claimed that the “conscience clause” would balance the good of extending contraceptive coverage to as many women as possible with appropriate respect for “the unique relationship between certain religious employers and their employees in certain religious positions.”
A large and politically diverse array of religious leaders called for the exception to be broadened. They noted that very few faith-based educational institutions, health-care providers, or social-service agencies would meet the narrow definition of “religious employer.” Those that did not would be forced either to violate the law and face ruinous Treasury Department penalties or to stop emulating the Good Samaritan through their work of educating, healing, and serving the weakest and most vulnerable among us without respect to their religious identity. Evangelical leaders raised an impassioned plea for a revised “religious employer” exemption that would include religious organizations not formally affiliated with a particular denomination, and more than four hundred Catholic leaders signed an open letter calling for health-care laws that “respect the religious and ethical convictions of all.”
On January 20, 2012, Kathleen Sebelius issued a statement that the Obama administration would not modify its contraceptive mandate in response to the concerns raised by religious institutions. It would, however, allow religious entities an additional year to make arrangements for compliance. She noted further that those religious institutions that refuse to provide coverage must “provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support.”
The vanishingly small “religious employer” exception tells us a great deal about how the White House misconceives religious practice. Notice how private this conception is—limited to sectarian activities that involve only co-religionists. There is no space in it for the living of fully integrated lives, with faith permeating every aspect of human activity. But being and acting in the world as a witness and servant to others—all others, regardless of their beliefs, circumstances, or station in life—is an indispensable aspect of many faiths. As Baltimore’s William Cardinal Keeler once stated, “We don’t educate [the poor students in the inner city of Baltimore] because they are Catholic. We educate them because we are Catholic.” The work of Catholic hospitals, social service agencies, and universities is a form of evangelization—of bearing witness to the love of Christ.
Yet the Obama administration’s religious exception would relegate religious practice to the purely private, insular domain of belief. Accordingly, the Obama administration is willing to defend religious freedom only within that narrow, private space. Understood in this light, it becomes clear why the administration prefers the phrase “freedom of worship” to the more capacious “freedom of religion.” The former is a private, individual activity that can be walled off from the public square. The latter describes the reality that religion is a necessarily public concern. This likewise explains why, in arguing before the Supreme Court, the Obama administration has drawn an equivalence between religious institutions and other secular voluntary associations (like bowling teams or knitting circles).
In a time of economic crisis and human suffering, the administration has imposed barriers on faith-based institutions that feed the hungry, clothe the naked, heal the sick, and educate the young. For many, it has made the cost of admission to public service the betrayal of their most deeply held convictions about how to serve God and remain faithful to his teachings regarding human dignity, justice, and the common good. Let us hope not merely that the next president reverses Obama’s concrete policies but also that he embraces a richer conception of what constitutes religious practice. It is not just the freedom of the religious that hangs in the balance, but the welfare of the needy and the strength of our civic fabric.
O. Carter Snead is professor of law at the University of Notre Dame Law School.