I’ve posted more than once about the Obama Administration’s often rather weak and sometimes contradictory attitude toward religious freedom.  The high point may have been the Department of Justice’s stance in the Arizona Christian School Tuition Organization case.  The low points are too numerous to mention.  Let’s consider, for example, the so-called contraceptive mandate in the health care reform law, where the conscience exception is so narrow as not to protect almost any large faith-based organization.  If you employ or serve non-communicants, you’re not likely to be protected.

But much to the chagrin of Congressional Democrats, who, as Joe Carter has noted in another post,  are probably even less friendly to religious freedom than in the White House, that may be about to change.

[A]fter protests by Roman Catholic bishops, charities, schools and universities, the White House is considering a change that would grant a broad exemption to health plans sponsored by employers who object to such coverage for moral and religious reasons.

Churches may already qualify for an exemption. The proposal being weighed by the White House would expand the exemption to many universities, hospitals, clinics and other entities associated with religious organizations.

The prospect of such a change has infuriated many Democrats in Congress, who fought hard to secure coverage of birth control under the new health care law. Senators voiced their objections on Thursday in a telephone conference call with Pete Rouse, counselor to the president. House members registered their objections on Friday in a call with Valerie Jarrett, another member of the president’s inner circle.

In a letter to the President, some Congressional Democrats referred disparagingly to the “‘conscience’ of an employer or an insurance company.”  So religious freedom might protect individuals, but not organizations created by individuals or churches?

This, by the way, appears also to be the view of Douglas Kmiec, who argues that so long as individuals are left free to choose, subject only to the moral formation of the religious denomination to which they happen to belong, religious freedom is fully protected.

That the law may specify that abortion or contraceptive coverage be included as choices for employees ought not be seen as making the employer contributing to the legally imposed medical premium complicit in the act itself. To think that an authorizing statute or executive decision violates principles of religious liberty or free exercise merely because it allows a choice contrary to faith is to misunderstand the nature of democracy and individual freedom. It also vastly understates the responsibility of the church’s own obligation of moral formation — including effectively revealing to married couples the sublime joy and significance of intimacy that is total and ever open to new life….

There is no violation of religious liberty when HHS announces a temporary (or permanent) regulation requiring all employers — religious or nonreligious, Catholic or not — to provide employees with an insurance benefit for artificial contraception. Yes, it would be more congenial if the HHS administrative process adopted the Catholic view of contraception over that of other churches, but that declination was a choice the church herself since Vatican II has conceded belonged to Caesar.

Kmiec doesn’t explain how a church can effectively bear witness and consistently engage in the moral formation of its communicants if it is forced by law to accommodate behavior at odds with its doctrines.  If a church or faith-based organization offers no services or employs no one for pay, perhaps it can live beneath the radar.  But, last I checked, we hadn’t been reduced to house churches in this country.

President Obama hasn’t yet decided what he’s going to do.  Professor Kmiec has given him a crabbed understanding of religious liberty if he wants to please his Congressional base and to persuade other interested but not particularly attentive parties that he is a friend of that first of our freedoms.