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Howard Schweber

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Conservatives' Selective Religious Outrage

Posted: 03/ 5/2012 12:18 am

This week Cardinal Timothy Dolan of New York, president of the U.S. conference of Cathlic Bishops, urged Catholic parishoners to become politically involved in order to join a "freedom of religion battle" against the Obama administration. Dolan's complaints have become a standard rallying cry for Republican presidential candidates Romney, Santorum and Gingrich. During the February 22 debate, Romney put the matter in extraordinarily stark terms. "I don't think we've seen in the history of this country the kind of attack on religious conscience, religious freedom, religious tolerance that we've seen under Barack Obama,"

I entirely agree. During the period in which Obama has been in office, we have indeed witnessed an assault on religious freedom unprecedented in recent history. And the Conference of Bishops, the GOP candidates, and everyone else should be outraged.

Just imagine any period since the 1960s in which law enforcement agencies send agents to infiltrate and spy on religious communities. We are not talking, mind you, about following a lead on a suspect that leads to a religious organization, we are talking about spying on congregations in the hope of finding something incriminating on some of its members. That is what the New York Police Department has been doing, both in New York City and in cities as far away as New Jersey. The NYPD Intelligence Division sent agents to infiltrate mosques and report on what was said during religious services, snapped pictures and collected license plate numbers of congregants as they arrived to pray, eavesdropped in cafes and monitored Muslim neighbourhoods. Muslim student groups were infiltrated, and new Muslim converts who took Arabic names had those names compiled in police databases. Deputy Commissioner for Intelligence David Cohen is quoted describing the approach as, "Take a big net, throw it out, catch as many fish as you can and see what we get." Cohen's ambitious goal, according to officials, was to have an agent in every mosque within a 250-mile radius of New York City.

How can there fail to be a "chilling effect" on the free exercise of religion under those circumstances? Here, unmistakably, is a pattern of infringement on religious liberty taking place during Obama's presidency. And in the face of this obvious governmental intrusion into the lives of religious communities the position of the GOP candidates thus far has been... nothing. The same goes for the Conference of Catholic Bishops (at least, nothing that I can find on their website, or publicly proclaimed to the congregations in sermons and to the media in press conferences) and various evangelical organizations of the religious Right. Dolan is Archbishop of New York -- one might have thought that his principled stand on behalf of religious freedom extended at least as far as his own bishopric. But apparently nothing that the government has done to infringe on the religious liberties of Muslims has caused any of these spokesmen for the cause of religious liberty any discomfort.

What the candidates and the bishops are upset about, of course, is the Obama administration's insistence that if they fit certain criteria, religious employers are required to provide their employees with health insurance that includes a menu of coverage including contraception. Churches and other organizations that primarily employ and serve their co-religionists are exempt from the requirement, as it happens, but Catholic universities and hospitals are not. But anyway, that, we are continually being told, is not the point. The GOP candidates and the Conference of Bishops are not taking up this cause on behalf of Catholics, they are making a principled stand on behalf of all Americans of faith. That's why the Blunt Amendment that was defeated in the Senate would have required exemptions for all employers who have religious or moral objections from contributing to the cost of insurance for any service to which they have religious or moral objections. (I will leave it to the readers' imaginations to come up with possible candidates for such "moral objections." Consider the fact that Bob Jones University banned interracial dating until 2000, and take it from there.)

There is a great deal that may be said about the contraception coverage requirement. As a policy matter, of course, the problem is that our entire system is based on getting employers to carry the costs of health, unemployment and disability insurance. Insisting that any employer should be able to opt out of any coverage requirements on grounds of conscience, as the Blunt Amendment would have required, poses the risk of wrecking the system's ability to ensure the broad availability of health care. (The problem, ironically, would not exist in a single payer government-funded system.) As a matter of current constitutional doctrine, in 1990, the U.S. Supreme Court (opinion by Scalia) ruled that under the First Amendment there is no requirement to exempt religious actors from the requirement of a "generally applicable" law. Employment Division, Oregon Dept. of Human Services, v. Smith, 494 U.S. 872 (1990). That case was controversial, and I believe it was wrongly decided, and in any case there is certainly nothing wrong with the Catholic Church or anyone else asserting that the Court got something wrong. But in the absence of a change in constitutional doctrine, there is little in the law that can be said here.

That leaves politics. Scalia was quite forthright in his description of the likely consequences of his opinion in Smith. "It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself."

And there you have it. Our religion is widely practiced and has political power, therefore it deserves accommodation. Your religion is not as widely practiced, therefore we have nothing to say on the matter. Romney, in particular, might have been expected to articulate a more consistent principle that would benefit minority religions, but apparently the rigors of a presidential campaign do not permit such vacant philosophizing.

So I repeat, I am in agreement with the complaints of Romney, Santorum, Gingrich and Cardinal Dolan that freedom of religion in America is threatened. And I will take those complaints very seriously -- the instant they show signs of extending that freedom to any religion but their own.