THE BLOG
02/15/2012 12:32 pm ET | Updated Apr 16, 2012

Religious Freedom or Freedom of Choice?

[N]o man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities."
Thomas Jefferson, Virginia Statute for Religious Freedom, 1786

"He [Jefferson] pointed out that God had it in His power to control man's mind and body, but that He did not see fit to coerce the mind or the body into obedience to even the divine will; and that if God himself was not willing to use coercion to force man to accept certain religious views, man, uninspired and liable to error, ought not to use the means that Jehovah would not employ."
William Jennings Bryan, in introduction to The Writings of Thomas Jefferson, Vol. VIII

Did you find it odd that headlines suggest that the President who got us out of Iraq and then in and out of Afghanistan is now being accused of starting another war? It's even stranger that the new war is supposedly being declared against the Roman Catholic Church or against religious freedom.

Those are deceptive headlines. You may have also read that "Catholic leaders are upping the ante" and threatening to challenge the Obama administration over a provision of the new health care law that would require all employers, including religious institutions, to pay for birth control.

Catholic leaders are responding to a provision of President Barack Obama's new heath care reform bill that requires Catholic schools, hospitals and charities as secular employers to provide coverage for birth control pills, abortion-producing drugs and sterilization for their employees.

Full disclosure: I have personally received letters from William Donohue, the head of the Catholic League. It's not unusual for him angrily to label lots of things "anti-Catholic." As he tries now to mobilize 70 million Catholic voters, Donohue's rhetoric sunk to a new low as he claimed, "Never before, unprecedented in American history, for the federal government to line up against the Roman Catholic Church. This is going to be fought out with lawsuits, with court decisions, and, dare I say it, maybe even in the streets."

There are lots of political pundits who can't figure out why the President would pick this fight in what could be a close election year. But what if Human Services Secretary Kathleen Sebelius appropriately acted on the Institute of Medicine's recommendation, which focused on reproductive rights as they relate to best health-care practices? Secretary Sebelius actually exempted churches. Other administration officials said they, "certainly don't want to abridge anyone's religious freedom."

But this requirement protects the freedom of those with coverage to decide about their own healthcare. It's strange that some of the folks who don't want the government involved in healthcare at all or in such "personal" decisions seem willing to allow such interference by other institutions in extremely personal choices under the umbrella of religious freedom.

Writing for National Review Online, Yuval Levin described how institutions such as the Catholic Church provide what he calls "mediating layers" between the individual and the state which create civil society. He argues that this "current fight" is "just one more example of President Obama's attempt to bulldoze civil society .. .to sweep away the middle layer so that individuals may have a more direct and personal encounter with the state." Yuval goes on to conclude:

This approach is especially noxious and pernicious when it is directed at religiously affiliated institutions -- both because they deserve special standing and because they do some of the hardest and most needful work of charity and care in our society. We should use every available means to protect those institutions from this mortal danger, and that certainly includes resorting to the language of conscience and exemption." (Ibid.)

Pro-choice groups have replied with equally intense language, such as the National Abortion Rights Action League's President Andrea Miller, who comments that, "[t]he Catholic hierarchy seems to be playing a cynical game of chicken and they don't seem to care that the health and well being of millions of American woman are what's at stake here."

Many years ago I learned as an Episcopal priest that some of the folks who are my employees are rightly considered "secular hires." What that means is that even though they work in and for the Church, they do jobs that are not defined by the religious doctrine or core beliefs of that Church. Examples might be nurses or janitors or CFO's or security personnel. Clergy, church musicians, religious educators, and other employees whose jobs are grounded in the particular faith tradition of their employer are treated differently under employment law -- the government is loathe to get involved in labor disputes within those categories. But when disputes involve "secular hires" the employer is obligated to conform to standard labor/employment State and Federal regulations and laws.

Pro-choice voices claim this issue is about the right of "secular hire" employees of Catholic institutions to have birth control and other services paid for as part of their health care plan. In other words, such employees may decide not to use such services for religious reasons, but an employer cannot deny them access for religious reasons. If that is correct, Yuval and others are simply wrong to assume that what's at stake is "the hardest and most needful work of charity and care in our society." (Ibid.) This is not a matter of conscience that should be given special exemption because of religious freedom or charitable effectiveness. Rather, with secular hires, the Church should want to be held to the highest standards of employment law and best employer practices. Some who oppose the provision say it forces people of faith to choose between upholding Church doctrine and serving the broader society. Actually, religious employers who responsibly live in that tension help to sustain our civil society.