By Bill Leonard
If the last two months are any indication, 2012 may wind up as a year of major religious-liberty decisions in America.
In January, the Supreme Court issued what the New York Times called perhaps “its most significant religious liberty decision in decades,” applying “ministerial exception” to laws related to claims of employment discrimination. In response to a discrimination claim by a Lutheran church employee who taught religion classes, the court ruled that churches are free to select or dismiss ministers without government intervention. Church employees with religion-based training, “calling” or teaching responsibility are thus not entitled to file discrimination claims when terminated.
The same month the high court refused to hear an appeal from the Forsyth County, North Carolina, board of commissioners of a lower court’s ruling to end deity-specific, sectarian-oriented prayers at meetings. The case stemmed from a lawsuit by the American Civil Liberties Union. While ministers of all faiths were encouraged to volunteer for the occasion, the Christian majority dominated, often ending prayers in “Jesus’ name.” ACLU lawyers said that showed government favoritism toward one religion over others. Opponents, represented by the Alliance Defense Fund, called the lawsuit a denial of religious liberty to those who pray from their specific traditions.
In February the Obama administration decided to require religious, including Catholic, institutions to provide prescription coverage for contraceptives. The mandate, which excludes churches but not schools and hospitals, met strong opposition from liberals and conservatives alike. Both Catholics and Protestants saw it as a violation of First Amendment religious freedom.
Pittsburgh Bishop David Zubik declared that the administration was essentially saying: “To Hell with You” to the Catholic faithful, religious liberty and the freedom of conscience. Phoenix Bishop Thomas Olmstead warned: “unless the rule is overturned, we Catholics will be compelled either to violate our consciences, or to drop health coverage for our employees (and suffer the penalties for doing so).”
The president quickly proposed a compromise allowing for contraceptive coverage through insurance companies, not ecclesiastical institutions. Church/state legal specialist (and Wake Forest colleague) Melissa Rogers explained it this way: “Under the revised rule, no religious employer that objects to providing contraceptives and sterilization services will have to pay for or provide coverage for it. The plan rightly recognizes that the government should not force religious communities to pay for or provide services forbidden by their faith. Also, no objecting religious employer will be required to make referrals for services to which they object.”
At the same time, Rogers noted, “employees of objecting religious hospitals, universities and social service agencies will have access to these important benefits directly from insurers.” She concluded: “My faith tradition and conscience support the use of contraceptives, so for me this was never about whether the use of birth control is theologically sound. It was about the freedom of religious bodies to practice their faith as they see fit, not as government sees fit.”
Did the First Amendment prevail? Time will tell.
In the first case, religious institutions retained the freedom to hire and fire ministers. “Called” employees can accept that or depart. In the second case, the Christian majority must come to terms as never before with minority religions in their midst. Pluralism prevailed. In the third case, Catholic institutions retained the right to reject health-care coverage that challenges the church’s dogma and collective conscience. Employees receive indirect coverage nonetheless.
Truth is, in America there is no “pure” separation of church and state. Faith communities cut deals with government all the time. Clergy get tax breaks for the “fair rental value” of their homes, benefits not offered to other non-profit employees. Parochial schools lobby, with varying success, for vouchers funded from public coffers. Catholics get an ambassador to the Vatican.
Reflecting on that fact amid the talk of conscience and contraceptives, I recalled that Southern Baptists first opposed Vatican ambassadors in 1939. A 1993 (nonbinding) resolution reads in part:
“WHEREAS, Southern Baptists have always championed religious liberty and the separation of the institutions of church and state; and WHEREAS, Southern Baptists have been in the forefront of opposition to the appointment of an United States Ambassador to the Vatican and the reception of an ambassador from the Vatican to the United States; and … WHEREAS, Maintaining diplomatic relations with the Vatican is clearly a violation of the First Amendment’s guarantee of separation between the institutions of church and state; and WHEREAS, Opposition to diplomatic relations with the Holy See should not be regarded as religious bigotry against Roman Catholics but instead as reaffirmation of a long-held Baptist conviction …Therefore, be it RESOLVED, That we, the messengers to the Southern Baptist Convention meeting in Houston, Texas, June 15-17, 1993, reaffirm our opposition to diplomatic ties with the Vatican.”
As a Baptist, I support current Catholic appeals to First Amendment freedom. As a Baptist, I’m still opposed to a U.S. ambassador to the “Holy See.” Where conscience is concerned, even the Vicar of Christ can’t have it both ways.