Tagreligious freedom

how not to headline a story on religious freedom

Earlier today I tweeted this:

Emma Green, the fine reporter who wrote the story (though not the headline), asked me to clarify, so here goes:

  1. That the story lede (the first sentence) is accurate will be seen from what follows.
  2. I called the dek (the description below the headline) “misleading,” but that is generous: it’s simply wrong. And Emma Green — who, again, is a superb reporter and rarely makes errors like this — gets it wrong in her story when she writes the source of the dek: “It is also the first time the Supreme Court has ruled that governments must provide money directly to a house of worship.” No: it is not true government “must” provide money to a house of worship or to any other organization. The ruling, rather, is that if a state or local government says that it will provide money to organizations in return for providing certain services — in this case, the maintaining of a playground available to children throughout the community — then it cannot withhold that money from churches simply because they are churches. (The New York Times get it wrong in its headline too, and in the same way: “States Must Aid Some Church Programs, Justices Rule.”) I understand that you can’t squeeze everything into a headline, but the distinction between “governments must give money to churches” and “governments cannot exclude churches qua churches from projects for civic improvement” is not an especially subtle one.
  3. The idea expressed in the hed that this decision “Strikes Down a Major Church-State Barrier” is simply absurd. What is the “barrier” that existed before this ruling and if now gone? What does this ruling do to establish a state church? After all, the ruling applies equally to churches, mosques, synagogues, and atheist community centers: by what torturing of logic could such a ruling be said to establish a state religion? Just as the Civil Rights Act helped to enfranchise people of color without disenfranchising white people, so this ruling excludes prejudice against churches qua churches (in this one minor matter) without infringing on anyone else’s rights.

It is of course possible — Green goes into this possibility in her article — that people who do want to break down the barrier between church and state will be emboldened by this ruling to … I don’t know, do something secularists don’t like, I guess. But that has no bearing whatsoever on whether the ruling is a good one.  Nor do fears on that score eliminate that part of the First Amendment decreeing not only that “Congress shall make no law respecting an establishment of religion” but also that it can’t make ones “prohibiting the free exercise thereof.”

religious freedom revisited

It grieves me to see that as religious freedom for American Christians comes increasingly under attack, some American Christians — I’m not even going to link to them — are hoping to undermine religious freedom for Muslims. They are depressingly unaware that they are eagerly weaving the rope from which their own religious freedoms will be hanged. In such a climate I want to re-post something I wrote for The American Scene six years ago, when there was a fuss over the possibility of a mosque being built near the World Trade Center site. I would especially call your attention to the link to George Washington’s letter to the Newport Synagogue, one of the most important documents in the history of religious liberty and far too little noticed today.


Of course Mayor Bloomberg is rightof course. It’s sad that there should even be debate about the core legal principles involved. Whether the building of a mosque so near Ground Zero is a good idea — whether it promotes the health of the city, as some of the proponents of the scheme say they want to do — is a completely different question, a matter of social prudence. About this reasonable people will disagree.

But legally the situation is simple, as the mayor points out: “with or without landmark designation, there is nothing in the law that would prevent the owners from opening a mosque within the existing building. The simple fact is this building is private property, and the owners have a right to use the building as a house of worship. The government has no right whatsoever to deny that right – and if it were tried, the courts would almost certainly strike it down as a violation of the U.S. Constitution.” He could delete the “almost” in that last sentence.

But the really sad thing is that people who call themselves conservatives — Newt Gingrich, Sarah Palin — should be crying out for apparatuses of the state to limit and police voluntary religious association. This is a profoundly anti-conservative view in two ways. First, it is historically myopic, as Mayor Bloomberg’s brief history of controversies about religious freedom in New York City demonstrates. It’s remarkable that people who invoke the Founders so regularly and in such tones of devotion could be utterly deaf to the Founders’ concern to ensure freedom for mistrusted minority religions. They might start by reading George Washington’s once-famous letter to the Newport synagogue, paying special attention to this sentence: “It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent national gifts.” In Washington’s understanding, it is misbegotten even to ask the question, “Should we tolerate this?”

Moreover, the Gingrich-Palin view of the matter is as blind to the future as it is to the past. No one would make such an argument who did not anticipate that his or her own religious preferences will forever be enshrined as the socially dominant ones. Having endorsed the principle that minority religions can be policed by the state, Gingrich and Palin may well be unpopular figures to their descendants, if Christianity continues to decline as a force in American culture.

In its origins, with Burke, conservatism was supposed to be about taking the long view, having proper deference to the wisdom of our ancestors and taking proper care for the flourishing of our descendants. This is also what Chesterton meant when he said that tradition is “the democracy of the dead.” Burke thought this long view was most likely to be taken by the aristocracy, but in a society without an aristocracy there needs to be a body of intellectuals who take it as their special mission to meditate on the “first things”, one might say, that link us to those who went before us and those who will come after.

The approach Gingrich and Palin take to the proposed lower Manhattan mosque has nothing to do with conservatism in this sense. It is neither conservative, nor liberal, nor anything else worthy to be called “political thought.” It is an infantile grasping after a fleeting and elusive cultural dominance.

my one and only post on religious liberty

I care very much about the future of religious liberty, and I don’t think, over the long run and in this country, there will be much of it. The Obama administration, and (as I understand it) American liberalism more generally, is committed to the idea that freedom to worship is sufficient, and is trying, gradually but consistently, to discourage Christians and other religious believers from acting out their religious convictions anywhere outside the walls of the church — at least, in any ways that might interfere with the power of the State to arbitrate and dispense justice and charity.

I suspect that this determination on the part of Democrats will drive many Christians more deeply into the arms of the Republican Party, but not me. I find most of the ideas of the GOP, those that reign and those on the margins, in foreign and domestic policy alike, so distasteful that I would almost prefer loss of religious liberty to seeing those people back in power. And in any case, the number of Republican politicians who genuinely care about religious liberty is small and shrinking. I have not voted for a major-party candidate in any election (except a few local ones) since 1988, and I don’t expect to do it again any time soon.

My own political preferences are largely for what I would call Modern Distributism, that is, a version of Distributism emancipated from naïve idealizing of the Western Middle Ages. Distributism, I might say, for people who think the Reformation was not merely tragic and modernity not wholly bad, but who also have a deep resistance to the corrosive effects of the so-called free market on the social order and especially on the poor and weak. (One day I’ll write about all this. It’s not as crazy as it sounds.)

I could defend and explain all of these claims, but I’m not going to do so here, because I’m just stating my basic political position as a preparation for making my chief point.

It’s possible that in the coming years there will be at least a temporary slowing in the erosion of religious liberty, but I can’t see the long-term trends altering. All Americans, including those who call themselves conservatives, are gradually growing accustomed to the elimination of the “third sector” of civil society and will find it increasingly difficult to understand why either the free markets or the State should be restrained from exerting their powers to their fullest. I expect that quite soon most Christians will cease even to ask for anything more from the State than freedom to worship.

For those of us who believe that civil society should be stronger, not weaker, and especially if our primary concern is for the health of religious institutions as the most important mediating forces in society, this change will pose a wide range of problems. For instance, the removal of tax breaks for religious institutions will surely be complete within a generation, and a range of policies will discourage charitable giving, which will make generosity harder — but not impossible for most of us. That’ll be a way for us to discover what we are made of.

But there may be stronger challenges. I suspect that within my lifetime American Christians, at least those who hold traditional theological and moral views, will be faced with a number of situations in which they will have to choose between compromising their consciences and civil disobedience. In such a situation there are multiple temptations. The most obvious is to silence the voice of conscience in order to get along. But there are also the temptations of responding in anger, in resentment, in bitterness, in vengeance. It might be a good exercise in self-examination for each of us to figure out which temptation is most likely for us.

My friend Ashley Woodiwiss used to teach a course at Wheaton College called “Gandhi, King, Havel.” It was a course about multiple strategies of nonviolent resistance to varyingly coercive regimes. I think in the coming years Christians would do well to study those thinkers and other like them, and to spend a great deal of time reading and meditating on the Beatitudes. After all, it’s not likely that there can be any political or social environment in which such reflections would be without value.

Our organizations, and we ourselves, do not all share the same view of the moral acceptability of the contraceptive drugs and services that comprise the contraceptives mandate. We have varied views on the adequacy of the “accommodation” that the administration has promised for religious organizations with deep objections to the contraceptives mandate but that are not eligible for the narrow religious employer exemption. Our organizations are involved in different areas of service. We belong to different faiths.

But we are united in opposition to the creation in federal law of two classes of religious organizations: churches—considered sufficiently focused inwardly to merit an exemption and thus full protection from the mandate; and faith-based service organizations—outwardly oriented and given a lesser degree of protection. It is this two-class system that the administration has embedded in federal law via the February 15, 2012, publication of the final rules providing for an exemption from the mandate for a narrowly defined set of “religious employers” and the related administration publications and statements about a different “accommodation” for non-exempt religious organizations.

And yet both worship-oriented and service-oriented religious organizations are authentically and equally religious organizations. To use Christian terms, we owe God wholehearted and pure worship, to be sure, and yet we know also that “pure religion” is “to look after orphans and widows in their distress” (James 1:27). We deny that it is within the jurisdiction of the federal government to define, in place of religious communities, what constitutes true religion and authentic ministry….

Secretary Sebelius, we believe that there is one adequate remedy: eliminate the two-class scheme of religious organization in the preventive services regulations. Extend to faith-based service organizations the same exemption that the regulations currently limit to churches. This would bring the preventive services regulations into line with the long-standing, respected, and court-tested provisions of Title VII of the 1964 Civil Rights Act [§§702, 703(e)] which provide a specific employment exemption for every kind of religious organization, whether they be defined as “a religious corporation, association, educational institution, or society.”

I had been planning to write something about why I support my employer’s decision to join lawsuits against the HHS contraception mandate, but this excerpt from a letter sent today by the Institutional Religious Freedom Alliance makes the case clearly. My concern is not about the use of contraception, but about the government’s claim of a prerogative to decide what is and is not intrinsic to the free exercise of religion. The government’s position suggests a move to confine freedom of religion to freedom of worship, but all authentic religion is far more than worship: it is also a set of practices in the world, practices which the U.S. Government is constitutionally bound to protect. Moreover, as the letter points out, the two-tier system established by HHS clearly violates Title VII of the Civil Rights Act.

So the mandate is, in my judgment, both illegal and wrong. It threatens to confine religion to a disembodied, Gnostic realm of private worship and thought. Even those who support abortion and contraception should not want to see the government defining religion maximally as private thought and belief. The social costs of that restriction will, in the long run and perhaps even in the short, be catastrophic, because churches and other religious institutions have long been attentive to “the least of these” — the ones that government habitually neglects or even tramples underfoot. Again, contraception is not the key issue here. Contraceptives of all kinds were available in the U.S. before this mandate appeared and they will continue to be; many social service agencies distribute them freely. The key issue is the freedom of religious organizations to define and carry out their own missions in the way that they have throughout most of American history. That is a freedom worth contending for.


P.S. I am anything but a policy wonk, but the one policy issue I have read a good deal about is health care, and especially the plusses and minuses of a universal single-payer health care system. I believe that while all systems are flawed, our current one is shamefully neglectful of those most in need, and a national system resembling the ones used in France and Canada would be far better. Such a system, by taking the responsibility for providing health care out of the hands of employers, would make this current dispute completely unnecessary. But we’re stuck, for the time being, with the current system, and therefore with the current debates.

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