The First Freedom

Original Article

Government secularism is on the march against religion, and its generals have announced they intend to take few prisoners. The latest assault came last week when Health and Human Services Secretary, Kathleen Sebelius, announced final rules promulgated under Obamacare that force religions organizations to offer free contraception and other “reproductive” services in their health insurance policies—even if it violates their religious dogma.

The rule is a full frontal assault on organized religion in the public square. By targeting the right of religious organizations to conduct their publicactivities consistent with their religious dogma and moral values—except within the narrow confines of church, synagogue, mosque, temple, or monastery—the Obama Administration intends to reduce the meaning of “freedom of religion” to a far more restricted model known as “freedom of worship.”

There is ample historic precedent for such a restricted view of religious liberty. The Roman Empire was the quintessential multi-cultural society when it came to religion. Jews, Christians, and Pagans of all stripes could believe whatever they wanted and generally carry out those beliefs privately without interference, e.g. freedom of worship. But they did not have “freedom of religion,” meaning they were not at liberty to conduct their lives or act organizationally consistent with their religious beliefs when doing so contradicted the laws and purposes of the state.

The pre Constantine treatment of Christians is the classic example. When Pliny the Younger was a provincial governor, he wrote a letter to Caesar asking whether he was authorized to execute Christians who refused to burn incense in worship of the emperor. (Emperor Trajan answered, and I paraphrase, “You betcha.”)

Please note that Pliny and the emperor did not want to force Christians to believethat the emperor was a god. They just had to go through the motions. Thus, the Christians didn’t face death because of their faith in a risen Christ or because they took communion during worship, but rather, because by refusing to perform the prescribed ceremony, they were seen by the authorities as rejecting the reigning social order.

The same thing is happening metaphorically today—albeit without threat of physical martyrdom. Indeed, by forcing religious organizations—primarily Catholic (for now)—to pay for that to which they are theologically opposed, the new rules represent a frontal assault on freedom of religion at an institutional level.

This is no small matter. To date, public controversies over “conscience” in health care have mostly involved individuals–e.g. doctors, nurses, pharmacists–whose personal morality or religious convictions incidentally conflicted with the provision of legal medical procedures. Nor is it the same thing as the state requiring religious organizations receiving public funds for provision of social services, to abide by state rules as a condition of receiving financial support. Rather, the “Free Birth Control” regulation applies to all religious organizations even if it violates their theology—with the limited exception of a “house of worship and its employees in ministerial positions.”

In other words, freedom of religion is being reduced to freedom of worship before our very eyes.

But even houses of worship are not completely spared from the government diktat. Health and Human Services Secretary, Kathleen Sebelius, declared:

We intend to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support.

Thus, the Obama Administration is even attacking freedom of worship, by forcing exempt organizations to tell their employees where and how they can violate church teaching. That is a breathtaking assertion of federal power over private religious speech, faith, and action.

Some might be tempted to say, “I believe in birth control, so this doesn’t affect me or my church.” But civil liberties should matter to everyone regardless of whether one’s own ox is gored. Besides, if this rule withstands the inevitable legal attempts to have it declared unconstitutional, state incursions against freedom of religion won’t end there—or even be restricted to health care.

For example, the government could order religious groups that are active in the general community to hire people who don’t share the faith. Or, if same sex marriage becomes the law of the land, the government could order religious groups to provide the same benefits for married gay couples as heterosexual spouses—even if doing so would, in the eyes of the organization, make it complicit in sin.

Here’s the bottom line. Religious organizations should not be forced to choose between fulfilling their public ministries and abiding by their faith tenets as the cost of public engagement. Indeed, religious organizations such as the Salvation Army, Catholic Charities, religiously sponsored schools, hospitals, nursing homes, pregnancy counseling centers, and many others I could name, may soon face the hard choice continuing to do good works at the very high cost of acting contrary to their faith or leaving the public square.

Jefferson and Madison might not like it, but there is no question that Pliny would approve.

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.