Preserving Disestablishment AND Free Exercise
The federal treatment of religion under the First Amendment was a masterstroke in political history. The Amendment reflected hard lessons learned from 1500 years of established Christianity in Europe. In this nation there would be no legally established religion. This, in itself, was revolutionary.
And yet the First Amendment avoided the dangers of a different kind of revolution, the one that took place in France at the same time. There, hostility to the Crown merged into hostility to the Church, and the revolution that took place became not just anti-royalist but anti-clerical. The State, at least for a time, set itself up over against the Church, as an enemy not just to established religion but to religion itself.
The United States government disestablished religion without establishing cultural or legal hostility to religion. The legal part of that protection was handled by the “free exercise” clause. Congress would not be permitted to make laws prohibiting the free exercise of religion. Courts later interpreted this clause to demand a very high burden of proof on the part of the State for any hindering of religious practice.
The cultural part of that protection was much more subtle. It involved the broadly shared belief that religion offered benefits to the social order, such that the new nation would be much better off with vibrant religiosity than with widespread unbelief. The ingenious thing about the church/state arrangement arrived at, however, was the recognition that the best way to ensure the continued vitality of religious belief and its associated institutions was to disentangle religion from the state. The best path to flourishing for both church and state was to make them both free, and to disconnect them from each other.
That is the proper understanding of the separation of Church and State. That separation is primarily institutional, and refers to the rejection of the arrangements that had existed in the officially Christian states of an earlier epoch. It refers most directly to the activities of the State, rather than the Church. The State would not establish legal or political arrangements that privileged the Church, or any particular Church, as the normative, preferred, or official religion of the State. There would be no religious test for public office, no legally established or mandated religious belief or practice, and no taxation to support church entities. The Church (and particular churches) would have to rise or fall entirely based on member support and their own efforts. They would not be authorized, sponsored, funded, or otherwise propped up by the State.
The First Amendment was a great idea. But its application has been complex enough to require the development of an entire legal specialization known as First Amendment Law. And today religious liberty/First Amendment fights seem to erupt daily. I am not a legal theorist. Therefore I will confine my contemporary comments to a few broad brush strokes.
First, recognition of the constructive social role of religion and of the churches has led to various permissions for government funding (or funneling of tax dollars via individuals) for a wide range of social services provided by religious entities, most notably education and charity/relief/welfare services. I once supported this funding stream because of its benefits for the common good, but I am now wondering whether it was ever a good idea. It has certainly introduced all kinds of vexing legal difficulties, such as the hiring policies of religious organizations whose hands touch tax dollars. In retrospect, those religious institutions that have avoided contact with federal money look exceptionally wise. One might say that a stricter interpretation of the establishment clause on the part of the State, or a more rigid understanding of the Church’s independence on the part of the Church, would have been preferable and would have avoided many current problems.
Second, recent developments raise questions about how religious free exercise rights relate to State efforts to advance its own vision of the common good. The fight over mandated contraceptive coverage is just the latest in a series of fights related to free exercise. My general take is that the burden of proof is a very high one, and it rests entirely with the State, to demonstrate why this or that exceptional case requires the overriding of religious liberty.
I come back around again to strong support for the most robust workable version both of disestablishment and of free exercise. And by now it is clear that responsibility for guarding both principles rests with both the State and the Church.
Treating the Church differently than other employers seems to encourage a special establishment status to churches, which is why the Catholic bishops want to seek a conscious right for all employers – although this flies in the face of the very concept of legal protection of employees. The fact that the mandate, which pre-existed the health care law, protects employees who are not of the faith of the employer limits the applicability of the free exercise clause to this case, since non-Catholic employees are under no obligation to actually follow Catholic teaching on this matter. Limiting their ability to not follow these teachings by denying them health care seems like one step too far.
The question of public funding of these services does not really enter into the question of whether the free exercise rights of non-church employees are damaged by not having access to contraceptive care, since even if there were no pubic funds, women receiving insurance coverage are still entitled to equal levels of preventative care. That being said, the Constitution is not a suicide pact. Not only are exceptions justified for national security, they are also justified to provide the superior care that religious institutions provide in the health, education and social service sectors.
Treating the Church differently than other employers seems to encourage a special establishment status to churches, which is why the Catholic bishops want to seek a conscious right for all employers – although this flies in the face of the very concept of legal protection of employees. The fact that the mandate, which pre-existed the health care law, protects employees who are not of the faith of the employer limits the applicability of the free exercise clause to this case, since non-Catholic employees are under no obligation to actually follow Catholic teaching on this matter. Limiting their ability to not follow these teachings by denying them health care seems like one step too far.
The question of public funding of these services does not really enter into the question of whether the free exercise rights of non-church employees are damaged by not having access to contraceptive care, since even if there were no pubic funds, women receiving insurance coverage are still entitled to equal levels of preventative care. That being said, the Constitution is not a suicide pact. Not only are exceptions justified for national security, they are also justified to provide the superior care that religious institutions provide in the health, education and social service sectors.
Treating the Church differently than other employers seems to encourage a special establishment status to churches, which is why the Catholic bishops want to seek a conscious right for all employers – although this flies in the face of the very concept of legal protection of employees. The fact that the mandate, which pre-existed the health care law, protects employees who are not of the faith of the employer limits the applicability of the free exercise clause to this case, since non-Catholic employees are under no obligation to actually follow Catholic teaching on this matter. Limiting their ability to not follow these teachings by denying them health care seems like one step too far.
The question of public funding of these services does not really enter into the question of whether the free exercise rights of non-church employees are damaged by not having access to contraceptive care, since even if there were no pubic funds, women receiving insurance coverage are still entitled to equal levels of preventative care. That being said, the Constitution is not a suicide pact. Not only are exceptions justified for national security, they are also justified to provide the superior care that religious institutions provide in the health, education and social service sectors.