Religious Liberty, The Secular State, and a Third Way
The United States is one of the oldest democracies in the world and prides itself on being among the founders of modern day Human Rights. Yet, since before the signing of America’s constitution, ideological armies have dug their trenches and taken up arms on one side or the other of the debate over religion and its proper relationship to the United States Government. The fight began before Madison ever drafted The Constitutional Bill of Rights.
There are three sides in the discussion of separation of church and state. One side of the battle was led by James Madison author of Memorial and Remembrance Against Religious Assessments (1785), Thomas Jefferson author of The Virginia Act for Establishing Religious Freedom (1786), and George Mason author of The Virginia Declaration of Rights upon which, James Madison based The Bill of Rights. According to their respective documents, these Founders of the U.S. believed the establishment of a single religion over all others’ by the state would endanger the religious rights of all.
The other side of the battle was led by Patrick Henry, orator of the famous “Give Me Liberty or Give Me Death” Revolutionary War speech and a proponent of a post-Revolutionary War bill to establish Christian Religion in the state of Virginia (1784). Henry believed in order to ensure religious freedom the church needed formal endorsement and special tax support for religious teachers from Virginia’s state government.[i] Henry was not alone. John Adams and George Washington also upheld some forms of religious establishment within states during their presidencies.[ii]
So, in the formative era of our nation, there were two sides in the debate surrounding religion and its relationship to the state. One side stood solidly on the side of religious establishment while the other side stood firmly on the side of non-establishment. Each side provoked the other to solidify their position and fight the battle in the context of legislative bodies. Each side was led by significant founders of the United States. Most significantly, no side fought against the idea of non-establishment of religion with the provision that individual religious rights and liberties would be enforced by the nation/state. In fact, it seems that both sides were so entrenched in their battles against the other that they never clearly articulated a third way.
In today’s United States, there are more than two sides to the religion and state discourse. Various factions have taken up the arguments of the above two camps. They have used the fragmented ideas and opportune words of Madison, Jefferson, Mason, Henry and Washington to support their ends, thereby creating at least three camps fighting for particular interpretation of James Madison’s Establishment Clause in the First Amendment of The Bill of Rights; “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”[iii]
I refer to these intellectual camps as 1) the Secular Nation argument; 2) the God and Country argument; and a newer line of discourse, the Accommodationist argument,” a hybrid of Madison, Jefferson, Mason, Washington and Henry. This post-modern argument stands in favor of the non-establishment of a single religion over all, yet does not seek to form a secular state through the exclusion of religion altogether from public discourse. Rather, the Accommodationist argument embraces the value of religion in civil society, by upholding the active federal enforcement of individual religious rights and liberties that nurture and protect a religiously plural United States of America.
I believe that the Accommodationist argument honors the intent and vision of the founders of the United States and the signers of our Constitution’s Bill of Rights, more so than the Secular Nation and God and Country arguments. It is true; the two original sides disagreed regarding the need for the establishment of one single religion by the state. Yet, from the beginning most founders of the U.S., including those mentioned in these reflections, held common values for individual religious rights and liberties at the core of their intent. Plus, most valued the protection of rights for a plurality of religious sects.
As a bonus, almost all of the founders of our nation justified their belief in the protection of individual rights based on an authority higher than the state itself; the spiritual authority of their creator God, often referred to as The Lord Almighty, who, they believed, gives the gift of natural rights to humankind. In fact, Harvard Professor of Comparative Religion and Indian Studies, Dr. Diana Eck, remarked on the importance of religious faith’s role in the creation of America’s pluralistic democracy in a speech given at the MAAS International Conference on Religious Pluralism in Democratic Societies. Dr. Eck explained, “It is significant that the founders and framers of the Constitution were, to be sure, people of faith. The likes of Jefferson and Madison actually argued their case for a secular Constitution on religious grounds. Our freedom is grounded in the God-given freedom of the mind to think and to choose.”[iv] Thus, taken in concert, the historically common values of two opposing sides form the foundation for the current day Accommodationist Argument.
The Accommodationist argument upholds the following values:
- The individual has natural rights and liberties now enforceable through the Constitution, the Bill of Rights and the Fourteenth Amendment.
- The Federal Government is therefore responsible to enforce these religious liberties and make possible the enactment of these religious rights.
- Finally, to completely exclude religion from civil society is in effect to create a purely secular civil society. This exclusion of religion from civil society does two things. First, it forces the exclusion of the religious part of the individual from civil society. Second, as a result it effectually places human beings in the highest seat of authority over our nation. This was not the intent of the founders of the United States who did not exclude their own religious selves from the civil act of forming our union.
Recently, politicians and pundits have brought various issues of religious liberty and the separation of church and state to the fore with the controversy over contraception. True to form most arguments have sided on either the Secular Nation side or the God and Country side of the aisle. Early February 2012, the Obama administration announced its decision to require non-church faith-affiliated institutions, such as hospitals and universities to provide employees with health insurance that covers contraception. After backlash from the Catholic Bishops and an unusual alliance of conservative and progressive evangelicals, the administration reconsidered. Personally, I believe there is a third way and President Obama found it. The administration enacted an Accommodationist approach. By requiring insurance agencies to pay for the service directly, and not the institutions themselves, the administration preserved religious liberty and the disestablishment of religion.
Since the administration’s compromise, some have attempted to argue that no institution should have to provide health insurance that covers contraception. I strongly disagree with this over reach. The claim is made that such a requirement might require a religious employer in a secular institution to compromise his or her personal faith by providing insurance that covers contraception. At the heart of this argument is a mishandling of the concept of personhood and citizenship. The U.S. Constitution was crafted to protect the rights and liberties of individual citizens, not corporations. When an agent of a secular institution makes a payment or offers benefits to an employee, that transaction is made through the medium of the corporation. Corporations are not people. Corporations do not worship. Corporations do not have a conscience of their own without the direction of board members, whose positions are temporary. No agent of the corporation equals the corporation; not the manager, the executive, nor any member of the board. Thus transactions made in the name of secular corporations are not protected by the First Amendment of the Constitution.
Much more could be said, but I’ll stop here, for now. I look forward to this conversation.
[i] Joseph M. Dawson, “The Meaning Of Separation of Church and State In the First Amendment,” A Journal of Church And State, Vol. 1, No. 1, 38.
[ii] Judge Michael McConnell, “The Meador Lecture on Law and Religion” as reported by Elizabeth Katz. See http://www.law.virginia.edu/home2002/html/news/2005_fall/mcconnell.htm.
[iii] The U.S. National Archives & Records Administration, “The Bill of Rights: A Transcription,” http://www.archives.gov/national-archives-experience/charters/charters_downloads.html
[iv] Professor Dr. Diana L. Eck, “A New Religious America: Managing Religious Diversity in A Democracy: Challenges and Prospects for the 21st Century,” MAAS International Conference on Religious Pluralism in Democratic Societies (Kuala Lumpur, Malaysia, August 20-21 2002)
Ms. Harper,
Thank you for providing this historical grid by which we can make sense of so many of the arguments about the relationship between religion and politics and the separation of church and state. The “Secular Nation” vs. “God and Country” polarity rings true to me. With respect to the “Accomodationist” argument, I found point 3 especially helpful where you write, “….to completely exclude religion from civil society is in effect to create a purely secular civil society.” First, I’m struck by it because it reminds us that the intent of the Framer’s was never to strip institutions of civil society of their religious character, especially by legal mandate. Second, it implies that there is a significant sphere of American public life populated by visible institutions outside of government. Third, it affirms that religious persons have the right to maintain an integrated, religious identity as they participate in the many differentiated institutions of civil society.
I don’t, however, think you drew the right conclusions from your Accomodationist argument regarding the HHS mandate, and the Obama Administration’s eventual compromise. In characterizing President Obama’s approach, you write, “By requiring insurance agencies to pay for the service directly, and not the institutions themselves, the administration preserved religious liberty and the disestablishment of religion.” I suppose I would need to understand the pay structure between a particular employer and insurance company to firmly ground what I’m about to argue, but I’ll try anyway. If the Administration continues with this regulatory language, an insurance company that provides coverage for Catholic University of America (CUA) will have to provide its employees with contraceptives at no cost to them at the point of purchase. It is my understanding that employers generally pay a large portion of the insurance premium for their employees. Insurance companies mandated to cover contraceptives at no cost to their customers will inevitably pass some or all these contraceptive costs onto the employers (in my example, CUA). Consequently, I object that religiously-affiliated organizations will be protected from promoting (through funding) something they deem morally objectionable.
At another level, I challenge the premise that government should subsidize (directly or by legal mandate) access to contraceptives at all. Here I mean to address your comment that, “….some have attempted to argue that no institution should have to provide health insurance that covers contraception. I strongly disagree with this over reach.” I agree there may be a line to draw between institutions whose missions are a direct extension of religious conviction and institutions involved in profit making enterprises with no distinctly religious dimension (although, if this distinction were deeply probed, I think, at least for Christians, it could become very blurry). But why should government involve itself in providing contraceptives?
I know this has been repeated frequently by many on the political right, but I think it must be repeated here—this is not an issue of government criminalizing the sale, possession, or use of contraceptives, nor is it an issue of government enacting onerous regulations to restrict access to contraceptives. It is, rather, an issue of whether government should force some people to pay for other people’s contraceptives. I am fully persuaded that this issue is primarily about the religious liberty of institutions to be free not to endorse activities they deem immoral. But secondarily, the HHS mandate represents serious government overreach.
There are so many tangible needs for which a good case can be made for government assistance to people in need, but I don’t think contraceptives are among those needs. Except for instances of rape where, of course, victims deserve comprehensive care and support (from family, civil society, and government), sexual activity that can result in children is a lifestyle choice involving a man and a woman. That means that whatever the costs are for contraception (e.g., the Georgetown student that testified in Congress gave an amount of about $3,000 over 3 years), they can be divided between the persons involved. And I really don’t intend any sarcasm here. A female involved in a sexually active relationship doesn’t have to bear the full costs. She should demand that her partner pay at least 50% of the costs to prevent pregnancy, if preventing pregnancy is their desire. If he is unwilling, then she has learned something about him she may not have known to that point. We (Christians) should not support public policy that promotes further disconnection of sexual activity from the kinds of loving, stable, permanent, committed relationships in which it is meant to take place (and in which its main fruits, intimacy and children, are meant to emerge). Access to contraception is not a right that warrants public subsidy, and this is another way the Obama Administration went wrong with the HHS mandate, even after the compromise, especially after the compromise.
Ms. Harper,
Thank you for providing this historical grid by which we can make sense of so many of the arguments about the relationship between religion and politics and the separation of church and state. The “Secular Nation” vs. “God and Country” polarity rings true to me. With respect to the “Accomodationist” argument, I found point 3 especially helpful where you write, “….to completely exclude religion from civil society is in effect to create a purely secular civil society.” First, I’m struck by it because it reminds us that the intent of the Framer’s was never to strip institutions of civil society of their religious character, especially by legal mandate. Second, it implies that there is a significant sphere of American public life populated by visible institutions outside of government. Third, it affirms that religious persons have the right to maintain an integrated, religious identity as they participate in the many differentiated institutions of civil society.
I don’t, however, think you drew the right conclusions from your Accomodationist argument regarding the HHS mandate, and the Obama Administration’s eventual compromise. In characterizing President Obama’s approach, you write, “By requiring insurance agencies to pay for the service directly, and not the institutions themselves, the administration preserved religious liberty and the disestablishment of religion.” I suppose I would need to understand the pay structure between a particular employer and insurance company to firmly ground what I’m about to argue, but I’ll try anyway. If the Administration continues with this regulatory language, an insurance company that provides coverage for Catholic University of America (CUA) will have to provide its employees with contraceptives at no cost to them at the point of purchase. It is my understanding that employers generally pay a large portion of the insurance premium for their employees. Insurance companies mandated to cover contraceptives at no cost to their customers will inevitably pass some or all these contraceptive costs onto the employers (in my example, CUA). Consequently, I object that religiously-affiliated organizations will be protected from promoting (through funding) something they deem morally objectionable.
At another level, I challenge the premise that government should subsidize (directly or by legal mandate) access to contraceptives at all. Here I mean to address your comment that, “….some have attempted to argue that no institution should have to provide health insurance that covers contraception. I strongly disagree with this over reach.” I agree there may be a line to draw between institutions whose missions are a direct extension of religious conviction and institutions involved in profit making enterprises with no distinctly religious dimension (although, if this distinction were deeply probed, I think, at least for Christians, it could become very blurry). But why should government involve itself in providing contraceptives?
I know this has been repeated frequently by many on the political right, but I think it must be repeated here—this is not an issue of government criminalizing the sale, possession, or use of contraceptives, nor is it an issue of government enacting onerous regulations to restrict access to contraceptives. It is, rather, an issue of whether government should force some people to pay for other people’s contraceptives. I am fully persuaded that this issue is primarily about the religious liberty of institutions to be free not to endorse activities they deem immoral. But secondarily, the HHS mandate represents serious government overreach.
There are so many tangible needs for which a good case can be made for government assistance to people in need, but I don’t think contraceptives are among those needs. Except for instances of rape where, of course, victims deserve comprehensive care and support (from family, civil society, and government), sexual activity that can result in children is a lifestyle choice involving a man and a woman. That means that whatever the costs are for contraception (e.g., the Georgetown student that testified in Congress gave an amount of about $3,000 over 3 years), they can be divided between the persons involved. And I really don’t intend any sarcasm here. A female involved in a sexually active relationship doesn’t have to bear the full costs. She should demand that her partner pay at least 50% of the costs to prevent pregnancy, if preventing pregnancy is their desire. If he is unwilling, then she has learned something about him she may not have known to that point. We (Christians) should not support public policy that promotes further disconnection of sexual activity from the kinds of loving, stable, permanent, committed relationships in which it is meant to take place (and in which its main fruits, intimacy and children, are meant to emerge). Access to contraception is not a right that warrants public subsidy, and this is another way the Obama Administration went wrong with the HHS mandate, even after the compromise, especially after the compromise.
Ms. Harper,
Thank you for providing this historical grid by which we can make sense of so many of the arguments about the relationship between religion and politics and the separation of church and state. The “Secular Nation” vs. “God and Country” polarity rings true to me. With respect to the “Accomodationist” argument, I found point 3 especially helpful where you write, “….to completely exclude religion from civil society is in effect to create a purely secular civil society.” First, I’m struck by it because it reminds us that the intent of the Framer’s was never to strip institutions of civil society of their religious character, especially by legal mandate. Second, it implies that there is a significant sphere of American public life populated by visible institutions outside of government. Third, it affirms that religious persons have the right to maintain an integrated, religious identity as they participate in the many differentiated institutions of civil society.
I don’t, however, think you drew the right conclusions from your Accomodationist argument regarding the HHS mandate, and the Obama Administration’s eventual compromise. In characterizing President Obama’s approach, you write, “By requiring insurance agencies to pay for the service directly, and not the institutions themselves, the administration preserved religious liberty and the disestablishment of religion.” I suppose I would need to understand the pay structure between a particular employer and insurance company to firmly ground what I’m about to argue, but I’ll try anyway. If the Administration continues with this regulatory language, an insurance company that provides coverage for Catholic University of America (CUA) will have to provide its employees with contraceptives at no cost to them at the point of purchase. It is my understanding that employers generally pay a large portion of the insurance premium for their employees. Insurance companies mandated to cover contraceptives at no cost to their customers will inevitably pass some or all these contraceptive costs onto the employers (in my example, CUA). Consequently, I object that religiously-affiliated organizations will be protected from promoting (through funding) something they deem morally objectionable.
At another level, I challenge the premise that government should subsidize (directly or by legal mandate) access to contraceptives at all. Here I mean to address your comment that, “….some have attempted to argue that no institution should have to provide health insurance that covers contraception. I strongly disagree with this over reach.” I agree there may be a line to draw between institutions whose missions are a direct extension of religious conviction and institutions involved in profit making enterprises with no distinctly religious dimension (although, if this distinction were deeply probed, I think, at least for Christians, it could become very blurry). But why should government involve itself in providing contraceptives?
I know this has been repeated frequently by many on the political right, but I think it must be repeated here—this is not an issue of government criminalizing the sale, possession, or use of contraceptives, nor is it an issue of government enacting onerous regulations to restrict access to contraceptives. It is, rather, an issue of whether government should force some people to pay for other people’s contraceptives. I am fully persuaded that this issue is primarily about the religious liberty of institutions to be free not to endorse activities they deem immoral. But secondarily, the HHS mandate represents serious government overreach.
There are so many tangible needs for which a good case can be made for government assistance to people in need, but I don’t think contraceptives are among those needs. Except for instances of rape where, of course, victims deserve comprehensive care and support (from family, civil society, and government), sexual activity that can result in children is a lifestyle choice involving a man and a woman. That means that whatever the costs are for contraception (e.g., the Georgetown student that testified in Congress gave an amount of about $3,000 over 3 years), they can be divided between the persons involved. And I really don’t intend any sarcasm here. A female involved in a sexually active relationship doesn’t have to bear the full costs. She should demand that her partner pay at least 50% of the costs to prevent pregnancy, if preventing pregnancy is their desire. If he is unwilling, then she has learned something about him she may not have known to that point. We (Christians) should not support public policy that promotes further disconnection of sexual activity from the kinds of loving, stable, permanent, committed relationships in which it is meant to take place (and in which its main fruits, intimacy and children, are meant to emerge). Access to contraception is not a right that warrants public subsidy, and this is another way the Obama Administration went wrong with the HHS mandate, even after the compromise, especially after the compromise.