December 2011 Church & State | Featured

If you spent enough time listening to Rep. Trent Franks (R-Ariz.), you would think that religious liberty in America is under unprecedented attack.

“Despite the fundamental nature of religious freedom and its importance in American life, in recent years religious freedom has come under attack as never before,” said Franks, chair of the House Judiciary Committee’s Subcommittee on the Constitution.

At an Oct. 26 subcommittee hearing on “The State of Religious Liberty in the United States,” Franks went on to blame this attack on “those who would trample underfoot the religious freedom of their fellow Americans [and] do so in the name of a ‘strict wall of separation between church and state.’”

Franks also said at the hearing that those who believe in the church-state wall are misinterpreting history and that while the U.S. Constitution makes no mention of this principle, the Soviet Constitution did.

These words are not surprising given that Franks set up the Arizona Family Research Institute, an affiliate of the James Dobson-founded Focus on the Family.

What is surprising is that he isn’t entirely wrong. Religious liberty is under assault in the United States, but it is not the majority faith groups Franks wants to protect that are in trouble – it is the liberties of religious minorities and nonbelievers that are most threatened.

Franks and his allies in the Religious Right have a clear agenda, which was on full display during the recent hearing. They want to convince Congress to write overly broad exemptions for religious organizations from laws intended to provide healthcare, extend civil rights protections and grant civil marriage rights to same-sex couples.

Roman Catholic and evangelical Christian leaders are agitating in Washington, D.C., the state legislatures and the courts for open-ended exemptions for “faith-based” colleges, hospitals and social service agencies even if those ministries receive taxpayer funding.

The hearing provided a platform for Bishop William C. Lori, head of the newly formed Ad Hoc Committee for Religious Liberty of the U.S. Conference of Catholic Bishops (USCCB). It also gave a soapbox to Colby May, an attorney with TV preacher Pat Robertson’s American Center for Law and Justice (ACLJ).

Americans United Executive Director Barry W. Lynn was there to offer an alternative perspective, speaking up for the church-state wall and individual freedom.

Lori, a bishop from Bridgeport, Conn., spoke on behalf of the USCCB, which this fall issued a manifesto on threats to religious liberty. He offered a list of what he said are the most egregious infringements on Catholic liberties, most of them policies put in place by President Barack Obama’s administration.

These consist of:

a mandate by the Department of Health and Human Services (HHS) that contraception and sterilization must be covered by private health plans with very few exceptions;

an HHS requirement that insurers provide the “full range of reproductive services” to sex-trafficking victims and refugees who are unaccompanied minors in its cooperative agreements and government contracts;

U.S. Agency for International Development “increasingly requiring” HIV prevention activities and reproductive health services in a variety of international relief and development programs;

the Department of Justice classifying the “Defense of Marriage Act” – that bars federal recognition of same-sex marriage – as a form of bigotry;

the Department of Justice challenging the “ministerial exception” in the Supreme Court; and

• state same-sex marriage legislation that provides “only a very narrow religious exemption.”

In his testimony, Lori followed the hierarchy’s party line, criticizing healthcare mandates that don’t allow religious organizations to pick and choose which services they provide and laws that mandate a “redefinition of marriage.” Lori said the examples he cited “are serious threats to religious liberty,” and they are “part of a broader trend of erosion of religious liberty in the United States.”

The bishop called for passage of three measures that offer exemptions for church entities: the Protect Life Act (H.R. 358), the Abortion Non-Discrimination Act (H.R. 361) and the Respect for the Right of Conscience Act (H.R. 1179). He also urged congressional hearings or investigations on the other issues he listed.

In summing up, Lori said the causes of the threats to religious liberty are broad and that “we… must also treat the symptoms immediately, lest the disease spread so quickly that the patient is overcome before the ultimate cure can be formulated and delivered.”

Lori did not say what the “ultimate cure” is, but he did say rather cryptically that it will take more than just government to provide that cure. Bishops and others “must address… philosophical and cultural problems” in American society, he said.

The ACLJ’s May focused his five-minute testimony on legal issues that he said abridge general religious freedom, but it became apparent very quickly that he was concerned largely with the freedom of evangelical Christians. He complained that university speech codes undermine the rights of religious students, and he criticized university policies that bar officially sanctioned and supported religious clubs from discriminating in admissions.

May ranted against the 1st U.S. Circuit Court of Appeals decision in the 1995 case of Brown v. Hot, Sexy and Safer Productions, which involved an AIDS prevention presentation at a public school.

May claimed the presentation included statements that were “profane, lewd, and lascivious” and that sexual activity and condom use were advocated and approved. He criticized the court’s finding that the program did not violate students’ constitutional rights.

May said that “the right of parents to teach their children religiously based morals has become a new battleground,” with “religious parents who choose to send their young children to public schools” finding their “religious morals contradicted by sex education courses.”

As one might expect, Lori and May found receptive ears among Franks and his Republican colleagues on the subcommittee.

Franks sympathized with the supposed plight of Catholic organizations that want to offer only healthcare services that comply with church dogma.

The Arizona congressman then went so far as to express concern that the United States may have taken the first step toward “blasphemy laws as you see in India and other places, where if someone expresses a different faith perspective it’s called ‘blasphemy.’”

This criticism was prompted by a claim Franks made that some Muslim groups met with the Department of Justice recently and asked that criticism of Islam in the United States be classified as racial discrimination.

“I certainly believe a person has every right to criticize my faith and to examine its veracity, and they do on a regular basis,” Franks said.

In fact, an attendee at the DOJ meeting has assured Church & State that Franks’ description of the session is inaccurate. And, of course, legal experts say the First Amendment would override an attempt to install blasphemy laws anyway.

Later in the proceedings, U.S. Rep. Steve King (R-Iowa), who spoke at the Values Voter Summit in early October, made the most unusual inquiry of the hearing: He asked Lori to list the seven Catholic sacraments. Lori seemed taken aback by the request and stumbled through the list, but eventually nailed them all.

It wasn’t clear why King felt the need to quiz Lori, until he managed to make a point that “an active effort” to desecrate any of the sacraments, of which marriage between one man and one woman is one, would be a grievous affront to the church and its beliefs.

Lori added that marriage is “a natural relationship…inscribed in our nature by the Creator that has served the common good and is a pillar of civilization.”

It was the Catholic hierarchy’s stance on marriage in particular that got Lori in trouble with the Democrats on the subcommittee. They wondered why it would be acceptable for a public employee to refuse to perform some of his duties on religious or moral grounds but not others.

U.S. Rep. Jerrold Nadler (D-N.Y.), the ranking Democrat on the subcommittee, asked Lori if he would support a Louisiana justice of the peace who refused on moral grounds to marry an interracial couple two years ago.

Lori said he did not support that position, so Nadler asked him why it would be wrong of government agencies to require their employees “to fulfill their job duties in other contexts” including registering marriages of same-sex couples if a state allows that.

Lori attempted to draw a distinction between same-sex marriage and interracial marriage (which the church doesn’t oppose), but Nadler implied that Lori’s position is untenable because a public employee can’t pick and choose the laws he or she observes.

U.S. Rep. Bobby Scott (D-Va.) followed a similar line of logic when he questioned Lori. Scott noted that in his home state, the definition of “traditional marriage” did not include interracial unions until 1967. When the Supreme Court forced Virginia to permit interracial marriage, “we redefined marriage at that point.”

Lori responded that the court’s decision “did not redefine marriage, you simply recognized the natural right of a man and a woman who happened to be of two different races to marry.”

AU’s Barry W. Lynn challenged the idea that religious groups can have it all – the freedom to follow their own rules and still receive taxpayer dollars.

“When you get the money from the federal or state government, then I think you’re obligated to follow the precepts not of your own denomination or your own faith community, but the requirements of, in most instances, federal law,” Lynn said. “So I see this as not in any way inhibiting the power of ministries to do what they want to do with their own dollars….

“I think the equation changes dramatically when federal funds enter the picture,” he asserted. “You cannot simply then say: ‘I will take the money, but I won’t take any restrictions. I won’t take any adherence to the core civil rights principles of this country.’”

Lynn was the lone invitee to testify at the hearing who countered the agenda of the Religious Right and the Catholic bishops. In his testimony, he explained that claims about infringement on the rights of Christian organizations are grossly exaggerated, while people of minority faiths as well as nonbelievers face a real and imminent threat to their liberties.

“There is no war against Christianity being waged by elected officials or by the courts,” Lynn told the subcommittee. “In truth, the real threat to religious freedom comes from those who seek special government blessings for those in favored faiths, and conversely, the treatment of members of other faiths as second-class citizens.”

Lynn listed several examples of the “very ugly” treatment of minority religious groups and atheists, including:

• Tennessee Lt. Gov. Ron Ramsey (R) saying that Islam is not a “true religion”;

residents of Katy, Texas, protesting the construction of a mosque by holding pig races near the property;

the U.S. Army refusing to allow a Wiccan symbol on the memorial marker of a sergeant killed in Afghanistan until a lawsuit forced it to do so; and

Johnson County, Tenn., asking an atheist to leave the community because he wanted to post a public display about the Constitution’s guarantee of religious freedom.

In concluding his remarks, Lynn said that there is “an actual movement in America to ban the use of Sharia law in the courts” even though Sharia law “is not a real threat. The actual threat is that there are serious efforts afoot that try to twist the purpose of our own Constitution.”

Unfortunately the hearing resolved none of the concerns raised by both parties and the witnesses, but the issues are not going away anytime soon since several House Republicans have proposed legislation that would fall in line with the agenda of the Religious Right.

Lynn said in his testimony that “we have a dizzying level of religious freedom in this country,” but bills that advance religion at the expense of individual freedom would be another step toward the “very ugly” America Lynn spoke of.

If the Religious Right gets its way, “we will defy George Washington’s promise that we would ‘give to bigotry no sanction,’” Lynn said at the hearing.