Government Limits of Religious Liberty – A Conversation

By Leigh Greenhaw, Board President of Interfaith Partnership/Faith Beyond Walls

A small, invitation-only discussion of the balance between the power of government and the free exercise of religion was held by the Washington University Center on Politics and Religion on June 7, 2012. I attended as President of the IP/FBW Board, along with Cabinet members Batya Abramson-Goldstein (JCRC), Rev. Sherri Saunders (AME-Zion), Cynthia Holmes (Baptist Alliance) and Dr. Lawrence J. Welch (St. Louis Archdiocese).

The impetus was the current controversy over the proposed government requirement, under the Health Reform Act, that employer health insurance plans include coverage of contraception. The administration initially had drafted a narrow exception for the church. After objection by religiously affiliated institutions, such as Roman Catholic hospitals, it proposed placing the requirement on health insurance companies rather than on the employers themselves.

Former Missouri Senator John Danforth started the discussion, summarizing recent lawsuits filed by the Roman Catholic Church objecting to the requirement on religious liberty grounds. The first amendment of the U.S. Constitution forbids the government to prohibit the free exercise of religion. The Senator, a lawyer as well as an ordained Episcopal priest, then laid out the broader legal parameters of the scope and limits of governmental infringement on religious practices.

Here the religious practice is obedience to Roman Catholic teaching that forbids use of artificial birth control by not providing it; the governmental infringement would be refusal to exempt religiously affiliated employers from the requirement to provide health insurance covering artificial birth control.

Senator Danforth explained that judicial protection of religious liberty was sharply reduced in 1990, so that uniform, religiously neutral and otherwise legitimate regulation is presumed to be constitutional even if it substantially burdens religiously motivated practices. This would mean that because the requirement to cover contraception is uniform for all employers, regardless of religion, the courts probably would not protect the employers affiliated with the Roman Catholic Church from its enforcement. Congress passed the Religious Freedom Restoration Act in 1993, however; it required courts to return to careful scrutiny of federal government action that significantly burdens religious exercise.

The Senator pointed out that the issues went beyond court protection to include adherence to constitution principle by the Congress and the administration, and even to the understanding of those principles by religious leaders. Discussion ensued, and the opinions were diverse.

One Protestant Christian raised the religious freedom of the women employees as a concern. The suit, however, asserted the rights of the religious institutions and the Roman Catholic clergy said abstention from artificial birth control was clearly the teaching of the Church. Another reminded the group that the religious objection did not prevent the purchase and use of contraception, just the provision of it by religiously affiliated institutions.

Others probed why the accommodation offered by the administration, namely to have the health insurance companies pay for the coverage, was not acceptable. As birth control reduces insurance costs, companies are amenable to providing it without charge.

An Archdiocese representative said that most Roman Catholic hospitals were self-insured, so that their own funds would necessarily pay some portion of the cost of providing contraception. Although the Obama administration had offered several possible accommodations, one administrator of Roman Catholic health care institutions reported that each one presented a problem for the institutions. One administrator ventured the opinion that it would be best if the government itself paid for contraceptive coverage, removing the obligation from employers entirely.

As to the larger issues, some raised the need to clarify the burden on the religious in any resolution of such questions, and the extent of the burden. Others pointed out the problem of defining religion – if very broadly defined, exemptions would become unwieldy and unfair to those who must obey regulation. Others said some religious objections should not be accommodated by government – for instance, religiously imposed requirements to discriminate racially. Senator Danforth suggested the test in the Religious Freedom Restoration Act might be the best not only for courts but for legislators and administrators to follow. That would be to closely scrutinize or consider any proposed governmental action that will substantially burden sincere, religiously motivated action.

Although no consensus was reached, all seemed to agree that coming together to discuss the issue was a step toward greater understanding. Sincere thanks were expressed to the Center and to Senator Danforth, as well as Center Director Marie Griffiths and Assistant Director Lenora Fisher.

Leigh Greenhaw
June 14, 2012