By Perry H. Young
Religious liberty is in trouble in the United States of America. Recent events have dramatically demonstrated just how fragile religious liberty has become and how much we must now work to preserve it. People of faith in America are being forced by their own government to fund practices and items that their religious leaders teach them to avoid. How did we get to this point?
A Brief Historical Overview
This country was originally settled in large measure by people who were fleeing religious opression in Europe. Many of them came here specifically to have the freedom to serve God according to the dictates of their own conscience. Religious liberty was a motivator in the American revolution. George Washington, America’s first president, wrote in 1783 that “The establishment of civil and religious Liberty was the motive that induced me to the field [of battle].”1
Now, within a few generations, religious liberty has eroded in this country. Since the late 1940s (building on earlier Supreme Court cases from the Progressive Era), people’s ability to practice their religion in the public square has been greatly diminished. The constitutional prohibition on a federally established church which left religion up to the states and the people has been transformed into a federally imposed ban on the free exercise of religion in vast swaths of American public life. Teaching religion in schools, offering prayer in schools, and opening exercises involving the reading of Bible verses were all found unconstitutional in a series of Supreme Court cases.2
A phrase from President Thomas Jefferson’s 1802 letter to the Danbury Baptist Association (“a wall of separation between Church and State”) – meant to assure them that the federal government would not interfere with their free exercise of religion – has been twisted into a justification to keeping religion out of the public square. The clear meaning of the statement in the First Amendment in the Bill of Rights that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” has been undermined, which has led to the confusion that exists today.
The Threat Today
The Constitution of the United States was written to limit government intrusion into areas where it didn’t belong, specifically including religious liberty to serve God according to the dictates of each individual’s conscience. Now that principle is seriously threatened. In 2010, a law known as the Patient Protection and Affordable Care Act was passed by a very slim majority in Congress and signed by the President of the United States. This law was well over 2000 pages long, but in effect can grow to thousands more, because it contains several instances of the phrase “the Secretary shall determine…”.3 This phrase refers to the Secretary of Health and Human Services (HHS), who is granted in this law unprecedented amounts of regulatory power over things deemed to relate to people’s health decisions.
The current secretary of HHS has taken that power and used it as an opportunity to intrude into the religious liberty of all Americans with new regulations. The regulations are requiring religious institutions to pay for insurance policies that cover things that are in opposition to those religious institutions’ values, such as contraceptives and abortifacient drugs. Not only are religious institutions being forced to help diminish their own moral authority by financially supporting policies that undercut their own values, but every dollar so spent is a dollar that cannot be used freely in other ways that might have supported their values.
After discussions with Catholic leaders, who implored them not to impose these regulations, the White House offered to make accommodations that they said would respect their religious liberty. These accommodations did not adequately address the stated concerns of the Catholic church. The Catholic bishops responded to the proffered accommodations with these words: “Today’s proposal involves needless government intrusion in the internal governance of religious institutions, and to threaten government coercion – government coercion of religious people and groups to violate their most deeply held convictions.” The White House chief of staff, Jack Lew, after trying to explain away their stated concerns, responded: “Our policy is clear.”4 It appears that this White House has higher priorities than protecting religious liberty or respecting conscience.
The focus of this story as reported in the media has been the effect of these regulations on the Catholic church, perhaps because that church’s stances are among the most prominent on the teachings that are undercut by these regulations and because that church owns and operates many institutions that are effected, such as charities and hospitals. But the focus should be much wider.
Religious Liberty vs. Freedom of Worship
Why is this assault on the Catholic church’s operations outside of its actual worship services important to the larger issue of general religious liberty? Representatives of the White House insist that the HHS mandate does not affect religious liberty, but is intended to provide fairness in health coverage for individuals employed by church owned hospitals and charities. This premise must not be allowed to stand.
Religious liberty is a much larger concept than the freedom to simply worship as one chooses. The epistle of James in the New Testament includes this idea about religion: “Pure religion and undefiled before God and the Father is this, To visit the fatherless and widows in their affliction, and to keep himself unspotted from the world.”5 Clearly, the idea of religion is not to be confined to worship activities behind church doors. “Free exercise” of religion is what is protected by our First Amendment, not merely “freedom of worship”. Free exercise of religion has to include the ability to use a church’s resources, financial and otherwise, to serve God according to the dictates of the consciences of the members of that church, free of tyrannical constraints and demands to spend those resources to work against the dictates of their consciences. In a 1786 law establishing religious freedom in Virginia, Thomas Jefferson wrote, “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.”6
We must not retreat on defending this principle. As an example and a warning, the Soviet Union’s constitution of 1936 specifically protected “freedom of religious worship”7, not freedom of religion. It may be instructive to consider how that clause was implemented in the U.S.S.R. An educational pamphlet on the subject published in 1945 said: “No active measures of repression were taken against people who went into the churches to pray. At the same time, all possible ways of influencing public opinion – schools, press, radio, theater, movies, lectures, and anti-religious exhibits – were used to disparage religious superstitions and beliefs. Only the most determined people – largely belonging to the older generation – could withstand such a constant mocking.
Moreover, the Soviet government prevented the education of new religious leaders and barred the religious education of children in schools – although such education could be given by parents at home.
“8 A careful assessment should be made of our own nation’s culture and a thoughtful consideration should be given to turning away from following the path that the Soviet Union followed in the past. It is time to join with other people of faith in the common cause of protecting freedom of religion – in its most complete sense – for all Americans.
“We are all Catholics Now”
We must not be lured into a false sense of security and thinking that the only people whose consciences are being violated are Catholics, and that we need not worry about it. History demonstrates that tyrannical government typically starts with relatively small intrusions, then quietly expands its reach into more and more places. The Catholic church’s situation is not fundamentally different from our own. As members of the Church of Jesus Christ of Latter-day Saints, we also have teachings dealing with the sensitive areas of abortion and contraception, as well as stances on end-of-life care and other issues touching on health care. Our church funds educational institutions and charitable entities that are similar to many Catholic organizations that have employees with health insurance policies. Many church members also own businesses that provide health insurance to their employees.
As of August 1, 2012, if the HHS mandate is uniformly applied, our institutions and businesses are being forced to fund insurance coverage of items with which we disagree. With time and opportunity, it is reasonable to expect that HHS will look more specifically toward us and our unique beliefs, if it hasn’t already. If the secretary at HHS is appointed by a president without a grounding in true principles of religious liberty and without the traditional respect for individual autonomy and freedom, our religious liberty will be further attacked. I am not a lawyer, but lawyers working for the Church should be preparing to defend our religious liberty in the courts. They likely don’t need my advice, but it is possible that legal precedent does hold some promise for a way out of the situation as it presently stands.
The Religion of Secular Humanism
It is apparent that current HHS policy is not only contrary to the religious teachings of Catholics and others, it is in support of a competing doctrine: secular humanism. As defined by some of its adherents, secular humanism is a “progressive philosophy of life that, without theism and other supernatural beliefs, affirms our ability and responsibility to lead ethical lives of personal fulfillment that aspire to the greater good of humanity.”9
Secular humanists have started groups such as the American Humanist Association to advocate their beliefs. The propagators of the HHS policy, whether they profess another religion or not, are acting in direct support of the tenets of secular humanists. These tenets include the following, as set forth in 1973 in a document known as the Humanist Manifesto II: “In the area of human sexuality, we believe that intolerant attitudes, often cultivated by orthodox religions and puritanical cultures, unduly repress sexual conduct. The right to birth control, abortion, and divorce should be recognized.”10
While some secular humanists and other atheists may deny that statements like this are in any way akin to religious beliefs, the fact is that the Supreme Court of the United States has granted atheists protection on First Amendment grounds. In 1961, the Supreme Court struck down a Maryland law requiring office holders to declare a belief in the existence of God (Torcaso v. Watkins, 367 U.S. 468 (1961)). In 1987, in a dissenting opinion, Justice Antonin Scalia referenced Torcaso when stating, “The United States Supreme Court has held that secular humanism is a religion” (Edwards v. Aguillard, 482 U.S. 578 (1987)).
As much as the officials of this administration may protest that they are simply instituting scientifically defensible policy, the fact is that their policies are directly supporting a set of religious beliefs known as secular humanism. If the administration does not cease and desist, they should be sued (by groups and individuals with legal standing to do so) and caused to stop engaging in viewpoint discrimination in blatant violation of our First Amendment rights.
The HHS mandate has been demonstrated to be contrary to the religious opinions of some and in support of the religious opinions of others. If we are not in a position to sue as individuals, what can we do? We cannot allow viewpoint discrimination to prevail, forcing one or many religious groups to support by their money and resources the diametrically opposed religious opinions of others. The only rational course consistent with religious liberty is to use our political influence to lead the country to return to the principle of limited government.
The government should not intrude into areas where it is not constitutionally authorized to act. The government should refrain from passing laws or establishing regulations that prefer one religious group over another, forcing one set of religious groups to fund the contrary opinions of another. We need to do everything in our power to see that the government stays within its constitutional limits. As the Prophet Joseph Smith taught, “It is our duty to concentrate all our influence to make popular that which is sound and good, and unpopular that which is unsound. ‘Tis right, politically, for a man who has influence to use it, as well as for a man who has no influence to use his. From henceforth I will maintain all the influence I can get.”11
Now, on the legal front, in the case of the HHS mandate, a recent decision of a federal court judge may have the effect of shoring up religious freedom. In his order halting the enforcement of the HHS mandate against a Colorado family-owned business while a lawsuit challenging the mandate continues in court, Senior Judge John L. Kane of the U.S. District Court for the District of Colorado said that the government’s arguments are “countered, and indeed outweighed, by the public interest in the free exercise of religion.”12 We can take some courage from that decision and hope that it leads to the correct outcome in this case, but it is sobering that our government as presently constituted has brought us to this point. The government of the United States of America is elected and employed by “we the people”. Therefore, it is up to us to say that if the officials in the current government will not live by clear constitutional standards of religious liberty, then they must be repudiated and replaced as soon as possible: in the next election.
Perry H. Young is a computer programmer in northern Virginia. He served a Spanish-speaking mission in California and is a graduate of BYU and George Mason University.
1 John C. Fitzpatrick, ed., The Writings of George Washington from the Original Manuscript Sources, 1745-1799 [39 vols.; Washington, D.C., 1931-1944], XXVII, 249, as cited in God of Liberty: A Religious History of the American Revolution by Thomas S. Kidd. (New York: Basic Books, c. 2010, pp. vi, 298).
Board of Education (1948), Engel v. Vitale (1962), Abington School District v.Schempp (1963).
3 Text of the Patient Protection and Affordable Care Act (Public Law 111-148).
6 Act for Establishing Religious Freedom, January 16, 1786.
8 Dean, Vera Micheles, Our Russian Ally.
1 2 Holt, Mytheos, “Federal Court Aborts Contraception Mandate“, July 27, 2012.