Is religious freedom under siege in the United States?

The “fortnight for freedom” begins. This is the bishops’ pushback against the Obama administration’s mandate that all employers, including religious employers, must, in effect, supply contraceptives to employees. (Cf. The mismatch, 1 MPA 75 (2012).

The underlying issue, it seems to me, is “who gets to decide what is religious activity?” The administration exempts things such as parish offices and diocesan chanceries from the rules because they are religious entities. It does not exempt Catholic hospitals, Catholic schools, &c. because they aren’t religious entities. Says who? The administration’s claim, after a fashion, becomes this: “They’re Catholics when they go to church; they are not Catholics when they carry out the corporal works of mercy in an organized fashion which requires the employment of people.”

I must admit to finding the bishops’ rhetoric to be a little overheated; I don’t know how far I agree with the claim that this is an “attack” on “freedom of religion.” When one thinks of an attack on freedom of religion, the image that springs to mind is persecution for living—or even merely holding to—essential elements of the faith. Our brethren in Egypt and Iraq, to name but two, are facing attacks on freedom of religion. Were government to ban alcohol without an exception for sacramental wine, that would be an attack on freedom of religion, and for that reason would likely violate the first amendment, see Church of the Lukumi Babalu Aye v. Hialeah, 508 U.S. 520, 561 (1993) (Souter, J., concurring); likewise, were government to ban the celebration or attendance of the Holy Sacrifice of the Mass, it would be forbidding conduct that is central to and required by the faith. What is happening here must be counted in a somewhat different category, insofar as it does not proscribe or punish conduct that is central to the Catholic faith. We are not obliged to run hospitals. The obligations of Catholics quoad the sick no more oblige us to run hospitals than our obligations quoad the poor oblige us to support government-run welfare programs; those obligations are personal, communal, ecclesial, and ecclesiastical. Whether and how they find expression as collective action is not (generally) a question posessing a single answer to which the Church binds the faithful to an obsequium religiosum. It would unquestionably be an attack on freedom of religion if the government banned us from performing the corporal works of mercy, but the new restrictions are on one discretionary means of doing so collectively. They are thus restrictions on activities that are at some remove from the core of the faith.

But isn’t that bad enough? Catholics have customarily answered the call to corporal works of mercy through collective action in the form of running institutions such as schools and hospitals for the obvious reason that they are typically the most efficient and systematic way to carry out those works on the broadest scale. They maximize the bang-per-buck. Thus, while the government isn’t banning the corporal works of mercy per se, it is placing a huge and unjust burden on our ability to carry them out effectively. This may or may not transgress the specific protections of the first amendment, but it would certainly seem to transgress the broader freedom of religion that American society has traditionally valued. (Government may, in other words have the power to do it, but it does not have the right.)

And isn’t that dangerous enough, too? Above, I posed the question in terms of “who decides,” and that’s where I’ll end. Why should civil government get to make that decision? Should the government get to decide what is core and what is peripheral to the faith? Should the government get to decide whether the corporal works of mercy are religious activity—or at least, religious “enough” to merit it leaving us alone? Should the government get to decide how we go about performing them, at least as a general matter, cf. Oregon Dept. of Human Resources v. Smith, 494 U.S. 872 (1990)? Whether we agree or disagree with the government’s judgment call on this particular issue (and I hope we all support the bishops), surely the more dangerous and fundamental issue here is the premise that it’s the government’s call to make in the first place.