Editor’s Note: These remarks are adapted from the 2013 Kuyper Lecture, sponsored by the Center for Public Justice and delivered April 25, 2013 in Grand Rapids, Michigan. Used with permission. This two-part series began with Part One last week.
Just as our society is becoming more and more diverse with regard to religions and other systems of deep conviction, our governments are spreading forth more and more rules that require uniformity of practice.
In the first part of this essay we considered the foundations of religious freedom. Now we will turn from this very positive past and present for institutional religious freedom to the deeply troubling trends that are undermining our diverse civil society, seeking to confine religion to worship, to individual religious exercise, to private life—fencing religion off from private organizations that serve the public. This is the most significant religious freedom challenge in our country in our time: to struggle against these restrictive trends in order to preserve the freedom of faith-based organizations to serve the public in a countercultural way, to follow what they believe God calls them to do even when those practices differ from the popular consensus.
So consider with me the controversy that has flared up over a single, comparatively small, feature of the health care reform law adopted in 2010, the Affordable Care Act. That one hugely controversial provision is the HHS contraceptives mandate. The mandate is the requirement that employee health plans must include all federally approved contraceptive drugs, devices, services, and education. This mandate has sparked sermons, marches, letters to the editor, and phone calls to Congress and the federal government. It has prompted hundreds of thousands of comments on proposed regulations and also a number of congressional bills. And it has provoked an unprecedented number of lawsuits against the federal government—currently 54 cases with over 160 plaintiffs, including businesses and nonprofit organizations, various Roman Catholic and Protestants groups, religious hospitals and universities, a publisher of Bibles, and other businesses who say they try to conduct all of their operations consistent with their religious convictions.
This outpouring of protest is ironic, because the federal government is aware that Catholics and others have moral objections to artificial birth control or to emergency contraceptives that may act as abortifacients. Because of this, the government wrote into the federal regulations an exemption from the mandate for all “religious employers.” Thanks to that exemption, “religious employers” who have moral concerns about the contraceptives are free to exclude them from their health insurance plans, without any penalty—even though the government believes it is vitally important that women gain easier access to contraceptives.
So, if there is this exemption, why all the protest from religious organizations? The problem is that the definition of a religious employer is so narrow that most religious organizations don’t fit into the definition and thus are not exempt. The related, and bigger, problem is what the definition says about the federal government’s views about religious freedom outside the walls of houses of worship. The federal government’s definition has four characteristics and an organization must match all four of them.
- The organization must fit a particular tax code definition that applies only to churches and their closely controlled affiliates.
- The organization must hire mainly people of its own religion.
- The organization must mainly serve people of its own religion.
- The main purpose of the organization must be to “inculcate religious values.” (More recently, the government has proposed eliminating all but the first criterion, but it does not intend to expand the definition or the exemption beyond churches.)
What kind of organization fits this definition of a “religious employer”? Well, not any religious organization that goes beyond worship and Bible teaching, beyond “inculcating religious values.” And not any organization that serves the public and not only its own members. Only churches and the integrated auxiliaries of churches fit the definition. Excluded from the definition are all faith-based service organizations. No matter what their convictions are about the morality of the contraceptives and emergency contraceptives, Catholic hospitals and health clinics, Gospel rescue missions, Christian elementary and high schools, evangelical colleges, Teen Challenge residential alcohol and drug treatment programs, and every other kind of faith-based service organization is not eligible for the exemption.
In short, organizations that serve the community—and that are not focused exclusively on prayer and worship—are for those very reasons not regarded as religious enough to fit into the government’s category of religious employer. Isn’t that astonishing? As the spokeswoman for the US Conference of Catholic Bishops exclaimed, “Jesus himself couldn’t pass muster,” because of who and how he helped.
You will recall that Jesus held out the Good Samaritan as our example of caring for our neighbours as we should. The Good Samaritan did not only pray for the injured man but arranged for material help. And the very point of the story is that the Good Samaritan cared for the injured man even though the man was of a different religion. Yet, by the federal definition, if an organization does what Jesus says by giving a cup of cold water to anyone who needs it, including those of other or no religion, then it has put itself outside the category of religious employer. In fact, to fit into the exempt category, an organization has to violate the rules of the federal government’s own faith-based initiative, which requires groups that receive federal dollars to serve everyone in need, without turning away those of other religions. A religious organization that serves the public thereby becomes ineligible for the exemption from the mandate, no matter how deep its concerns about promoting contraceptives and abortifacients.
You may know that the federal government has been trying to undo the mistake of creating such a narrow definition and exemption. It has proposed what it calls an “accommodation” for faith-based hospitals, schools, and charities. Here is the proposed accommodation: an objecting religious organization can buy for its employees health insurance that does not include some or all of the contraceptives. The insurance company must then “automatically” give each of those same employees a separate health plan that covers exactly the contraceptives that the employer has insisted must not be in its health plan! The same accommodation applies to a religious college that wants its student health plan to reflect the institution’s views about biblical sexual standards. Yes, the school can arrange for student health plans that do not cover contraceptives—but then the insurance company must write individual health plans for each of those same students that provides free access to exactly those same contraceptives. The only relief is if the college self-insures its student health plan, but that may not be possible for smaller schools. A group of Catholic colleges said that, because of this, they were facing a “federally-coerced dilemma.” Either they provide no student health insurance at all, or else they must violate their convictions about contraceptives. In other words, the accommodation mechanism provides no real solution. Employees and students of faith-based organizations with deep moral objections to some or all of the contraceptives will be offered exactly those contraceptives, and they will get the contraceptives coverage precisely because they are employees or students of those objecting organizations.
This is a far cry from the exemption that churches rightly have been given. Churches may simply exclude the morally objectionable items. Faith-based service organizations—because they serve the public and are not inwardly oriented, because they help people materially and not only through religious teaching or worship—only get an accommodation that implicates them in the contraceptives coverage that they believe is morally wrong. And what about faith-based businesses? No matter how morally intentional they try to be, and no matter what the convictions of the owners or the mission of the company—businesses get neither an exemption nor an accommodation. Instead, the federal government has said in its regulations and in court that by definition an organization that makes money cannot be a religious organization and cannot have any right to religious freedom. If the organization is profit-making, then it is engaged in an endeavour that has nothing to do with religion or morality.
Agreeing with the government, one court has said that a business cannot be a religious employer because, after all, it does not engage in worship or prayer! Consider that: all the square inches of life where business takes place are excluded from Christ’s sovereignty. No religious freedom for any business. The government has said no religious freedom to the Hercules Heating and Air Conditioning Company, whose Catholic owners object to the contraceptives, and to the Hobby Lobby chain of stores, which stay closed on Sunday, donate millions of dollars annually to Christian ministries, employ chaplains, and do not stock certain items for moral reasons. It says the same to Tyndale House, the major publisher of Bibles and other Christian materials. They are all “just businesses,” they are told; morality and religion have no place.
In a letter organized by the Institutional Religious Freedom Alliance and sent to Katherine Sebelius, Secretary of the Department of Health and Human Services, a diverse group of 150 leaders and supporters of faith-based services protested the narrow “religious employer” exemption in these words: “Both worship-oriented and service-oriented religious organizations are authentically and equally religious organizations. To use Christian terms, we owe God wholehearted and pure worship, to be sure, and yet we know also that ‘pure religion’ is ‘to look after orphans and widows in their distress’ (James 1:27). We deny that it is within the jurisdiction of the federal government to define, in place of religious communities, what constitutes true religion and authentic ministry.” Businesses, too, can be dedicated to operate to the glory of God, choosing to offer certain benefits to their employees and not others, adopting particular policies in order to safeguard the environment, deciding to pay higher wages or use better-quality materials, investing some of the profits into the surrounding community. And yet, in the federal government’s three-part scheme, it is only churches that have a real claim to religious freedom, the right to avoid a government requirement if they believe the requirement violates a moral or religious principle. The many square inches occupied by businesses and religious charities are, according to the federal government, not supposed to be subject to Christ.
Is all of this just too much concern about the contraceptives mandate? After all it is only the official Catholic Church and not even most individual Catholics who object to artificial birth control, and the pro-life community isn’t of one mind that emergency contraceptives work by causing abortions. More important, the federal government claims that its narrow definition of religious employer only applies to the contraceptives mandate. Should we just relax about this?
I am sure we should not relax. First of all, religious freedom must protect convictions we ourselves do not hold and even convictions we are convinced are mistaken. Second, and most important: the federal assurances that the narrow definition will not be used beyond the contraceptives mandate cannot be trusted. The federal promises are just words, whereas the narrow exemption, the inadequate accommodation, and the total disregard for the moral concerns of companies are actual policies of the federal government. Beyond that, consider that the narrow definition migrated to the federal regulations from the law books of several states. But now it does not need to migrate to our national government; now it sits in federal law, serving as a precedent, ready to be used again whenever other federal departments, other federal officials, other federal policies are deciding what to do about organizations of faith that hold deep convictions that differ from the views and practices the government desires to impose via its laws and regulations.
Here is a an astonishing fact of our age of over-zealous anti-discrimination action, and state-imposed uniformity. For 2,000 years, one of the marks of faithfulness of the church of Jesus Christ has been its care for orphans, along with other vulnerable people. And yet in our day of supposed tolerance and diversity, a growing number of Christian adoption and foster-care agencies, in the United States and elsewhere in the world, are having to close their doors, to abandon this historic Christian way of serving the needy and honouring God’s commands. And there is every reason to expect more such conflicts between the wisdom of society that the government wants to enforce and the countercultural views of various communities of faith. Some members of Congress want to pass a federal law that would apply to all the states the broad anti-discrimination requirements that have already driven Catholic and Protestant agencies out of adoption and foster care services in several states. Earlier we considered the federal government’s insistence with the HHS contraceptives mandate that “real” religion is what happens in churches so that the religious exercise of faith-based service organizations and of companies of conviction need not be fully honoured. And recall that the narrow definition of “religious employer” chosen for the contraceptives mandate now sits in federal law, ready to be used in other policies.
There are other reasons to be concerned that the restrictive trends will only grow. Just consider these few points. More and more people in places of influence misunderstand religion or oppose it. Our society is increasingly post-Christian in its understanding and moral values—an important change even if the past consensus was thin and hypocritical. We are becoming more religiously diverse—and that diversity encourages legislators to regard secularism as the only valid guide for public activities while shoving religious differences into private life. And governments—federal, state, and local—are extending uniform rules over more and more of private life and civil society. Just as our society is becoming more and more diverse with regard to religions and other systems of deep conviction, our governments are spreading forth more and more rules that require uniformity of practice. This push for enforced uniformity can only create more clashes with faith-based organizations that seek to remain faithful to their religious identity and mission.
We need to go in the other direction, in the direction Kuyper pointed: the direction of true pluralism and diversity. As Christian citizens, working in the realm of public policy and regulations for organizations, we simply must accept that our society is not a moral monoculture but rather includes multiple faiths and multiple moral codes. Respect for each other requires giving each other, and each others’ organizations, a robust freedom to live by conviction. And that freedom should be respected by government. Whenever there are distinctive organizations, say a prolife hospital or a Christian college, that means that there is in our society some distinctive vision of flourishing, some group of employees who want to serve in these organizations and not others, and all of those clients or students who desire to be served in this way and not others. Rather than treat all of those organizations, employees, clients, and students as if they shared the same vision of sin and good, harm and flourishing, the government should acknowledge and accept the differences.
The government must honour institutional religious freedom, and not just individual religious freedom or freedom of worship. It needs to have a policy of institutional pluralism rather than a policy of uniformity. It should acknowledge a general right for organizations to be distinctive in moral vision and religious conviction and practice, rather than expect moral uniformity with only the occasional exemption.
The Washington Post newspaper last week carried the story of a courageous Muslim woman in Baltimore, Maryland, Asma Hanif. Poor and without specialized training, she nevertheless has a heart to confront injustice and to care for victims, and she has opened a shelter for Muslim women who have suffered domestic violence. It is reputed to be the only such shelter in the United States. It is perfectly sensible, isn’t it, that as it is exclusively for Muslim women, it specifically accommodates their need to pray five times a day and their special diet. And it must be important to the victims who come to the shelter that Asma Hanif understands Islamic teaching about men and women and knows Muslim customs and expectations.
The article notes that the shelter receives no government funding. No doubt it is not eligible for funding because of its so-called discriminatory policies. Its Muslim-only approach might even run afoul of public accommodation law, anti-discrimination rules, or federal or state housing rules. And yet here is a distinctive organization that has special value exactly because it is designed to help some people and not others, exactly because it is religiously compatible for some, though not for others. The government ought to protect its distinctive practices, not undermine them.
I would like to close with a prayer for government and a challenge to us, as Christian believers.
As the religious freedom challenges have grown in our time, I have been drawn to a statement of Paul’s in his first letter to Timothy—I Timothy 2:1-4. You’ll remember it: “I urge, then, first of all, that petitions, prayers, intercession and thanksgiving be made for all people—for kings and all those in authority, that we may live peaceful and quiet lives in all godliness and holiness. This is good, and pleases God our Savior, who wants all people to be saved and to come to a knowledge of the truth.” Isn’t that striking? What is it we should ask for when we pray for those in authority, when we pray for government? We are not told to pray for Christian dominance in society, but only for the freedom to live in a Christian manner ourselves. We are told to pray that we may be free to live “peaceful and quiet lives in all godliness and holiness.” That is, we should pray that even if our views are not the government’s views, we may still live in accordance with our convictions, without being harassed because of that life of obedience. We should pray that the government protects our freedom to live as we are convinced God calls us to live, not only in our personal lives and in our worship, but also in our businesses and in our nonprofit service organizations.
And we should, I think, challenge ourselves. Are we—not just in worship and devotions, but in businesses and in schools and inner-city missions and health clinics—conducting our affairs “in all godliness and holiness”? We don’t need religious freedom at all if we have assimilated so much to our culture that we are no different than anyone else, our organizations little different than other organizations. But if we do love God with all of our hearts, minds, souls, and also strength, then we will have distinctive convictions and practices about what is good and about how best to serve others.
And then we will require a robust institutional as well as individual freedom to be different—exactly so that we can make our best uncommon contribution to the common good.