Posts tagged with: Separation of Church and State

The Separation Of Church And State“What right do they have to do this, to take away our freedoms?” Mary Anne Yep, co-founder and vice president of Triune Health Group in Chicago, recently asked of the  Obama administration regarding the HHS Mandate. On Monday when the official comment period closed, thousands of individuals swamped the Department of Health and Human Services with concerns about the HHS Mandate and the effect it would have on religious liberty in the United States. The Heritage Foundation recently posted an update about HHS and the people against it:

After more than a year of public outrage, over 50 lawsuits against the anti-conscience mandate, and a federal judge’s demand that HHS fix its coercive mandate, the Administration published a “notice of proposed rule making” (NPRM) on February 6. That proposed rule neither changes the underlying mandate finalized in law and currently in effect nor provides any workable or adequate solutions to the mandate’s trampling on religious liberty.

Several organizations have published statements on the NPRM and HHS Mandate in general.  Archbishop William Lori of Baltimore, chairman of the Catholic bishops’ Ad Hoc Committee for Religious Liberty released a statement on Monday regarding the mandate: (more…)

“Is there a religious way to pump gas, sell groceries, or advertise for a craft store?”

In a new paper, “God and the Profits: Is There Religious Liberty for Money-Makers?,” Mark Rienzi asks the question. (HT)

Rienzi, an assistant professor at the Columbus School of Law at The Catholic University of America, writes in direct response to the federal government’s HHS contraception mandate, focusing on the religious liberty challenges faced by for-profit companies. As Rienzi argues, imposing such penalties requires “singling out religion for disfavored treatment in ways forbidden by the Free Exercise Clause and federal law.”

From the abstract:

Litigation over the HHS contraceptive mandate has raised the question whether a for-profit business and its owner can engage in religious exercise under federal law. The federal government has argued, and some courts have found, that the activities of a profit-making business are ineligible for religious freedom protection.

This article offers a comprehensive look at the relationship between profit-making and religious liberty, arguing that the act of earning money does not preclude profit-making businesses and their owners from engaging in protected religious exercise.

Many religions impose, and at least some businesses follow, religious requirements for the conduct of profit-making businesses. Thus businesses can be observed to engage in actions that are obviously motivated by religious beliefs: from preparing food according to ancient Jewish religious laws, to seeking out loans that comply with Islamic legal requirements, to encouraging people to “know Jesus Christ as Lord and Savior.” These actions easily qualify as exercises of religion. (more…)

Blog author: jcarter
posted by on Tuesday, November 27, 2012

In his 1984 book The Naked Public Square, Richard John Neuhaus explained how a strict separationist reading of the First Amendment which forbids all religious speech leaves the public square “naked.” Neuhaus described the “naked public square” as “the result of political doctrine and practice that would exclude religion and religiously grounded values from the conduct of public business.”

In a recent law review article, Ronald J. Colombo, a law professor at Hofstra University, describes a similar phenomena: the naked private square.

In the latter half of the twentieth century, America witnessed the construction of a “wall of separation” between religion and the public square. What had once been commonplace (such as prayer in public schools, and religious symbols on public property) had suddenly become verboten. This phenomenon is well known and has been well studied.

Less well known (and less well studied) has been the parallel phenomenon of religion’s expulsion from the private square. Employment law, corporate law, and constitutional law have worked to impede the ability of business enterprises to adopt, pursue, and maintain distinctively religious personae. This is undesirable because religious freedom does not truly and fully exist if religion expression and practice is restricted to the private quarters of one’s home or temple.

Fortunately, a corrective to this situation exists: recognition of the right to free exercise of religion on the part of business corporations. Such a right has been long in the making, and the jurisprudential trajectory of the courts (especially the U.S. Supreme Court), combined with the increased assertion of this right against certain elements of the current regulatory onslaught, suggests that its recognition is imminent.

Read more . . .

(Via: Mirror of Justice)

What happens if a Catholic college doesn’t require students to attend Mass, doesn’t engage in “indoctrination” or “proselytizing”, and hires non-Catholic faculty? As John Garvey, president of the Catholic University of America, says, the government will likely determine the school is not “Catholic” enough for religious liberty protections:

There is a pattern to these cases. The government has been eager to regulate the behavior of churches in ways more to its liking. It does this by defining religion down, so that only the most rigid and separatist groups are exempt. The rest are, for constitutional purposes, no different from the Jaycees or the Elks Club. We might say that the wall of separation is intact, but the government has made it so small that it encloses nothing more than a flower bed.

How distressed Roger Williams would have been.

Read more . . .

The New York Times’ “Room for Debate” feature highlights religious freedom this week by asking the question: “Should Churches Get Tax Breaks?”

The contributors, who span the continuum of opinions on the issue, include Susan Jacoby, Christopher L. Eisgruber and Lawrence Sager, Winnie Varghese, Dan Barker, and Mark Rienzi.

Jacoby, who recently debated the merits of Christianity in American politics and Grand Rapids’ Fountain Street Church, is an advocate for secularism and author of The Age of American Unreason. Jacoby argues that if a church wants federal help, it must play by the government’s rules:

 In cases involving freedom of conscience, government policy—like the Bill of Rights—should always be on the side of the individual. If churches don’t like the strings attached to public money, they are free to refuse taxpayer subsidies. The First Amendment was not written for an America in which religion claimed the right to have it both ways.

Eisgruber and Sager, coauthors of Religious Freedom and the Constitution, argue for “exemptions for noble work, but no extra exemptions just because it was done in the name of God,” saying: (more…)

Susan Jacoby and Dinesh D’Souza met here in Grand Rapids at Fountain Street Church on Thursday, April 26, to debate the merits of religion in public discourse. The debate, co-sponsored by The Intercollegiate Studies Institute and the Hauenstein Center for Presidential Studies, was titled, “Is Christianity Good for American Politics?”

Susan Jacoby is program director at The Center for Inquiry and author of The Age of American Unreason and Alger Hiss and The Battle for History. She argued for the total removal of religious matters from the public square to avoid any tendency toward establishment of a particular religion.

Dinesh D’Souza is president of The King’s College in New York and author of What’s so Great About Christianity? His argument repeatedly returned to the difference between recognition and establishment and the contested meaning of the phrase “separation of church and state.”

Here’s a sample from their exchange:

Jacoby: The first amendment was intended to protect religion from government … Our whole tradition prohibits supporting an establishment of tradition. What would happen in this society, if the government were forced to consider every religion? It would require absolutely equal treatment … We are not allowed to make judgments about which religions to favor or not.

Dinesh: You can’t simply chant separation of church and state and declare the matter settled. What we’re trying to figure out is why we have a prejudice against religious figures who have had an historical, moral, political, and even lawful impact, while we don’t have that prejudice against secular figures similarly situated. You keep chanting the same phrase from the constitution, when it is the meaning of that phrase that is up for discussion … My question is the meaning of the word establishment.

Is it unconstitutional for laws to be based on their supporters’ religiously founded moral beliefs? While most of us—at least most readers of this blog—would consider such a question to be absurd, some people apparently think it should be answered in the affirmative.
(more…)

(HT: Catholic Culture) Note: One in six patients receives care in a Catholic hospital in the United States.

February 26, 2012

What are you going to give up this Lent?

By Francis Cardinal George, O.M.I.

The Lenten rules about fasting from food and abstaining from meat have been considerably reduced in the last forty years, but reminders of them remain in the fast days on Ash Wednesday and Good Friday and in the abstinence from meat on all the Fridays of Lent. Beyond these common sacrifices that unite us spiritually to the passion of Christ, Catholics were and are encouraged to “give up” something voluntarily for the sake of others. Often this is money that could have been used for personal purposes and instead is given to help others, especially the poor.

This year, the Catholic Church in the United States is being told she must “give up” her health care institutions, her universities and many of her social service organizations. This is not a voluntary sacrifice. It is the consequence of the already much discussed Department of Health and Human Services regulations now filed and promulgated for implementation beginning Aug. 1 of this year.

Why does a governmental administrative decision now mean the end of institutions that have been built up over several generations from small donations, often from immigrants, and through the services of religious women and men and others who wanted to be part of the church’s mission in healing and education? Catholic hospitals, universities and social services have an institutional conscience, a conscience shaped by Catholic moral and social teaching. The HHS regulations now before our society will make it impossible for Catholic institutions to follow their conscience.

So far in American history, our government has respected the freedom of individual conscience and of institutional integrity for all the many religious groups that shape our society. The government has not compelled them to perform or pay for what their faith tells them is immoral. That’s what we’ve meant by freedom of religion. That’s what we had believed was protected by the U.S. Constitution. Maybe we were foolish to believe so.

What will happen if the HHS regulations are not rescinded? A Catholic institution, so far as I can see right now, will have one of four choices: 1) secularize itself, breaking its connection to the church, her moral and social teachings and the oversight of its ministry by the local bishop. This is a form of theft. It means the church will not be permitted to have an institutional voice in public life. 2) Pay exorbitant annual fines to avoid paying for insurance policies that cover abortifacient drugs, artificial contraception and sterilization. This is not economically sustainable. 3) Sell the institution to a non-Catholic group or to a local government. 4) Close down.

In the public discussion thus far, efforts have been made to isolate the bishops from the Catholic faithful by focusing attention exclusively on “reproductive” issues. But the acrimony could as easily focus next year or the year after on assisted suicide or any other moral issue that can be used to distract attention from the attack on religious liberty. Many will recognize in these moves a tactic now familiar in our public life: those who cannot be co-opted are isolated and then destroyed. The arguments used are both practical and theoretical.

Practically, we’re told that the majority of Catholics use artificial contraception. There are properly medical reasons, in some circumstances, for the use of contraceptive pills, as everyone knows. But even if contraceptives were used by a majority of couples only and exclusively to suppress a possible pregnancy, behavior doesn’t determine morality. If it can be shown that a majority of Catholic students cheat on their exams, it is still wrong to cheat on exams. Trimming morality to how we behave guts the Gospel call to conversion of life and rejection of sin.

Theoretically, it is argued that there are Catholic voices that disagree with the teaching of the church and therefore with the bishops. There have always been those whose personal faith is not adequate to the faith of the church. Perhaps this is the time for everyone to re-read the Acts of the Apostles. Bishops are the successors of the apostles; they collectively receive the authority to teach and govern that Christ bestowed upon the apostles. Bishops don’t claim to speak for every baptized Catholic. Bishops speak, rather, for the Catholic and apostolic faith. Those who hold that faith gather with them; others go their own way. They are and should be free to do so, but they deceive themselves and others in calling their organizations Catholic.

Since 1915, the Catholic bishops of the United States have taught that basic health care should be accessible to all in a just society. Two years ago, we asked that whatever instruments were crafted to care for all, the Hyde and Weldon and Church amendments restricting funding for abortion and respecting institutional conscience continue to be incorporated into law. They were excluded. As well, the present health care reform act doesn’t cover entire sections of the U.S. population. It is not universal.

The provision of health care should not demand “giving up” religious liberty. Liberty of religion is more than freedom of worship. Freedom of worship was guaranteed in the Constitution of the former Soviet Union. You could go to church, if you could find one. The church, however, could do nothing except conduct religious rites in places of worship-no schools, religious publications, health care institutions, organized charity, ministry for justice and the works of mercy that flow naturally from a living faith. All of these were co-opted by the government. We fought a long cold war to defeat that vision of society.

The strangest accusation in this manipulated public discussion has the bishops not respecting the separation between church and state. The bishops would love to have the separation between church and state we thought we enjoyed just a few months ago, when we were free to run Catholic institutions in conformity with the demands of the Catholic faith, when the government couldn’t tell us which of our ministries are Catholic and which not, when the law protected rather than crushed conscience. The state is making itself into a church. The bishops didn’t begin this dismaying conflict nor choose its timing. We would love to have it ended as quickly as possible. It’s up to the government to stop the attack.

If you haven’t already purchased the Archdiocesan Directory for 2012, I would suggest you get one as a souvenir. On page L-3, there is a complete list of Catholic hospitals and health care institutions in Cook and Lake counties. Each entry represents much sacrifice on the part of medical personnel, administrators and religious sponsors. Each name signifies the love of Christ to people of all classes and races and religions. Two Lents from now, unless something changes, that page will be blank.

The observance of Lent reminds us that, in the end, we all stand before Christ and give an accounting of our lives. From that perspective, I ask lay Catholics and others of good will to step back and understand what is happening to our country as the church is despoiled of her institutions and as freedom of conscience and of religion become a memory from a happier past. The suffering being imposed on the church and on society now is not a voluntary penance. We should both work and pray to be delivered from it.

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A quick news and analysis digest here on the Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission ruling by the Supreme Court yesterday. Congratulations and thank you to the Becket Fund. To watch a two-hour Federalist Society panel discussion recorded in November on what is informally known as the Ministerial Exception case, visit YouTube.

Beckett Fund: Supreme Court Sides with Church 9-0 in Landmark First Amendment Ruling — Becket Fund wins greatest Supreme Court religious liberty decision in decades

The unanimous decision adopted the Becket Fund’s arguments, saying that religious groups should be free from government interference when they choose their leaders. The church, Hosanna-Tabor, was represented by The Becket Fund for Religious Liberty and Professor Douglas Laycock, University of Virginia Law School. For years, churches have relied on a “ministerial exception” which protects them from employment discrimination lawsuits by their ministers.

“The message of today’s opinion is clear: The government can’t tell a church who should be teaching its religious message,” said Luke Goodrich, Deputy National Litigation Director at The Becket Fund for Religious Liberty. “This is a huge victory for religious freedom and a rebuke to the government, which was trying to regulate how churches select their ministers.”

The Court rejected the government’s extremely narrow understanding of the constitutional protection for religious liberty, stating: “We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.”

“This is a huge win for religious liberty,” said Professor Doug Laycock.  “The Court has unanimously confirmed the right of churches to select their own ministers and religious leaders.”

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Douglas Laycock, CNN:
Huge win for religious liberty at the Supreme Court

(CNN) – Wednesday’s Supreme Court decision holding that ministers cannot sue their churches for employment discrimination was a huge win for religious liberty. It was unanimous, it was sweeping and it was unqualified.

This decision was about separation of church and state in its most fundamental sense. Churches do not run the government, select government leaders, or set criteria for choosing government leaders.

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Emily Belz, WORLD: Church’s authority ‘alone’

The high court has never ruled on the ministerial exception before, a standard created in the lower courts, and the opinion shied away from defining who qualifies as a “minister,” saying simply that the teacher in question, a commissioned minister at the Lutheran church school, qualified.

“We are reluctant … to adopt a rigid formula for deciding when an employee qualifies as a minister,” Roberts wrote in the decision. Kagan and Alito, in their concurring opinion, wrote that the “title” of minister “is neither necessary nor sufficient,” given the variety of religions in the United States, but rather courts must defer to the religious organization’s evaluation of the employee’s role.

The 6th U.S. Circuit Court of Appeals had ruled in favor of the teacher, saying she did not qualify as a minister because she spent more minutes of the day teaching secular subjects than religious subjects. The Supreme Court scoffed at that idea. “The issue before us … is not one that can be resolved by a stopwatch,” Roberts wrote.

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Matthew J. Franck, First Things: What Comes After Hosanna-Tabor

There may be a straw in the wind in yesterday’s ruling, with respect to the Obama administration’s determination to compel the coverage of contraceptive and abortifacient drugs in health insurance policies, even ones for religious institutions. The only “religious exception” offered so far by the Department of Health and Human Services to its contraceptive coverage mandate is an exemption so narrow, for religious organizations that employ and serve only their own co-religionists, that even the ministry of Jesus would not qualify. It is as though the Obama administration is staffed by people who have never encountered the ministry to the world that is so common among religious folk—especially but not uniquely among Christians.

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Mark L. Rienzi, National Catholic Register: Religious Liberty 9, President Obama 0

Such an emphatic rejection of the administration’s crabbed view of religious liberty is likely to have broader consequences. The administration has aggressively used its narrow view of religious liberty in other contexts. For example, when issuing recent regulations to require all employers to pay for contraceptives, sterilizations and drugs that likely cause abortions, the administration issued the narrowest conscience clause in history — one that would exclude a Catholic hospital simply because it is willing to serve Jewish patients.

When attempting to explain its historically narrow protection for conscience, the administration echoed its arguments from the Hosanna-Tabor case, saying the clause is only meant to protect a church from being forced to offer the drugs to employees in “certain religious positions.” The administration argued that its clause sought only to protect “the unique relationship between a house of worship and its employees in ministerial positions.” Given the government’s stingy view of who counts as “ministerial,” it is clear the administration does not think the First Amendment provides much protection for religion.

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Thomas Messner, Heritage Foundation: Supreme Court Decision in Hosanna-Tabor a Major Win for Religious Freedom

First, the ruling unambiguously affirms the vital constitutional doctrine known as the “ministerial exception.”

Second, the Court expressly agreed with every federal court of appeals to have considered the question that the ministerial exception “is not limited to the head of a religious congregation.”

Third, the Court clarified that the protections of the ministerial exception are not limited to cases where a religious group fires a minister only for a religious reason.

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Thomas Berg, Mirror of Justice: More on Hosanna-Tabor

… although the majority is case-specific on who counts as a minister, three justices–including Elena Kagan!–endorse a broader definition.  Thomas would defer heavily to the religious organization’s characterization of an employee as a minister.  And Alito and Kagan say that ordained or “commissioned” status isn’t crucial, that the question is about religiously-significant functions (listing several of them), and that “the constitutional protection of religious teachers is not somehow diminished when they take on secular functions in addition to their religious ones.

What matters is that respondent played an important role as an instrument of her church’s religious message and as a leader of its worship activities.” (Concurrence at 8)  I can imagine imagine teachers in many Christian schools satisfying that test, and also many employees in many religious social services who explicitly communicate religious messages along with the services they provide.  With three justices explicitly taking the broader approach, all you need is a couple more (Roberts and Scalia, most likely) for a majority.  Hosanna-Tabor doesn’t give us a full-fledged broad definition for a “minister,” but it makes the route to such a definition much easier.

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Wall Street Journal editorial: Hosannas for the Court

As in so many of its policies, the Obama Administration’s position reflected both its default preference for government control and its secular indifference to American religious sensibilities. This has become obvious in the contraceptive and surgical sterilization mandates the Administration is trying to impose on Catholic charities and hospitals. In this case the Justice Department’s opinion was so radical that it might have provoked the broad and unanimous Court ruling.

Hosanna-Tabor is an important reminder that the core religious freedoms guarded by the First Amendment were not to protect the public from religion, but to protect religion from government. The case is arguably among the most important religious liberty cases in a half century, and the concurrence of Justices across the ideological spectrum will be felt for years. Hallelujah.

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Blog author: jballor
posted by on Friday, December 30, 2011

In part 1 of “Secular Theocracy: The Foundations and Folly of Modern Tyranny,” David Theroux of the Independent Institute outlines a history of secularism, tracing the complex relationship between religion and the spheres of society, particularly church and government. “Modern America has become a secular theocracy with a civic religion of national politics (nationalism) occupying the public realm in which government has replaced God,” he argues.

One of the key features necessary to unraveling the knotty problems surrounding the idea of secularism is distinguishing between the separation of church and state on the one hand, and religion and public life on the other. Hunter Baker does an excellent job describing this distinction and its consequences in his book, The End of Secularism. Secularism, as Baker and Theroux use the term, is a far more vigorous concept than the institutional separation of church and civil government. As Baker writes,

Secularism is much more than a formal financial and legal separation of church institutions and state institutions. It is a way of living together in community that emphasizes clean conceptual boundaries over organic beliefs and traditions. Here we come to a critical point. Secularism is not and should not be synonymous with the separation of church and state.

George Weigel recently observed the thirty year anniversary of the imposition of martial law in Poland. He noted the “weakness” of the tyrannical government, which had to resort to such tactics. “Politics and economics are important,” he writes. But “what drives history over the long haul, however, is culture: what men and women cherish, honor, and worship; what men and women are willing to stake their lives, and their children’s lives, on.”

So what we need to be most concerned about, it seems, is a kind of cultural and conceptual secularism, a secularist worldview, that provides the basis for a more far-reaching and insidious form of secular political tyranny.

Look for part 2 on “Secular Theocracy” from Theroux in January. And in the meantime you can check out a controversy feature in the Journal of Markets & Morality between Hunter Baker and Jonathan Malesic on the question, “Is Some Form of Secularism the Best Foundation for Christian Engagement in Public Life?” Issue 13.2 of the journal will be publicly available shortly, but you can also get instant access by becoming an electronic subscriber.