The National Catholic Review

This is not a good time for religious freedom in American law. More and more, U.S. courts are explicitly embracing arguments that religious freedom extends only to those religious practices that are confined and compartmentalized. Religious practices are explicitly receiving reduced protection if the practice pervades the believer’s life rather than being limited to one facet, and if the believer applies his or her faith in the broader world rather than limiting it to the person’s religious community.

These trends can be captured in the proposition that today one can enjoy religious freedom only in the catacombs, as the first-century Christians did. They lived daily in the broader Roman society. But in the periodic times of persecution, they could not exercise the faith publicly. They could only worship and practice the faith at night and underground.

The analogy raises important questions of degree, of course. Christians and other believers today do not face the level of persecution inflicted on the first-century church. To a disturbing extent, however, religious freedom is being explicitly restricted to practices that are privatized and compartmentalized. Consider, for example, three recent court decisions.

The first is Locke v. Davey (Feb. 25, 2004), in which the Supreme Court held that a student at an evangelical college could be denied a state scholarshipfor which he had qualified by grades and financial needsolely because he chose to major in theology in preparation to be a pastor. Joshua Davey argued that withdrawing the $2,700 scholarship violated the First Amendment’s free exercise clause by discriminating against his choice of pastoral studies.

The court held that although the state did not have to withhold aid from students training for the ministry, it was free to do so if it wished. The majority repeatedly emphasized that states could treat clergy training as a distinct category of instruction from all other courses of study. It added that procuring taxpayer funds to support church leaders has stirred popular unrest since the 1700’s.

This reasoning contrasts sharply with the court’s ruling 25 years ago that struck down laws barring ministers from serving in the state legislature. The court at that time rejected Tennessee’s argument that ministers presented unique dangers because they might inject religious preoccupations and disputes into the legislature. Justice William J. Brennan Jr., concurring in the result, argued that one’s religious belief surely does not cease to enjoy the protection of the First Amendment when held with such depth of sincerity as to impel one to join the ministry; the state may not impose a unique disability upon those who exhibit a defined level of intensity of involvement in protected religious activity.

Locke v. Davey, in contrast, approves the imposition of a unique disabilityloss of a valuable scholarshipon pastoral students. As Justice Antonin Scalia’s dissent put it, the state’s exclusion poses no obstacle to practitioners of only a tepid, civic version of faith. It punishes those whose belief in their religion is so strong that they dedicate their study and their lives to its ministry, and therefore mirrors our culture’s trendy disdain for deep religious conviction.

I actually hope that the Locke case rests on the unique status of clergy. The case was a prelude to a major dispute over voucher programs at the K-12 grade level: in particular, whether states that provide private-school vouchers to low-income parents may deny the voucher if the family chooses a religious school. If Locke turns on a narrow argument against paying for clergy training, it does not authorize discrimination against religious schools in voucher programs. Those schools do not train ministers, but simply educate children in the same subjects as secular schoolsmath, English, history and so onbut from a religious perspective.

The court, however, may well give states discretion to deny vouchers for religious K-12 schools also. Such decisions would again confine religious freedom to the catacombs. You can take your children to church or synagogue on the weekend. But if you want their daily education to be informed by religious principles, you will lose educational assistance that the state would otherwise provide.

In a second case, United States v. DeJesus (Oct. 17, 2003), the defendant was convicted of firearm possession. Before trial, prosecutors removed a potential jury member through a peremptory challenge: they claimed not that the potential juror had actually shown pro-defense bias, but merely that he belonged to a group that might tend to be biased. Each litigant is entitled to a limited number of such objections, which are called peremptory because generally lawyers need give no explanation for them. But recent court decisions have held that peremptory challenges may not be made against potential jurors based on constitutionally protected characteristics like race, sex and religious affiliation (for example, being a Catholic or a Muslim).

The DeJesus prosecutors explained that they had excluded the potential juror because he attended church regularly, read the Bible and took it as authoritative. These fairly strong religious beliefs might prevent him from rendering judgment against another human being. The appeals court approved this exclusion because it rested on the juror’s heightened religious involvement rather than a specific religious affiliation. Lawyers cannot exclude someone because he is Catholic or Muslim, but they can exclude him because he shows strong religious beliefs or involvement such as studying Scripture or attending worship regularly.

The juror was dismissed not because he had any specific relevant beliefas is the case, for example, when persons absolutely opposed to the death penalty are excluded from juries in capital murder casesbut because of general assumptions about how committed believers might think. The court said: [F]aced with a prospective juror whose answers to neutral questions...reveal a rather consuming propensity to experience the world through a prism of religious beliefs, it is rational for a prosecutor to act upon the concern about the reluctance to convict. The phrase consuming propensity not only suggests that serious believers are mentally suspect, it also provides a rationale for keeping them off juries.

Serious believers may be statistically more likely to forgive. On the other hand, black jurors or women or Catholics tend statistically toward certain opinions, yet the court forbids exclusion on those grounds. The court emphasizes the right of citizens to participate on juriesthe most important civic function, besides voting, that most citizens will ever performas well as the importance of having juries that are broadly representative of the citizenry.

The right to exercise a religion freely includes the right to exercise it seriously. The exclusion in DeJesus consigns religious freedom to the catacombs. Being only nominally religious will not endanger your ability to serve society on a jury, but taking your faith seriously might.

Third in our unhappy trinity is the recent decision of the California Supreme Court in the Catholic Charities case (March 1, 2004). A California statute says that private employers need not provide their employees with prescription-drug insurance; but if they do provide it, the coverage must include contraceptives. Catholic Charities believes that social justice and religious conscience require it to provide prescription coverage for employees but forbid it to pay for contraceptives, which contravene the church’s official understanding of the purposes of sexual acts. Catholic Charities sued to block the contraception-payment requirement, but it lost. The statute contained a narrow exemption for religious organizations, but Catholic Charities did not qualify, and the court held that the exemption’s narrowness did not violate religious freedom.

The exemption had four requirements, each of which had to be met, and which together reflect the mindset that religion belongs only in the catacombs. First, the purpose of the entity had to be the inculcation of religious values: essentially, explicit religious teaching or proselytizing. Catholic Charities failed because it offered social services to the needy without explicitly referring to religious values. This again compartmentalizes religion, limiting it to preaching and proselytizing and excluding simple service to the needy motivated by love and gratitude to God.

One might argue that this factor invites religion out of the catacombs: to be exempt, an entity must be serious enough about its doctrines to try to instill them in others, say by explicit evangelization. That would be true, and comfortingwere it not for the next requirement.

An entity can be exempt only if it serves primarily persons who share the religious tenets of the entity. Catholic Charities failed because it serves any needy person, Catholic, Christian or not. An entity can make its religious beliefs explicit, but only to people who already share the beliefs; evangelism is unprotected, because it proclaims to nonbelievers. And, according to this view, any social service that reaches out to the world loses its ability to maintain its religious identity. Teach and minister among yourselves in your insular communityin the catacombs. But once you serve the larger society, you no longer may draw lines of conscience on what you will and will not support.

According to the third requirement, an exempt entity must primarily emplo[y] persons who share [its] religious tenets. This limit bears an arguable relation to the purpose of the state benefits law. One might argue that non-Catholic employees, who typically do not share the church’s opposition to contraception, should not be denied benefits for contraception. The church, the claim goes, should not impose its beliefs on its non-Catholic employees.

This claim is deeply misguided. But at least it makes more sense than the requirement that the entity serve only people of its faith. The service restriction bears no relation to the protection of employees. It can only reflect a desire to limit religious freedom to insular groupsto the catacombs.

In any event, Catholic Charities should not lose the right to define its own identity because it employs non-Catholics. If we value religious freedom, we should demand a strong reason to override it, to make Catholic Charities directly support a practice that the church officially views as a sin. A strong reason might exist if Catholic Charities were so dominant an employer that people had trouble finding jobs elsewhere. But no one has ever suggested this. Moreover, the notion of imposing on employees suggests the question: Why isn’t the employee who demands payment for contraceptives imposing on Catholic Charities? It is not as if Catholic Charities once paid for contraceptives and now has stopped doing so, affecting employees who relied on past practice. People who accept jobs with a Catholic institution know or should know what the institution believes.

As a consequence of this decision, Catholic Charities will probably decide not to provide any prescription benefits at allthus violating its understanding of justice for its employees. What will the state then have accomplished? Catholic Charities may become less attractive than other employers and may have to pay higher salaries (offsetting the savings that come from not paying for prescriptions); employees will use the extra salary to pay for contraceptives, among other things. The state will have achieved little if anything by its imposition on conscience.

That is religion in the catacombs. You lose your religious freedom not because there is a real social necessity to override it, like the direct physical protection of others, but simply because you have entered the world, or applied your faith to all aspects of life, and thus have stepped outside the limited sphere to which religionand religious freedomshould be confined.

Among the worst elements of this trend is hypocrisy. Americans, including legislators and judges, take pride in saying that religious freedom is an important value in American society. But legislators and judges are ever so ready to strip religious freedom of any real force if it occasions inconvenience for others. We claim moral credit for respecting religious freedom but deny it in substance.

This legal approach parallels a widespread American cultural attitude toward religion. Almost everyone believes in God or a divine force; vague talk of spirituality abounds; cranky atheists are unusual. But the prevalent view of religion is that it cannot matter to anyone else. Your religious belief is nice for you, but it is your private matter. As Professor Stephen Carter once put it, religion amounts to one hobby among countless others. Sadly, that vision seems more and more explicitly entrenched in our law.

Thomas C. Berg is a professor of law at the University of St. Thomas School of Law, Minneapolis, Minn.

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