The A.C.L.U. Strays

A case currently before the California Supreme Court, Catholic Charities of Sacramento Inc. v. The Superior Court of Sacramento County (Department of Managed Health Care et al.), deals with that state’s Women’s Contraception Equity Act of 1999. It is attracting a good deal of attention at the national leveland with good reason. The act requires that contraceptive drugs and devices be included under any prescription drug coverage provided by employee health insurance plans. The legislation provides an exception for certain religious groups, but in doing so it has involved the state in a major assault on religious liberty. Moreover, the fact that the distinction between contraception and abortion is becoming increasingly blurred adds a special urgency to this issue.

Consider the following scenarios:

1. A religious group opens a mission in the inner city hoping to evangelize the poor. Employees of the mission must accept Jesus as their personal savior. The poor who come seeking food are required to listen to a sermon before they eat. To obtain shelter for the night, they must proclaim their adherence to Jesus. In this instance, the State of California will exempt the religious group running the mission from having to include contraceptive coverage in its employees’ health insurance plan.

2. Nearby, a different religious group sets up a mission to help those in need, regardless of religious affiliation. The sponsoring church in this case believes that to feed the hungry and shelter the homeless is to follow the teaching of Jesus, and it invites all people of goodwill to join its outreach. In this instance, the State of California will require the sponsoring church to provide contraceptive coverage for the mission’s workers in their health insurance plan, even though providing such coverage would violate the church’s teaching.

The exemption criteria set forth in the Women’s Contraceptive Equity Act favor strictly evangelical churches, like the one in the first example above, which focus on preaching and see their mission in narrow religious terms. They exclude churches such as the Catholic Church, which defines itself more broadly and envisions its mission as incarnational, seeking peace and justice as a constitutive part of that mission. Indeed, Catholic critics of the law argue that it was tailored specifically to exclude such Catholic agencies as Catholic Charities.

For the State of California to favor certain religious groups and disfavor others is certainly a major cause for concern. But more immediately alarming, and the focus of this article, is the fact that the American Civil Liberties Unionwhose stated purpose is the defense of constitutional libertieshas become a cheerleader for the act by submitting an amicus curiae brief in its favor. Macbeth’s reflection as he was about to kill the kingthat he, as the host, should against his murderer shut the door, not bear the knife myselfmight come to mind in this situation.

My objective here is certainly not to convert the A.C.L.U. to the Catholic position on abortion or contraception. Rather, it is to show that religious liberty itself is becoming a casualty of the abortion wars of our society. Because the content of the act in question obviously discriminates against the Catholic Church and its position on contraception and abortion, supporters of the legislation stand in danger of sacrificing the fundamental value of religious liberty for the sake of an immediate tactical advantage. That the A.C.L.U. would make itself a party to this is a powerful example of the all-consuming nature of the abortion controversy. Its brief in favor of the Women’s Contraception Equity Act demonstrates how far even the traditional defenders of religious liberty have strayed from an understanding of that fundamental freedom.

The A.C.L.U. brief argues that the government’s role is to be neutral, and allow individuals to freely follow their own religious traditions. With this assumption, the brief’s authors start down the slippery slope leading away from the meaning of the First Amendment. In America, the free exercise of religion is not an allowance granted by the government to the people. Allowance signifies toleration, not freedom. It is what the English government granted the colonists by tolerating, i.e., allowing, the practice of their religion by some groups, but restricting others. During the American Revolution, most states rejected that approach, as did the new federal government. The majority of Americans had by that time come to conceive of religious liberty as a natural right, not something bestowed by government, and the First Amendment guarantees it as such. Consequently, government is powerless to determinemuch less allow or disallowreligious practice, or to exercise authority in religious matters. Binding on all the states, the First Amendment is a guarantee that government is prohibited from making religious decisions or from defining what is or is not religious.

Making religious decisions and legislating in religious matters, however, is precisely what the Women’s Contraception Equity Act empowers the state to do. It sets forth three criteria for determining whether a church or church-sponsored operation can qualify for an exemption from the act: (1) Its purpose must be to inculcate religious values; (2) Most of its employees must follow that church’s religious teachings; (3) The majority of the people it serves must share those same beliefs. In other words, if a religious organization requests such an exemption, the courts will ascertain whether the group in question is adhering to and inculcating religious values, and it will determine the issue of church membership. Would the courts decide that people simply dedicated to clothing and housing the poor were, in fact, engaged in inculcating religious beliefs? Probably not, since the Legislature embraced a more evangelical definition of religion. How would the courts handle the criterion of church membership, i.e., determine whether the majority of the employees or the recipients of assistance really belong to the church in question? Oftentimes, members of a congregation dispute vigorously among themselves about which of them is really following the church’s teaching, or who is or is not a true adherent. For many radical Catholic opponents of abortion, for example, only those who believe and vote the way they do are true Catholics. Now, however, the State of California has assumed the power to decide who is really a church member.

In its amicus curiae brief in favor of the act, the A.C.L.U. instructs the court that the employees of Catholic Charities predominantly do not share the Catholic faith. How are the courts supposed to verify this assertion? At what point does one share Catholicism? Will members of churches be subjected to a religious test so that the court can verify this statement? Will the State of California do what the U.S. Census Bureau does not, and ask people to declare their religious adherence? And who will determine a person’s Catholicity? Will a judge rely on that person’s own definition or look to Catholic ecclesiastical authorities for the answer? The First Amendment is a guarantee that only churches, not states, can determine church membership.

Would a self-proclaimed non-Catholicor even a non-believer working in a Catholic shelter out of care and concern for the poor and homelessbe following a religious belief? Catholics would see this person as following Christ; some other religious groups would not. Yet as a result of the Equity Act, the state has assumed the power to resolve this difference. It has set itself up as a determiner of religious values and decided to favor one religious approach at the expense of another: the classic position of governments that have set up established churches in the past.

Furthermore, the A.C.L.U. brief argues that the Contraception Act does not substantially burden Catholic Charities’ exercise of religion, thus informing the Legislature and the courts in their new role as evaluators of religious burdens. Catholic Charities must demonstrate that the act substantially burdens the exercise of its religion. Once again government officials, not the Catholic Church, are to decide what constitutes the free exercise of religion for Catholics. A government enabled to make such decisions can also set up an establishment of religion. How far the A.C.L.U. has wandered from its principles here! By arguing that the courts can enforce their own definition of Catholicism upon Catholics, how drastically it has abandoned its traditional defense of religious liberty!

To assert that religious liberty, however, is a natural right reserved to individuals and groups is not to contend that the state must accommodate every definition of that liberty. The government is not automatically required to grant an exemption from a valid law simply because one or more citizens maintain that it violates their religious freedom. Just as the state may not run churches, so churches may not run the state. No state has ever exempted religious believers in polygamy from laws banning that practice because those laws violated their religious liberty. What the state cannot do, however, is measure the right to religious liberty against the benefits of a particular law to decide whether, in fact, the law in question violates that right.

That is what the California Legislature has done, and that is what the A.C.L.U. is defending. Nor has any jurisdiction ever created religious criteria to determine which religious groups would be favored with exemptions and which would not. That, too, though, is what California has now done.

One of the most celebrated events in the history of American religious liberty took place in Virginia in the 1780’s, when James Madison led a movement against a proposal to tax everyone for the support of the religion of their choosing. The tax involved was not terribly burdensome, but Virginians decisively rejected it. Instead, they substituted Thomas Jefferson’s Statute of Religious Liberty, which required that all religion be supported voluntarily. Massachusetts, by contrast, retained a system of state support for religion. Although the system was supposed to be non-partisan, in reality it favored the customs of the religious majority. Members of that majority contemptuously dismissed complaints from religious minorities, arguing that their objections had nothing to do with religious liberty but only with paying a little money. Ironically, the A.C.L.U. has adopted the same stance. Its brief favoring the Women’s Contraceptive Equity Act holds that the act does not burden religious freedom because the government’s compulsion is only to pay money. Surely the A.C.L.U. is well aware of Madison’s objection, in his Memorial and Remonstrance, to contributing even threepence for the support of religious beliefs.

The implications of this present case are often obscured by fierce clashes over contraception and abortion. But what is fundamentally at stake is religious liberty. Endowing the legislature and the courts with the kind of authority in religious matters that the Contraceptive Equity Act gives them is a frightening development. Instead of limiting government as the First Amendment affirmed, the act adds disastrously to the authority of the state. America devised limited governments with no authority over religion. The Contraception Equity Act begins to return to the state the power the American Revolution took away. It encourages the courts to be the judges of what is religious teaching, what is church membership and what constitutes a burden on religion. If followed, the act would make the government supreme in both church and state.

Much of modern church-state discussion has become lost in hairsplitting, in a maze of misleading and confusing precedents. The A.C.L.U. brief amply illustrates this development. Its proponents can no longer see the forest for the trees. In his famous petition against the Virginia tax for the support of religion, James Madison wrote that devotees of freedom in America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle.

The principle at stake here is whether government has power to decide religious matters, to determine who is a church member, to define what is church or religious teaching and to assess what is a burden on religion. Now is certainly the time to deny any precedents that would endow the government or the courts with such authority. Everyone will lose if religious freedom, one of the most treasured of American principles, is weakened. I hope all sides in the abortion wars can at least agree on that.