Earlier this week Christianity Today published an editorial online entitled “The Supreme Court’s Religious Freedom Reality Check.” The editors look to the recent Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC decision, in which the Court upheld the “ministerial exception” to workplace discrimination laws by a unanimous vote, finding that a Missouri Synod Lutheran school in suburban Detroit had the right to determine who its ministers should be and thus fire a teacher (Cheryl Perich, truly a sympathetic plaintiff) who it deemed unfit to retain employment. In this ruling the editors find deep hope for religious freedom; the editorial closes as follows:
[W]e ask this: Has alarmism blinded us to this country’s extraordinary achievements in protecting religious liberty? Measured against despotism in the past and in other societies today, religious Americans remain enviably free to act on their beliefs. The fact that the Supreme Court willingly vindicated an unpopular form of religious autonomy suggests that the First Amendment’s safeguards are as sturdy as ever.
Our call for perspective is not a call for complacency. Serious battles loom on the horizon. But, in the meantime, let Hosanna-Tabor talk you off the ledge—if not out of the fight.
The term “alarmism” is rhetorically unfortunate, for sounding an alarm when there is a conflagration is an eminently reasonable thing to do. Indeed, the New York Times reported that yesterday Sebelius made clear “many Roman Catholic hospitals, universities and social service agencies that insure themselves” will be required to comply with the mandate so that “female employees and students will still have access to free coverage of contraceptives.” The administration’s “accommodation,” an accounting gimmick in which insurers somehow provide the coverage at no cost, is not a compromise of any sort. (Indeed, the Administration deliberately uses the former term, not the latter, because its members are convinced the State has the absolute right to decide everything and “accommodates” dissenters at its will and whim when it finds it politically advantageous.) This Administration will not relent (as it comprises ideologues committed to the culture of death) and will not be reasoned with (as the whole contraceptive charade is also a cynical political ploy). In short, the full power of the State is being brought to bear against people of faith and conscience who think contraception and abortifacient drugs are intrinsic evils, not merely to shut them up in some obscure corner of the culture but to make them complicit in crimes against humanity.
The CT editorial reeks of the idealist optimism that marks much evangelicalism. We shouldn’t be surprised, as evangelicals are historically progressives, not classical conservatives, and so often have a hard time coming to grips with the depths of the reality of evil, which the technocratic mindset and optimism about human possibilities progressivism obscures. The executive branch is seeking to crush the only real locus of resistance to the culture of death, which is traditional religion, while the legislative branch is unwilling even to pass a simple amendment to the healthcare law using language largely composed by the late Ted Kennedy. And so we’re left relying on the highest level of the judicial branch.
Do we have the cause for the optimism the editorial suggests? I’m pessimistic.
First, that we’ve already reached the last line of defense — the Supreme Court — is not promising. If the Court rules against us, then nothing is left but compliance or revolution, and neither are options for Christians (cf. Matthew 5 and Romans 13). (Another possibility is that some future Administration and Congress would change the law, but this is highly unlikely, as there would be no real popular push for revision for religious freedom, and as many institutions would have already closed their doors, leaving nothing to defend. We lose now, we lose.)
Second, the legal fight against the HHS mandate and Hosanna-Tabor seem to me, one admittedly untrained in law, to be cases which differ in significant ways. The latter concerned whether the government had the right to interfere in the internal affairs of a church regarding the question of its right to determine the shape of ministry and select its ministers. The former, however, is much broader, concerning persons neither members nor ministers of a given church being served by that church in an institution such as a hospital or university. Were I a smart Administration lawyer, I’d turn around and argue that Hosanna-Tabor was a proper and properly-limited application of the ministerial exception. In short, one can argue Hosanna-Tabor fits well with the Administration’s reduction of religious freedom to mere “freedom of worship.”
Third, hoping merely for a victory for religious freedom is a hope too narrow. What of the many nurses and doctors and pharmacists who practice medicine in conscience as healers treating patients in accord with nature and not merely as technicians manipulating bodies in accord with whatever whims a client wishes? What of small business owners who refuse to comply in the culture of death in paying for abortifacient drugs? Fortunately, the bishops’ most recent missive recognizes that the HHS mandate amounts to “a violation of personal civil rights,” not just religious freedom.
If some are on the ledge, it’s because they’ve been pushed there, and pushing back effectively requires a sober vision of the scope of the threat and a strategy for a broad and vigorous counteroffensive.