When forty-three Catholic dioceses, universities and charities simultaneously filed lawsuits against the Department of Health and Human Services last month, charging that the proposed regulation requiring insurance coverage for contraception violated their religious freedom, a simmering conflict between the First Amendment’s protections for religious freedom and against government preference for a particular religion once again took center stage.
The plaintiffs accuse the Obama administration of violating their religious freedom, a right enshrined in the Free Exercise Clause. They elevate the Free Exercise Clause above the equally important Establishment Clause, which prohibits the government from endorsing or favoring a particular religious view.
The Catholic institutions’ prospects for prevailing in these lawsuits are far from certain. Two state supreme courts, in New York and California, have ruled against Catholic groups’ religious freedom claims in challenges to substantially similar state laws. Constitutional experts believe they will fare no better in federal court. Nonetheless, by filing suit in multiple districts, the Catholic groups are aiming to succeed in at least some circuits, and to create a legal conflict that will eventually be resolved by the Supreme Court.
In the meantime, they will litigate their claims in the court of public opinion. The constituency most receptive to these religious freedom arguments, the Christian right, represents an outsize segment of the Republican Party. Savvy political organization has fueled the intensity of activist reaction, giving their arguments disproportionate attention and legitimacy.
Democrats, meanwhile, have failed to articulate a consistent rebuttal to these claims of religious discrimination and to the claim that often follows, that the United States should be governed as a “Christian nation.” Rather than forcefully arguing that the government cannot, constitutionally, be beholden to or impose upon its citizens any particular religious view, Democrats are frequently caught flat-footed reacting to charges they are secularists waging a “war on religion.” They often respond, instead, with self-defenses that they are indeed pious, their policy views guided by their own sincerely held religious beliefs. They rarely utter the words “separation of church and state,” or elevate the Establishment Clause and secular government in the same way their adversaries do the Free Exercise Clause and religious liberty.
Since taking office, Obama has been too willing to bend to the concerns raised by pundits who fret about Democrats alienating religious voters and particularly, in the case of contraception, Catholics. But there’s no evidence that pundits like E.J. Dionne or Michael Sean Winters, Catholic Democrats who objected to the HHS rule, reflect the broad swath of Catholic opinion. A March 2012 poll by the Public Religion Research Institute found that “Catholics overall are generally more supportive than the general public of the contraception coverage requirements.” Rather than seek the approval of pundits who use their platforms to claim to speak for their co-religionists, the Democrats should lead based on constitutional principles.
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What’s more, other recent public opinion surveys strongly indicate that voters are increasingly weary of the intertwining of religion and politics. A March 2012 poll conducted by the Pew Research Center for the People & the Press and the Pew Research Center’s Forum on Religion & Public Life found the “number of people who say there has been too much religious talk by political leaders stands at an all-time high” (38 percent) since Pew started asking the question a decade ago—a figure that includes 46 percent of Democrats, 42 percent of Independents, and even 24 percent of Republicans.
The poll exposed divides among Republicans too, with Mitt Romney primary supporters being far more likely (57 percent) to say churches should stay out of politics than Rick Santorum primary supporters (38 percent).
A Washington Post/ABC News poll conducted around the same period similarly found that Republican and Independent Santorum backers—a constituency not likely to vote Democratic anyway—were more opposed to church-state separation than Republican and independent Romney backers. Fifty-nine percent of Santorum backers said the country has “gone too far” keeping church and state separate, while only 37 percent of Romney backers did.
Democrats shouldn’t fear accusations that they are beholden to secularists. In fact, they should unabashedly embrace secular government as a core constitutional principle. More respondents to the Pew poll said religious conservatives have too much control over the GOP (51 percent) than said that secular liberals have too much control over the Democratic Party (41 percent). And a 2011 survey by the Public Religion Research Institute found that 66 percent of respondents agreed “we must maintain a strict separation of church and state.” That’s consistent with other polls on broad support for church-state separation, said Rob Boston, senior policy analyst for Americans United for Separation of Church and State.
Religious conservatives have succeeded in dominating the conversation with trumped-up concern for religious freedom by shaping public opinion, rather than following it. For decades, conservative Christians have been steeped in a revisionist history that holds the separation of church and state to be a “myth” created by twentieth-century “activist judges.” The heavily criticized work of David Barton, a Republican political operative, frequent television guest, lecturer at conservative Christian events and prolific author, provides the basis for many of these claims. Secularists—whose worldview is depicted as locked in a cosmic conflict with a “biblical” worldview—aim to undermine the so-called Christian nation by suppressing Christians’ religious views and voices from the public square, and, crucially, from governing. The 2009 Catholic-evangelical manifesto the Manhattan Declaration, which argued laws protecting reproductive and LGBT rights pose a dire threat to Christians’ religious freedom, has endured as a blueprint for today’s anti-HHS protests—a testament to the political benefits of mapping out, and then implementing, a long-term rhetorical strategy.
When the contraception coverage requirement was announced in January, opponents argued that it revealed an existential truth: that there is a pernicious, deliberate and anti-Christian effort, particularly by the Obama administration, to undermine their religious freedom. Fr. Frank Pavone, president of the anti-abortion group Priests for Life, has accused HHS Secretary Kathleen Sebelius (who is Catholic) of “leading the assault on religious freedom that has grave implications for the Catholic Church.” The US Conference of Catholic Bishops has compared this “great struggle for religious liberty” to that of sixteenth-century Catholic martyrs who “remained faithful in the face of persecution by political power,” a grossly misplaced comparison of contemporary America to Reformation England. Bizarrely, the archbishop of Miami, Thomas Wenksi, said these “efforts to restrict religious liberty are seemingly founded in a reductive secularism that has more in common with the French Revolution than with America’s founding.”
In responding to the anti-contraception outcry, Democrats, however, chose not to defend secularism and church-state separation. They scrambled to placate Democratic pundits who took the bishops’ side. Instead of raising secularism concerns, Obama declared his commitment to “working with institutions like Catholic hospitals and Catholic universities to find an equitable solution that protects religious liberty and ensures that every woman has access to the care that she needs.” (That effort proved futile, as Obama’s sought-after ally, the Catholic Health Association, subsequently withdrew its support for the administration’s accommodation for religiously-affiliated institutions.) The opposition to the contraception coverage, Democrats argued, was evidence of an assault on women’s and reproductive health rights, not on secular governance.
While these public health rejoinders were legitimate and a compromise that keeps coverage intact proved persuasive to some religious leaders who’d opposed the initial mandate, they were a piecemeal response to the conservative Christian claims of persecution, rather than a cohesive, repeatable argument in favor of legislation and policymaking that is neutral to religion, thereby honoring the separation of church and state and protecting the religious freedom of all Americans. The new Coalition for Liberty and Justice, convened by Catholics for Choice and the National Council of Jewish Women, and which includes religious and secular organizations, makes this argument succinctly: “We support the separation of religion and state and believe that public policy should not impose or privilege any religious viewpoint.”
When White House spokesperson Jay Carney was asked last month about Cardinal Timothy Dolan’s remarks that the administration was “strangling” the church, his unease was evident. He insisted the contraception policy “respects religious liberty”—and indeed it does accommodate religious objections by requiring that the insurer, not the religious employer, cover no-cost contraception—and awkwardly offered platitudes about the administration’s willingness to listen to the concerns of various faith groups.
After House Republicans blocked Georgetown law student Sandra Fluke from testifying at a hearing, they framed as an investigation into the administration’s attack on religious freedom, Democrats held their own hearing featuring Fluke, to highlight the lack of women on the Republican panel. They did not hold a hearing to probe Republican claims that the Constitution demands that laws be modified to accommodate certain religious concerns in response to religious conscience objections.
Late last year, the House Committee on Oversight and Government Reform held a hearing charging the Obama administration with anti-Catholic bias after an HHS decision not to renew a US Conference of Catholic Bishops contract under the National Human Trafficking Victim Assistance Program because the bishops would not refer sexual assault victims to a full range of reproductive healthcare services, including abortion, contraception and sterilization. At that hearing, not one Democrat used the words “Establishment Clause” or “separation of church and state.” Just one, Gerald Connolly of Virginia, raised concerns that Republicans were hostile to a “secular state.” Instead, Democrats focused on defending the administration from charges of anti-Catholicism, and pointing out that most Catholics disagree with the Vatican’s ban on birth control.
Subsequently, a federal judge ruled, in a challenge brought by the American Civil Liberties Union, that the (since abandoned) HHS policy that permitted the USCCB to receive federal funds and yet refuse to refer rape victims for these services did, in fact, violate the Establishment Clause. “To insist that the government respect the separation of church and state is not to discriminate against religion; indeed, it promotes a respect for religion by refusing to single out any creed for official favor at the expense of all others,” he wrote. (The USCCB is appealing the decision.)
Obama’s reluctance to defend church-state separation is not just rhetorical. Early in his term, he reneged on a campaign promise to reverse, among other things, a rule created by a George W. Bush Executive Order exempting faith-based organizations which receive federal funding from federal employment discrimination laws. As a result, religious organizations that are subsidized with taxpayer dollars can legally discriminate in hiring and firing on the basis of religion—permitting them, for example, to fire a Muslim who won’t accept Jesus as his savior, or a lesbian because the employer deems homosexuality a sin. For years, the Coalition Against Religious Discrimination, comprised of civil liberties, interfaith and religious freedom groups concerned about preserving church-state separation, has repeatedly prevailed on Obama to put an end to permitting religiously based employment discrimination using taxpayer dollars. After announcing that his administration would address such discrimination claims on a case-by-case basis, Obama has not again addressed the question, or the constitutional concerns it raises.
Obama has, however, touted his own religious beliefs. In one example, in a video address to the Q Ideas Conference, a sort of evangelical TED gathering held in Washington in April, the president emphasized “what Christ did for us on the cross” and the role of Christian faith in public service. He added, “God’s hand is moving through his people” and Christian activists performing charitable work “have a partner in the White House.”
As the election approaches, it will become less likely that Democrats will defend secularism and the separation of church and state. Instead, all signs point to them injecting more religion into the campaign, discussing it on the campaign trail and deploying surrogates to testify to the president’s sincerely held religious beliefs and how they shape his policy views. But the antidote to the escalation of the claimed “war on religion” is not to highlight a clash of religious views but to make the case for the very American ideal of secular politics, and a government free of religious entanglements.
