The marriage decision seems to bump into that difference. Here’s something from Justice Kennedy’s opinion, addressing dissenters from the decision. Substitute “abortion rights” or “contraceptive mandate” for “same-sex marriage” and see how it sounds. This statement is now part of constitutional law. If it applies to differing beliefs about marriage, it ought to apply to other issues as well.
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.
So if “it must be emphasized,” I’ll do so:
…religions, and those who adhere to religious doctrines, may continue to advocate …The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths …
So does “proper protection” mean protecting freedom of worship or freedom of religion? Do “advocate” and “teach” refer to speech and action in the public square, or merely the right to advocate and teach within the walls of a house of worship or a private home? Just how does all this translate into the daily give-and-take of civic action?
It’s not lawyers who have to make these decisions in the first instance. Ordinary citizens (and I count myself as one) going about their business day-to-day are the ones wondering if they have what the Court calls proper protection. It’s fitting that long before the marriage decision came down, the country’s Catholic bishops chose “freedom to bear witness” as the theme of this year’s Fortnight for Freedom.
The Fourteenth Amendment now covers marriage between any two consenting adults. The First Amendment covers religion (or is it worship?), presumably including the religions that hold to one-man-one-woman marriage. So what happens when lawsuits and criminal charges are filed against business owners who decline on religious grounds to participate in same-sex marriage ceremonies? Early signs are not encouraging for the business owners. One can take either side of the proposition that Jesus would bake the cake, and still see that for the people who are now marriage dissenters, Justice Kennedy’s reassurance that they may “advocate” for their view is a little shaky.
Abortion rights rest on a “penumbra” of constitutional rights adding up by some judicial calculus to “privacy.” Abortion dissenters have the First Amendment, including, for those who so choose, a right to pray outside abortion facilities – or do they? New Hampshire legislators seeking to discourage pro-life presence outside abortion businesses could have resorted to any of several methods that have been found to be constitutional. Instead, in 2014, with the full cooperation of the governor, the legislature made it illegal for most people regardless of intention or behavior to stand on public property outside an abortion facility for any reason, at times and locations to be determined by the abortion facilities’ management. Legislators actually left the interpretation and implementation of the buffer zone law up to abortion providers.
To the surprise of no one but the law’s sponsors, the law has been enjoined by a federal judge. It has not yet had a full hearing in court. It’s still on the books, and a repeal effort failed this year. I have yet to hear any of the buffer zone’s fans in New Hampshire announce a change of heart on the basis of Justice Kennedy’s assurance that advocacy of dissent may continue. What’s to stop any legislative body from following New Hampshire’s egregious example of supporting a law to suppress peaceful demonstrations?
The HHS mandate
Obamacare’s HHS/contraceptive mandate is in place, buffeted but not bowed. The President and the members of Congress who passed Obamacare allowed HHS regulations to define contraception as “preventive care.” There are people who own businesses and who out of religious belief do not wish to participate in the provision of contraceptives and abortion-inducing drugs to female employees. In the face of the HHS regulations enforcing the Affordable Care Act, they hold the dissenting view that women aren’t broken and that it’s not “preventive care” for women to be chemically altered. The Administration has issued accommodations in a piecemeal manner to certain institutions dissenting from the mandate, and Hobby Lobby won at the Supreme Court on behalf of owners of closely-held businesses.
Yet litigation goes on, because religious institutions still must wait for a determination that they’re religious enough to be covered under one of the Administrations “accommodations,” and it’s still an open question whether those accommodations are adequate. Are owners of public-stock corporations going to be accommodated? Fines will be punitive for anyone who dissents, sues, and loses. Are dissenting business owners being given proper protection for their advocacy of their beliefs? Or so Justice Kennedy’s words mean must that advocacy remain private?
The Court majority that gave us Obergefell left Americans with much to think about beyond a definition of marriage. At the end of another Fortnight for Freedom, only days after a landmark Supreme Court decision, the religious-liberty landscape remains unsettled. Are Justice Kennedy’s words true reassurance that each American is free to exercise a religion, publicly as well as privately?
There’s a way to divert attention from this question: call marriage dissenters bigots. Say that people opposed to the Affordable Care Act want to deny health care to their neighbors. Claim that opponents of buffer zones are endangering women (never mind that six of the seven plaintiffs challenging the New Hampshire buffer zone law are women). Say anything – just keep that pesky First Amendment offstage.
Justice Kennedy won’t let me. He says the First Amendment gives us all proper protection. We have yet to see what that means.
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Freedom of religion vs. freedom of worship: what’s the difference? If one’s respect for life is grounded in faith in God, is that respect somehow inappropriate for the public square? Is freedom to bear public witness to one’s faith at risk? Perhaps the plaintiffs in New Hampshire’s buffer zone suit could offer some insight into those questions. For today, though, I look to someone with a national perspective.
I was in media row at a convention in 2013 when Eric Metaxas took the stage to polite applause. Fourteen minutes later, he finished to a standing ovation. His topic: the state of religious liberty in the United States. His speech bears re-hearing during this Fortnight for Freedom with the theme “freedom to bear witness.” (The video is from C-SPAN, taken at CPAC 2013. If it does not show up embedded in this post, click on the link below.)
Among his many books, Metaxas has written about William Wilberforce (1759-1833), English politician and opponent of slavery. “It’s the story of what happened to things when a man drags religion into the public square and when he allows it to affect how government behaves. Result: the government was forced to abolish the slave trade.”
Bishop Joseph Libasci sees a storm coming as religious liberty is challenged in today’s America. In his June 22 homily in Manchester, New Hampshire at a Mass dedicated to the Fortnight for Freedom, he declared “the winds have begun to blow, and they are coming with gale force….Fighting for freedom includes standing for the freedom to stand before God in clear conscience.”
The Affordable Care Act’s contraceptive mandate. “The mandate of the Department of Health and Human Services forces religious institutions to facilitate and/or fund a product contrary to our own moral teaching. Further, the federal government tries to define which religious institutions are religious enough.”
Threats to Catholic foster care and adoption services. “Boston, San Francisco, the District of Columbia, the State of Illinois, have driven local Catholic Charities out of the business of providing adoption or foster care services by revoking their licenses, ending their government contracts, or both, because those charities refuse to place children with same-sex couples or unmarried opposite-sex couples who cohabit. [This] cut[s] down the tree of civility, and indeed cut[s] down the tree that is the healthy, good, life-giving, charitable alternative to abortion.”
Threats to State immigration laws. “Several states have recently passed laws that prohibit what they deem as harboring of undocumented immigrants and what the Church deems Christian charity and pastoral care for these immigrants. And I know it’s a hot topic. …The fact of the matter is when the winds blow strong enough that we become refugees, and don’t think it can’t happen, …could we find ourselves in great need? ‘Blessed are the merciful; they shall obtain mercy.’”
Barring use of public facilities by people of faith. “New York City adopted a policy that bars the Bronx Household of Faith, a small community, and other churches from renting public schools on weekends for worship services, even though non-religious groups could rent the same schools for many other uses. This is still in the courts, still eating up the little money they have.” [2014 update to this case here.]
Threats to programs aiding victims of human trafficking. “After years of excellent performance by the U.S. Conference of Catholic Bishops Migration and Refugee Services, administering contract services for victims of human trafficking, the federal government changed its contract specifications to require migration and refugee services to provide or refer for contraceptive and abortion services, in violation of Catholic teaching.”
Bishop Libasci repeatedly used a metaphor from the 1966 film A Man for All Seasons, about St. Thomas More, onetime Chancellor of England, martyred for his faith. In the film, More addressed a young protegé who expressed impatience with the law. As recalled in the Bishop’s homily, More counseled caution. “If you cut down all the laws, it’s like the trees in a forest. You begin to cut them down until you cut them all down, and when the winds begin to blow, where will you run then for shelter?”
Back to the Bishop’s own words: “We should not be allowing others to cut down the trees, and God forbid we help cut them down. Instead, we should be planting trees. The tree of life. The tree of salvation. The tree from which hung the Savior of the world.”
“We can and we do lobby for just laws, and for the overturning of those laws, the repeal of those laws, that are unjust. But whenever it is unsuccessful, we are called to make those laws obsolete. … We’re probably not allowed to do something about tying up our horses outside on Lowell Street. There must be some law somewhere. But it’s useless. Such must be the unjust law. That we have grown beyond such things… because we live in such a time where adherence to God’s law has turned us away from discrimination, murder, inordinate living, disordered belief, and the shame of a people who no longer value the true dignity of human life. Let us grow beyond, so that where Jesus said I have come to set one against the other, in that balance of justice, the justice and the mercy of God will cause the others to float off into space.”
I looked around the Cathedral as the Bishop spoke. I saw no cameras or press. Perhaps a hundred people were there. In a secular environment, I’d have said that the man needs an agent. This was a church, though; a community of faith was present. Everyone there is the “agent,” so to speak, charged with getting out the message. In how many other churches will the same message be delivered in the coming days? From there, who knows where it could go? Small beginnings, perhaps, but with great potential and great hope.
This quote is from a Catholic man speaking to other Catholic men, but his message is for all of us, regardless of gender or faith or state in life. Remember what kind of freedom we as Americans have been able to enjoy; don’t leave the future to others; know when and how to talk back when conscience rights are threatened.
In the early days of Obamacare’s contraceptive mandate, some American bishops visited Pope Benedict XVI. Benedict knew about the mandate already. In his formal remarks to the bishops, he said that lay women and men – everyday people – have to step up. That’s not just about Catholics. Did you know the owners of Hobby Lobby identify themselves as evangelical Christians, and the owners of Conestoga Wood Products are Mennonites? They’re the ones who prevailed at the Supreme Court. They knew what Benedict was talking about, even if they never heard him speak.
In the light of these considerations, it is imperative that the entire Catholic community in the United States come to realize the grave threats to the Church’s public moral witness presented by a radical secularism which finds increasing expression in the political and cultural spheres. The seriousness of these threats needs to be clearly appreciated at every level of ecclesial life. Of particular concern are certain attempts being made to limit that most cherished of American freedoms, the freedom of religion. Many of you have pointed out that concerted efforts have been made to deny the right of conscientious objection on the part of Catholic individuals and institutions with regard to cooperation in intrinsically evil practices. Others have spoken to me of a worrying tendency to reduce religious freedom to mere freedom of worship without guarantees of respect for freedom of conscience. Here once more we see the need for an engaged, articulate and well-formed Catholic laity endowed with a strong critical sense vis-à-vis the dominant culture and with the courage to counter a reductive secularism which would delegitimize the Church’s participation in public debate about the issues which are determining the future of American society.