Reprinted by permission in its entirety from Imprimis, a publication of Hillsdale College.
The following is adapted from a lecture delivered by Matthew J. Franck at Hillsdale College on September 11, 2012, during a conference on “The Supreme Court: History and Current Controversies.”
In the recent term of the Supreme Court, the administration’s lawyers took the position that there should be no “ministerial exception” on religious-freedom grounds, for employers such as religious schools, from federal anti-discrimination laws. Church schools and other religious institutions, they argued, have only as much protection as non-religious groups do on “freedom of association” grounds—as though the religion clause of the First Amendment added no ground whatsoever for a unique religious freedom claim. In the best religious freedom news of the year, the administration lost this case 9-0 in the Supreme Court, which held that the Obama Justice Department’s view was “remarkable,” “untenable,” and “hard to square with the text of the First Amendment itself.”
A narrow exemption was included for religious employers that are non-profit, exist to inculcate “religious values,” and primarily employ and serve members of their own religious community. This meant that while churches and other houses of worship would be exempted, countless religious schools, universities, hospitals, and charitable institutions would not. Under pressure, the administration has promised a future “accommodation” for a broader range of religious institutions, with an ill-defined “safe harbor” until the new arrangement becomes effective in August 2013. At that time, these institutions’ employees would still be entitled to the same “preventive services,” but with insurers rather than employers responsible for the costs.
Some religious institutions, such as the University of Notre Dame, are self-insured for their employee health plans, and there is no sign yet regarding how their situation could be addressed. And who can be fooled by the promise that insurance companies rather than employers are paying for the coverage, and that employers will somehow have clean hands in a three-cornered contractual relationship in which these services are guaranteed?
Individuals of faith, joined in communities of faith, forming a civil society imbued with the many faiths of those many communities, own this country. The state’s authority comes from us, and its power—the power of our elected employees—cannot be greater than what we can rightfully give it. We cannot give the state power over the conscience of men and women, because we do not ourselves have any right to come between God and our fellow citizens. The sooner our elected employees remember these foundational truths, the sooner we may begin to recover a healthy notion of religious freedom.