The President's View of Rights

by Matthew Raley The last couple of weeks have seen a change of tone among Democrats about President Obama's requirement that religious institutions be forced to provide "contraception" in their health plans, and about his "compromise" that the institutions themselves don't have to pay for it but that insurers still have to provide it.

Democrats think this is a brilliant move -- and they may be right.

There are outright lies in the president's formulation of this policy, in addition to the standard tactical truth-benders.

It is a lie that this policy only concerns contraception. The president's rule covers the abortion pill. Abortion is not contraception. His first policy was that religious institutions must provide abortion coverage. Now his "compromise" is that everyone must pay for it in their insurance premiums.

The president's tactical gambit is that, if people swallow the lie that the issue is contraception, then they will also believe that the only people in America who oppose his rule are Catholic bishops. The president is hoping that evangelicals like me will assume that the only problem here is Rome's opposition to preventing conception.

This is not a Roman Catholic issue, as if "only a bishop" could possibly oppose this rule. When asked not about "contraception" but specifically about the abortion pill requirement, Americans oppose the rule, and it's not close.

Well, let's be blindly generous. Let's pretend that the word "contraception" is not a cover-up, that the president is not pandering to anti-Catholic bigotry, and that Americans do support free abortion by prescription. There's still this little issue of rights.

Here's Nicholas Kristof on religious liberty in a recent column: "The basic principle of American life is that we try to respect religious beliefs, and accommodate them where we can. But we ban polygamy, for example, even for the pious. Your freedom to believe does not always give you a freedom to act."

Again, let's adopt the spirit of blind generosity.

We're going to accept the equating of belief in polygamy with opposition to abortion as if it were completely natural. We're going to ignore the fact that this controversy is not over a "freedom to act" but over a freedom not to act -- that is, my right not to pay for abortion pills. We're even going to ignore this interesting assertion: American life is founded on the principle that "we" will "try" to "respect" religious beliefs. This is a brief counter-factual exercise. We're just going to focus on the words, "Your freedom to believe [a religious teaching] does not always give you a freedom to act."

That formulation might be acceptable to those who do not value religious liberty. But let's see if it still works when applied to other freedoms.

"Your freedom to believe does not always give you a freedom to speak."

"Your freedom to believe does not always give you a freedom to vote."

"Your freedom to buy property does not always give you a freedom to keep it."

"Your freedom to invest does not always give you a freedom to keep the profits."

"Your mere existence in utero does not always give you a freedom to be born."

The president and Mr. Kristof are free to believe that rights owe their existence to governmental fiat. They have the right to reject the real "basic principle" of the United States, that liberties come from God. But in our country -- and it still actually belongs to us -- they do not have the right to subvert the Constitution by administrative law.

The president may get away with this. His tactic may be as brilliant as many Democrats claim. Life will go on and future battles over religious liberties will be fought on very different ground. But let's not pretend this is politics as usual.

Religious Liberty and the Ruling on Prop 8

by Matthew Raley Last week, the 9th Circuit Court of Appeals ruled that Prop 8's ban on gay marriage is unconstitutional. No surprise there. The real question is what will happen at the U.S. Supreme Court, and what the implications will be for religious liberty.

Some observations:

1. It is not clear how the Roberts Court will rule on Prop 8. The outcome will likely depend on Justice Anthony Kennedy, who remains the swing vote on many issues. I will be surprised if the court renders a sweeping decision on the gay marriage question. Look for a narrow one.

This is a weak position for traditional marriage supporters. A narrow ruling against Prop 8 has the effect of institutionalizing gay marriage in the U.S., where a narrow ruling in favor of Prop 8 merely keeps the issue in play.

2. Suppose the high court upholds the 9th Circuit's decision and gay marriage becomes the nation's new legal default. A church's liberty to sanction only marriages between a man and a woman comes into question, and the legal climate for this kind of liberty is very mixed.

In 2010, the high court ruled in Christian Legal Society v. Martinez that a public law school could refuse to recognize a religious group that did not abide by the school's anti-discrimination standards. The fall-out from that decision is being felt by Christians at Vanderbilt, a private university. The vice chancellor recently told Christian groups that they have to allow non-Christians to be members and even leaders of their organizations if they want official recognition. He said in a public meeting, "We don’t want to have personal religious views intrude on good decision making on this campus."

A rare moment of candor from a PC mandarin, and a glimpse of what life will be like if tweed totalitarianism gains even more power. There's religious decision making, and then there's good decision making. We just want you to make good decisions. That's all.

There are examples of this pushiness elsewhere. New York City recently expelled churches from using public schools on Sundays. (The Supreme Court refused to hear a challenge.) The Obama administration decided to force all organizations to provide health insurance that covers contraception, even Catholic institutions. Though the administration has wavered in recent days, it has shown what it really thinks about religious liberties. Catholic adoption agencies in Illinois are closing rather than comply with the state's new non-discrimination policy. A New York Times article about the controversy makes clear that religious liberty claims are insensitive and tiresome.

Some progressives clearly have an appetite to purge religion from civic, legal, and academic life. Not all progressives. There are those who agree that churches should not be forced to allow gay marriages, or to support any of a host of other choices sanctified by the vice chancellor of Vanderbilt. Such honest progressives recognize the importance of conscience.

So there is some ballast against those who want a purge.

In addition, recent infringements on religious liberty have to be balanced against the Supreme Court's unanimous decision last month that anti-discrimination employment laws must respect a ministerial exemption. The decision is sweeping, and may be a game-changer for churches.

3. The practical threat to religious liberty will not come from the suave bigotry of vice chancellors, or from gay marriage laws like the one Governor Christine Gregoire signed in Washington State this week. The threat will not come from homosexuals as a group, or from progressives.

The most practical threat is from lawyered-up thugs. In their mania for a religion-free society, radical activists will use lawsuits as a shakedown tactic. They will not need friendly Supreme Court decisions. All they will need is money enough to sue -- and they have plenty. They will move  from suing cities over crosses and nativities and public prayers to suing churches for "discrimination."

I have spent years in ministry opposing the attempts of the religious right to turn churches into centers of political activism. Demagoguery and money do not impress me. And if I have not countenanced toxic activism from the right, even though I'm a political conservative, I certainly will not roll over for the cultural left, with which I have no sympathy whatsoever.

I fear we are headed for a new low in American discourse, in which public debate is abandoned in favor of lawsuits. If so, the civil society that has made America strong will splinter, and the conscience of every person will be at the mercy of the best financed pressure group.