John Garvey, president of the Catholic University of America, a former dean of Boston College Law School and co-author of “Religion and the Constitution,” had an excellent op-ed at the Washington Post Friday: For the government, what counts as Catholic?
He likens the HHS employer mandate for contraception, sterilization and abortifacient coverage to “compelling Jehovah’s Witnesses to salute the flag, or Quakers to fight, or Jews to eat pork.” But then he shifts to separation of church and state.
Or so he says he’s shifting. I’m not convinced that freedom from compulsion to act against one’s faith is really a different topic than separation of Church and state, but let’s move on.
What idiot ever started the idea that only the Church can breach the “wall of separation”? Au contraire, mon frère. As a matter of law, only the government can breach it. Maybe the Church can do things that are provocatively political, or can violate the “spirit” of separation, but the limits of the Constitution are, fer cryin’ out loud, limits on government. The Constitution is, first and foremost, so much the charter of our federal system of government that there was considerable debate about the need for a Bill of Rights to define government’s relationship to individuals and what we today call “mediating structures.”
But the current Administration is tacitly pushing the statist spin on separation again and again and again.
There’s an analogy to the Affordable Care Act’s individual mandate, where not engaging in commerce by not buying insurance is re-cast as commerce within the power of Congress to regulate. Here, it’s rather the opposite: activities that everyone has always thought religious (not that atheists can’t do the same things, of course) are insufficiently religious for exemption from government’s heavy hand.
This invasive approach to religious institutions is, I am afraid, becoming all too common. Recently, in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission , the Supreme Court considered whether the government could regulate the firing of a religion teacher. The teacher, who had filed a disability claim, was fired for suing the Lutheran grade school rather than settling her claim out of court. The commission and the solicitor general argued that the government need not give any special deference to employee relations at religious organizations. A unanimous court found this view “remarkable” and the government’s action unconstitutional.
In two other recent cases, the National Labor Relations Board’s regional directors have held that Manhattan College in Riverdale, N.Y., and St. Xavier University in Chicago are not Catholic schools for purposes of exemption from the National Labor Relations Act, which regulates collective bargaining. The cases stressed that the colleges do not require students to attend Mass and do not engage in “indoctrination” or “proselytizing.” Rather, they observe norms of academic freedom. They also hire non-Catholic faculty, and their boards of trustees are dominated by lay people.
Notice the similarity to HHS’s view of what counts as Catholic. A “real” Catholic college would be inward-looking. It would inculcate religious values and censor contrary views. It would hire Catholics and not other people. Its board would be dominated by clergy. It would admit Catholic students but not others.
There is a pattern to these cases. The government has been eager to regulate the behavior of churches in ways more to its liking. It does this by defining religion down, so that only the most rigid and separatist groups are exempt. The rest are, for constitutional purposes, no different from the Jaycees or the Elks Club. We might say that the wall of separation is intact, but the government has made it so small that it encloses nothing more than a flower bed.
Thank you, President Garvey.
I’m starting to entertain the thought that a litmus test for bad guys versus good guys is that the former want to limit religion by arbitrary state redefinition, the latter to limit government to the terms of the Constitution.
I’ve been concerned with religious freedom pretty keenly since well before I set foot in law school, and I know that this issue is one where, whatever his other defects, Romney stands in stark contrast to Obama and his administration. “We’re all Catholics now.”
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