The dispute over the Department of Health and Human Services’ new regulations mandating that employers provide contraception coverage has been framed by opponents of the rules as a fight over religious liberty. And so it is. Catholic institutions object that the rules force them to support activities — sterilization and abortion, in addition to contraception — that they view as immoral. It’s like compelling Jehovah’s Witnesses to salute the flag, or Quakers to fight, or Jews to eat pork. That’s why Catholic University, where I am president, joined 42 other plaintiffs this past week in filing suit against HHS.
But I’d like to focus on a different aspect of the rules, and a different constitutional principle that those opposing our lawsuit may find more appealing: the separation of church and state.
When the Supreme Court first considered the issue of aid to parochial schools in the 1947 case Everson v. Board of Education , it invoked separation as a limiting principle. The court quoted Thomas Jefferson’s 1802 letter to the Baptists of Danbury, Conn.: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and state.”
Jefferson was a child of the Enlightenment, suspicious of organized religion. He believed that efforts to establish an official religion led to persecution and civil war.
The metaphor was not original to Jefferson, though. Roger Williams, who founded the colony of Rhode Island on principles of religious tolerance, used it in 1644. History has shown, he observed, that when churches “have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall . . . and made his garden a wilderness.”
Williams had different reasons than Jefferson for preaching separation. Jefferson thought that religion was bad for government. Williams thought that mixing church and state was bad for the church.
These two perspectives often give us the same results. They both warn against tax support for churches and against prayers composed by public school boards. But Williams’s theological metaphor may have been more influential than Jefferson’s political one in the adoption of the First Amendment.
I think this has a bearing on a neglected aspect of the HHS rules — not the mandate itself, but the exemption for a “religious employer.” It defines that term to mean an organization that exists to inculcate religious values, that is exempt from filing a tax return and that primarily employs and serves people who share its religious tenets.
This is a remarkably narrow view of religion. It excludes the social service organization Catholic Charities, Catholic hospitals and Catholic University. It excludes the Little Sisters of the Poor, who care for the aged of all faiths, and some Cristo Rey Catholic high schools, which admit students of all faiths. These institutions exist to perform what Catholics call “corporal works of mercy” — to care for the poor, hungry, sick and homeless — and to preach the Gospel not just to their baptized members but “to all nations,” as the Gospel says.
Those religious groups that don’t fall within the exemption — and that’s many of them — are subject to governmental regulation of their internal affairs. This might not have bothered Jefferson. But I suspect Williams would have said that it violates the separation of church and state, that the government had “broken down the wall . . . and made [God’s] garden a wilderness.”
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.
How distressed Roger Williams would have been.
John Garvey is president of the Catholic University of America and a former dean of Boston College Law School. He is a co-author of “Religion and the Constitution.”
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