Religious freedom and religious privilege

I enjoyed reading Mike LaBossiere’s post entitled “Church & State: Immaculate Contraception”, but I can’t resist the impulse to add a post of my own – perhaps because I lack free will in the matter, but mainly because I devote an entire chapter of Freedom of Religion and the Secular State to this sort of issue (so it is kind of on my mind), and certainly because it has become even more topical than usual.

In setting the scene, Professor LaBossiere describes a provision that the Roman Catholic Church is currently objecting to in the United State: “This law requires that health insurance plans offer free birth control. Since this would include Catholic affiliated hospitals and schools, the Catholic Church has been pushing back against the law.” He adds: “Not surprisingly, this is being portrayed as an attack on religious liberty and the values of Catholicism. However, it is rather important to note that the law does not apply to churches, but rather only to institutions, such as hospitals and schools, that serve a large number of non-Catholics and also receive federal money.”

He raises an interesting point – can we really say that “birth control”, i.e. the use of contraceptive technologies, is against Catholic doctrine if (as is the case) most Catholics, at least in the relevant jurisdiction, are not morally opposed to it? I’ll leave that issue to him, though let me say in passing that, for now, and into the foreseeable future, birth control is most certainly against official Catholic doctrine. In particular, the encyclical letter Humanae Vitae is still binding in the sense of being the Church’s official and unmodified statement on the matter.

However, if for some reason you’re not convinced that Humanae Vitae and all that it represents really is valid Catholic doctrine, I’ll ask you to put that issue aside and deal with the problem as if it were the valid doctrine. Okay? In that case you can immediately see the problem with requiring Catholic employers to provide their employees with insurance schemes that in turn cover the cost of birth control. Or is there really a problem after all?

My starting point is that there is not necessarily a problem. The employers concerned have not been singled out for persecution on the ground that the US government believes that Roman Catholicism is a false or dangerous religion. In fact, they have not been singled out at all … and the intent of the law is not to persecute Catholics. An easy way to see that is to ask whether this law would have been made if the Roman Catholic Church didn’t even exist. It is, I suggest, plain that it would have been. The purposes behind the law are not in any sense to persecute a religion or group of religions, or to favour others. The law was made for ordinary religion-blind purposes relating to the health and worldly welfare of women. Whether or not it is a good law, whether or not it is a law that I would vote for (I probably would have, but even if I wouldn’t have), it has not been made out of a wish to persecute certain religions or to favour others. In that legal (but not terribly difficult) sense, the law is neutral.

The law is also one of general application. It is not as if the employers concerned find themselves objectively singled out. Rather, they find themselves merely having to do what every other employer has to do.

Alas, you’ll need to read my book to get the full argument for this, but I take the view (which was also the view of John Locke, and is also the view of the US Supreme Court, and most notably that good Catholic Justice Scalia) that there is no breach of the fundamental concept of freedom of religion if a law has been enacted for some kind of understandable worldly (or “secular”) purpose (such as the health and welfare of women), and is a neutral law of general application. It might or might not be a good law, but it is not a law that is contrary to the idea of religious liberty or freedom of religion.

If anything, it is contrary to freedom of religion if some people (or corporations or whatever) are exempted from a law because of religious sensitivities. That is not religious freedom; it is religious privilege. It is giving the religious people (etc.) a privilege that the rest of society does not have, as, after all, we are talking about a law of general application.

However, I won’t go quite that far. In some circumstances it might be okay to privilege people by exempting them from certain laws, where obeying those laws would be against their consciences. As so often pointed out, we allow for conscientious objection in some circumstances. I don’t rule this out, as long as we understand that it is a privilege we are granting, and that it is not an automatic right. In this case, the Catholic employers would have to argue why their acceptance of official Roman Catholic canons of conduct – i.e. a standard that specifies that using contraceptives is a sin – should give them the privilege of not being compelled by the same law that compels everyone else.

Yes, reluctance to force conscience, with the kind of mental suffering that it might entail, sometimes might be a reason to grant an exemption. It is a compassionate reason. There may be other reasons as well, including just plain practical ones, e.g. because there is no point in putting a rifle in the hands of a committed pacifist (but one reason that the government should never use to explain its actions is that such-and-such a religion is actually the true one).

However, granting the privilege of an exemption from the law will usually place more burden on someone else (in this case, employees who do not receive the same advantages as other employees in the work force). That is a good reason for being reluctant to grant religious privileges – and if we are going to grant them from time to time, it is a good reason to make the exemptions narrow, applying only where the case for them is at its strongest.

Restrictions on the Church as an employer of people – such as priests – who are necessary for its very survival will have a different effect from restrictions on the employment practices of commercial enterprises that might happen to be owned by the Church. There are obviously situations in between. In cases like this, there will be many considerations that need to be weighed up, and there is nothing wrong with a degree of political compromise in trying to take into account the interests of everyone affected. In the end, the processes of political deliberation will determine just what exemptions should be granted, but if they are going to be granted at all they should generally be narrow and carefully crafted.

As far as I can see, the Obama administration was well within its rights to impose this neutral law of general application on Catholic employers, with only relatively narrow exemptions. I see no issue here of anyone’s religious freedom coming under attack. What I do see is some special accommodation of religious sensibilities – which, again, is a privilege granted by the law-makers – that has been kept within appropriately narrow bounds, developed throught the political process.

People who see this action by the Obama administration as an attack on religious freedom should go back and read John Locke, even if they don’t want to read my book. In fact, they could just go back and read Antonin Scalia.

Leave a comment ?


  1. In this Holy War on Religion, of Religion, and by Religion, I’ve had enough! I’m a lover, not a fighter: I’m surrendering! Instead… I’m gonna start my OWN religion, and get in on the good stuff: tax exemptions, and lots of taxpayer money to do what I want, in the name of religious liberty. Most definitely! Hey Newt -wanna join? We’re gonna have open marriages and multiple wives and all sorts of neat stuff that you’re just gonna LOVE! But don’t you worry Newt : NO nasty stoning of adulterers. I Promise! As for Santorum- he’ll make us a real fine preacher…in fact, we’ll make him Saint Santorum. And fix his Google search results. As for Mr. Obama,  obviously, we’ll need to demonize him even further. “Severely!” And his dog too. Last but not least: Mitt and Ron, hey, just for you guys: we’ll insist on no taxes AT ALL for church members…and human sacrifice of illegal aliens. Televised. Whoooppee! What a country! 🙂
    By the way, please don’t mention the REASON that Mitt Romney’s dad was born in Mexico (i.e. the fact that Mitt’s Mormon grand-dad LEFT the United States in the 1880’s and went to Mexico because laws against polygamy were passed in the U.S. ; Being a Mormon back then, Mitt’s grand-dad wanted to keep his multiple wives. Hey, who wouldn’t?) Bottom line: if we follow the “logic” of the people crying crocodile tears about a non-existent “war on religion”, then the U.S. should have allowed polygamy (and who knows what else) just because a particular religion claimed it as their belief. GIVE ME A BREAK!
    Absolutely NO ONE is coming into our Churches or places of worship and trying to tell parishioners what to believe…or forcing them to use contraception. BUT If the Bishops (and other denominations) want to continue running businesses that employ millions of people of varying faiths -or no “faith” at all- THEN they must play by the same rules and the rights that other workers enjoy…especially if their businesses use our tax dollars (and skip paying taxes) in the process. This is not a “war on religion”. It’s a war on women and men who simply want to plan their families and control their future.

  2. As you say individual Catholics may have differing opinions, but taking your position that they support the Church’s position on this as read…

    I would just say I think any grouping that has a particular view on morality has a right to express it’s voice and engage in lobbying for change. Since the Catholic church has many voters in its community in the USA, Politicians will take heed, and that’s democracy. I think that fair enough.

    But this is not just a general civil rights issue of freedom of expression or belief,it is also a specific legal issue regarding the USA Constitution/Bill of Rights that have some special applicable terms, see…

  3. Freedom of religion means freedom to practice your religion; it does not mean the right to impose its rules on other people who do not follow it.

    One person’s freedom ends where someone else’s begins. And if you are going to provide a public service, you have to provide it to everyone.

  4. Any organisation providing services to the general public should be required to follow all prescribed practices, and should not provide proscribed practices.

    Sometimes a Catholic affiliated hospital or school is either the best or nearest or only one available. It would be, I think, very un-Christian to refuse to provide services that would be provided by some other non-church organisation, had the church organisation not been present. That is to say, I assume their purpose for building hospitals and schools is not for the charitable reason of general good, but instead a tool for evangelism.

    It’s not, after all, necessary to associate church doctrine with the practice of such an organisation. The church could simply offer a disclaimer that some services provided as required by law may not be in line with church doctrine. A more magnanimous approach that would serve the church’s credit far more than dogmatic stance often taken.

  5. Russell, On your analysis, it would be right for the gov’t to require not just Catholic schools and hospitals to provide birth control, but also Catholic churches to provide it to their employees. Plus, it would also be right to require Catholic schools, hospitals, and churches to offer abortion services to employees, at least in cases where maternal health is at stake. Isn’t that where your analysis leads? Is this a “reductio” of your analysis or are you happy with that upshot?

  6. I am not a fan of privileges of any kind, but I do believe that there is a right to exemptions of conscience that derives from a more fundamental right of freedom from laws that are arbitrary and capricious.

    In my opinion, the state does have an obligation to demonstrate that the offence to conscience that arises from forcing compliance of objectors to any law is exceeded by other values of enforcing it. Of course the comparison of values is not absolute and there may be differences of opinion, but there is an obligation to make a “good faith” attempt to understand the relative pain and gain.

    But to privilege religion as a ground for exemptions of conscience is to me unconscionable.
    The grounds for exemption (and in fact all other laws as well) should all be stated in terms that make no reference at all to the word “religion”.

  7. With many of the religious claiming “offence to conscience” as being essentially a privilege in itself it seems it’s heads I win tails you lose.

  8. s. wallerstein (amos)

    There should be a standard list of health services to which all people have access.

    If healthcare insurance is provided by employers, as is the case in the U.S., then employers have to provide insurance with the full list.

    What is on the list should be decided by the health authorities, that is, by the state.

    If the health authorities decide to include contraception on the list, all insurance plans should include contraception. The same goes for abortion or any other procedure.

    If some of the medical procedures are contrary to the religious beliefs of some people, then they have no need to make use of them.

    In the case that citizens are not in agreement with the procedures that the healthcare authorities include on the list, they can vote for a new government, which promises to eliminate controversial procedures, in this case, contraception.

    I myself think that healthcare coverage should be provided by the state, by some type of national health service, in which case it is evident that it will be the health authorities which decide which procedures everyone should have access to.

  9. All institutions and groups (including religious ones) lobby hard to be exempted from laws (including “neutral laws”) if they can…and this will always be the way. However,John Locke, yourself And Justice Scalia are correct – but that is the ideal position,a rear and precious commodity – especially, where influential and powerful groups and institutions can determine who governs.

  10. Emily Isalwaysright

    Sometimes, when church leaders complain of an attack on religious FREEDOM what they really mean is an attack on religious AUTHORITY.

    It seems to me the church leaders in this case are less concerned about actual instances of contraception use, and more concerned about maintaining a position in society which ostensibly allows them to dictate to others.

  11. For most of my adult life (I’m 62), birth control was never included in any health insurance policy I had. It was an expense we paid, not unlike rent or food. It even seems outside the normal concept of ‘insurance’, which typically means you pay roughly the mathematical expectation of loss to guard against expensive losses.

    Medical bills can easily become astronomical, and the real need for insurance is those situations, not day to day maintenance costs. I am also puzzled by the ‘no co-pay’ requirement. People pay co-pay on life essential drugs all the time, by what logic is this especially privileged?

    [Unrelated comment to Stan Chaz: the whole polygamy war was an absurd imposition of government will where it did not belong. As long as the participants were consenting adults, it was simply NONE of the government’s business. This is not a ‘religious liberty’ argument, this is a personal liberty argument.]

  12. Massive political blunder really and not the result of a vision for society, a laughable notion in the American context. Obama must be bleeding blue collar Catholic votes who now will vote against him and the liberals who will stay at home and for whom this is the last in a long line of betrayals. It’s a fascinating demonstration of how taking your opponents to be stupid, as the liberal intelligentsia everywhere are wont to do, will work against you. Didn’t Obama have a friendly bishop to confer with?

    By the way I thought sex was an elective procedure. Things are different in America!

  13. The human population has reached plague proportions. The only forms of birth control that meet this extreme need are execution and sterilisation.

    The techniques under discussion here are minor and pointless in the face of the destruction of our ecosystem by thousands of millions of swarming, breeding humans. The food wars, the fuel wars, and the wars for fresh water, are about to start. And we’re arguing whether it’s OK to supply free condoms?

    I don’t imagine, with this manifesto, that I’ll be getting elected any time soon. But the alternative will be worse, in the long run. 🙁

  14. Russell,

    You make an excellent point in arguing that the law is not a restriction of religious liberty. As you note, the law does not actually compel Catholics to act in ways contrary to their doctrines.

    Not surprisingly, certain folks are casting the law (and others) as attacks on religious liberty. But, as Jon Stewart has noted, a person’s religious liberty is not being attacked simply because s/he is not getting everything s/he wants.

    In the US, religions are granted a wide range of privileges and the notion that requiring religious institutions to follow neutral (as you say) laws is an attack in liberty seems absurd (yet also political gold for some folks).

  15. The ugly thing is that the Catholic church is actually wanting to misuse secular law to impose their doctrines on their employees: if their employees followed church teachings regarding contraception, their insurance actually wouldn’t pay for contraception as employees not using contraceptives don’t generate expenses in contraceptives…

  16. Mike, You say “the law does not actually compel Catholics to act in ways contrary to their doctrines.” I thought Russell was saying it does, but appropriately so. He writes–“The law is also one of general application. It is not as if the employers concerned find themselves objectively singled out. What I’m wondering is whether, on Russell’s reasoning, even the churches would have to be required to offer birth control coverage. And would that be going too far?

  17. I should, as usual, have been clearer. Russell does note that he is assuming, for the sake of the discussion, that the use of contraception by Catholics goes against church doctrine.

    As I see it, this law did not require that Catholics use birth control or even that the churches themselves provide it. Rather, it just required affiliated institutions to cover the cost of birth control for women who decide to use it. Of course, I suppose the idea that an employer who is affiliated with the church might have to cover the cost of contraception might be seen as some sort of indirect violation of church doctrine-if the money comes from the church (and not from, for example, the government or the revenue of the affiliated institution). Unless we assume the church has ownership over all affiliated institutions in such a way that makes compelling them to obey a law equivalent to compelling the church to act against its faith. As such, I suppose that much might depend on how much affiliated institutions are considered part of the church.

  18. SJ,

    That is an important point of concern. After all, some have argued that the church’s rights trump those of the employees, even those who are not Catholics. Perhaps working for an affiliated institution means that the employees are de facto Catholics and thus subject to the doctrines of the church.

  19. Steve,

    I’m sure there is someplace that would elect you. 🙂

  20. Jean, when you ask me what would be “right” that’s a rather ambiguous question. Do you mean in terms of the US constitution? Do you mean what is right in terms of the US constitution plus other relevant law that may impose additional requirements to accommodate religion? Do you mean what is, in some sense, the “morally right” outcome? Do you mean what I, personally, would vote for, or would try to persuade others to vote for?

    I do discuss all this in the book, in respect of issues such as all-male priesthoods. You really need to read the book! 🙂 But the concept of “right” is so ambiguous and contested (and, arguably, incoherent) that I find it very hard to answer a question when it’s phrased in that way.

  21. At first you say “it’s not necessarily a problem” to require Catholics to cover procedures that are contrary to their own doctrines, because they aren’t being singled out. What I was wondering is whether you would say the same thing about requiring Catholics to cover contraception for employees in their own churches. “It’s not necessarily a problem” too? Actually, now that I reread the post, I see you do say some things about that — there are possible exemptions for conscientious objection, etc. But what about in this instance? Was the Obama administration too flexible when they exempted the churches themselves from having to cover contraception in their own insurance policies? I don’t have an opinion myself (yet)–I’m just wondering what you think.

    p.s. I do have your book, but I haven’t gotten to the relevant chapter yet.

  22. s. wallerstein (amos)


    For those of us who are unlikely to run into your book in our local bookstore or public library (I live in Chile), could you blog on what your views are on this subject?

    Thank you.

  23. Jean – you star! I hope you like the book when you get to it.

    Jean and amos – I’m happy to say a little bit more about it in a separate post at some point. Part of the trouble is that I think it’s complicated (I need quite a lot of pages in the book to discuss issues of accommodation of religion where it rubs up against neutral, etc., laws of general application … as happens more in modern circumstances since the rise of post-industrial welfare-oriented governments).

    Also, I don’t necessarily think that there are right answers in these situations; they are questions best settled through the democratic process rather than being settled according to legal principles that can be applied by the courts, and different political parties, electorates, governments, etc., might quite properly balance the considerations differently. (Conversely, I think the courts can be pretty good at sniffing out whether a law is actually persecutorial, as with the famous Santeria case in Florida, or are actually framed so as to assist a religious viewpoint. There will still be grey areas, but no worse than the ones the courts deal with every day.)

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