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State Rules on Religious Liberty

Commenting on my last post regarding the USCCB's latest statement on religious liberty, ctdkite writes:

The point of the document--and the issue that has raised public concern--is how did respect for religious liberty diminish to such a degree that public officials would even think of requiring adoption agencies to place children in homes against their religious beliefs or require a religious entity to cover procedures against their conscience and so on.

The answer is that changing civil norms always pose new challenges for weighing free exercise rights against others that are also constitutionally guaranteed. In jurisdictions where same-sex couples have been accorded the same legal rights as married couples, their access to adoption services underwritten by the state--secured by the Fourteenth Amendment's guarantee of equal protection--must be weighed against a religious adoption agency's free exercise right not to acknowledge such relationships. Likewise, a woman's right to obtain legally prescribed contraception coverage must be weighed against an employer's right to a exception from providing such coverage on religious grounds. And so on.

Reasonable people may disagree about how the balancing should be done, but it is nonsense for the bishops to pretend that the religious liberty that they see as under threat is somehow absolute. No one can doubt that refusal of blood transfusions is central to the faith of Jehovah's Witnesses, but states have increasingly not permitted them to deny transfusions for their children in life-threatening situations. No one would deny that the practice of polygamy is central to the faith of fundamentalist Mormons, but would the USCCB support that right under the First Amendment? I don't think so.

"Religious liberty is not only about our ability to go to Mass on Sunday or pray the Rosary at home," say the bishops. "It is about whether we can make our contribution to the common good of all Americans." No doubt, a case could be made that the Catholic Church could contribute to the common good by going into the public schools and making the case for Catholicism in the same way that the League of Women Voters can go into the public schools and make the case for participatation in our electoral system. But this would clearly represent a violation of the Establishment Clause. 

It would be nice if the bishops could stop hyperventilating and acknowledge that what they call the "American public square" involves constant negotiation of the boundaries of free exercise and no establishment. It does not mean that religious bodies get to do whatever they'd like.

Topics: Politics, Law & Court
Tags: usccb


  1. Focusing on liberty, both religious and otherwise, many of these questions can be resolved.  The fact is that the refusal of many religious people to participate in and facilitate same sex marriage does NOT impinge on the freedom, religoous or otherwise, of homosexuals.  They can get equivalent services elsewhere, especially when they are not of an emergency nature where life is at risk.  If Catholic social agencies were the ONLY way that anyone could arrange an adoption, ensuring that such agencies accommodated same-sex couples might have an argument of encessity, but the fact is that there are any number of alternatives available, just as there is no necessity to force a Catholic priest to perform a same sex marriage ceremony.  Respect for the liberty of BOTH same sex couples and Catholic adoption services can coexist. 

    The right of a person to purchase contraceptive medications and other means of contraception can be exercised separate from questions of having it paid for by insurance.  Indeed, given the relatively low cost of such services, and the entirely predictable nature of the cost, why they need to be covered by insurance rather than simply budgeted for by the persons who want them is a legitimate question.  Many people desire to have corrective eye surgery, but there is no clear reason why the cost of such a service has to be shared by people who do not use the service when the individual can simply budget for it. 

    It is ironic that you would raise the question of the religious freedom of polygamists whose practice grows out of a religious belief.  While the US Supreme Court ruled in the Reynolds case over a century ago that the government has the right to prescribe the practice of marriage it will recognize, regardless of such religious beliefs, the fundamental right of government to prescribe the form of marriage is now being attacked in state and federal courts.  Any theory which deprives the state or federal governments of the authority to prescribe the form and practice of marriage with regard to it requiring a male and a female, can also deprive the state of the authority to limit marriage to only one spouse, especially since there is ample precedent in the world at large for polygamy as a formally recognized form of marriage, and there is de facto practice of a kind of polygamy among men with both wives and mistresses.  The Canadian court ruling recently that polygamy is not acceptable because of sociologically deduced harms to wives or children in such families is not founded on any legal principle, but rather on the variable whims of a particuylar judge and his prejudices.  Certainly there is no evidence that shows that same sex marriage has even been evaluated for its potential long term effects on individuals or on society generally.  If the state lacks the authority to prevent same sex marriage, it also lacks authority to prevent people from contracting other relationships that are entitled ot legal recognition as marriage.  For example, what prevents a woman married to a man from simply adding a same sex marraige to another woman to her repertoire of relationships?  If the state has forfeited the power to prescribe what marriage is, how does it retain any power to prescribe?  The dissenting justices in the original California Supreme Court ruling that required the response of Proposition 8 pointed out the inevitable logic that would require the state to give legal recognition to polygamy as well as adult incest.

  2. coltakashi—
    You’re right: the balance could be tipped toward religious liberty on adoption and contraception, if the state chose to go that direction. But on marriage you miss my point entirely. I am in fact asserting that the state does have the right to define marriage, and I’m perfectly comfortable with a definition of marriage that includes monogamists of any genders but excludes polygamists. The question is for those (like the bishops) who are asserting a very strong if not absolute right of religious liberty. On what grounds do they (you?) accord the state the power to trump religious liberty with respect to marriage but not with orphans—i.e. wards of the state? It’s not the right of the state to define marriage that’s being attacked, it’s the the legitimacy of legislatures to limit marriage to opposite-sex couples, in the face of state guarantees of equal protection under the Constitution. But the Constitution does not stand apart from the state—and in fact could be amended (as some propose) to bar same-sex marriage.

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