Don't Trample Religious Freedom

From: Baltimore Sun Date: Dec. 7, 2011 Author: John Garvey Majority rule cannot always prevail when fundamental values are at stake

There has been a lot of discussion in these pages about a recent statement on religious liberty issued by Maryland's Catholic bishops. Unfortunately, the discussion has ignored most of what the bishops had to say. It has focused almost exclusively on the Catholic Church's opposition to same-sex marriage - an issue the state legislature may revisit in its next session. Let us leave that controversy aside for the moment and consider what the bishops actually said.

The bishops' statement, "The Most Sacred of All Property," takes its title from an essay by James Madison. Most of our rights, Madison said, depend on positive law. I can keep you off my property because the state has created and enforces the law of trespass. But the right to religious liberty, "the most sacred of all property," is "natural and unalienable." It is unalienable, Madison said elsewhere, because "what is here a right towards men, is a duty towards the Creator. ... This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society."

So the right to religious freedom - the first freedom mentioned in the bill of rights - was of great importance to the framers of our Constitution. It is also an essential prescription for a tolerant society. In his famous "Memorial and Remonstrance," Madison praised "that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced." By contrast, "[t]orrents of blood have been spilt in the old world, by vain attempts of the secular arm to extinguish Religious discord."

Religious liberty is not just an inalienable right and a prescription for social harmony. It makes an integral contribution to the common good. Religious organizations provide social services, hospitals, health clinics, schools and universities, shelters and food pantries. Religious groups provide a voice for the voiceless. Quakers led the movement for the abolition of slavery. The Catholic Church provided an early defense of organized labor. The Southern Christian Leadership Conference was the conscience of the civil rights movement.

The bishops explain these points in the most temperate language and then proceed to ask, essentially, for the right to be left alone. Well, they do ask for one thing more: an equal right to participate in the democratic process. But apart from that, the statement points to cases like these:

• A Connecticut bill that would have turned control of Catholic parishes over to lay boards elected by the congregation.
• A Baltimore ordinance that forced pro-life pregnancy resource centers to post signs listing services (like abortions) they don't provide.
• An Illinois regulation that forced pro-life pharmacists to sell emergency contraceptives.
• A Department of Health and Human Services regulation that forces health insurance plans (including those run by religious organizations) to cover surgical sterilization, birth control, and prescriptions that induce early-term abortions.

The first two examples involve laws that discriminate against religious groups, something the First Amendment simply does not permit. The second two are cases where the government insists on forcing religious people to act against their consciences. Our tradition of religious freedom also points to an easy and low-cost legislative resolution of this problem: Leave the law standing, but exempt conscientious objectors. This is what we did with the military draft.

Let me return now to the issue of same-sex marriage. (And I want to emphasize that the 12-page document devoted only three paragraphs to it.) The Catholic Church, like many others, opposes a redefinition of marriage. But the statement does not argue that point. Insofar as the subjects of marriage and religious liberty overlap, the issue is not whether gays can marry, but whether the government should require religious dissenters to affirm and support such unions. The statement referred to:

• a New Jersey law that required a Methodist church to offer its tax-exempt property for civil unions; and
• a District of Columbia law that requires Catholic Charities to provide adoption and foster-care services to gay couples.

In a society as complex and diverse as ours is, it is easy to understand how people of good will can disagree about many of these issues. The virtue of a democratic society is that it allows us to reach resolutions that are most widely acceptable and (usually) wise. But in a liberal democratic society, we must also respect the freedom of religion.

To again quote Madison: "True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true, that the majority may trespass on the rights of the minority."

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