President Obama’s decision to compel Catholic institutions with the exception of houses of worship to provide the full spectrum of healthcare insurance coverages mandated by the Affordable Care Act has been quite controversial. As recently as July 4, Catholic churches and other institutions were engaged in a protest action they called Fortnight4Freedom in an attempt to raise awareness and motivate more citizens to reject this regulation as an infringement of First Amendment protections for freedom of religious expression. The central theme of the Catholic Bishops has been consistent: To require Catholic institutions to provide services that are explicitly forbidden by Catholic theology is religious persecution.
In the theological sense understood by most Christians, the bishops are correct. In words recorded in the gospel of John, Jesus was fairly clear that his followers would be hated and mistreated, and all that behavior, from verbal insults to execution, was understood to be persecution.
If the world hates you, be aware that it hated me before it hated you. If you belonged to the world, the world would love you as its own. Because you do not belong to the world, but I have chosen you out of the world-therefore the world hates you. (John 15:18-19)
Similar statements throughout the gospels prepared the disciples to expect rejection in the form of insults, restriction, imprisonment and death as likely consequences of following Christ. Theologically speaking, any level of intolerance qualifies as persecution.
In a court of law, however, the president’s directive would hardly be regarded as persecution. In order to pursue satisfaction in the courts, the bishops will need to find a different term. The president’s directive does not fall into any neat definition, and that will make it difficult for the bishops to achieve their objective: a conscience exemption for all Catholic institutions from the requirements of the law. Most citizens are familiar with the term “conscientious objectors,” individuals who are drafted into the military along with everyone else, but because of their religion they are exempt from combat assignments. This is a situation the bishops would likely consider to be similar to their own position. They would agree to provide health insurance as long as the services for contraception, abortion and sterilization were carved out. Even though the president does not regard this approach to be reasonable, it is yet to be seen how a court will view it. The real difference between the president and the bishops is not actually about persecution, anyway. The problem lies in two vastly different world views.
Secular thinkers view religious faith with the same kind of condescension parents show for the tooth fairy. They would never try to prevent religious believers of any persuasion from enjoying what seem to secular thinkers to be delusions, but secular thinking wants reason, not religion, to control decisions in the public forum. President Obama, despite numerous statements asserting his Christian faith, behaves administratively more like a secular thinker. From the secular point of view, religion is something that happens in a house of worship, and religious activity consists of recruiting new members, educating members in the religious teachings, and worship. To a secular thinker, hospitals, schools, adoption agencies and the like provide services needed by every human being, and they do not see the provision of these services as an act of religious faith that must be subjected to the same sort of theological scrutiny as a liturgical prayer. In the same vein, they expect every employer who is not a house of worship to hire without regard for religious belief, and they expect the employer not to include the provision of health insurance or any other benefit in any test of religious orthodoxy. They do not think of adherence to a religion as a way of life that shapes every word and deed of the believer.
Further, to a secular thinker, the specific services at issue in the Affordable Care Act are beginning to be considered as universal human rights. As such, it would be unthinkable that somebody’s narrow theology should be permitted to interfere with a right they consider to be almost as fundamental as the air we breathe. President Obama’s assertion that it would be wrong for the government to permit any employer to exclude contraceptive services from employee health benefits makes sense to every secular thinker, because they believe the employer’s religious principles ought not to touch his compliance with laws based on universal human rights. In the thirteen colonies in 1776, a statement that universal human rights were “endowed by their Creator” was not controversial. Today, in any general conversation about human rights, such a notion could easily provoke reactions from mild amusement to real outrage.
To complicate matters further, the Supreme Court has introduced the term “tax” for the fine assessed on noncompliant individuals and employers. This term completely reshapes any argument about the onerous nature of the penalty for non-compliance. Conscience exemptions are not issued for paying taxes. The argument surrounding the use of that term will almost certainly muddy the waters of any legal proceedings on this matter.
This confrontation would have been almost unthinkable fifty years ago. Until the sixties and seventies the culture of the US had an obvious Christian flavor. A predisposition to accede to the sensibilities of Christian leadership dates all the way back to the founding of the country. The Founders were predominantly Christian in their religious preferences, and even those who might have waffled on a variety of Christian theological questions nonetheless adopted the general tenets and the language of Christian faith. Christian ideas were normative in the culture and the government. For example, one of the first official acts of the first Congress was to choose a chaplain. It was considered normal to expect Congress to open with prayer, and the prayer was offered to the God Christians prayed to. Colonists were accustomed to public religious expressions such as “God save the king.” It seemed completely normal to them that government should bow before God as surely as any private citizen might. Public prayer in many settings was common, and the public prayer offered was inevitably Christian. Christian holy days became federal holidays. Nobody apologized for saying “Merry Christmas.”
The culture has changed, as followers of numerous religions and no religion have become more numerous. The government has changed along with it. The kind of accommodations that might have been considered normal in the culture and the government fifty years ago are questioned today. The culture no longer considers itself to be Christian. The culture considers itself to be humanist or secular, and it doesn’t appear to be important which term is used. The government is at pains to be religiously neutral. There is evidence that many habits and customs that seemed normal in the past are being scrutinized closely. The culture is beginning to press for neutral behavior in public. The world view of the population no longer automatically includes any god whatsoever.
Those who study religious persecution observe that there is a great difference between a culture that questions the appropriateness of religious expression in public and a government that arrests, tortures and executes followers of a religion. Students of the subject would say that the current culture is expressing itself in random acts of restriction. The restrictions are expressed in disinformation and confusion over definitions of religious terms and in accusations based on both deliberate and accidental misconceptions. Christians faced with rules against saying “Merry Christmas” and Catholics compelled to pay for contraception, a behavior they consider to be a sin, feel persecuted. So far in the USA there is no physical abuse, no arrest, no confiscation of property, no prohibition on employment, no unrestrained violence against Christians or any other religion, but many Christians feel that they are not respected any longer.
Non-Christians express surprise when Christians talk about persecution, or even insults. They all follow the news, and the news does not report anything remotely like persecution, whatever the definition may be. The confrontation with the bishops is the only argument they are aware of, and maybe, from their viewpoint, that whole story is a tempest in a teapot. There are, however, other stories that flesh out the image of a culture in conflict. The regulation being protested by the Catholic bishops was shortly followed by another regulatory change that went almost unnoticed.
When the Public Service Loan Forgiveness Program was initiated, one way to earn forgiveness of federal student loans was to work for an employer classified as a 501 ( c )(3) not-for-profit corporation. From the beginning, a student could earn forgiveness for a student loan by working in a church, for example, because churches qualify for IRS tax exemption under regulation 501 ( c )(3). The fact that the church existed for the purpose of worship of a specific deity or that the church engaged in activities designed to attract, educate and enroll prospective members was irrelevant. At the end of February, 2012, however, a new provision was added to the program. As of February 28, 2012, student loan forgiveness may not be earned by service in an organization devoted to religious education, worship and or evangelism. (Go here to read the rules. Under the heading “What kinds of employment qualify?” the third paragraph was added at the end of February.) You might say that this makes sense, because the government has no public service interest in religious education, worship or “proselytizing,” a term for activities which Christians consider to be integral to their faith in obedience to the command of Christ to “make disciples.” This change is noted, however, because the rule was revised in the context of an already fractured discussion about the definition of religious liberty.
The USA is changing. People have sued churches because they consider their bells to be “noise” that wakes the neighborhood on Sunday morning. Homeowner associations have sued property owners for hosting home Bible studies because the traffic they generate is a nuisance. Not everyone is proud to pledge allegiance saying, “One nation, under God.” Restaurant owners tell their employees to say “Happy Holidays” to patrons instead of “Merry Christmas.” The era of laws that require stores to close on Sunday is ending. Some Christians feel that they are under attack, even though nobody has thrown a stone or burned anyone at the stake.
The people who demanded and ratified the First Amendment would be quite surprised by these developments. In 1791 the words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” seemed to be very clear. The controversy with the Catholic Bishops, the revised rule for the Public Service Loan Forgiveness Program, and lawsuits about displaying the Ten Commandments on government property make it obvious that the meaning of those words is under discussion. The growing secular voice will contribute much more to the conversation than it did in 1791. Nevertheless, many people have immigrated to the USA precisely because their religious practice was persecuted (according to the legal definition, not the theological one) in other countries. Many citizens who are not Catholic have joined in the protest against what they regard as a real breach of First Amendment protections. This debate is only getting started.