Home >> Volume 5, Issue 01

The Coming Counter-Reformation in Religious Freedom: How the Contraception Mandate Will Expand American Constitutional Law Beyond Its Liberal Protestant Origins

Matthew P. Cavedon

In the next year or so, the U.S. Supreme Court will decide whether President Obama’s contraception mandate is constitutional.1 When it does, it will apply the First Amendment’s protections for religious freedom. Those protections were designed—and have largely been applied by the Court—with a liberal Protestant paradigm in mind, primarily covering a private right to belief and worship.2

This framework does not easily cover the mandate controversy, as institutions are demanding the right to honor what they consider a collective religious imperative in their public affairs. That imperative has little to do with prayer and liturgy. The insufficiency of the old First Amendment model, and the importance of the mandate controversy, means the Supreme Court’s eventual decision will have a major impact on religious freedom jurisprudence. The Court is on the verge of a counter-reformation for religious freedom—coming to acknowledge religion’s institutional and public character, protect it, and honor religious liberty in ways beyond those imagined by earlier liberal American Protestants.

Naturally enough in a predominantly Protestant country, much early American thinking about religious liberty considered it as a private right, pertaining to worship and belief. Roger Williams asserted liberty in “professing doctrine, or practicing worship merely religious or spiritual.”3 Likewise, William Penn’s Frame of Government of Pennsylvania protected liberty in “religious persuasion, or practice, in matters of faith and worship.”4 Williams, Penn, and other early Americans made private rights of conscience and prayer the center of their notion of liberty.

Thomas Jefferson did, too, when he crafted Virginia’s 1786 Act for Establishing Religious Freedom. The Act grounded religious liberty in a private, conscience-based understanding of religion. “Well aware that Almighty God hath created the mind free,” the Act claimed that impious civil and ecclesiastical authorities had “assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible.” It declared that “our civil rights have no dependence on our religious opinions, more than our opinions in physics or geometry,” and proclaimed “all men . . . free to profess, and by argument to maintain, their opinions in matters of religion.”5 Even John Adams, a Puritan from Massachusetts where religion was community life’s founding principle,6 defined religious liberty in terms of freedoms to “worship[] God in the manner and season most agreeable to the dictates of [the] conscience” and maintain “religious profession or sentiments.”7 Neither Jefferson nor Adams spoke of church autonomy, collective manifestations of belief, or robust rights of conscience that carry over from the pew to the public market. Their philosophy, like anyone’s, was limited by their intellectual context.

In the years since independence, America has become very religiously diverse. Nineteenth-century immigration brought millions of Jews and Catholics, for whom religion is about ritual and ethics as well as private belief. Mormons, who belong to a homegrown church dating to the same period, also emphasize their institutional life. More recently, large populations of Muslims, Buddhists, Hindus, and others have come to America. Each of these religious traditions understands how religion impacts belief, ceremonies, community life, social engagement, and personal ethical commitments differently.

But for its first two centuries, American constitutional law largely retained the focus on private belief and worship of its liberal Protestant founders. There is some recognition of claims to religious liberty regarding public action—America has recognized the right of conscientious objection to military service since its founding,8 and a long series of Supreme Court cases protect people from having to work on days they consider holy.9 Institutional religious freedom has been recognized at times too, especially in settling intrachurch property disputes10 and hiring ecclesiastical leaders.11

The law’s logic, though, is still that religion is primarily a private right pertaining to doctrine and whispered supplications to God, not a public right available to both individuals and institutions when they feel pressure regarding religiously-inspired action. In a seminal 1990 case, the Supreme Court recognized that religion “often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation.”12 However, it still limited the First Amendment’s protections to immunity from laws that “ban such acts only when they are engaged in for religious reasons, or only because of the religious belief that they display.”13 In other words, the Constitution only protects action motivated by religion when a law targets the private belief underlying it.14

Institutional religious freedom is weak, too. From the start, many Americans understood disestablishment of religion to include “prohibiting the incorporation of churches, confiscating property, and limiting the amount of real and personal property that churches [could] own.”15 Religious institutions could not turn to liberty as a defense. Though they enjoy more protections now than they once did, institutions still lack full constitutional protection of their religious liberty, as seen by the Court’s 1979 decision in Jones v. Wolf.16 That case concerned an intrachurch property dispute, one of the few areas where institutions traditionally received strong recognition of their religious liberty.17 Unfortunately, the Court retreated from its earlier approach, allowing “neutral principles of law” to override the church’s own mechanisms for settling disputes among its members.18

Nearly three and a half centuries after Jefferson and Adams framed religious liberty according to the liberal Protestant notions with which they were most familiar, America is stuck trying to fit an old constitutional jurisprudence to a very pluralistic society.19 It is not working, and several Supreme Court justices know it. In a case last year concerning constitutional protections for a church hiring a minister, Justices Alito and Kagan wrote separately to note that “the concept of ordination as understood by most Christian churches and by Judaism has no clear counterpart in some Christian denominations and some other religions.”20 “Because virtually every religion in the world is represented in the population of the United States,” the Court needed robust protection for institutions to choose “who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”21 This kind of broad protection for institutional religious freedom—taking account of diverse ways of conceiving of organized communities—is encouraging.

Justice Ginsburg’s opinion in last year’s Obamacare decision,22 joined by Justices Sotomayor, Breyer, and Kagan, gives more reason for hope regarding the Court’s changing mentality. “A mandate to purchase a particular product would be unconstitutional,” she wrote, if it “interfered with the free exercise of religion.”23 Ever since the New Deal, commercial exchange has been a thoroughly public act, one fully subject to regulation.24 Resisting years of precedent limiting the First Amendment to private beliefs and worship, four Supreme Court justices said religious protections apply to market activity.

The contraception mandate will give Justices Alito, Kagan, Ginsburg, Sotomayor, and Breyer the opportunity to prove that they mean what they write. The mandate restricts the freedom of institutions—including universities, hospitals, and for-profit businesses25—to put into public action their professed religious beliefs. Under conventional jurisprudence, which only protects private adherence to doctrines and worship itself, none of these groups would stand a chance. They are not the people that early liberal Protestants imagined claiming religious liberty.

Yet their consciences remain in peril, and they find it impossible to separate their private beliefs from their public action. If the protection of the religious commitments and conscientious integrity of Americans is not the very essence of First Amendment religious liberty, what is? Should the Court remain bound to an old jurisprudence based on old liberal Protestant notions of religion, it will become complicit in violating the rights of the many Americans who conceive of their religion and obligations differently. It will impose one idea of what religion means on millions of Americans.

It will, in short, require what Roger Williams argued God does not: “enforced uniformity.”26 Instead, the time has arrived for the Court to have its own counter-reformation, undoing the excessively narrow understanding of the past by developing a new notion of religious freedom: institutional as well as individual, public as well as private. Five justices have indicated that they are willing to lead the way. As long as they keep their principles in mind, they can inaugurate a religious liberty jurisprudence compatible with the pluralist society America has become.

Every constitutional principle has a history. But to have a future, each must find ways to honor the beliefs and needs of all citizens. Religious freedom is no exception.

1 For more on the mandate and the controversy surrounding it, see “The Contraception Mandate and Religious Liberty,” Pew Forum on Religion & Public Life, last updated February 1, 2013, http://www.pewforum.org/Government/The-Contraception-Mandate-and-Religious-Liberty.aspx. For an update on current litigation challenging the mandate, see “HHS Mandate Information Central,” Becket Fund for Religious Liberty, accessed March 1, 2013, http://www.becketfund.org/hhsinformationcentral/.

2 Talal Asad discusses the academic influence of this view, “that liberal religion should primarily take the form of private belief,” in “Thinking About Religion, Belief, and Politics,” in Cambridge Companion to Religious Studies, ed. Robert Orsi (Cambridge: Cambridge University Press, 2011) 36-57.

3 Roger Williams, The Bloudy Tenent of Persecution, for Cause of Conscience, Discussed in a Conference Between Truth and Peace (London: 1644), accessed March 1, 2013, http://www.reformedreader.org/rbb/williams/btp.htm.

4 William Penn, “Frame of Government of Pennsylvania” (May 5, 1682), accessed March 1, 2013, http://avalon.law.yale.edu/17th_century/pa04.asp.

5 Thomas Jefferson, “The Virginia Act for Establishing Religious Freedom” (1786), accessed March 1, 2013, http://religiousfreedom.lib.virginia.edu/sacred/vaact.html.

6 John Witte, Religion and the American Constitutional Experiment (Boulder, CO: Westview Press, 2011), 23.

7 Constitution of Massachusetts. 1780. Accessed March 1, 2013. http://www.nhinet.org/ccs/docs/ma-1780.htm.

8 Witte, Religion and the American Constitutional Experiment, 43-45.

9 Sherbert v. Verner, 374 U.S. 398 (1963), WestlawNext. The Court, at 403, still noted that it often “rejected challenges … to governmental regulation of certain overt acts prompted by religious beliefs or principles” (emphasis added). Frazee v. Illinois Department of Employment Security, 489 U.S. 829 (1989), WestlawNext.

10 Watson v. Jones, 80 U.S. 679 (1872), WestlawNext; Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952), WestlawNext. The latter of these two cases, at 116, noted “a spirit of freedom for religious organizations, an independence from secular control or manipulation” in “matters of church government as well as those of faith and doctrine.”

11 Church of the Holy Trinity v. United States, 143 U.S. 457 (1892), WestlawNext. That case did not interpret the Constitution, though—it concerned an immigration statute. Last year’s Hosanna-Tabor Evangelical Church and School v. Equal Employment Opportunity Commission, 132 S.Ct. 694, 706 (2012), WestlawNext, held that a religious group has a “right to shape its own faith and mission through its appointments,” but still stopped short of endorsing a general institutional protection of religious liberty under the First Amendment.

12 Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 877 (1990), WestlawNext. The case concerned whether a member of the Native American Church fired from his job for using sacramental peyote during his off-hours could receive state unemployment benefits.

13 Id. (emphases added).

14 Ironically, this opinion reaffirming the classical liberal Protestant idea of religious liberty was written by Justice Scalia, a conservative Catholic whose church strongly emphasizes the public implications of doctrine.

15 Staver, Mathew D. and Anita L., “Disestablishmentarianism Collides with the First Amendment: The Ghost Thomas Jefferson Still Haunts Churches,” 33 Cumberland Law Review 43 (2002–03).

16 Jones v. Wolf, 443 U.S. 595 (1979), WestlawNext.

17 See footnote 11 and accompanying text above at 3.

18 Jones, 443 U.S. at 604.

19 For current estimates of religious demographics among Americans, see “U.S. Religious Landscape Survey,” Pew Forum on Religion & Public Life, February 2008, accessed March 2, 2013, http://religions.pewforum.org/pdf/report-religious-landscape-study-full.pdf.

20 Hosanna-Tabor Evangelical Lutheran Church and School, 132 S.Ct. at 711 (J. Alito, concurring).

21 Id. at 711-12.

22 National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012), WestlawNext (J. Ginsburg, concurring).

23 Id. at 2624.

24 See United States v. Carolene Products Co., 304 U.S. 144, 152 (1938), WestlawNext.

25 See “HHS Mandate Information Central.”

26 Williams, Bloudy Tenent.