Religious freedom is not a ‘second-class right’

A rosary is held in the hand of a walker during a “Rosary Walk” rally supporting religious freedom. Over 100 … Continued


A rosary is held in the hand of a walker during a “Rosary Walk” rally supporting religious freedom. Over 100 people from through out the Belleville Diocese participated in the walk and mass at St. Peter’s Cathedral in Belleville, Illinois. The walk was in response to the recent U.S. Department of Health and Human Services mandate that requires private health care plans to provide coverage of contraceptives. (AP)

The recently-erupted scandal over efforts by IRS officials to penalize conservative organizations has taken Washington and the country by surprise. Few scandals in recent decades have captured the public discourse so quickly or completely.

But careful observers of this “new” scandal will see that it fits a larger pattern of governmental efforts to use state power to enforce ideological conformity. Nowhere is that pattern more evident than in the realm of religious freedom where recent years have seen efforts, both subtle and overt, to squelch diversity of ideas.

No one in the United States is at risk of being tortured or killed by the government on account of his or her religious beliefs, as is the case in many other countries. But as the old Woody Guthrie song goes, “Some rob you with a six gun and some with a fountain pen.” Today, millions of Americans whose religious convictions conflict with government-favored policies on abortion and same-sex marriage are increasingly subjected to penalties and classified as enemies of government policy. And official insistence that religious providers of health, educational and social services cooperate with government’s ideological programs threatens a death blow to the diversity that has made our vibrant civil society one of the wonders of the world.

The gravity of the situation is clear from the fact that religious freedom itself is in danger of becoming a second-class right. Rather than seeking to resolve tensions among religious beliefs, sexual conduct and marital status in a way that respects diversity, dissent and difference, government functionaries seem all too ready to allow religious liberty to be trumped by a range of competing interests. A telling sign is the preference of governmental spokespersons to substitute the expression “freedom of worship” for “freedom of religion.” That is a radical departure from the traditional understanding of religious liberty as a broad array of rights to live out our beliefs as our conscience leads us, alone or with others, in public as well as in private.

Instead of fostering discord in the body politic or attempting to make everyone think in lockstep, our policy makers would do well to be more respectful of the American tradition of pluralism. At the most fundamental level, those wielding governmental power must recognize that disagreement is not discrimination. Disagreement is an essential part of any democratic system. Conflicting ideas and diverging worldviews are signs of a healthy society.

Government officials would also do well to attend to respected defenders of gay rights, women’s rights and religious freedom like South African Justice Albie Sachs, who warned in a leading constitutional decision that to devalue religious liberty is to undermine other human rights. “Freedom of religion,” he said, “goes beyond protecting the inviolability of the individual conscience; religious belief has the capacity to awaken concepts of self-worth and human dignity which form the cornerstone of human rights.”

In the past when faced with McCarthyism or “Red Scares,” Americans have recognized and rejected efforts to turn us into cookie-cutter citizens who all think the same way. The American people seem to be rising to the present challenge as well, if one may judge by the remarkable reaction to the federal mandate that would force virtually all employers to facilitate and fund insurance coverage of abortion-causing drugs. Though that mandate is but the tip of a looming iceberg, it has drawn more public comments than any previous regulatory proposal–over 400,000. Opposition to the mandate has galvanized a historic interfaith coalition and triggered the largest wave of religious freedom litigation in the nation’s history.

Government officials and their ideological confederates in the commentariat have been slower to grasp that people in a free society should not be forced to choose between transcendent obligations and the privileges of citizenship. Indeed, one pundit recently ridiculed vigorous defenders of religious freedom as “alarmist” and “Cassandra-like” for insisting that current threats to the first of American freedoms are real and serious. He apparently forgot that Cassandra correctly foretold the destruction of Troy. The problem was that no one believed her.

Mary Ann Glendon is the Learned Hand Professor of Law at Harvard University.

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