.

If freedom of religion as a concept is to be understood in its fullest sense, it must include freedom from religion. To have the freedom to practice one’s own religion must perforce mean to be free of the impositions of other religions, or of any religion at all. The “no establishment” clause of the First Amendment, later further articulated by Thomas Jefferson, one of the proponents of the clause, as “a wall of separation between Church & State” is the basis of this understanding in law. As part of legal argument, though, we need to consider the discoverable sense of argument, as in my assertion to start.

In his New York Times OpEd, “Contraception, Against Conscience,” Michael P. Warsaw, “president and chief executive officer of EWTN Global Catholic Network, a nonprofit television, radio and media organization,” attempts to make use of organized religion’s version of a clause conservatives otherwise disdain – a religious “elastic” clause.

The administration’s supporters say that by opposing the rule, religious employers like EWTN are guilty of trying to coerce our employees and impose our values on them. But we are simply choosing not to participate in the use of these drugs. Our 350 employees, many of whom are not Catholic, freely choose to work here and can purchase and use contraception if they want to.

Warsaw tries, as Catholics have done on this issue, and many religious do on similar issues, to stretch the meaning of religious practice to encompass any endeavor in the secular world that they declare to be an expression of their faith and its mission. As I have argued before, that claim is elastic enough to encompass any good act – for all the goodness of a believer, the religious person may claim, flows precisely from the religious belief. In conjunction with this elastic argument, this religious position also manifests the belief that the First Amendment’s clause barring any law “prohibiting the free exercise” of religion is not just a protection of religion, but a privileging of it. By these combined arguments, one can argue that any virtuous endeavor by a person of faith in the public square is the practice of religion. I wrote before,

Granted an exemption from the laws that apply to all others, [religious institutions] could carve out of the United States, or any liberal democracy, their own separate society in which the civil protections and government benefits available to all others could be withheld from a discriminated segment of society.

However, the whole point of the Establishment Clause is to prohibit the privileging of religion. The “conscience” argument that Warsaw makes here could be extended – as conservatives have already attempted opportunistically to do against the Affordable Healthcare Act – to carve out any exception to law based upon the dictates of conscience. (That is, unless one will claim a privilege for religious conscience over other moral conscience.) But neither the Constitution nor reason offers such privilege – free of consequence – to conscientious refusal to obey the law. Indeed, the traditional, individual “conscientious objector,” to military service, for instance, or any other state compulsion, has only two options – to submit to the service or be in some way penalized. An employer who objects to covering contraception has one additional option – not to run a business enterprise in the public sphere.

Warsaw’s argument muddies notions of choice and freedom and by whom and how they are expressed. He writes,

we are simply choosing not to participate in the use of these drugs. [Emphasis added]

But that is not so. Beyond any Catholic’s choosing herself not to use these drugs, the Catholic Church wishes, against secular law, to maintain impediments to other people’s using the drugs. It seeks to impose its conscience on others, and in an enterprise that is not the simple free exercise of religious faith and practice. Warsaw further states that employees

freely choose to work here.

Well, similarly, EWTN freely chooses to run a business enterprise in the secular sphere. If EWTN does not like the rules, it need not play the game. More, though, this freedom to work claim manifests a kind of corporatism. The economic realities of life are such that the suggestion that people may freely, easily choose and change employment at no great, even long-term cost to themselves is simply fraudulent. Who is going to change jobs over contraception coverage? So the corporations – the business organizations – get to choose, according to “conscience” what secular laws they will obey, and the workers will live in the United Corporate and Business Enterprises of America.

Warsaw confuses, too, the nature of “coercion” in the enforcement of law.

[I]t is the government — which does not accept EWTN’s religious choice and can punish that choice by imposing fines — that is coercing us. But under the Constitution and federal religious liberties law, we cannot be forced to give up our beliefs as the price of participation in the public square.

Does Warsaw understand how law presides, what gives it force? All law stands, first, in the governed’s respect for it, but in the last resort on the basis of its enforcement, which is coercion. We are coerced to stop at red lights. So, yes, the government is coercing EWTN, and every employer in the country, as the product of a democratic legislative process, to abide by the requirements of the AHA. No one at EWTN is being “forced to give up our beliefs as the price of participation in the public square.” First, people are not being forced to give up their beliefs – if that belief is a personal opposition to birth control. They are free to practice that belief. Is the belief, rather, that EWTN should have the right to impose impediments to the rights of others, established by law? Indeed, they must give up the practice of such a religious imposition on the lives of others. Neither Catholics nor any other Americans have a right to it. Catholic enterprises are not being “forced to give up our beliefs as the price of participation in the public square.” Catholics may maintain and practice their beliefs anywhere. They simply may not impose them on others.

The price of participation in the public square is not the sacrifice of belief, but the obedience to secular law. It is a most fundamental understanding of freedom in a democracy that the boundaries of an individual’s freedoms are shaped by the boundaries of others. Freedom of religion – one’s own – entails freedom from religion, from any religion and from all. The Catholic Church, and, in reality, here now a media company, are seeking a discriminatory privilege that violates both the spirit of our democracy and the boundaries, as well as the free expression, the Constitution sought to establish for religion in the United States.

AJA

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2 comments

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David S. Simpson March 9, 2012 at 2:05 pm

AJ,
Terrific writing; well thought out and insightful. Thanks for injecting some sanity into a public debate, that I for one never thought would gain the traction that it has, thus again another example of the upside down world we currently occupy. It never ceases to amaze me as to the lengths the political world (in concert with mainstream media) will go in an effort to obfuscate the real problems we are facing, i.e education, soaring debt, economic stress, world unrest, etc. A leading politico could have recited your essay from his/her national platform and rendered this discussion moot weeks ago. But as is the nature of modern politics, solving problems translates to less fund raising and less fund raising suggests losing the next election. And let’s face it, being a Member of Congress has it’s privileges…

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A. Jay Adler March 10, 2012 at 7:56 am

And thank you, David, for returning some sanity to the comments section.

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