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The Supreme Court’s Religious Freedom Mess

Tuesday, November 1st, 2011

Some day, maybe, if we wish hard enough and clap until Tinkerbell’s light comes back on, the Supreme Court will fix the mess that it’s made of First Amendment religion jurisprudence.

Plain Meaning

The First Amendment deals with two basic categories of religious rights in the Establishment Clause and the Free Exercise Clause. They read as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

At the time that the First Amendment was enacted, these provisions only applied to Congress, but since then the Supreme Court has applied it to the states as well, under the theory that they were incorporated into the Fourteenth Amendment’s limitations on state power. Also, at the time that the Amendment was enacted, the meaning of these phrases was pretty self-evident.

The Establishment Clause meant that there could be no “established church” — namely, a church that had enjoyed special legal status, that received unique privileges under the law, and that all citizens were either required to belong to or financially support. Established churches were the norm in most European countries at that time, so our Founding Fathers knew well what it meant — all citizens would experience legal coercion to belong to that church, or would suffer penalties for not belonging.

The Free Exercise Clause was also well understood at the time. It meant that the government could not forbid, restrict, or penalize people from practicing their faith. This provision guaranteed that — in the words of the Maryland Toleration Act of 1649 — people would not be “troubled, molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof”. Perhaps the best statement of the well-understood meaning of the Free Exercise Clause was by George Washington, in his letter to the Jewish population of Newport, Rhode Island:

The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.

As we all know well, one of the main reasons that people have come to America was to enjoy these guarantees of religious freedom. That was true in the colonial era, and it remains true now.

Unfortunately, the Supreme Court has made a complete hash of the religion clauses of the First Amendment, with the result that the freedoms they guarantee have become threatened.

The Establishment Clause Muddle

The most recent example of this came the other day, when the Supreme Court declined to hear an appeal in a case arising out of Utah. A private organization was founded to recognize and remember state troopers who died in the line of duty on the highways of that state. They worked with family members to erect a memorial cross (or another symbol, at the choice of the family) near the site of the trooper’s death. They obtained permission from the state highway authorities to do so, with the understanding that the state did not pay for or endorse the symbol erected.

Naturally, a group of Christophobic atheists brought suit, claiming that the erection of the memorials violated the Establishment Clause. The theory was that the use of the cross as a symbol of remembrance would signal that somehow the State of Utah was endorsing the Christian religion — a particular irony, since the majority of citizens of that state are not Christians, but Mormons.

Anyone who reads the bare words of the Establishment Clause, and considers its original and plain meaning, would find this an easy case — permitting private people to put up a memorial cross on the side of the road does nothing to create a state church, and there’s nothing in such a gesture that would coerce anyone into joining or supporting any such church, or would penalize anyone for not joining.

Sadly, the Supreme Court’s religion jurisprudence is such a mess that the federal Court of Appeals ruled that the memorial crosses violated the Establishment Clause, and the Supreme Court declined to review the case. Justice Clarence Thomas, in his dissent from the Court’s ducking of the issue, commented on the absurdity of it all:

Since the inception of the endorsement test, we have learned that a creche displayed on government property violates the Establishment Clause, except when it doesn’t… Likewise, a menorah displayed on government property violates the Establishment Clause, except when it doesn’t… A display of the Ten Commandments on government property also violates the Establishment Clause, except when it doesn’t… Finally, a cross displayed on government property violates the Establishment Clause, as the Tenth Circuit held here, except when it doesn’t… Such arbitrariness is the product of an Establishment Clause jurisprudence that does nothing to constrain judicial discretion.

The Empty Free Exercise Clause

The Supreme Court has not shown much more wisdom in interpreting the Free Exercise Clause, and in fact has virtually emptied it of any meaning.

In the case of Employment Division v. Smith (1990), the Court was faced with a case involving the denial of unemployment benefits to several Native Americans, under a rule that denied benefits to anyone who couldn’t pass a drug test. But the reason they couldn’t pass the test is because they used the drug peyote in their religious practices — much as we use wine at Mass. They challenged the law, claiming that it would force them to violate their religious beliefs.

At that time, the Native Americans looked to have a good case. The Supreme Court had previously held that a law could not substantially burden a person’s exercise of religion unless the government had a compelling interest and the law was narrowly defined to serve that interest. Under that standard, it would appear that the use of ritual peyote — much like the use of sacramental wine, in the face of blanket alcohol prohibitions — would have to be permitted as an exception to the law.

The Supreme Court instead changed the rules, and held that they were properly denied the benefits. The Court held that the government is not required under the Constitution to grant exceptions to neutral laws that apply to all people, even if that law imposes a burden on a person’s religious liberty. In essence, the Court said that the government can require a person to forego their religious practices — to give up their sacraments — in order to qualify for benefits.

In one decision, the Court essentially gutted the Free Exercise clause. The irony is that the majority opinion was by a man whose religion is frequently a subject for attention and comment — Justice Scalia, who is a Catholic.

Where this Leaves Us

These may seem like arcane bits of legal doctrine, but they are highly relevant to a central issue facing us at this time — the extent of religious liberty in the United States. Policies and laws are being pursued that disqualify Christian and Catholic people from full participation in society, and that penalize churches that disagree with or refuse to comply with government policies.

If applied according to their plain meaning, the Establishment and Free Exercise Clauses would offer protection from such measures. Sadly, the Supreme Court has made such a mess of things that the First Amendment may offer little protection to those whose ancestors who came here to America seeking religious liberty.

Tags: Religious Liberty, Supreme Court
Posted in Religion in Public Life, Supreme Court | 2 Comments »

We are Now Enemies of the State

Friday, October 21st, 2011

I have been warning for some time about the intolerance that we are likely to face from the forces of “tolerance” who backed the bill legalizing same-sex “marriage” here in New York.

The other day, the impending persecution became even clearer, as Governor Cuomo, the highest public official of New York State, declared us to be enemies of the state and nation.

He was speaking to a group of “gay rights” advocates about the process that led to the passage of the so-called “Marriage Equality Act”. He was remarkably candid about that process, including interesting remarks about the power of money in buying votes, and the behind-the-scenes negotiations for votes. (By the way, this account of the event comes from the “Gay City News” — I refuse to link to such a source, so you’ll have to take my word for it).

When asked if he found persuasive any arguments offered by the opposition to re-defining marriage, this is what the Governor of all New Yorkers said:

“There is no answer from the opposition. There really isn’t. Ultimately, it’s, ‘I want to discriminate.’ And that’s anti-New York. It’s anti-American.”

Savor that quotation for a moment, and drink in the depth of its arrogance, contempt, and hostility.

No answer by defenders of marriage?

Not the thorough and comprehensive philosophical arguments rooted in natural law, offered by Sherif Girgis, Robert George and their colleagues?

Not the repeated statements of the United States Bishops and the New York State Bishops?

Not the arguments offered by the public in the 41 states that have rejected the re-definition of marriage?

Not the arguments that were deemed persuasive by 85 Senators, 342 Representatives, and President Clinton when the Defense of Marriage Act was passed in 1996?

Not the arguments offered by Mr. Cuomo’s predecessor as state Attorney General, Eliot Spitzer, that were found persuasive by our Court of Appeals in the case upholding the real definition of marriage?

Not the arguments we were giving legislators in the hallways of the State Capitol and their home offices, for weeks prior to the vote?

In reality, Mr. Cuomo doesn’t just disagree with our arguments, he denies their existence. He clearly believes that they are pernicious, beyond the pale of proper discourse, and motivated only by hatred.

That is why he has now declared that we are “anti-American” — that is to say, enemies of our nation.

Those of us who have memories of American history are deeply angered and disturbed by such rhetoric. We recall a time when Catholics (and the Irish in particular) were deemed to be a threat to America, and were openly persecuted. We thought that we were past those days, but obviously they are returning.

And remember, the Governor’s thuggish remarks don’t just target the Catholic Church, but also the Orthodox Jewish community, the Evangelical Christian community, many mainline Protestant Churches and Muslims, and others of no religious faith who all believe in the authentic, traditional meaning of marriage.

It is a chilling moment when the top elected official of our state — a man who took an oath to uphold the Constitutions of our state and nation — has declared that so many people are political pariahs. When he calls us enemies of the state.

This is legitimately frightening. We all know what the power of the state can do to its enemies.

Tags: Religious Liberty, Same-Sex "Marriage"
Posted in Catholic Public Officials, Conscience, Governor, Religious Liberty, Same-Sex "Marriage" | 104 Comments »

The Catholic Lawyers’ Moment

Friday, October 7th, 2011

Last night, I was honored to receive a very nice award — the Charles Carroll Award from the New York Guild of Catholic Lawyers. Many of my friends and colleagues were able to attend the Red Mass and the reception afterwards, and it was a very humbling experience. Here is the talk I gave at the award ceremony:

All Glory and Honor to God, and thanks to Him for the opportunity He has given me to serve Him. “I can do all things in Him who strengthens me.”

I don’t like speaking about myself, but fortunately I don’t have to, because this award is really not about me. It’s about a cause.

I have been involved in public policy work for the Archdiocese for many years. It’s a tough job, especially here in New York. Back in June, the Legislature voted to re-define marriage, a bill we worked very, very hard to hold off. Afterwards, I was asked how I can keep doing this, how I avoid getting discouraged. Part of it is because I’m Irish, and I love a cause that’s worth fighting for, even if it is against all odds.

But it’s also because I see a big picture, one that — by the grace of God — gives me great hope and determination.

In 1987, Pastor (later Father) Richard John Neuhaus wrote a book called “The Catholic Moment”. He argued that a unique opportunity had arisen for the Church to offer moral guidance for the development of public policy, particularly in promoting a culture of life.

I believe that we are still in that Catholic Moment, and what’s more, I think there is a particularly important role for Catholic lawyers. I believe that we are in a “Catholic Lawyer’s Moment”.

We all know the challenges. Our world is deeply in the grips of a culture of death. Attacks on human life from conception to natural death. Genetic manipulation that threatens the integrity of humanity itself. Hostility to fertility that is becoming more and more a hallmark of health care policy and practice. A redefinition of marriage, overturning the foundation of society. And increasing threats to the religious freedom of churches and individuals, threats that come from a secularist mindset that would exclude religion entirely from the public square.

In our profession, this secularism finds a partner in a soul-free legal positivism. I recall my first year of law school, where we were taught from the beginning that there are no objective or transcendent values in the law. Natural law was derided as outdated and sectarian. Instead, we were told over and over that law is whatever the legislator or judge decides it is, based on their own values. It is entirely an act of political will. As one of my law professors liked to say, “It’s all up for grabs”. I once gave a talk to a group of lawyers and when I mentioned natural law one of them said to me “I thought we got rid of that years ago.” Really? I’d like to see the bill that did that.

We see this alliance of secularism and legal positivism in many places. Just yesterday, it was before the United States Supreme Court, in the most important religious liberty case in decades. At stake is the ability of churches to operate without interference and control by the government in the selection of clergy and other staff members who have religious functions. A key question for the Court is the nature of religious freedom — is it something inherent that requires special protection in the law, or is it something that the government can grant or withdraw, as it pleases? The Administration filed a brief that took such a narrow view of religious freedom that both Justice Scalia and Justice Kagan expressed their surprise during oral argument.

It is ironic that, even as the secularists try to push religious belief out of public affairs and the positivists deny objective moral truth, there is a strong desire for guidance from the Church and from Catholics. In debate after debate over tough moral issues, the media and public officials and regular people want to know where the Church stands. They expect us to play a major role, and they look to Catholics for direction, even when they are sure to disagree.

In 2008, when the Holy See issued a major statement on bioethics, it was a major news story. The media gave it extensive coverage — even in the New York Times. Leading secular bioethicists and policy makers paid very close attention. The same thing has happened in many other major debates — over the health care bill, the redefinition of marriage, cloning, assisted suicide and so on.

Why? Because there is a hunger for truth and clarity, and Catholics can provide it. We have a rigorously reasoned approach to difficult topics that is the result of careful analysis and has been developing for centuries.

We also have an understanding of the human person that is attractive and compelling — because it is true. The secularist and positivist view of human nature is materialistic, morally relative, and utilitarian. It is pessimistic and hopeless and dehumanizing — and false. And people know that in their hearts.

Our view of the human person is Incarnational. We believe that every human person is made in the image and likeness of God, and we believe that Jesus Christ, true God, became a true man. We know that people aren’t just objects to be discarded when they are no longer useful or have become a burden. We recognize that we are meant to be a gift to others, and not exploit them for our own benefit. We understand that our spirituality is central to who we are, and it can’t be ignored or relegated to the sidelines. I cannot be a religious person in private, and a secularist in the public square — I am not two people, but one. We are realistic about humanity, with all our flaws and problems, but in the end we are positive and hopeful.

We also know that there is objective truth, and there is a law of good and evil that has been written by God into the human heart — the natural law. It appeals to people because it is true, because it speaks to the truth in their hearts. And it gives us a common language for debate with others in the public square.

Two weeks ago, Pope Benedict spoke to the German Parliament about the foundations of law. The Holy Father stressed that politics and law cannot be based solely on a drive for success or power — but that is the inevitable tendency of legal positivism. Instead, he said that all law must be rooted in reason and natural law — only then will it respect the dignity of every human person.

This understanding of law is the antidote to the pessimism and nihilism of the secularists and positivists. It gives us the foundation to uphold what is right and good and most human — polices that embody justice, charity, and the common good, and laws that protect the most vulnerable, and defend freedom and human rights.

We are called to do this in the public square, in our work, in our law practices, and in our everyday lives. I look around the room and see people who are doing this, and I am in awe of them. Supporting organizations and political candidates who defend human life. Filing briefs to defend crisis pregnancy centers or to oppose exploiting women by buying their eggs for cloning. Giving practical assistance to mothers in crisis. Representing doctors and nurses who are facing enormous pressure to sacrifice their religious values and participate in abortions.

And getting into the arena as advocates for justice and truth — that is what we are trained to do, and nobody does it better.

At the end of the fight over marriage in Albany this Spring, the day before the final vote, it was crazy in the Legislature. A key Senator was called off the floor to meet with some constituents. He walked through the corridors — filled with shouting protestors with their anti-religious signs and slogans. There in the hallway, he met with a Catholic family — a husband and wife and their small children. And there, amidst all the chaos and madness, they spoke quietly to him about the nature of marriage, family, and conjugal love. It was a powerful and beautiful moment.

Our society is yearning for that kind of moral leadership. We as Catholics and especially those of us who are Catholic lawyers can respond to that need.

It is very humbling to receive this award, named after Charles Carroll. Two hundred and thirty five years ago, in 1776, he recognized that a special moment had come, and he responded — and signed the Declaration of Independence. That document appealed to the natural law, and proclaimed the inalienable rights given to us by God, including the rights to life, liberty and the pursuit of happiness. Charles Carroll and the other signers pledged to defend those rights with their lives, their fortunes, and their sacred honor.

I hope that none of us will have to risk our lives or fortunes, as Charles Carroll did. But I believe that we now stand at another special time in history, and we too have a cause. We have an opportunity to build a culture of life, to defend the dignity of every human person, to protect families and the vulnerable, to stand up for the liberty of religious people, and to safeguard the freedom of our beloved Church.

We are Catholics, we are Catholic lawyers, and this is our moment. This is a cause for which we can pledge our sacred honor. This is a cause worth fighting for.

Tags: Natural Law, Religious Liberty, Secularism
Posted in Law, Religion in Public Life | 4 Comments »

Secularism in Action — In the Supreme Court

Friday, September 30th, 2011

On October 5, the most important religious liberty case in decades will be argued before the United States Supreme Court. It is yet another instance of the influence of secularism in America, and it may result in a substantial reduction in religious liberty. At stake here is the ability of churches to operate without interference and control by the government, or whether churches will be treated as if they were mere secular organizations.

The case is entitled Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission. To understand why it is so important, I have to take a step back and explain a bit of constitutional law on religious freedom.

The phrase “separation of church and state” does not appear in the United States Constitution, but the basic concept is embodied in two clauses of the First Amendment, as interpreted by the Supreme Court. In a nutshell, the Free Exercise Clause guarantees that the government cannot intervene in the internal affairs of religous organizations, and the Establishment Clause prohibits the government from any “excessive entanglement” in religious matters.

These principles are essential to the guarantee of religious liberty — they protect churches from becoming mere creations of the state, subject to interference by the government. So, for example, under current law it would clearly violate both the Free Exercise Clause and the Establishment Clause if the government were to interfere in a church’s selection of clergy, over how doctrine is taught, or how a church resolves internal ecclesiastical disputes. The First Amendment thus requires that religious organizations enjoy a considerable amount of freedom — a zone of privacy, if you will.

These basic principles have a direct impact on the ability of religous organizations to select their key staff members. The courts have long understood that religious organizations must have considerable autonomy in the selection of clergy and other staff members who have religious missions. They have also recognized that this autonomy occasionally conflicts with the provisions of anti-discrimination laws.

To address this tension, the courts long ago recognized what is called “the ministerial exception” to the anti-discrimination laws. This exception permits churches to select their spiritual leaders — even if that decision would have violated anti-dicrimination statutes had it been done by a business. So, for example, the Catholic Church’s cannot be sued for sex discrimintion based on her all-male clergy. The courts also recognize that this should not be limited to formally-ordained clergy, since many lay staff members play crucial roles in the religious mission of churches — just think of the central role of parochial school teachers, directors of religious education, pastoral associates in parishes, etc. in spiritual life of the Church. Of course, not all employees of a religious organization are “ministers” . For instance, one could not justify classifying a school janitor as a “minister”, since his job is clearly not spiritual in nature.

This brings us to the case before the Supreme Court. The facts of the case are fairly straight-forward. It involves a dispute between the Hosanna-Tabor School and one of their former teachers. The teacher alleged that she was fired in retaliation for threatening to file a disability claim, in violation of federal anti-discrimination laws. The school responded that she was a ministerial employee, whose job entailed a specifically religous mission for which she was commissioned by the church, and that as a result, the school’s decision to terminate her was an internal matter and was not subject to the anti-discrimination laws.

The Supreme Court will be wrestling with those facts, and also with larger questions — whether to recognize the ministerial exception, determining what part of the Constitution it rests upon, and giving guidance on how it is to be defined. The biggest challenge is how to do all this without infringing upon the religious liberty of churches, and without getting the government entangled in internal religious matters.

Virtually every major religious organization — including the U.S. Bishops — has filed a brief in support of the Lutheran school, arguing for a broad definition for the ministerial exception rooted in the Free Exercise Clause of the First Amendment.

The Administration, however, has filed a brief that advocates for the virtual elimination of the ministerial exception. In the Administration’s view, the exception — if it exists at all — is so narrow that it would only apply to clergy and disputes about doctrine. Moreover, the brief denies that the exception is rooted in the Establishment or Free Exercise clauses, but is instead supported only by a much weaker constitutional principle that is subject to being overridden by any neutral, generally-applicable law.

In short, the Administration is advancing a position that would treat religious organizations as if they were merely secular groups, subject to virtually any government oversight and control — no different from banks, oil companies, or airlines. If the Administration’s position prevails, churches will be subject to endless litigation and regulation, aimed at influencing and changing their internal doctrines and practices. This is a radical and dangerous argument.

Religious liberty is one of the founding principles of our Republic. It is the reason that many of our ancestors came here, and the reason that many immigrants still long for our shores. We must all pray for wisdom on the Supreme Court — and await with trepidation the decision in this momentous case.

Tags: Religious Liberty, Supreme Court Nominees
Posted in Law, Religious Liberty, Supreme Court | 2 Comments »

More Bad Omens for Religious Liberty

Monday, June 6th, 2011

The legislative battle over the re-definition of marriage is nearing a climax, as the end to the regular legislative session in Albany on June 20 approaches.

As this latest deadline draws near, the offensive against religious opponents to the bill has ramped up. In recent weeks, State Senator Ruben Diaz of the Bronx — a Protestant clergyman who has been heroic on this issue, as well as in the defense of human life — has been the object of ugly, disgusting attacks that are so vile that I will not reproduce them here.

Everyone can understand that emotions run high in debates of this kind. But it is very, very disturbing for religious leaders to be the target of these virulent and depraved kinds of abuse. We have constantly been urging and instructing our advocates to shun any kind of negativity in their opposition to the “Marriage Equality Act”. I wonder if any of the proponents have been doing the same.

What’s most disturbing to me is that this nasty, vindictive attitude on the part of advocates for same-sex “marriage” bodes very ill for our religious liberties if the “Marriage Equality Act” is passed. These threats are very real, as we have discussed before on this blog, and as is outlined in a new article in Catholic New York.

If this is the kind of nasty intolerance we are seeing now, before the bill is even passed, what does the future hold?

Tags: Religious Liberty, Same-Sex "Marriage"
Posted in Intolerance, Same-Sex "Marriage" | Comments Off

How Same-Sex “Marriage” Threatens Religious Liberty

Thursday, April 28th, 2011

In this blog, I have often noted that the re-definition of marriage would threaten the religious liberty of those persons and institutions that uphold the authentic definition of marriage as one man and one woman.

Same-sex “marriage” advocates scoff at this, and claim that their bill contains an exemption for clergy who do not wish to solemnize same-sex “marriages”, and that this should allay any fear that the re-definition of marriage will infringe upon religious freedom.

The reality is that this “exception” is meaningless — the First Amendment would never permit the state to force clergy to engage in religious rites that are contrary to their religious beliefs.

The real threat to religious liberty from re-defining marriage is that these bills fail to include an exemption that would permit individuals and organizations to decline to recognize same-sex “marriages” in other contexts, beyond religious ceremonies. Without a genuine religious liberty exception in the law, same-sex “spouses” will be able to bring complaints against religious institutions, businesses, and individuals under various state and local anti-discrimination and human rights laws — none of which were ever envisioned as applying to same-sex “marriage”.

If marriage is re-defined, religious organizations will inevitably face threats to their liberties in these areas:

Public grants and contracts — State law requires that no organization that receives funds under a state contract or grant may discriminate on the basis of marital status — which would include a same-sex couple, if marriage is re-defined. As a result, many Catholic institutions — all our hospitals and social service agencies, and maybe even include Catholic schools that receive state textbook or technology aid — could lose state contracts, and may be forced to close their doors as a result of their refusal to recognize same-sex “marriages”. This has already happened to adoption and foster care agencies in Massachusetts and the District of Columbia, and is being considered in Illinois and Virginia.

Employment — There is a very narrow exemption in current state anti-discrimination laws that permits religious organizations to hire those of the same faith or those who will promote their religious mission. There is a similar narrow exemption under federal law, called the “ministerial exemption”, but the extent of this is currently being challenged before the Supreme Court. These exemptions do not apply to a large number of positions at religious organizations, such as administrative staff. As a result, churches and religious organizations would be required to hire people in same-sex “marriages” — and provide them with the same benefits they provide to spouses.

Professional Licenses — There are approximately 49 professions that require state licenses (e.g., lawyers, doctors, and nurses). The state may seek to revoke the license of anyone who “discriminates” against a same-sex “marriage” couple. Students in professional training programs have already been threatened with the denial of licenses for failing to recognize same-sex “marriages”.

Business Permits — There are approximately 434 types of businesses that require state licenses or permits. State licenses are also required for health clinics, nursing homes, hospitals, educational institutions, and social services agencies. These businesses may see their licenses at risk if they “discriminate” against same-sex “marriage” couples.

Education — Health and family life education, which are required by the state, will be adjusted to include the recognition of same-sex “marriage”. Parents of public school children have only limited rights to opt their children out of these classes. In other countries, efforts have been made to require religious schools to teach messages about homosexuality that are contrary to their religious mission.

Tax Exempt Status — Religious and other non-profit organizations are typically granted tax exempt status, freeing them from the burden of income, property and sales taxes. The United States Supreme Court has already held that such a tax ruling may be revoked if the organization’s religious beliefs and practices violate “public policy”. This has already happened to a Methodist organization that declined to recognize same-sex “marriages”.

Exclusion from Public Facilities — Religious and other organizations that decline to recognize same-sex “marriages” may be denied access to public facilities for events, such as parklands, campgrounds, public message boards to announce events, etc. This has already happened to the Boy Scouts.

Proponents of same-sex “marriage” often accuse us of fear-mongering, and of over-stating these threats to liberty. But prominent legal scholars — both supporters and opponents of same-sex “marriage” — have recognized the inevitable conflict between same-sex “marriage” laws and the religious liberties of organizations and individuals.

One of the fundamental principles of religious liberty is that people should not be excluded from ordinary participation in civic life, or from receiving benefits or privileges from the government, merely because of their beliefs. Without a robust provision recognizing the right to decline to recognize same-sex “marriage” based on one’s religious beliefs, re-defining marriage will begin a long, costly and difficult legal struggle in courts and “human rights commissions”, with a steady and irreversible decline in religious liberty.

For information about what you can do to prevent this, please check out the Family Life/Respect Life Office website.

Tags: Religious Liberty, Same-Sex "Marriage"
Posted in Intolerance, Religious Liberty, Same-Sex "Marriage" | 2 Comments »

Religious Freedom and the Downtown Mosque

Tuesday, July 13th, 2010

There is a serious controversy over the proposal to build a mosque on Park Place in lower Manhattan. The furor stems from the fact that there are strong feelings about having an Islamic house of worship so close to Ground Zero. Efforts are being made to have the City government, through the Landmarks Commission, prevent the establishment of this mosque.

I did not lose a loved on on September 11, so I cannot begin to put myself in the shoes of those who did, and who still feel the loss and the attendant anger. And there are certainly legitimate concerns that some religious institutions are used as a means of spreading violent propaganda. But an important principle of religious liberty is at stake here, and we must be very careful about how we proceed.

In this instance, it actually helps to have a long memory.

The proposed mosque is right around the corner from the oldest parish in New York, St. Peter’s Church. The first St. Peter’s was built in 1786. It’s not that there were no Catholics here before that. Prior to the American Revolution, Catholics in New York were subject to severe penal laws that restricted their freedom to worship. Indeed, Catholic priests were not permitted to even be in the colony of New York, subject to criminal penalties. Fortunately, beginning in 1777 the Legislature repealed these unjust laws, and Catholics began to enjoy religious liberty in our state. Bigotry and hostility against Catholics continued for many years, including threats in the 1840′s to burn down our churches, and the infamous prejudice against Irish immigrants.

In my ancestral homeland of Ireland, things were even worse. There were very rigorous penal laws against Catholics into the Nineteenth Century. My Catholic ancestors were prohibited from owning property or serving in public office, or to publicly observe religious holidays. Bishops and religious orders were forbidden from being present in Ireland, and the Church could not even establish religious schools. Catholic emancipation came slowly and grudgingly, and the lingering effects of that oppressive legal regime lasted into the Twentieth Century. Fortunately, the Catholic roots of Ireland are deep and hardy, and they survived these efforts to suppress our Church.

The upshot of this history is that we Catholics should be very, very dubious about attempts to have the government restrict the ability of religious groups to establish their houses of worship, and otherwise to exercise their religious freedom — no matter how unpopular the group might be. We defend our religious liberty very vigorously, and we should be equally clear that all other religions enjoy the same freedoms that we do.

Our Holy Father has made religious liberty a significant feature of his advocacy efforts, particularly in countries where the Church is not free. It was a major theme of his address to the United Nations during his pastoral visit to New York in 2008. Indeed, the Holy Father has chosen for the upcoming World Day of Peace 2011 the theme “Freedom of Religion, Path to Peace”.

This is a very difficult issue for us in New York, especially for those who were devastated by the evil acts of September 11. But in defending our liberty, particularly from fear and violence, we cannot sacrifice the religious freedom of anyone.

Tags: Downtown Mosque, Religious Liberty
Posted in Religious Liberty | Comments Off

Erasing the First Amendment

Thursday, July 8th, 2010

When we all studied American History and Civics 101 in school, we were taught that the First Amendment to the United States Constitution guarantees religious liberty to all. It ensures that the government cannot interfere with religious belief or practice, nor canthe state reward or punish religious people or groups for their beliefs. All religions are to be treated equally, with no favoritism or legal restrictions. It’s to enjoy this specific freedom that the early settlers, and many of our ancestors, came to this country. It’s part of what makes America great.

Too bad that the Supreme Court has been on a path to erase the First Amendment to the Constitution.

This has nothing to do with the issue of prayer in public schools or copies of the Ten Commandments in public buildings. It has everything to do with marginalizing and penalizing religious practices that are not popular with the current powers that be.

The first major instance of this came in 1990, in the case of Employment Division v. Smith. The case involved the denial of unemployment benefits to several Native Americans, pursuant to a rule that denied benefits to anyone who couldn’t pass a drug test. But the reason they couldn’t pass the test is because they used the drug peyote in their religious practices — much as we use wine at Mass. They challenged the law, claiming that it would force them to violate their religious beliefs.

The Supreme Court held that they were properly denied the benefits, because the government is not required under the Constitution to grant exceptions to neutral laws that apply to all people, even if that law imposes a burden on a person’s religious liberty. In essence, the Court held that the government can require a person to forego their religious practices — to give up their sacraments — in order to qualify for benefits.

In one decision, the Court essentially gutted the “free exercise” clause of the First Amendment. The irony is that the majority opinion was by a man whose religion is frequently a subject for attention and comment — the Catholic Justice Scalia.

The most recent shredding of religious liberty came last week, in Christian Legal Society v. Martinez. This case arose at a public university law school — an arm of a state government. The Christian Legal Society, an interfaith group of law students, adoped rules that required all its officers and members to subscribe to a basic tenet of Christian moral teaching — that sexual relations are properly reserved only to a man and woman joined in a marriage. The school denied the organization recognition because of this provision “discriminated” against personw who are engaged in homosexual acts and relationships. The effect of this was to deny the Christian students access to funding and activites that were open to all other kinds of groups (including, ironically, a “gay and lesbian” association).

The Supreme Court upheld the denial of recognition to the group, holding that the school could require that all student organizations accept anyone who applies, both as members and as leaders. In essence, the Court decided that the state government has the power to regulate the identity and message of religious organizations, and can force them to accept people who deny or undermine the integrity of their beliefs. And, by implication, the Court’s decision means that a religious group cannot be a full participant in the “marketplace of ideas” unless its beliefs conform to current standards of political correctness. In other words, the government can play favorites among religious groups — granting “equal” access to those it approves, and denying it to those it disapproves.

So much for the “free exercise” and “free association” rights that are supposedly guaranteed under the First Amendment.

This decision was written by Justice Ginsburg, but was joined by two Catholic Justices, Kennedy and Sotomayor. Since this was Justice Sotomayor’s first foray into religious liberty jurisprudence, it does not bode well for how she will rule in future cases.

There is a movement afoot in America to stigmatize religious people who uphold traditional moral teaching (particularly about homosexuality and other sexual subjects) as bigots who do not have to be tolerated in the public square. Whether they knew so or not, the Justices of the Supreme Court have advanced that agenda and, in doing so, have reduced the liberties of all.

Tags: Christian Legal Society Case, Religious Liberty, Supreme Court
Posted in Intolerance, Law, Religious Liberty, Supreme Court | Comments Off