High Court Decisively Affirms Religious Liberty

By Susan E. Wills, Esq.

January 20, 2011

On January 11, the U.S. Supreme Court handed down a huge victory for religious liberty.  A unanimous Court ruled that the First Amendment’s Free Exercise and Establishment Clauses bar the government from interfering in the freedom of a religious group to select its own ministers.

Why is the ruling significant? Our culture and, increasingly, federal and state governments have begun viewing religious convictions as less important than—even as obstacles to—the exercise of other real or alleged rights. “Reproductive rights,” for example, is invoked to try to force religious organizations and individuals to provide or purchase products and services to which they have a moral objection (emergency contraception, sterilization, abortion).

In an October 2011 column in First Things, Los Angeles Archbishop José H. Gomez wrote of the Catholic bishops’ concern that Americans’ “first freedom”—religious liberty—is being threatened as never before. He offers many examples, including two very recent ones. After nearly a decade of successfully assisting the victims of human trafficking, the USCCB’s Office of Migration and Refugee Services (MRS) was denied a grant to continue this work because MRS declined to guarantee trafficking victims the “full range of reproductive services,” including sterilization and abortion.

Last August, the Department of Health and Human Services (HHS) announced that all FDA-approved contraceptives (including the abortifacient Ella) and sterilization are among the Affordable Care Act’s “preventive services” for women that virtually all health plans will be required to cover. To qualify for an exemption from this requirement, a religious organization must primarily hire and serve those who share its religious tenets, have the inculcation of religious beliefs as its purpose, and satisfy certain tax code provisions (it must be a church, religious order, etc.).  Because they do not confine their ministry to their co-religionists, most religious organizations with a charitable outreach do not qualify for the exemption.  Many non-qualifying religious organizations, including Catholic hospitals and universities, have urged the Administration to revisit the scope of the exemption. But on January 20, the Administration said it will ignore this plea.

The holding in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, while not directly applicable to such threats, offers hope. Writing for the Court, Chief Justice Roberts underscores the fundamental importance of the religious liberties guaranteed in the First Amendment in light of the many constraints on religious freedom historically imposed by the English Crown in England and its American colonies.  

The opinion’s historical context, its sound reasons for protecting the autonomy of religious groups, and its reaffirmation of strong statements in earlier rulings will help shore up First Amendment religious liberties against further erosion by the federal government.

This opinion should discredit the widely-held but incorrect notion that the “wall of separation” between church and state was erected to protect the general public from unwanted exposure to religious expression. To the contrary, the church-state separation protected by the religious liberty clauses of the First Amendment is meant to preserve the autonomy of religious groups to worship and live, and serve the wider community, according to their beliefs.

What impact might this ruling have on governmental encroachment on the religious liberties of the Catholic Church and her affiliated institutions?

The Court recognized that religious employees and institutions enjoy special Constitutional protection beyond that accorded to other private associations. The performance of predominantly “secular” activities, such as teaching subjects other than religion, operating hospitals and nursing homes, and providing services to the poor, does not mean that religious organizations and individuals forfeit their religious identity. Service to the wider community is integral to the faith and mission of all Christians. We may therefore hope that, as it did here, the Court will continue to reject attempts to compromise the religious identity of institutions serving the public.

Susan Wills is Assistant Director for Education & Outreach, United States Conference of Catholic Bishops’ Secretariat of Pro-Life Activities. To learn more about the Catholic bishops' activities on conscience protection, visit www.usccb.org/conscience.