June 22, 2012
When
forty-three Catholic dioceses, universities and charities
simultaneously filed lawsuits against the Department of Health and Human
Services last month, charging that the proposed regulation requiring
insurance coverage for contraception violated their religious freedom, a
simmering conflict between the First Amendment’s protections for
religious freedom and against government preference for a particular
religion once again took center stage.
The plaintiffs accuse
the Obama administration of violating their religious freedom, a right
enshrined in the Free Exercise Clause. They elevate the Free Exercise
Clause above the equally important Establishment Clause, which prohibits
the government from endorsing or favoring a particular religious view.
The
Catholic institutions’ prospects for prevailing in these lawsuits are
far from certain. Two state supreme courts, in New York and California,
have ruled against Catholic groups’ religious freedom claims in
challenges to substantially similar state laws. Constitutional experts
believe they will fare no better in federal court. Nonetheless, by
filing suit in multiple districts, the Catholic groups are aiming to
succeed in at least some circuits, and to create a legal conflict that
will eventually be resolved by the Supreme Court.
In the meantime,
they will litigate their claims in the court of public opinion. The
constituency most receptive to these religious freedom arguments, the
Christian right, represents an outsize segment of the Republican Party.
Savvy political organization has fueled the intensity of activist
reaction, giving their arguments disproportionate attention and
legitimacy.
Democrats, meanwhile, have failed to articulate a
consistent rebuttal to these claims of religious discrimination and to
the claim that often follows, that the United States should be governed
as a “Christian nation.” Rather than forcefully arguing that the
government cannot, constitutionally, be beholden to or impose upon its
citizens any particular religious view, Democrats are frequently caught
flat-footed reacting to charges they are secularists waging a “war on
religion.” They often respond, instead, with self-defenses that they are
indeed pious, their policy views guided by their own sincerely held
religious beliefs. They rarely utter the words “separation of church and
state,” or elevate the Establishment Clause and secular government in
the same way their adversaries do the Free Exercise Clause and religious
liberty.
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