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.