Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Religious Liberty, Majority Rule and the Contraception Mandate

Timothy Sherratt


February 8, 2013

By Timothy Sherratt

Facing legal challenges to its contraception mandate, the federal government has offered another concession. Immunity from the mandate is not confined to churches but now embraces religiously affiliated institutions like universities, hospitals and social service agencies. However, business owners with religious objections to contraception in general or to particular methods of contraception are not exempt and face very steep fines for failing to provide insurance coverage to their employees.

President Obama holds a distinctive view of religion’s relationship to the democratic polity. In his view, democratic norms require the religiously motivated to translate their concerns into universal, rather than religion-specific, values in order to gain legitimacy in the public square. The religious liberty he professes to support he often refers to as freedom to worship. On this reading, religion is only a private matter, and religious liberty a strictly private right.

The administration has sought as broad an application of the contraception mandate as it can secure. When it was first promulgated, the only exempt institutions were churches themselves. Now the list is longer. But it remains a list that withholds religious liberty protections for individual citizens outside these narrow confines.

The administration appears to take the position that the concessions it has made to date provide sufficient safeguards for religious liberty. And by extension this position implies that publicly engaged private business owners do not suffer a substantial assault on their liberty when they are compelled to follow generally applicable laws.  Were this a matter of workplace safety, certainly, there would be few grounds for a religious exemption, but in the matter of insurance coverage for contraception and abortion, religious scruples ought to be taken seriously.

If the administration makes no more concessions, the relationship of religion to democratic government will be damaged.

Why should religious liberty extend to protecting David Green, the owner of Hobby Lobby, from having to finance the distribution of abortion-inducing drugs, specifically Ella and Plan B, to employees who seek them, or face fines of over $1 million per day?

Mutual respect for different beliefs is basic to a free society, all the more so where differences are grounded in distinct worldviews. Respect should not be conditional on the emasculation of basic beliefs, but is the appropriate response to the recognition that they are, indeed, basic. To do justice, governments should accommodate those basic beliefs to the greatest extent possible.The citizen whose faith and initiative together underwrite a successful commercial enterprise should not have to choose between the two as the price of doing business in a free society.

Christian reflection recommends a different relationship between religion and democracy. In the words of Pope John Paul II, it is necessary “to give democracy an authentic and solid foundation through the explicit recognition” of basic rights. And he went on, “Among the most important of these rights, mention must be made of the right to life, an integral part of which is the right of the child to develop in the mother's womb from the moment of conception.” The Pope named religious liberty as “the source and synthesis” of basic rights and defined it as the right to live “in the truth of one's faith and in conformity with one's transcendent dignity as a person.”* Rights properly understood do not undermine democratic decisions but lend them legitimacy.

In his inaugural address, President Obama set out the policy contours of his second term as a progressive clarion call to his supporters. Domestic policy looks set to ramp up and foreign policy to draw down. Even though the fiscal crisis threatens to disrupt congressional energies, immigration reform and gun control have moved front and center.Whatever the prospects for new legislation on these and other matters he referred to, the president’s legacy will be tarnished if majority rule makes an enemy of religious liberty.

—Timothy Sherratt is Professor of Political Science at Gordon College in Wenham, Massachusetts.

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”