This was
witnessed in February, 2012 after President Obama announced a policy requiring that
employer-sponsored health insurance plans cover contraception. Heated
objections were promptly raised by Catholic bishops. During the ensuing
controversy, it became evident that some Americans believe that the
establishment clause grants them freedom of conscience. As such, Catholic
institutions should not be required to fund contraception if contraception is viewed
as sinful. In contrast, other Americans believe that the establishment clause
is designed to prevent the Catholic Church or any other church from interfering
in government.
Notably, the
controversy occurred during an election year. Both parties saw an opportunity
to use it to their advantage. Republicans, wanting to shore up their base,
opposed what they described as an “attack on religious freedom.” Many
Christians in the United States believe that their faith is besieged by implacable
secular humanists. Democrats, wanting to shore up their base, characterized the
Republicans as enemies of reproductive freedom and women’s rights. Thus, the
issue both inspired passion among feminists in the Democratic Party and helped
to paint the Republican Party as the party of sexist Neanderthals. This is all well and good, but as one grows
older, these controversies, and the uses that political parties make of them,
start to grow tiresome through sheer repetition.
These tactics
wouldn’t succeed if it weren’t for partisans. Partisans readily believe that
their favored party is defending a just cause. And they readily believe that
the opposing party is conspiring to rob them of their freedoms. Those of us who
have rejected partisanship realize that political parties are not particularly
concerned about defending just causes or robbing folks of their freedoms.
Parties are mainly about two things: raising money and winning elections. Just causes may be successfully defended or freedoms lost along the way, but those are ancillary concerns.
As it is with
Coke and Pepsi or Tums and Rolaids, Republicans and Democrats need
some way of demonstrating to the voter that there is actually a difference
between the two parties. Therefore, election campaigns will invariably hinge on
the few areas where the two parties actually disagree: God, guns, and gays. One
year it’s contraception, the next year it’ll be gay marriage, abortion, gun
control, stem cell research, infidelity in high places, gays in the military,
and so on, all kept in steady rotation. God, guns, and gays differentiate the Republican
and Democratic brands.
If one looks
beyond the brand label at what’s inside the box, the product is the same.
Neither party offers satisfactory answers to questions such as these: what do
we do about the unchecked corporate predation of the American working class?
How do we stem the loss of American jobs? How do we compel Congress to refrain
from corrupt practices when members of Congress have a strong interest in
continuing these practices? How do we prevent the stripping of American assets
and the coming liquidation of this country by oligarchs who are only interested
in short-term profits?
In an ideal
situation, Americans would agree to disagree about religion, and put their
heads together to solve these difficult problems. In reality, it seems
inevitable that the matter of religion will continue to divide Americans. Therefore,
it is in the interest of uniting Americans to study the establishment clause
more closely. If people could agree on what the establishment clause means,
maybe they’d agree that it was a good idea from the beginning.
The first
step is to place the First Amendment in a historical context. The British
monarchy, during the reign of Henry VIII, “established” the Anglican Church. In
other words, the king decided that public money would be spent on building Anglican
places of worship and paying the salaries of Anglican clergymen. Catholics had
no say in the matter. Catholics were discriminated against and non-conforming
Protestant denominations – the Puritans, for example -- were discriminated
against. It wasn’t until 1840 that Catholics gained political influence in Great
Britain and the Anglican Church was disestablished.
The first
part of the establishment clause means, therefore, that Congress must not
endorse or subsidize a particular religion. This makes sense. If Congress
supported Catholics, the Protestants would complain. If the government
supported Protestants, not only would the Catholics complain, but a lot of
unemployed preachers will start calling themselves “Protestant.” And who’s to say they aren’t?
Already,
there is a problem. When the Obama administration announced its policy on
insurance coverage for contraception, Senator Orrin Hatch complained that the
policy had been developed without getting the blessing of Catholic bishops
ahead of time. Admittedly, advising the president to consult bishops does not violate the First Amendment, but it does show a member of Congress expressing a preference for a particular religion.This is not true to the spirit of republican virtue.
One may ask, “why
Catholics?” Why not rabbis, ministers, or imams? Only 24% of Americans consider
themselves Catholic, and even devout Catholics ignore the bishops when it comes
to birth control. Whereas bishops can only advise members of their flock to refrain
from using birth control, politicians can say to women, “on the basis of
religion, women who are employed at Catholic institutions, as compared to other
women, will hereby face greater difficulty and financial hardship when seeking contraception.”
To this, John
Locke would have retorted, “God Himself will not save men against
their wills.” He believed that abiding by the dictates of a particular religion
is only sincere and only capable of saving souls when it is done voluntarily. Thus,
any form of cooperation between government and leaders of a particular
religious faith will be to the detriment of that faith. Or, as Voltaire put it,
“Politics has its source in evil than in the greatness of the human spirit.”
 |
| Rick Santorum, candidate for the Republican nomination. |
Some may
quarrel that no one has a right to contraception. It is a consumer product and
obtaining it is simply a private economic decision. Having employer-sponsored
health insurance is not a right in this country. In this country, health
insurance is a fringe benefit that is subject to favorable tax treatment as an
incentive to employers to offer it. Because employer-sponsored health insurance
is subsidized by taxpayer dollars, the American people have an interest in
urging that the same defined set of benefits be made available to all
Americans. Or, at the very minimum, the American people have an interest in ensuring
that people of a particular religious faith are not denied the coverage
available to people of other faiths.
Still, there is the question of what is meant by
phrases like, “freedom of conscience” or “free exercise of religion.” Thomas
Jefferson explained: “religion is a matter which lies solely between Man and
his God.” And, he noted that “the legitimate powers of government reach actions
only, and not opinions.” Thus, it is necessary to build, “a wall of separation
between Church and State.”[1] The idea
of two separate spheres, private belief and civil
interests, finds it origin in the writings of John Locke. Civil interests
include the pursuit of a livelihood, liberty, health, and property. Locke
writes that “no private person has any right in any manner to prejudice another
person in his civil enjoyments because he is of another church or religion.”[2]
James Madison was especially insistent on maintaining
the, “essential distinction between civil and religious functions.” When the
state of Virginia sought to use public money to pay teachers of the Christian
religion, he rose in opposition. In developing his position, he asserted that, “The
Religion … of every man must be left to the conviction and conscience of every
man.”[3] In his view, the very premise of a republican society is that people
only abide by laws of their own making. If people are subject to laws that are
not of their own making (i.e., laws belonging to a particular religious creed or tradition), Madison believed, they are slaves.
This conceptualization of religious tolerance has a long
history in America, going back at least as far as Roger Williams’ A Letter to the Town of Providence,
written in 1655. In that letter, Williams imagined a ship. “There goes many a
Ship to Sea, with many a Hundred Souls in one Ship, whose Weal and Woe is common;
and is true Picture of a Common-Wealth.” He added, “It hath fallen out
sometimes, that both Papists and Protestants, Jews, and Turks, may be embarqued
into one Ship.” Williams goes on to argue that members of the various faiths should be allowed to practice
their separate faiths unmolested by one another or by the captain. Still, it is better that the passengers obey the captain,
because he has the authority and qualifications to maintain peace and safety for all. The captain,
of course, signifies civil government. It is not the Captain’s responsibility
to proselytize or improve the morals of his passengers -- in these regards, the passengers are answerable only to God. The passengers on board
the ship, even if they disagree with one another on matters of faith, are
united by their desire for a safe and comfortable journey. If only it were so easy.
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