Though the brouhaha surrounding the Obama administration's recent announcement, and more recent recantation, of a new regulation requiring employers to provide employees contraception at no extra cost has died down, the brief political moment shines a revealing light on the state of our Religion Clause jurisprudence and the relationship between church, state and politics in the US. "Never before," then New York Archbishop, now Cardinal, Timothy Dolan told the New York Times, "has the federal government forced individuals and organizations to go out into the marketplace and buy a product that violates their conscience. This should not happen in a land where free exercise of religion ranks first in the Bill of Rights." Cardinal Dolan is technically wrong about free exercise's place of pride—it's the Establishment Clause that comes first in the Bill of Rights—but he is right in terms of the modern Court's priorities. Put simply, the Court's frequent evocation of the counterpoise intended by the framers between the antiestablishment principle on the one hand and free exercise of religion on the other belies the fact that the Court has picked a winner. Religious organizations benefit from the evolution of the Court's Religion Clause jurisprudence in that free exercise has become a powerful weapon, so long as it's wielded by a mainstream Person of the Book, whereas the countermanding principle of antiestablishmentism has been effectively effaced from the Constitution.
The Bill of Rights does indeed open with the so-called Religion Clauses, stating that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Traditionally, these two clauses have been seen to be counterparts of one another, and the tension between them evident in cases such as the present birth control affair. Often what a religious group demands in pursuit of its "free exercise" is an exception from generally applicable laws, which arguably tends toward (i.e. "respect[s]") an establishment of religion/s over others and irreligion. The strict separationist position adhered to by the framers reflects the liberal principle that would come in this country to be defined by Thomas Jefferson's (not the Court's) phrase: "a wall of separation between Church & State." For Jefferson and his strict separationist co-founder James Madison, the government was to ensure the free exercise of religion by staying out of the matter altogether. When it came to the public sphere, religion was specially disfavored; Congress may pass laws establishing many things, but specifically not religion. It seems facile, but the lexical and historical importance of the Establishment Clause has been largely forgotten today. Jefferson's sentiment, shared deeply by Madison, the father of our Constitution, is often invoked today to mean that religion should keep out of the business of the state and vice versa, has its roots in what is still the most eloquent elaboration of this liberal principle, John Locke's "A Letter Concerning Toleration."
Locke writes of Meliboeus, a religious adherent, who may slaughter a calf in his home for any reason, and, thus, it is permissible for him to do so pursuant to a religious ceremony. "But," Locke writes,
[I]f peradventure such were the state of things that the interest of the commonwealth required all slaughter of beasts should be forborne for some while . . . who sees not that the magistrate, in such a case, may forbid all his subjects to kill any calves for any use whatsoever? Only it is to be observed that, in this case, the law is not made about a religious, but a political matter; nor is the sacrifice, but the slaughter of calves, thereby prohibited.Locke was an undeniable influence on the framers. Though his foundational separation of the private sphere, where one has one's relationship with God, from the public realm where the laws that govern each of the comprehensive doctrines that make up the plurality, is cited today as the progenitor of the secular state, it was in fact premised upon his Christian Protestant understanding of religion and salvation. Free exercise was something enjoyed within the confines of one's church, one's domicile, one's secret person, and was meant to be compatible with the principle of strict separation enshrined by the very first right in the Bill, that right to live in a liberal republic where not "three pence"—as Madison famously wrote—would be taken from a citizen by the state to support a religion to which he might not subscribe. This, however, is exactly what an exception the generally applicable regulation regarding contraceptive coverage—a regulation counterpoised between the rights of religious free exercise and female reproductive rights—amounts to, for it is disingenuous at best to describe an exception to a mandatory payment as anything but a subsidy.
In its Establishment Clause jurisprudence, the Supreme Court has moved from treating religion as a thing unique and apart to a thing just like everything else. The effect of this leveling has been to afford great favor to religion and religious organizations in our republic. In the Establishment Clause context, the original check on religion's influence in the public sphere, the principle of formal neutrality reigns, meaning that a benefit given to a non-religious group must be shared with religious ones (Madison's Remonstrance notwithstanding, apparently). Justice Black wrote in Everson v. Board of Education, the case that inaugurated our modern Religion Clause jurisprudence, that, "[the state] cannot exclude individual Catholics, Lutherans, Mohammedans ... Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation." Thus Black sets the stage for the Court to hold that the Establishment Clause requires the state to spend its tax dollars on accommodating evangelical proselytizing when it subsidizes secular intellectual discourse and to require the expenditure of public monies for religious "indoctrination" when a public school engages in the "indoctrination" of other, secular subjects, like math and history. Madison's insistence that even "three pence" taken from a citizen in support of religion was unacceptable has been swallowed by a principle of formal neutrality, born of Justice Black's incorporation of Fourteenth Amendment equal protection into the explicitly unequal religion clauses of the First Amendment, which holds that if three pence is taken for secular public endeavors, then so too must it be extracted for religious ones. The principle of formal neutrality, adopted by this court in Everson and its progeny, has effectively erased the Establishment Clause from the constitution and made an ornament of Jefferson's great wall.
As the recent controversy surrounding the Obama administration's "attack on religious freedom" demonstrates, however, equal protection and formal neutrality are not the unitary standard with which we adjudicate conflicts between the state and religious institutions. Indeed, when it comes to the Free Exercise Clause, the Court paradoxically continues to hold religion as a thing apart. This was not always the case. The liberal conception of free exercise held by the founders is based upon a religion—primarily a protestant Christian one—that can be fulfilled within the private sphere; for Locke, as well with for the framers, salvation was effected through a personal, private relation between a man and his god.
The Lockean public-private antinomy is on display in the Court's early free exercise cases. In Reynolds v. United States, a Mormon man's challenge of his conviction for bigamy on free exercise grounds was roundly rejected. The Court held the dictate of Reynolds' religion irrelevant to the implementation of general, secular laws, so long as these laws were not specifically intended to persecute. The Court's reasoning here is directly descended from Locke's. This principle was abandoned for a more expansive right during the Warren and Burger Courts and has only recently returned to a more narrow, liberal conception of the dichotomies of public law and private religion. That is if you are a member of a non-mainstream, non-Abrahamic religion. Indeed, whereas the free exercise claims of Native American religious practitioners wishing to use peyote in their religious ceremonies was rejected, the Court recently held that a Lutheran organization invoking the same principle may fire a subordinate for any reason, religious or non-. It would seem that certain types of free exercise are favored over others, ironically raising the equal protection problem addressed by the Court in Everson and throwing light on the problems of adapting the Religion Clauses to the adherents of non-private religions that require more than faith alone.
That the Court has traded religion clause counterpoise for a preference for the positive right of free exercise (free of the negative antiestablishment right) can be seen in Chief Justice Roberts' selective historical treatment in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. Writing for the Court, the Chief Justice, in a remarkably selective and brief historical preamble, propones a history that would have the Establishment Clause read as a compliment to the Free Exercise Clause—i.e. that it was designed as a protection against the state meddling in the business of religion, surely a major problem in 18th century England. This interpretation is not faithful to the framers' intent, and it is especially uncharacteristic of Madison's thoughts on the subject. For Madison, whom Chief Justice Roberts acknowledges as the architect and prime mover behind the First Amendment, the Establishment Clause was primarily intended to protect the polis from the influence of religion, not the other way around for, as he wrote in his Remonstrance, "[the] preservation of a free Government requires not merely that the metes and bounds which separate [religion and the state] be invariably maintained; but more especially that neither of the be suffered to overleap the great Barrier which defends the rights of the people." The Establishment Clause prevents the "establishment of any particular sect of Christians, in exclusion of all other Sects" not primarily to protect the religious freedom of those other sects, but rather to protect the plural citizenry as a whole from the influence of religion in government. Madison called the presumption that the civil magistrate could "employ Religion as an engine of Civil policy" an "unhallowed perversion." The Supreme Court has, since its decision in Everson, worked to bronze this unhallowed perversion as constitutional law and continues to take the names and liberal principles of our founding fathers in vain.
There is little doubt that much of the carping about "religious liberty" in the wake of Obama's contraception debacle is political posturing. No doubt some of these angry men sincerely believe that their rights were being trampled—the regulation's exception for churches and the countervailing rights of women notwithstanding—but as we watch these men chew the scenery of political talk shows, it should not be forgotten that the framers of our Constitution gave pride of place to the right that we all share, religious or not, to live in a nation of religiously indifferent laws and not of men or their dogmas.
Lowry Pressly recently graduated from Yale Law School. He worked on a number of journals, and was published in the The Yale Journal of International Law. Lowry is currently working in the chambers of Judge Alex Kozinski of the US Court of Appeals for the Ninth Circuit, and has previously worked as a legal adviser to the Republic of Liberia in Monrovia and at the Equal Justice Initiative.
Suggested citation: Lowry Pressly, Contraception and the Forgotten Victory of Church Over State, JURIST - Dateline, Feb. 27, 2012, http://jurist.org/dateline/2012/02/lowry-pressly-contraception-debate.php.
This article was prepared for publication by Elizabeth Hand, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org