Rick's posts about contraception coverage and the healthcare law point to the calls by, among others, Steve Schneck and Michael Sean Winters for a much broader exemption for "religious employers" than the exceedingly narrow one that the Obama HHS Department is proposing. The proposed exemption, drawn from state laws mandating employer insurance coverage of contraception, only treats an organization as a "religious employer" eligible for accommodation if the organization, among other things, "has the inculcation of religious values as its purpose" and "primarily serves persons who share its religious tenets" (each prong must be satisfied--including two additional ones). As Rick and others have pointed out (and I argued here), this reflects an indefensibly narrow vision of religion as an insular activity of preaching to members. It leaves unprotected virtually all social services, certainly those that do not involve explicit preaching or attempts to convert. (Ironic, since often opponents of religious social services complain that those entities mix in proselytization with the help they provide.)
I'm particularly interested in the attitude of religious liberals or progressives (Christian/Jew, Catholic/Protestant, etc.) toward such a minimalist approach to religious conscience. As a political matter, they may well be the crucial group for preserving the religious liberty of traditionalist groups when it's under assault. (I realize that the Catholic Church itself often confounds neat categories of "traditionalist" and "progressive," but many Catholics, as well as other religious believers, end up sorting into these outlooks.) Traditionalists will often have insufficient votes themselves, and they likely will get little sympathy from secular liberals who oppose both their moral position and the religious faith from which it ultimately stems. But religious liberals, although they mostly disagree with traditionalists on contraception or (say) same-sex marriage, may at least--should at least--sympathize with the sense of devotion and call that leads traditionalists to their positions.
And religious liberals should be deeply disturbed by the definition of "religious employer" that has been peddled in the contraception-funding context. The definition conflicts with a common, even central, tenet of progressive Christianity: that the message of Jesus is not (or not only) about otherworldly salvation, but is about serving the needy with the love of Christ, often without explicitly preaching, proselytizing, or (in the words of the narrow exemption) "inculat[ing] religious values." Similarly, liberal Christians frequently affirm the provision of service ecumenically to all persons, again without seeking to get them to "confess Christ" or join the church--in the exemption's words, "share its tenets"--in order to be recipients of Christian love. If a prominent Christian fundamentalist said that a liberal social service was not Christian or religious because it didn't explicitly preach or try to convert people, religious liberals would fire back. They should fire back about this exemption language too. Even though the narrow exemption may coincide with the beliefs of many religious progressives on contraception, it rests on premises that utterly undermine religious mission as they understand it.
Tom
UPDATE: I should note that a variety of scholars from varying positions on the "progressive/traditional" spectrum have written in criticism of the narrowness of the exemption, including Susan Stabile, Rick, etc. I was referring mostly to mainline/liberal religious denominations and activist groups who should criticize it as well.
My friend and former colleague Kevin Walsh (Richmond) has an interesting post on Joyner v. Forsyth County, a recent Fourth Circuit case holding unconstitutional (because unduly sectarian) the practice of legislative prayer at the meetings of the Forsyth County (North Carolina) Board of Commissioners. As Kevin notes, the Fourth Circuit's opinion has an unusual disagreement between Judge J. Harvie Wilkinson and Judge Paul Niemeyer (son, by the way, of the great political theorist Gerhart Niemeyer). In addition to the usual Establishment Clause issues surrounding legislative prayer, the case poses a set of issues about religious pluralism and civil religion (as Kevin suggests, is the ghost of Thomas Jefferson haunting the Fourth Circuit?). Go read the opinion and Kevin's post, but here's the conclusion to Judge Wilkinson's opinion:
George Washington once observed that "[r]eligious controversies are always productive of more acrimony and irreconcilable hatreds than those which spring from any other cause." Letter from George Washington to Edward Newenham (June 22, 1792). As our nation becomes more diverse, so also will our faiths. To plant sectarian prayers at the heart of local government is a prescription for religious discord. In churches, homes, and private settings beyond number, citizens practice diverse faiths that lift and nurture both personal and civic life. But in their public pursuits, Americans respect the manifold beliefs of fellow citizens by abjuring sectarianism andembracing more inclusive themes. That the Board and religious leaders in Forsyth County hold steadfast to their faith is certainly no cause for condemnation. But where prayer in public fora is concerned, the deep beliefs of the speaker afford only more reason to respect the profound convictions of the listener. Free religious exercise posits broad religious tolerance. The policy here, as implemented, upsets the careful balance the First Amendment seeks to bring about.
And here's the conclusion to Judge Niemeyer's dissent:
I respectfully submit that we must maintain a sacred respect of each religion, and when a group of citizens comes together, as does the Forsyth County Board of Commissioners, and manifests that sacred respect—allowing the prayers of each to be spoken in the religion’s own voice—we must be glad to let it be. The ruling today intermeddles most subjectively without a religiously sensitive or constitutionally compelled standard. This surely cannot be a law for mutual accommodation, and it surely is not required by the Establishment Clause.
