By all accounts, Barak Obama is, personally, a committed Christian believer. At the National Prayer Breakfast, he told the assembly that he prays and spends some time with the scriptures every day. Before becoming president, he was a faithful member of a Protestant congregation in Chicago.

Nevertheless, Obama’s administration has demonstrated a systematic hostility to religious freedom and to the diversity among our faith communities, which seek only to worship and govern themselves in their own ways.

The Supreme Court of the United States last month unanimously repudiated the Obama administration’s effort to empower the government to control the decisions of religious groups to hire and fire their own ministers.

Undeterred by that defeat, the Obama administration this month announced its plan to compel large religious employers to violate their own conscientious beliefs by providing employee health insurance coverage for services their religious faith condemns.

In the Hosanna-Tabor Evangelical Lutheran Church and School case, the government intervened in an employment dispute between the religious school and one of its instructors, Cheryl Perich.

Perich served the school as a “called” teacher, having completed a special program at a Lutheran college, which included eight courses in theology and a culminating oral examination. Among Perich’s responsibilities as a teacher were leading daily devotional exercises, taking her class to weekly worship services, and twice annually leading the schoolwide worship service.

As Perich’s dispute with the school escalated, she asserted her right to take legal action against the school for what she regarded as discrimination in violation of the Americans with Disabilities Act. Regarding the threat to sue as a breach of the church’s doctrine that disputes among Christians should be resolved internally, the school board rescinded Perich’s call, in effect, firing her.

The Equal Employment Opportunity Commission intervened on the side of Perich, arguing that the Lutheran school’s decision amounted to unlawful retaliation: No secular employer would be allowed to dismiss an employee for bringing an employment discrimination lawsuit, so no religious employer should be allowed to, either.

The Lutheran school, however, invoked the First Amendment, which protects the autonomy of religious groups, and which has been long been held by the lower courts to protect the right of religious groups to call, and by implication, to dismiss, their ministers — that is, their employees who have responsibility for teaching and spreading their religious doctrines.

The Obama administration acknowledged that in some, very limited cases, church autonomy should be respected. They conceded that the state should not compel Roman Catholics, for example, to ordain women, though the principle of an all-male priesthood defies the secular legal principle forbidding employment discrimination on the basis of sex.

What the Supreme Court unanimously found “remarkable” and “untenable” was that the Obama administration argued that such limited exemptions should be granted on the basis of a general right to freedom of association — not on the basis of the religious liberty specifically guaranteed in the First Amendment.

In other words, the Obama administration rejected the idea that the First Amendment’s explicit guarantees that “Congress shall make no law respecting an establishment of religion nor abridging the free exercise thereof” mean what they say they mean — that religion and religious establishments get special protection from government interference.

The Supreme Court decisively rejected that view, and Obama appointee Justice Elena Kagan joined a concurring opinion by Justice Samuel Alito that amplifies the majority opinion by insisting that the First Amendment guarantees to religious groups a wide freedom to choose for themselves whom they wish to hire and fire as a “messenger or teacher of its faith.”

In this month’s decision by Health and Human Services Secretary Kathleen Sibelius to compel large religious employers to subsidize medical procedures to which they have conscientious objections, one finds the same hostility to freedom of conscience the administration displayed in the Lutheran school case.

Given the president’s personal religiosity, why is his administration so deaf to the claims of religious groups, which seek to be left alone by the government?

The fundamental problem lies in the nature of the centralizing, regulatory state and the innate hostility of bureaucrats and regulators to exceptions and diversity. The more the state regulates and manages, the less room for diversity, individuality and conscience.

President Obama would do well to recall that his old Chicago church counts among its religious ancestors the dissenting Protestants who made a revolution against a centralizing state in the name of religious freedom and then came to America to secure that liberty.

 

Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.


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