Yesterday, while I was listening with students to the oral arguments in the Hosanna-Tabor case , I noticed something I hadn’t caught before. Here’s Leondra Kruger, Assistant to the Solicitor General, responding to a question from Chief Justice John Roberts:
The government’s interest extends in this case beyond the fact that this is a retaliation to the fact that this is not a church operating internally to promulgate and express religious belief internally. It is a church that has decided to open its doors to the public to provide the service, socially beneficial service, of educating children for a fee, in compliance with State compulsory education laws.
The reasoning here is perfectly consistent with the thought animating the narrowly-drawn exemption to the widely reviled contraceptive mandate. Whenever a church or house of worship ceases to be simply inward-looking, when it in any way engages or serves the wider public, it becomes subject to much the same sort of government regulation as any secular entity. Relgious freedom is a purely private freedom. The moment you enter the public sphere, you’re subject to regulation. The public sphere is by definition secular, not pluralistic , with its tone, terms, and limits set by governmental authority.
Now, I don’t mean to argue that religious freedom is or should be absolute, that religious organizations should never be subject to any sort of regulation. I’m at least somewhat comfortable with a compelling state interest test to justify regulation.
But here the Obama Administration seems to go further than that. The logic of its argument in these two cases is that any religious institution that is public-serving has to behave in many instances (those determined by the state) like every other public-serving organization. The religious presence in the public square can’t be distinctive except in ways the government permits.
Pursued consistently across the board (and the Obama Administration hasn’t yet done this), this approach would gravely threaten religious freedom. It’s one thing to say (as some have, though I disagree with them), that if you take public dollars, you have to be thoroughly secular in your operation. Anyone can escape the secularizing effect of public money by refusing to accept it. It’s quite another to say that if you serve the public, your religiosity can’t permeate your efforts and your organization. This would require almost every religious organization I know of to choose between reaching out at a bearer of good news and a helper of widows and orphans and remaining faithful to the very understanding that inspired its outreach. Under these circumstances, a church can’t remain a church.
Some might be tempted to regard the contraceptive mandate as a kind of one-off product of the peculiar relationship between Barack Obama, kathleen Sibelius, and the pro-choice feminist Left. But the Administration’s argument in Hosanna-Tabor shows that this secularizing mindset is much more pervasive than that. It goes without saying, then, that a retreat on the contraceptive mandate—plausible, given the complaints of the President’s erstwhile liberal Catholic asupporters—would merely be a tactical move, not a change in the general direction of the Administration.
It’s only one of the things I’d lose sleep over in a second Obama term.
