Since presidential candidate Joe Biden selected Sen. Kamala Harris as his running mate, some Catholics have rightly raised concerns about Harris’s hostility toward Catholicism and her animus for Catholics whose moral lives are informed by Church teaching. Coupled with Biden’s own antagonism toward Catholic moral theology, Harris’s nomination clouds rather than clarifies how a conscientious Catholic should (or can) vote in the upcoming presidential election.
But even more troubling is Harris’s perverse definition of religious exercise and the limits of religious liberty. And Biden, despite being a “devout Catholic,” seems to share Harris’s extremely limited understanding of the role of religious faith and practice in public life. For Biden, one can profess one’s faith publicly, but should not allow that faith to inform one’s policy positions. For Harris, to do so disqualifies one from public life. This is demonstrated by her tendentious misrepresentation of the First Amendment to the United States Constitution.
In February 2019, Harris introduced the Do No Harm Act in the U.S. Senate, the purpose of which was to dilute—if not neutralize—the federal 1993 Religious Freedom Restoration Act (RFRA) and similar legislation in about twenty states. The purpose of RFRA was to give legislative protection to religious practices that might incidentally be forbidden by otherwise generally applicable laws prohibiting (or compelling) certain behaviors. RFRA was a legislative response to a U.S. Supreme Court decision that allowed a state law to prohibit the use of sacramental peyote in a minority religious ritual. RFRA laws carve out exemptions from generally applicable laws for some religious practices that are fundamental to religious belief.
For example, a RFRA law might protect a church from another law that prohibits consideration of sexual orientation for employment, promotion, or retention. Or it might protect a physician who participates in public health reimbursement programs from a law requiring such physicians to perform a broad scope of so-called healthcare services, such as abortion.
Harris sponsored the Do No Harm Act for the express purpose of emasculating RFRA laws. As she explained on the website introducing the act, it would prevent RFRA laws from “being used to deny” such things as “Healthcare access, . . . coverage or services to which persons are otherwise legally entitled,” or “Services that the government has contracted to be beneficiaries through a government . . . grant.” In other words, the Do No Harm Act would compel a Catholic physician to prescribe contraceptives or perform abortions if she participates in federal or state reimbursement programs. And it would require a parochial school that receives state grants, for example, to employ persons in open same-sex relationships as teachers or even ministers.
The full implications of Harris’s philosophical understanding of the scope and limit of religious freedom, however, are found in her apologetic for the Do No Harm Act. In a statement on her website explaining the purpose of the act, Harris uses a very narrow definition of religious freedom. “The freedom to worship is one of our nation’s most fundamental rights,” she writes. “That First Amendment guarantee should never be used to undermine other Americans’ civil rights.” The problem, of course, is that “the freedom to worship” is not a “First Amendment guarantee.” The First Amendment guarantees the “free exercise” of religion, which has a much more expansive scope than mere “worship.”
The free exercise clause of the First Amendment provides that “Congress shall make no law . . . prohibiting the free exercise of” religion. Harris misquotes the clause, changing “free exercise” to “freedom to worship,” betraying a definition of religious practice that would remove it from any meaningful legislative or political protection. In doing so, she turns the free exercise clause on its head, driving religious faith to the margins of public life and religious exercise out of public life altogether.
In Harris’s tendentious reading, “free exercise” of religion means “freedom to worship,” and nothing more. If the doors of the church are not locked and guarded, or if you are not prevented from praying in your home, you have the full range of “the First Amendment guarantee,” and you are guaranteed nothing more. If your religious belief requires you to exercise certain moral obligations, or observe certain moral scruples, but you are not prohibited from entering the church, then those obligations can be prohibited, and those scruples compelled—all while protecting “the First Amendment guarantee.” Free exercise of religion equals private prayer or conviction, and nothing else. Thus nothing else is protected. And Congress (through, for example, the Do No Harm Act), is free to make laws prohibiting the free exercise of religion, as conscientious religious believers understand it.
Though Biden has not articulated it as Harris has, his public life demonstrates that he agrees with this truncated understanding of the exercise of religion. By all accounts, his “devout faith” has nothing to do with his moral convictions and opinions. Informed by secular left politics, Biden’s moral life is separate from, and seemingly innocent of, any trace of Catholic moral formation. And he would force this view on others through law and policy. For example, Biden has promised to force the Little Sisters of the Poor, an order of nuns who care for low-income elderly people, to facilitate procurement of contraceptives for their lay employees, reversing a recent victory for the nuns in the U.S. Supreme Court. This privatized faith is consistent with Harris’s deliberate misrepresentation of the First Amendment. Religion is private, and has no role in informing moral conviction, especially as it may bear on public policy. And indeed, religion may be prevented from doing so.
In his Notes on the State of Virginia, Thomas Jefferson said, “The legitimate powers of government extend to such acts as only are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” But if my neighbor’s religion compels public behavior that might be construed as “injurious to others,” such as declining to create a wedding cake celebrating a same-sex marriage, the “legitimate powers of government” may extend to such acts, compelling the baker to make the cake or shutting down the bakery. In other words, if my religious convictions require public exercise beyond mere worship, then the powers of government may not protect that exercise, and may even require its violation.
This is Joe Biden and Kamala Harris’s understanding of the “free exercise” of religion. And it is the foundation for severe restrictions on religious exercise.
Kenneth Craycraft is a licensed attorney and the James J. Gardner Family Chair of Moral Theology at Mount St. Mary’s Seminary and School of Theology.
Photo by Gage Skidmore via Creative Commons. Image cropped.
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