The Vagaries of “Religious Freedom”

This blog was originally published on January 7, 2013 on Open Salon, and it was cross-posted on the Religion in American History blog on January 13, 2013 

This is a story of two fabricated scandals. The first is that religious freedom in the United States today is being violated through the mandatory inclusion of contraception in health care packages. The villain is not only Obamacare, but the notion that the structure of the healthcare law provides the state with undue authority to intervene in religious matters. The second is historical. It involves a legal redefinition of marriage in nineteenth century Germany. The law indicated that all marriages needed to be registered civilly. Some interpreted this to mean that civil servants would then have the power to marry monks to nuns, nuns to priests, or any other combination of two avowed celibates. The villain was the state and its intrusion upon religious authority. In both, the relationship between church and state is the central issue.

In 1875, the German governing body debated the implementation of obligatory civil marriage for the entirety of the newly unified German Empire. The separation of church and state and the protection of religious liberty were two of the most pressing issues in the debate because the law transferred the regulation of marriage from religious institutions to the state. In decrying such an infringement on religious liberty, some dismayed German Catholics postulated on a few of the nefarious consequences the law would have. They were right about them. Of course the state would marry a priest to a nun. Unspoken but all important, however, was that of course nuns, monks, and Catholic priests self-regulate their celibacy and vows not to marry. Obligatory civil marriage meant that it was compulsory for those who desired to marry; it didn’t make marriage, civil or otherwise, mandatory for citizenship. I suspect that any county clerk in the United States today would also knowingly allow a nun to marry; unsurprisingly, the issue doesn’t come up.

Individual autonomy, however, is not enough for some religious institutions in the United States (mostly the Catholic Church). The Catholic Church claims that the compulsory inclusion of free contraception to employees, especially those working for religious institutions, is a grave violation of religious freedom. Because Catholic doctrine and a tiny minority of practicing Catholics (based on past contraceptive use) find contraception to be against their religious beliefs, the availability of it infringes upon their religious liberty, they say. Smartly and pragmatically, the Obama administration compromised. Religious institutions would not have to pay for contraception as part of the health care plans offered to employees, but instead contraception would be available, still free of charge, through the insurance provider. Providers are all too willing to offer contraception for free because it is much cheaper than covering childbirth or abortion, both of which increase when contraception is unavailable. The Catholic Church still rejected it as a violation of religious freedom. What the Catholic Church never seems to acknowledge openly is that self-regulation should be enough for Catholic parishioners to abstain from taking contraceptives. The required availability of contraception does not mean that women are compelled to take them any more than obligatory civil marriage mandated that a nun marry a monk.

However fabricated, these scandals approach the core of the conflicted relationship between church and state. Defining the appropriate bounds of this relationship goes beyond easily resolved issues such as prayer in public schools or the Ten Commandments decorating courthouse lawns. The state should not violate the autonomy of religious institutions; that is, it should not violate it until those institutions begin to intrude upon the individual autonomy of their parishioners or, in the case of contraception under Obamacare, employees at non-profit, religiously affiliated organizations. In such cases, freedoms are being suppressed, and the oppressor is the religious institution. In such cases, “religious freedom” stands in for the ability for religious institutions to limit actual freedom. This argument has recently been taken to a new level of absurdity, as Domino’s Pizza founder has sued the United States government over the issue of contraceptive in healthcare, and Hobby Lobby’s owners have indicated that they would rather pay a million dollar fine a day than adhere to contraception mandates. The reasons put forth are that contraception is “immoral” and that the requirement violates someone’s “religious beliefs.” The existence of such claims is directly tied to the claims made by religiously affiliated institutions, and it thus exposes the claims as disingenuous political maneuvering concerned only with the “religious freedom” of those in a position of power.

These comparative “scandals” illuminate something about the relationship between church and state. Previously, I thought that the strict and complete separation of church and state was the progressive opinion. In this case, that isn’t true. For Germany in the nineteenth century, as well as the contemporary US, the purveyor of a complete separation of church and state is the Catholic Church. The reason for this is that the separation is perceived to lead to an increase in institutional autonomy, which in turn provides the church with more authority in regulating the practice of its members (tax-exempt status is another benefit in the contemporary context). I have found that it is more progressive to advocate for the necessarily incomplete separation of church and state. The reason is because religious institutions sometimes have to be regulated from an outside authority in order to protect the individual rights of its members. At best, the Catholic Church in the US today doesn’t trust its parishioners to follow prescribed religious precepts, so they have to circumvent individual choice in order to secure institutional regulation; at worst, they don’t trust parishioners (mostly women) to regulate their own bodies. The latter suggests that the Catholic Church has broader political aims. Nineteenth century Germans had the good sense to dismiss nuptial nuns and matrimonial monks as fabricated panics with an ulterior motive—to be autonomous from the state. I suspect, and hope, that today’s US citizens will similarly disregard appeals to “religious freedom” as intellectual sleight of hand. Otherwise we risk losing a central component of actual religious freedom: freedom from religion.


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