By Ed Mechmann
In my continuing quarantine, I’ve been thinking a lot about the status of religious liberty in our nation. We have come a very long way from the time of the Founders, when it was universally understood that religious organizations were entitled to a special privileged place in law and society. We have come even further from the time when it was openly acknowledged that “Christianity is part of the common law”. Our nation is now committing the basic category error of treating religion and religious organizations the same way it treats other, completely different secular concerns.
Two recent developments give a good illustration of how confused and misguided our nation has become.
The first is the ongoing discussion and debate about when to end lockdowns. We have to give considerable deference to the civil authorities and the public health experts they are relying on. They are certainly correct that “social distancing” and lockdowns are essential in containing the spread of this contagion. As good citizens and as Catholics, we have a moral obligation to obey all just laws.
But we also have a right to be part of the conversation when it comes to the impact of lockdowns on our faith and our religious practices. The law and common sense both agree that containment measures must be calibrated to the particular circumstances at a specific time and place. It would be unreasonable to treat different situations the same, or the same situations differently. Areas where there are few infections and ample medical resources obviously should be released from lockdowns sooner than places that are still struggling.
Yet in all the discussions about ending lockdowns, the New York State government is treating religion, and particularly public religious services, as if they were just the same as going to restaurants or movie theaters. That is a fundamental category error. With all respect to the restaurant and entertainment industries and their economic importance, religion is vastly more important than dining out or catching a flick.
Our relationship with God – our creator and savior – is a central element in human life. It defines who we are and what our purpose is. It imposes on us duties that are far more significant than anything declared by any human law. How we stand with God is infinitely more meaningful than what any public official – indeed, any human – thinks about us. Our government makes a critical error when it treats religion as if it were just another secular activity, no more important than sports or parties.
The privileged status of religion was once well known in our nation. One of our great Founders spoke of religious freedom in this way:
This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.James Madison, Memorial and Remonstrance Against Religious Assessments (1785)
Certainly there are due limits to religious freedom – it cannot be used to justify licentiousness, depravity or cruelty. But the state has a duty to treat it with special deference. There are reasonable steps that can be taken, subject to prudent health protections, to resume public religious services. This is why it is essential that religious leaders be part of the discussion about ending lockdowns and quarantines.
Yet our government is unwisely giving us the stiff-arm. This speaks volumes about how little our political leaders value religion.
Choosing our Leaders
The second development was a fascinating oral argument before the Supreme Court on a case involving the ability of religious schools to choose their teachers. In 2012, the Supreme Court addressed this issue in the case of Hosanna Tabor v. EEOC. The Court unanimously upheld what is called the “ministerial exception”. That principle gives religious organizations full autonomy in the selection of those who will be performing important religious functions like teaching and witnessing to the faith. They cannot be second-guessed by courts, and they cannot be sued for discrimination based on their choice of “ministers”.
Our secular world finds this to be incomprehensible. How can anyone have complete immunity from anti-discrimination laws? How can we slam the doors in the face of people who just want their day in court to argue that they were treated unfairly according to the law of the land? Is there any limiting principle for how a religious employer treats a minister?
This reflects the same basic category error. Even though they may look similar from the outside, religious organizations are not at all like secular institutions. We are of course bound by a multitude of generally-applicable laws having to do with neutral things like wage and hour requirements, workplace safety, and so on. But none of those laws intrude into the special zone where our religious faith operates.
It is absurd to think that secular courts and government agencies should be allowed to tell us who will be our priests, religion teachers, youth ministers, etc. That would give the state the ability to determine what is taught and how faith is to be practiced. That would reduce religious liberty to a mirage and make our churches mere instruments of the government. This was understood very well in the early days of our nation, when the colonies and states abolished their established churches. It is deeply troubling that a case challenging this freedom would even reach the Supreme Court.
These two category errors are an illustration of how far our nation has gone off the rails. It is a sign of the declining respect – and the basic lack of understanding – of the nature of religion and the history of its place in our society. This is why we must defend our first freedom wherever it is threatened.