FAQ on Religious Liberty
May 31, 2012
By U.S. Conference of Catholic Bishops
Q: What do we mean by religious liberty?
A: Religious liberty is the first liberty granted to us by God and protected in the First Amendment to our Constitution. It includes more than our ability to go to Mass on Sunday or pray the rosary at home. It also encompasses our ability to contribute freely to the common good of all Americans.
Q: What is the First Amendment?
A: The First Amendment of the U.S. Bill of Rights states the following: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Q: What does “shall make no law respecting an establishment of religion” mean?
A: This phrase, known as the Establishment Clause, started out as a prohibition on Congress’ either establishing a national religion or interfering with the established religions of the states. It has since been interpreted to forbid state establishments of religion, to forbid governmental preference (at any level) of one religion over another, and to forbid direct government funding of religion.
Q: What does “prohibiting the free exercise thereof” mean?
A: This phrase, known as the Free Exercise Clause, generally protects citizens and institutions from government interference with the exercise of their religious beliefs. It sometimes mandates the accommodation of religious practices when such practices conflict with federal, state, or local laws.
Q: What did the early American leaders say about religious freedom?
A: George Washington: “The conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be … extensively accommodated to them…” (Letter to the Annual Meeting of Quakers, 1789.)
Thomas Jefferson: “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” (Letter to New London Methodist, 1809.)
James Madison: “The equal right of every citizen to the free exercise of his Religion according to the dictates of conscience is held by the same tenure with all our other rights. If we recur to its origin, it is equally the gift of nature; if we weigh its importance, it cannot be less dear to us; if we consult the Declaration of Rights which pertain to the good people of Virginia, as the basis and foundation of Government, it is enumerated with equal solemnity, or rather studied emphasis.” (Memorial and Remonstrance Against Religious Assessment, 1785.) (Internal quotation marks omitted.)
“We hold it for a fundamental and undeniable truth that religion, or the duty which we owe our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence. The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” (Memorial and Remonstrance Against Religious Assessment, 1785.) (Internal citation and quotations omitted.)
Q: Who have been heroes of religious liberty in the church?
A: St. Thomas More: Sir Thomas More was an English Catholic lawyer who served as Lord Chancellor and a close advisor to King Henry VIII. More opposed the king’s separation from the Catholic Church and his naming himself as supreme head of the Church of England. More was imprisoned for his refusal to take the oath required by a law that disparaged papal power and required acknowledging the children of Henry and Anne Boleyn (the king’s second wife after his divorce from Catherine of Aragon) as legitimate heirs to the throne. In 1535, More was tried for treason, convicted on perjured testimony, and beheaded. He is the patron saint of religious freedom.
St. John Fisher: Cardinal John Fisher was an English Catholic bishop, academic, and martyr. Fisher was executed by order of King Henry VIII during the English Reformation for refusing to accept the king as supreme head of the Church of England and for upholding the Catholic Church’s doctrine of papal primacy.
St. Elizabeth Ann Seton: Sister Elizabeth Ann Seton was the first native-born U.S. citizen to be canonized by the Catholic Church. In 1809, Sister Elizabeth Ann founded the first American congregation of religious sisters, the Sisters of Charity. She also established in 1810 the first parochial school for girls in the U.S. in Emmitsburg, Maryland. Sister Elizabeth Ann’s efforts initiated the parochial school system in America and opened the first free Catholic schools for the poor.
St. Katharine Drexel: Mother Katharine Drexel was a religious sister, heiress, philanthropist, and educator. She dedicated herself and her inheritance to the needs of oppressed Native Americans and African-Americans in the western and southwestern United States. She was a vocal advocate of racial tolerance and established a religious congregation, the Sisters of the Blessed Sacrament, whose mission was to teach African-Americans and later American Indians. She also financed more than sixty missions and schools around the United States, in addition to founding Xavier University of Louisiana - the only historically African-American Catholic university in the United States to date.
Father John Courtney Murray, S.J.: Father Murray was an American Jesuit priest and theologian, who was known for his efforts to reconcile Catholicism and religious pluralism, particularly focusing on the relationship between religious freedom and the institutions of a democratically structured modern state. During the Second Vatican Council, he played a key role in the Council’s ground-breaking Declaration on Religious Liberty, “Dignitatis Humanae” (“The Dignity of Human Persons”).
Q: Historically, what have been significant religious liberty issues affecting Catholics in the United States?
A: Equal treatment of Catholic Schools: Catholicism was introduced to the English colonies with the founding of the Province of Maryland by Jesuit settlers from England in 1634. However, the 1646 defeat of the Royalists in the English Civil War led to stringent laws against Catholic education and the extradition of known Jesuits from Maryland, as well as the destruction of the school they founded. During the greater part of the Maryland colonial period, Jesuits continued to conduct Catholic schools clandestinely. The American Revolution brought historic changes, and in 1782, Catholics in Philadelphia opened St. Mary’s School, considered the first parochial school in the U.S. The ratification in 1791 of the Bill of Rights, with the First Amendment guarantee of religious freedom, helped Catholics further cement the establishment of Catholic schools.
Regardless, anti-Catholic sentiment in the late nineteenth century led to opposition to parochial schools. State governments opposed providing funds to aid students attending parochial schools, which Catholics founded largely in response to the requirement to pray and read from Protestant Bibles in public schools. Some Members of Congress attempted to block all government aid to religiously affiliated schools with the proposed Blaine Amendment in 1875. This constitutional amendment was never ratified at the federal level, but many state legislatures adopted similar legislation and amendments. Those “little Blaine” amendments are still in place in the constitutions of about thirty-seven states, and still operate to block Catholic school students from equal participation in government educational benefits.
Anti-Catholic bigotry in presidential campaigns: During the 1884 presidential campaign, candidate James G. Blaine (who proposed the Blaine Amendment in Congress) attended a meeting in a church in New York at which a minister chided those who had left the Republican Party by stating, “We don’t propose to leave our party and identify with the party whose antecedents are rum, Romanism, and rebellion.” Blaine sat quietly during the anti-Catholic remark. The scene was reported widely in the press, and it cost Blaine in the election, particularly in New York City.
During the 1928 presidential campaign, Al Smith, a Catholic who had been elected governor of New York three times, was the Democratic candidate for president. It is widely believed that Smith’s Catholic beliefs played a key role in his loss of 1928 presidential election, as anti-Catholic sentiment among the electorate was strong. Many feared that Smith would answer to the pope and not the constitution if elected president.
During the 1960 presidential campaign, John F. Kennedy’s Catholicism became a major issue in the election. Like Al Smith, Kennedy faced charges that he would “take orders from the pope” and could not uphold the oath of office.
Establishment of diplomatic relations with the Vatican: In the first years of the United States, the new Republic had contacts with the Papal States. However, in 1867, Congress prohibited the financing of any diplomatic post to the papal authority. This began a period of over seventy years when the U.S. did not have a diplomatic representative to the pope, coinciding with a period of strong anti-Catholicism in the U.S. In 1940, President Franklin Roosevelt sent a personal representative to the pope who served for ten years. However, when President Harry Truman nominated an ambassador to the Vatican in 1951, opposition mounted, and he abandoned the effort. Presidents Richard Nixon and Jimmy Carter sent personal representatives to the Vatican. In 1984, President Ronald Reagan established full diplomatic relations between the U.S. and the Vatican, and the U.S. has continued to send ambassadors to the Vatican since then.
Q: How was religious liberty addressed at the Second Vatican Council (“Dignitatis Humanae”)?
A: “Dignitatis Humanae” provides that “the exercise of religion, of its very nature, consists before all else in those internal, voluntary and free acts whereby man sets the course of his life directly toward God.” (“Dignitatis Humanae,” No. 3.) Therefore, individuals are “not to be forced to act in manner contrary to [their] conscience” nor “restrained from acting in accordance with [their] conscience….” (Ibid.)
The Second Vatican Council also declared that “the human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.” (“Dignitatis Humanae,” No. 2.)
Further, “Dignitatis Humanae” provides that “religious communities… have the right not to be hindered, either by legal measures or by administrative action on the part of government, in the selection, training, appointment, and transferal of their own ministers….” (“Dignitatis Humanae,” No. 4.)
Q: Where are the roots of religious liberty?
A: Religious liberty is inherent in our very humanity, hard-wired into each and every one of us by our Creator. Religious liberty is also prior to the state itself. It is not merely a privilege that the government grants us and that can be taken away at will.
Q: What has the church said about religious liberty since Vatican II, for example, through Blessed Pope John Paul II and Pope Benedict XVI?
A: Blessed Pope John Paul II: “The most fundamental human freedom [is] that of practicing one’s faith openly, which for human beings is their reason for living.”
(Address to Diplomatic Corps, 13 Jan. 1996, No. 9.)
Pope Benedict XVI: “[Religious freedom] is indeed the first of human rights, not only because it was historically the first to be recognized but also because it touches the constitutive dimension of man, his relation with his Creator.” (Address to Diplomatic Corps, 10 Jan. 2011.)
The distinction between church and state, between God and Caesar, remains “fundamental to Christianity.” (“Deus Caritas Est,” No. 28.) The church has “a proper independence and is structured on the basis of her faith as a community which the state must recognize.” (Ibid.)
Q: How have religious liberty questions affected other religious bodies?
A: Discrimination against small church congregations: In 1994, New York City’s Department of Education (DoE) denied the request of the Bronx Household of Faith and sixty other churches to rent space from public schools on weekends for worship services, even though non-religious groups could rent the same schools for scores of other uses. The city has been investigating what the churches do in the public schools and has made its own assessments of whether the meetings constituted a worship service or not. In late February 2012, a federal district court issued a preliminary injunction, ruling that the city’s policy violated the Free Exercise Clause and the Establishment Clause. While the DoE’s discrimination would not frequently affect Catholic parishes, which generally own their own buildings, it would be devastating to many smaller congregations. It is a simple case of discrimination against religious believers.
Christian students on campus: In its over-100-year history, the University of California Hastings College of Law has denied student organization status to only one group, the Christian Legal Society, because it required its leaders to be Christian and to abstain from sexual activity outside of marriage.
Religious speech in the public square: In Minneapolis, the city’s Park and Recreation Board effectively exiled a group of Christians handing out Bibles during the Twin Cities Pride Festival to an isolated “no pride zone” - a remote and virtually untraveled corner of the city park where the festival was taking place. In Phoenix, a local resident was told that, in order to informally share his Christian faith at South Mountain Community College, he would have to pay a fee, take out special insurance, and give the school two weeks’ notice. In Cheyenne, members of the Wyoming State Building Commission have complied with a federal court order by admitting they unconstitutionally violated the free speech rights of WyWatch Family Action last year by first approving, then removing the group’s pro-life signs from a gallery at the state capitol. However, officials then began seeking other ways to silence pro-life speech, including prohibiting all outside groups from participating in the gallery.
Religious worship in one’s own home: A Santeria priest in Texas was unable to perform certain religious rituals in his own home because of discriminatory state action. In an important ruling under the Texas Religious Freedom Restoration Act, a unanimous panel of the U.S. Court of Appeals for the Fifth Circuit found in favor of the Santeria priest. The court held that city ordinances forbidding the slaughter of certain animals prevented the Santeria priest from performing ceremonies essential to his faith, causing a substantial burden on his religious exercise.
The ministerial exception: The U.S. Department of Justice (DoJ) attempted to undermine religious liberty in Hosanna-Tabor v. EEOC, by attacking the ministerial exception. The ministerial exception allows religious organizations the right to choose their own ministers without government interference. The DoJ could have taken the position that the ministerial exception, though generally providing strong protection for the right of religious groups to choose their ministers without government interference, didn’t apply in the case before the court. Instead, DoJ needlessly attacked the very existence of the exception, in opposition to a vast coalition of religious groups urging its preservation through their amicus curiae briefs. Fortunately, the Supreme Court in a 9-0 decision agreed with religious groups in reaffirming the ministerial exception and rejecting DoJ’s position as “extreme,” “remarkable,” and as having “no merit.”
Current Concern: U.S. Department of Health and Human Services mandate
Q: Why does the mandate to cover contraceptives, including abortion-causing drugs and sterilization, violate religious liberty?
A: In short, it is the element of government coercion against conscience, and government intrusion into the ordering of church institutions. As Archbishop William Lori of Baltimore, Chairman of the USCCB’s Ad Hoc Committee for Religious Liberty, testified to Congress: “This is not a matter of whether contraception may be prohibited by the government. This is not even a matter of whether contraception may be supported by the government. Instead, it is a matter of whether religious people and institutions may be forced by the government to provide coverage for contraception or sterilization, even if that violates their religious beliefs.” (Oral testimony before the Judiciary Committee of the U.S. House of Representatives, Feb. 28, 2012.)
Q: Under the Obama administration’s ‘compromise,’ the church does not have to pay for those services. Why does this not satisfy church concerns?
A: The accommodation was an accounting gimmick created to disguise who ultimately pays for services that violate church teaching. In effect, the government has ordered private companies to give away for free a service that the Secretary of Health and Human Services has repeatedly called a major financial burden. As for the Catholic Church, many of our religious institutions are self-insured. And even those that are not still pay the premiums that ultimately fund the contraception coverage. So a regulatory action that claims the insurance companies must provide it “free” is a ruse. It really means that we are still funding and facilitating it.
Q: Is this an effort to deny women access to fundamental reproductive services?
A: Access to contraceptives is already widespread. Nine out of ten employer-sponsored health plans already include contraception, and even without coverage, the generic pill costs $9 at Target. The relevant question is whether religious organizations should be forced to facilitate the provision of services that are in direct violation of their teachings and in violation of the First Amendment.
Q: Many young women say they can’t afford to pay for birth control and these other medical services. Is the church position discriminating against poor women?
A: Not at all. This is not about health coverage for the unemployed, or for those who must rely on the government for coverage (for example, by Medicaid). It is about people who are employed by the Catholic Church and its various ministries, which are typically generous in the health benefits they provide to their employees. Moreover, those who choose to work for the Catholic Church - and no one is forced to do so - should know better. It would be unreasonable for them to expect the church to violate its own teachings by facilitating and funding sterilization, abortion-inducing drugs, and contraception. As Archbishop Lori testified before Congress, this would be like coming to a kosher deli and demanding to be served a ham sandwich.
Q: The vast majority of Catholics practice artificial birth control. Some argue that the church is out-of-step with modern family realities?
A: Again, the issue isn’t whether individuals practice artificial birth control. Our teachings may not be popular, but that doesn’t mean that the state can force us to violate our own teachings in our own institutions.
Some argue that the issue is about fairness and equity between men and women. Many of these insurance programs cover Viagra for men, but not protection for women. Isn’t that hypocritical?
Viagra is not a contraceptive for men, so that’s not a valid comparison. In fact, the HHS doesn’t mandate men’s contraceptives or vasectomies either. The relevant issue is whether the state should force the church to violate its profoundly held beliefs.
Q: Isn’t the church making too much of this religious freedom issue?
A: Religious liberty is a cornerstone of American democracy. The HHS mandate fundamentally alters the fragile balance created by the framers of the Constitution. The same First Amendment that protects religious freedom protects freedom of the press. We wouldn’t stand for the state telling newspapers or news programs what to write, who to interview, and who not to interview.
Q: The HHS mandate has become a major political issue in the current U.S. presidential campaign. Does opposition to the mandate put the church in league with the Republicans?
A: This is a bipartisan issue that affects all Americans. Legislation to correct this problem has enjoyed bi-partisan support in both houses of Congress. We are asking all citizens - Democrats, Republicans, independents, people of any faith or none at all - to let their views be known to all candidates seeking their vote for all offices and to stand up for religious freedom and the First Amendment.
interview. Q: The HHS mandate has become a major political issue in the current U.S. presidential campaign. Does opposition to the mandate put the church in league with the Republicans? A: This is a bipartisan issue that affects all Americans. Legislation to correct this problem has enjoyed bi-partisan support in both houses of Congress. We are asking all citizens - Democrats, Republicans, independents, people of any faith or none at all - to let their views be known to all candidates seeking their vote for all offices and to stand up for religious freedom and the First Amendment.