This guidance makes very clear that this administration's position is that freedom of religion extends to religious organizations and not just individuals, so that's good. It's not new, but it's good.
Switching gears to the changes to the HHS mandate: how does this adjustment impact the longstanding battle over the mandate that we've been seeing for the past six years?
I would defer to what the lawyers [at the Becket Fund for Religious Freedom] have said, because it's their case and they have been completely on top of this. They're excellent lawyers. I'm a member of the board of the Becket Fund and know them well.
I think our lawyers have done a fantastic job in these cases, including Little Sisters of the Poor case, so I would really defer to their judgment.
I will say this though: I believe an authentic, faithful, honest interpretation of these guidelines by the government officials who have responsibility for that litigation would cause them to basically concede to the Little Sisters; to acknowledge that to the extent that the regulations purport to impose upon religious organizations a requirement that they provide, or in any way implicate themselves in providing, contraceptives or abortifacient drugs in violation of religious teaching, that the government has no right to do that.
The regulations cannot be enforced against those religious entities. But again, the proof will be in the pudding.
We'll see whether the public officials to whom this guidance is addressed apply the guidance in that way.
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There's another point that's worth making, just to step back from all this for a moment.
Even as late as the middle 1960s there were still jurisdictions – including Massachusetts and Connecticut – that prohibited the sale, distribution, and even use of contraceptives. Those were long-standing laws put on the books by Protestant majorities in the 19th century to protect public morality and the institution of marriage.
The reason that efforts to repeal those laws consistently failed in the legislatures of Connecticut in Massachusetts and some other states – although they succeeded in some states – is that some of the legislatures felt that the widespread availability of contraception would weaken public morality and open the floodgates to promiscuity, adultery, divorce, family abandonment, and all the things that come in the wake of a collapse of sexual morality.
The Supreme Court struck down the anti-contraception laws in 1965 in the case of Griswold v. Connecticut, and in 1972 in the case of Eisenstadt v. Baird and they did that at the behest of liberals who insisted that contraception was a deeply private matter in which the public had no right to intrude.
The Supreme Court found an unwritten "right to privacy," allegedly lurking in "penumbras formed by emanations" of various constitutional guarantees. Included in this putative right, the justices in the majority insisted, was a right to use contraception. Why? Because contraception, they maintained, was a "private" matter. People had different moral opinions on the subject and the State should not allow anyone to impose his or her opinion on others. One cannot help but notice how liberals have changed their tune. They evidently no longer regard contraception as a private matter. They now treat it as a public good - embracing one side's moral opinion and permitting it to be imposed, in certain ways, on those who disagree. Specifically, they want to use the coercive power of government to compel people who for religious or moral reasons oppose contraception (and abortion) to pay for other people's contraceptives and abortion-inducing drugs.
So, one cannot help but perceive a rather huge dollop of hypocrisy in the way the contraception issue has been treated by the progressive movement to from the middle 1960s to the middle 2010s.
If it's private, leave it private. If it's not private, then they had no business asking the Supreme Court to strike down laws prohibiting it in the name of a putative right to "privacy."
They really should make up their minds whether it's private or not private.
Another change is that the mandate now protects those with non-sectarian conscience objections to the mandate. Can you speak to the importance of this expansion for those who object to these issues for non-religious reasons?
Many people do not derive their moral convictions from a religion, and many religious people believe that there are moral truths that can be known by the disciplined application of reason, even apart from what might, in addition, be known by revelation or the teachings of a church or other religious body.
In other words, many people believe in what has traditionally been called "natural law."
It appears that in this guidance, it's acknowledged that non-religiously based, or not necessarily religiously based, moral reflection deserves conscience protection in the same way that religiously based moral convictions deserve conscience protection.
Back to the Department of Justice guidance: Can you comment on the guidance on religious freedom objections generally? What other cases or situations can this apply to, beyond the contraception mandate? What are some of the other kinds of cases that the government's guidance might impact?
In those states that have moved to assisted suicide, I think the guidance system provides some promise of protecting religiously based health care-providing institutions like Catholic hospitals or other religiously affiliated medical institutions from being forced to participate in assisted suicide or, for that matter, in abortion.
This applies to individuals as well as institutions: doctors in state facilities, for example, who cannot in conscience participate in assisted suicide or abortion..
It could be that some states or municipalities move in the direction of banning male infant circumcision – there's a movement, called the intactivist movement, that is strongly pushing for bans on male infant circumcision. If such laws are adopted, I think that this guidance would strengthen the hands of Jewish organizations and Muslim organizations that will seek to preserve the right to have their male infant children circumcised on a religious basis.
We've seen this in Europe: some jurisdictions in Europe have banned male infant circumcision, and their movement is alive here in the United States. One can easily imagine certain jurisdictions, certain municipalities, maybe certain states, banning circumcision, so it could become important in that area.
These protections will protect not only Catholics and other Christians, but members of non-Christian faiths as well.
What else should our readers know about these two religious freedom updates?
Probably the most important thing to remind people is that the guidance or principles are designed to guide public officials, but they don't dictate results. The same is true of the Religious Freedom Restoration Act, by the way. It simply gives the religious claimant a day in court and requires that the government prove that its imposition on a religious claimant is supported by a compelling state interest and represents the least restrictive or least intrusive means of pursuing that interest. It doesn't dictate the result.
So while I welcome, and I think all friends of religious liberty and of conscience should welcome, this guidance, we need to hold off cheering until we see how the guidance is actually interpreted and applied by public officials. Until we see the guidance actually applied to concrete disputes we won't know whether to cheer.
There's a human element to this. Rules don't apply or interpret themselves. Human beings interpret and apply rules. So we need to see the human beings in the bureaucracy interpreting and applying the rules, and then we'll know whether there's anything worth cheering about.
But I do believe in the principles that have been endorsed in the guidance documents, and I think that if they are faithfully and authentically interpreted, it will mean a very desirable set of protections for religious freedom – protections that are now many years overdue due to the assaults on religious freedom during the Obama administration.
Adelaide Mena was the DC Correspondent for Catholic News Agency until 2017 and is a 2012 graduate of Princeton University.