Geoffrey R. Stone: Of Contraceptives and Same-Sex Marriage

This was an interesting week for religion in America. First, the Council of Catholic Bishops demanded that the President of the United States exempt Catholic hospitals and universities from a general requirement that all employers receiving federal funds must provide health insurance for their employees that includes coverage for contraceptives. On reflection, the President acceded to their demand, explaining that such institutions should not be required to do something that is fundamentally incompatible with their religious beliefs.

While all this was going on, a federal Court of Appeals ruled that California's Proposition 8, which attempted to strip gays and lesbians of the previously recognized state law right to marry, violated the federal Constitution. The court explained that Proposition 8, which had been aggressively promoted by the Catholic Church, the Mormon Church and Evangelicals, was unconstitutional because it served "no purpose . . . other than to lessen the status and human dignity of gays and lesbians in California."

The juxtaposition of these two events sheds important light on the relationship between religion and government in the United States today.

Our nation's Founders sought to shape the basic nature of that relationship in the First Amendment, which contains two distinct but intertwined clauses concerning religion. The Free Exercise Clause forbids government to make any law prohibiting "the free exercise of religion." The Establishment Clause forbids government to make any law "respecting an establishment of religion."

In non-legal terms, the goal of men like James Madison, George Washington and John Adams was to keep government out of religion and religion out of government. It was, in the words of Thomas Jefferson, to erect a "wall of separation" between church and state.

The Founders were well aware that religion had proved bitterly divisive throughout human history. Whenever government and religion had become enmeshed, the consequence had almost invariably been intolerance and persecution. To protect both religion and government, and to establish a unified, cohesive nation commited to promoting "the general Welfare" rather than religious supremecy, the Founders aspired to keep the worlds of government and religion apart.

Aspiration, of course, does not always translate into reality, and throughout American history we have seen instances of both religious intolerance and undue religious interference with government. On the Free Exercise side, it is now well settled that the government cannot constitutionally discriminate against people because of their religious beliefs. For example, unlike the days of yore, the government cannot constitutionally prohibit Jews from holding public office.

The most common type of Free Exercise issue today involves not express government discrimination against the adherents of a particular religion, but questions similar to the one posed by the Catholic bishops: When should government exempt the members of a particular religious faith from a law of general application? For example, if certain Native American religions use peyote as an essential part of their religious practice, should they be exempt from laws generally prohibiting the possession of peyote? Or, if contraception is fundamentally at odds with Catholic doctrine, should Catholic hospitals and universities be exempt from laws requiring all employers to provide health insurance for their employees, including coverage for contraception? These can be vexing issues because they raise the specter of special privileges for religion.

On the Establishment Clause side of the ledger, it is now well settled that the government cannot prosecute blasphemy or promote prayer in the public schools or enact laws for the express purpose of incorporating religious precepts into law. For example, a predominately Muslim community cannot constitutionally prohibit residents to consume pork because Islam forbids such behavior, and a predominantly Catholic community cannot constitutionally forbid residents to use contraceptives because Catholic doctrtine regards contraception as a sin.

This brings me back to the Court of Appeals decision holding Proposition 8 unconstitutional. In invalidating Proposition 8, the court ruled that there was no constitutionally legitimate justification for California to strip same-sex couples of the previously-recognized right "to have their lifelong relationships dignified by the official status of 'marriage.'"

This conclusion makes sense because the real reason why religious groups spent millions of dollars to enact Proposition 8 and why those who attend church weekly supported Proposition 8 by a vote of 84% to 16% is religion. Proposition 8 was a straightforward (pardon the pun) effort to conscript the authority of government to impose a particular religious belief about homosexuality and marriage on American citizens who do not share that belief. As the court concluded, this is not a constitutionally legitimate basis for government action. Indeed, that is why even the proponents of Proposition 8 never dared speak the truth about it - that its real purpose was to effectuate a particular religious doctrine.

My own view about these issues, which I think reflects the spirit of what the Founders of our nation hoped to achieve, is that in the realm of religion we should generally follow the rule of live and let live. We as citizens should be respectful of the sincerely-held religious beliefs of our fellow citizens and we should therefore bend over backwards not to compel them to act in ways that are fundamentally incompatible with their religious faith. Catholic hospitals should not be required to provide contraceptives, Evangelical churches should not be expected to perform same-sex marriages, and Jews should not be compelled to work on their Sabbath.

But the flip side of the wall of separation is equally important. As American citizens, we must be respectful of the right of individuals not to be compelled by government to lead their lives according to the dictates of someone else's religion. However passionately we may believe in the rightness of our religious beliefs, we must respect not only of the right of others to disagree, but also their right to lead their lives according to a different set of beliefs.

Both President Obama's decision to exempt Catholic institutions from the general policy on contraceptives and the court of appeals' decision to invalidate Proposition 8 reflect our most fundamental aspirations as a nation. What they illustrate is what the Founders understood - religion is a two-way street. Just as we must have the freedom to follow our own religious beliefs, we must also have the freedom not to be controlled by the religious beliefs of others.

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Source: http://www.huffingtonpost.com/geoffrey-r-stone/of-contraceptives-and-sam_b_1271509.html

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