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Religious freedom: bleached, blanched, and rinsed out

It is fatuous to dismiss concerns over the rinsing-out of religious freedom as the overwrought fretting of culture warriors.

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Father Richard John Neuhaus put two Big Ideas into play in American public life. The first was that the pro-life movement (of which Neuhaus was an intellectual leader) was the natural heir to the moral convictions that had animated the classic civil rights movement (in which Neuhaus was also deeply involved).

The second was that the First Amendment to the Constitution did not contain two “religions clauses” but one religion clause, in which “no establishment” (i.e., no official, state-sanctioned Church) was intended to serve the “free exercise” of religion. Neither of those Big ideas is welcome in today’s Democratic Party, in which Neuhaus (then a Lutheran pastor) was once a congressional candidate, and of which he remained a registered member until his death in January 2009.

Those who point out that the 2020 Democratic platform has the most radical pro-abortion plank in American history, and that the same platform promises to hollow out religious freedom in service to lifestyle libertinism, risk being labeled “culture warriors.” Well, so be it. “Culture warrior” is snark masquerading as thought. Facts are facts. And one of the sad facts of this unhappy political moment is that Neuhaus’s effort to rescue the Democratic Party through two Big Ideas was frustrated because those two ideas got linked – and then rejected, thanks to the corruption of rights-talk that preceded, made possible, and was then accelerated by Roe v. Wade and its abortion license.

While Neuhaus’s interpretation of the First Amendment on religion has gained some traction in the federal courts (including, it seems, the Supreme Court), it hasn’t dislodged the alternative view in much of the academic legal establishment or the media. That alternative was baldly stated by Harvard law professor Lawrence Tribe in his constitutional law textbook. In the First Amendment, Tribe wrote, there is a “zone which the free exercise clause carves out of the establishment clause for permissible accommodation of religious interests. This carved-out area might be characterized as the zone of permissible accommodation.”

Ironically, Tribe agrees with Neuhaus on one point: there is one “religion clause” (even though the professor uses the conventional rhetoric of two such clauses). But in Tribe’s view, which has now been replicated in the 2020 Democratic Party platform, there is really just one “religion clause” – that which prohibits the state’s “establishment” of religion. Being tolerant to some degree, good liberals like Professor Tribe will try to find some wiggle-room to “accommodate” religious “interests” – much like the liberally tolerant would “accommodate” the “interests” of Flat Earthers. But only up to a point.

That point was drawn close to the bone by the 2020 Democratic Party platform, which rejects what it called “broad religious exemptions” that “allow businesses, medical practices, social service agencies, and others to discriminate.” What that means in plain English is that, under a Democratic administration allied to Democratic majorities in both houses of Congress, the Little Sisters of the Poor will be compelled to provide contraceptives, some of which are abortifacients, to their employees. That, and nothing other than that, is what the Democratic platform promises. That is also the policy the Democratic candidate for president has said he would support. Does anyone doubt that his running mate (who seems to think the Knights of Columbus are a hate group because they espouse the understanding of marriage espoused by Barack Obama in 2008) disagrees?

This is Tribe’s First Amendment theory, turbocharged: the “religious interests” of the Little Sisters of the Poor (and evangelical Protestants, Orthodox Jews, Mormons, and all others who have religiously-informed, conscience-based objections to contraception, abortion, the redefinition of marriage, and the full LGBTQ agenda) do not fit within that “zone of permissible accommodation” that “the free exercise clause carves out of the establishment clause.” So those parties are out of luck – and out of legal protection, unless the Supreme Court comes to their rescue.

In this context, appeals to personal piety, rosary-carrying, and so forth ring hollow, however sincerely felt that piety may be.

It is fatuous to dismiss concerns over the rinsing-out of religious freedom as the overwrought fretting of culture warriors. The commitments in the Democratic platform are plain, and there can be no reasonable doubt that those commitments will be given legislative and regulatory effect by a Democratic administration in league with a Democratically controlled House of Representatives and a Democratically controlled Senate. Those are the facts. They are not the only facts to weigh. But those facts should certainly bear on conscientious Catholic voting for all federal offices in 2020.


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About George Weigel 296 Articles
George Weigel is Distinguished Senior Fellow of Washington's Ethics and Public Policy Center, where he holds the William E. Simon Chair in Catholic Studies. He is the author of over twenty books, including Witness to Hope: The Biography of Pope John Paul II (1999), The End and the Beginning: Pope John Paul II—The Victory of Freedom, the Last Years, the Legacy (2010), and The Irony of Modern Catholic History: How the Church Rediscovered Itself and Challenged the Modern World to Reform. His most recent book is The Next Pope: The Office of Peter and a Church in Mission (2020), published by Ignatius Press.

7 Comments

  1. A zone of religious accommodation establishes protection of a civil right as the legal assumption that religion cannot remove that right. My contention in reference to Weigel’s article on Religious Freedom is that since the founding fathers and the Constitution the concept of freedom has evolved. American jurisprudence was heavily influenced by the Common Law of England. A stare decisis form of unwritten legal opinions of right and wrong incorporating traditional Catholic doctrine, philosophy, the Roman Codex, customs, in effect all those traditional precepts of good and evil, justice and injustice that identify a culture. Perceived by legal scholars like Harry N Scheiber as “enlightened public policy” [see Doctrinal Legacies and Institutional Innovations in Am Law and Const Order]. America’s newly independent colonies adopted the British Reception Statute, with exceptions suitable to the Constitution that legalized English Common law. Originally mandated on the Colonies in the Royal Charter intended to curtail New England theocracy, which inhibited both civil and religious freedom. Religious freedom in the new Republic was established in the First Amendment, that not “two ‘religions clauses’ but one religion clause, in which ‘no establishment’ [i.e., no official, state-sanctioned Church] was intended to serve the ‘free exercise’ of religion” (Weigel). Strict constructionists underscore the faith of the founding fathers whereas the trend toward total secularization perceives Liberty and personal freedom as the sacred golden calf. Legal scholar Lawrence Tribe defines the cryptic second religious clause ably cited by G Weigel as “ a carved-out area that might be characterized as the zone of permissible accommodation.” Civil right trumps religious right in the new secularist accommodation. Ironically a President named Trump seeks to correctly restructure the discordant tension between a subsequent secularist addition and a Constitutional originalist interpretation of religious liberty. We’re in for a fight. Those of us fighting for the free exercise of the true faith fight for justice itself.

  2. Mr. Weigel, I am still trying to catch my breath from your statement that Father Neuhaus, whom I remember well for his wealth of wisdom and wit, was a registered Democrat through 2009.

  3. A fitting name, “Tribe,” congruent today with Leftist tribalism and now the 2020 Democratic Party tribal confederation…

    We read from Tribe THAT there is a “zone which the free exercise clause carves out of the establishment clause for permissible accommodation of religious interests [mere interests?]. This carved-out area might be characterized as the zone of permissible accommodation.”

    Today’s bubble-universe/tribal confederation still carves out at least a permissible zone….in the Harvard Law Review (1895), the later United States Supreme Court Associate Justice Oliver Wendell Holmes Jr. had already plotted the end-game for mandatory intolerant-tolerance–when he wrote:

    “. . . I often doubt whether it would not be a gain if every word of moral significance could be BANISHED [no residual ‘zone’] from the law altogether. . . .” Earlier, he also had written: “I think that the sacredness of human life is a PURELY MUNICIPAL IDEA of no validity outside the jurisdiction” (Mark de Wolfe, ed., The Pollock-Holmes Letters, 1874-1932, 1942, Vol. 2, p. 36, CAPS added).

    Civilization itself has been politicized and reduced to a vote.

  4. A big problem with expunging religion and the natural law from public life is that all rights then become ungrounded and subject to the prevailing winds. We already have seen many acts which were considered virtuous last year are now considered vice because the wind started blowing in a different direction. When one’s rights are subject to a majority vote or to whoever has the most guns or power or money or whatever, and when the word is watered down to cover things that really aren’t “rights,” then no one really has any rights.

  5. We all know what the elephant in the room is…should or should we not vote Democrat this election cycle..we so UK lip d not and yet most of us at our local Parrish do not speak ou about this…its to political..we need to stay neutral…we cannot judge our fellow catholics…what’s wrong with us are we serious about what the consequences to our nation are or not…god help us

  6. We have to remember, of course, that God promised that the United States will last forever; the USA is not only protected from divine punishment, but from the purely natural consequences of bad decisions. Oh, wait, that promise was never given. It is only against the CHURCH that the gates of Hell will never prevail; as for other institutions, “And whosoever shall fall on this stone, shall be broken: but on whomsoever it shall fall, it shall grind him to powder.”

    A year or two before I arrived at my dorm, some kid decided to take a sledge hammer to an inconvenient wall in the basement. Fortunately, it turned out not to be a load-bearing wall, but the kid did not really know this. The political projects we see today are run by people very much like that student; they like to knock things down, but they fail to understand that some of the elements they are trying to knock down are holding up the roof, and that should they succeed, they will be ground to powder, not as divine or human punishment, but merely as the logical consequences of their actions.

  7. The Obama administration (Biden as Vice President) began the persecution of the Little Sisters of the Poor. Today many Democrat cities and states severely restrict worship in the name of covid while permiting casinos, liquor stores, malls to follow far more lenient guidelines.
    Bill McGurn (Wall Street Journal, Aug. 25) notes that in religious rights cases, Democrats typically side against the religious party.
    Mr. Weigel is correct. In a Democrat sweep, religious liberty will be under siege on all sides.
    People of faith will have to unite. For Catholics, this will be more difficult. Our bishops and many priests have been in the Democrat camp for years, beguiled by their politically motivated tears for the poor, immigrants, the environment(immigrants will add voter to the Democrat base), and oblivious to the intense Democrat hostility to religious freedom.
    With all respect to our clergy, I offer the words of Ann Landers, ” Wake up and smell the coffee.”

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