Long ago, the mid-1980s to be precise, I covered a Colorado dispute involving religious freedom. The spark that lit the fuse was a state tax official's decision to rule that the "worship" that took place inside church doors was "religious," and thus tax exempt, while what happened inside non-profit religious ministries (think day-care centers) was not truly "religious."
This claim produced a scream of legal rage from leaders in religious denominations and groups, both on the left and right. Everyone agreed that state officials had no right to get entangled (there is that word again) in determining what was "religious" and what was not (outside the usual limits of fraud, profit and clear threat to life and health). The state was not supposed to decide that "worship" was religious, while caring for children (and teaching them Bible lessons) was not.
Obviously, America has evolved since then, especially on issues linked to the doctrines of the Sexual Revolution. The latest round of Obamacare debates at the U.S. Supreme Court seemed to have focused on this question: Can churches and other houses of worship decide what is "sin" for members of their voluntary associations, while doctrinally defined ministries and schools cannot make this kind of ruling?
I would add to that last sentence: These religious ministries and schools cannot defend their own doctrines defining "sin," even for employees and/or students who have -- to join this religious association -- voluntarily signed covenants in which they promise to live by these doctrines (or at least not to publicly attack them). In other words, the state now gets to define what is "sin" for these employees/students, not the doctrinally defined ministries and schools they have voluntarily joined.
I cannot find a mainstream news report about this Obamacare debate that even mentions these doctrinal covenants, so it is safe to assume (a) that journalists do not know (or care) that they exist or (b) that the freedom to form voluntary associations no longer applies to religious groups, outside of actual houses of worship.
How do you read this passage from The New York Times, containing a key quote from Justice Anthony Kennedy?
On this point, at least, Justice Kennedy seemed to take the government’s side. “It’s going to be very difficult for this court to write an opinion which says that once you have a church organization” entitled to an exemption, “you have to treat a religious university the same.”
That's a highly relevant statement, since the "Little Sisters of the Poor" case actually involves dozens of religious ministries and schools, grouped in seven cases -- Zubik v. Burwell, Priests for Life v. Department of HHS, Roman Catholic Archbishop of Washington v. Burwell, East Texas Baptist University v. Burwell, Little Sisters of the Poor Home for the Aged v. Burwell, Southern Nazarene University v. Burwell and Geneva College v. Burwell.
Here is a question for journalists covering this case, linked to a point that I can guarantee was made during the long debates inside the U.S. Supreme Court: Is the court essentially being asked to rule that the First Amendment now protects "freedom of worship," but not the "free exercise of religion"?
You can see shadows of this "freedom of worship" vs. "freedom of religion" clash in many mainstream news accounts of this case. Elsewhere in the Times piece there is this:
Paul D. Clement, a lawyer for the order of nuns the Little Sisters of the Poor and other challengers, said his clients should be entitled to the outright exemption offered to houses of worship like churches, temples and mosques. Houses of worship do not have to file any paperwork if they choose not to provide contraception coverage.
You can see the doctrinal covenant issue lurking near the top of The Los Angeles Times piece:
The Supreme Court justices sounded evenly split Wednesday when asked to strike a balance between a Catholic nonprofit's right to religious liberty and its female workers' ability to obtain the free birth control promised under President Obama's healthcare law.
This leads to:
Dozens of religious nonprofits, including evangelical colleges and charities such as the Little Sisters of the Poor, are suing the Obama administration over the so-called contraceptive mandate, adopted during implementation of the Affordable Care Act. The administration is defending the mandate, warning that tens of thousands of women who work for religious nonprofits and charities could be left without the contraceptives or forced to pay for the cost themselves.
But what if those women had voluntarily signed documents in which they vowed to support a set of doctrines that included behavior -- think "sin," again -- linked to these issues, such as sex outside of marriage? Is the state, in effect, asking these religious non-profits and schools to cooperate in efforts to undercut their own doctrinal covenants?
This no longer appears to be a relevant question. Or was this issue raised in the court, but not included in the news coverage? I would still like to know.
And as The Washington Post coverage did note, this is not an issue that applies to a narrow slice of Catholic and evangelical Protestant organizations. This could be seen in comments by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
Said Alito, “This is a case in which a great array of religious groups -- and it’s not just Catholics and Baptists and evangelicals but Orthodox Jews, Muslim groups, the Church of Jesus Christ of the Latter-day Saints, an Indian tribe, the Church of Lukumi Babalu Aye -- have said that this presents an unprecedented threat to religious liberty in this country.”
And the chief justice added that:
... The "administration’s compromise still required groups to take actions that they think violate their beliefs. “They think that complicity is sinful,” Roberts said.
Ah, but do the leaders of these doctrinally defined ministries and schools still have the power, under the First Amendment, do define what is "sin" for the members of their own voluntary associations?
Was this question asked in court? If so, journalists didn't notice.