Catch-22 for religious freedom
March 19, 2020
I’ll always remember reading “Catch-22,” Joseph Heller’s novel about what he saw as the absurdities of war.
In Heller’s account, enlisted men trying to escape those absurdities encountered ingenious military rules or “catches” so they could never prevail. The novel’s title refers to a catch for those who sought a discharge claiming insanity. The catch was this: If you realize how horrible war is and want to escape it, you are clearly too sane to qualify for the discharge.
Recent developments on religious freedom remind me of Catch-22. It will take a little background to explain why.
In January, NBC News ran an Associated Press story with the headline: “South Carolina group can reject gays and Jews as foster parents, Trump admin says.” The story concerned a Christian organization, Miracle Hill Ministries, that participates in South Carolina’s system to find foster homes for needy children. The organization received a federal waiver allowing it to place children only with members of its faith, as long as it referred other prospective foster parents to other agencies in the system.
The article quoted an attorney calling this “state-sanctioned and government-funded discrimination.” The Human Rights Campaign, which promotes the LGBTQ agenda, called it “unconscionable.”
Similarly, the Seattle area has seen outraged protests against a Catholic school after two teachers had to seek employment elsewhere because they are entering same-sex civil marriages, which are against Catholic teaching.
The “catch” arises because what these two organizations did is exactly what the church’s secular critics have said they must do to receive a religious exemption from legal mandates.
A leader in this area is the American Civil Liberties Union (ACLU), which has insisted that Catholic hospitals, for example, are too “secular” to win a religious freedom claim. “In the public world,” it says, “they should play by public rules.” The ACLU has argued that a right to be exempted from abortion mandates should belong only to religious organizations that primarily hire people of their own faith, primarily serve people of their own faith and focus on inculcating specifically religious values.
The ACLU’s prime example of an organization that could qualify for such an exemption is a Christian Science Church healing center, where illnesses are addressed solely by prayer.
The ACLU has boasted that it wrote the religious exemption clause of California’s state contraceptive mandate using these criteria. Later, the Obama administration also endorsed this approach, insisting that religious orders like the Little Sisters of the Poor must comply with a federal contraceptive mandate because they hire and serve non-Catholics. The sisters had to struggle all the way to the U.S. Supreme Court for relief – and some states are still in court insisting that they comply with such mandates.
Here is the Catch-22. If you hire or serve people who don’t share your religious tenets, you are not religious enough to have religious freedom. (As the U.S. bishops have said, by this standard, Jesus and his apostles were too secular because they not only preached but also healed people – including people of other religions.) If you hire or serve only people who follow your teachings, you are a bigot, guilty of homophobia and/or anti-Semitism, and respecting your faith would be unconscionable.
Who, then, has a claim to religious freedom? Apparently, only people who already share the dominant secular ideology on the issue at stake – in other words, people for whom a religious exemption is unnecessary and irrelevant. If you want the exemption, that shows you don’t deserve it.
This Catch-22 is very clever, but it has nothing to do with respecting what our nation’s founders saw as our first and most precious freedom.
Doerflinger worked for 36 years in the Secretariat of Pro-Life Activities of the U.S. Conference of Catholic Bishops. He writes from Washington state.