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Drew Clark: Religious freedom is more than a right to speak and assemble

Published: Sunday, Aug. 31 2014 12:00 a.m. MDT

Kristin Hughs, right, announces to supporters the Supreme Court's decision on the Hobby Lobby case in Washington, Monday, June 30, 2014.

Pablo Martinez Monsivais, Associated Press

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SALT LAKE CITY — The Obama administration has issued a new regulation (on Aug. 22) offering some relief to family businesses and nonprofit organizations that have objected, on the grounds of religious conscience, to the requirement that they offer abortion-inducing contraceptives.

“It is the eighth time in three years the government has retreated from its original, hard-line stance that only ‘houses of worship’ that hire and serve fellow believers deserve religious freedom,” said Lori Windham, senior counsel to the Becket Fund for Religious Liberty, which successfully fought the contraceptive mandate both on behalf of businesses, like the retail craft chain Hobby Lobby, as well as nonprofit religious orders like the Little Sisters of the Poor.

The Supreme Court’s 5-4 decision in favor of Hobby Lobby, decided on June 30, was an important step in affirming religious freedom laws in this country.

But consider the task faced by defenders of religious freedom: They must confront the attitude, pervasive within the Obama administration, that religion takes place only within the walls of a church or synagogue.

Archbishop Williams Lori of Baltimore put his finger on the problem when he told the Catholic News Agency earlier this month: "It's easy to see that the threats to religious liberty in the West are starting to constrict religion more and more. [Religion is seen] as reducible simply and solely to freedom of worship, the sentiment that as long as you're in church, do what you want, but don't think about bringing religious values into public, into your place of work, into the political discussion.”

Consider the difference between the “freedom of worship,” which is not seriously contested in the Western world, versus the “free exercise of religion.”

It’s commonly said that the First Amendment itemizes five freedoms: religion, speech, a free press, peaceably assembly and the right to petition. The advocates of the minimalist “freedom of worship” — think of the Obama administration — view religious rights as if they were akin to tweeting against Boko Haram, or assembling for an awards ceremony.

Yet, in declaring that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” the Constitution’s framers placed religion in a more central role.

A key step to curtailing the free exercise of religion was the Obama administration’s efforts, prior to the Hobby Lobby decision, to deny that a business could be religiously motivated at all. If corporations are not able to act collectively in the exercise of deeply held religious beliefs, faith becomes merely a private matter of the heart.

That’s why a corporation like Hobby Lobby needs a First Amendment right to the free exercise of religion no less than a corporation like The New York Times needs a First Amendment right to the freedom of the press.

“When thinking about religious freedom, it is easy to slip into the assumption that only individual rights matter,” wrote William and Mary Law School professors Alan Meese and Nathan Oman in a recent article for Harvard Law Review Forum. “Religious freedom, however, need not end with such rights. There are numerous instances in our law where protecting religious freedom involves limiting government control over corporate entities.”

“In a pluralistic society, people and communities need space in which to test differing modes of religious experience,” Meese and Oman continued. “[That] is only possible if the government gives the religious marketplace the kind of breathing room that it gives to the free-speech marketplace of ideas.”

How has the government been cracking down on religious exercises? Speaking at a recent conference in Provo, the Becket Fund’s Hannah Smith (also a member of the Deseret News editorial advisory board) itemized many such instances. These include:

The Health and Human Services Department’s mandate on contraception.

The Obama administration’s effort to restrict the freedom for churches to choose their own leaders. The government attempted to dictate the terms under which the Hosanna-Tabor Evangelical Lutheran Church and School could dismiss a ministerial employee. On behalf of Hosanna-Tabor, the Becket Fund won a 9-0 victory at the Supreme Court two years ago.

Discrimination against faith groups seeking access to public property on terms equal to those of secular groups.

The movement to redefine anti-discrimination laws without providing protections for religious freedom. Although the Senate-based Employment Non-Discrimination Act included protections for religious freedom, the Obama administration’s executive order on federal contracting entirely excluded those same protections.

The denial of the religious rights of a Muslim prisoner in Arkansas to grow a half-inch beard, as required by his faith. On this latter case, however, the Obama administration has joined with the Becket Fund to jointly challenge that restriction of the Arkansas Department of Correction.

Drew Clark can be reached via email: drew@drewclark.com, or on Twitter @drewclark

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