1st Amendment for people or institutions?

One of the clearest delineations of the terms of the debate over religious liberty came in an unexpected place on Thursday.

Speakers and panelists from many viewpoints had offered their perspectives in a series of presentations in a conference room at the Texas State Capitol as attendees at the Religion Newswriters Association pre-conference probed contentious issues ranging from the Obama administration mandate on including contraceptive care in health insurance to the rights of high school cheerleaders in a small Texas town to put Bible verses on the banner that football players would crash through on their way into the Friday night game.

But it was at an unrelated session on the growing concern about sexual abuse by religious leaders beyond the well-documented Catholic priest scandal that William Bowen framed the issue in a way that I think covered so many of the issues discussed on Thursday.

Bowen, national director of Silentlambs, an organization dedicated to helping the survivors of abuse, was talking about the resistance of the Jehovah’s Witnesses hierarchy to efforts to hold them to account for child molestation by leaders in their communities. He said they always came into court waving the flag of the First Amendment, saying that the government could not touch them.

“The First Amendment was written to protect the rights of the people,” Bowen asserted, “not to protect religious institutions that hurt people.”

He was framing it in particular to argue that religious institutions ought not be shielded from religious accountability for lawbreakers in their ranks. But the broader issue, it seems to me, is whether the First Amendment is to protect people or institutions.

At an earlier panel, Jeff Mateer, general counsel for the Liberty Institute that aggressively pushes back at efforts to limit religious expression, cited the example of a student asked to write an essay about a hero who then picked God as her hero. She was told that was unacceptable. Matt Dillahunty, host of the Atheist Experience program and not normally an ally of Mateer, said, sure, she should be able to write that essay. It is her viewpoint.

The First Amendment was protecting both belief and speech, they agreed. 

Here's a good summary of that panel from Brian Pellot of the Religion News Service.

Laurie Goodstein of The NY Times
asks Steve Green a question
at the RNA meeitng.

The biggest battle over religious liberty at the moment is over the contraception mandate, of course. It pits groups like the Roman Catholic bishops and Hobby Lobby owner Steve Green against the Obama administration’s insistence that employers offer contraception within their health insurance coverage.

The Hobby Lobby case may well be the first one to reach the U.S. Supreme Court. The Hobby Lobby position that including contraceptive coverage in its health plan violated the company’s Christian-based opposition to such coverage was upheld in a lower-court ruling.

Green said that he could not countenance the notion of his company being required to be, in his words, “an abortion provider.” That, of course, uses the disputed view that contraceptives don’t merely prevent conception but end an incipient life.

The Catholic bishops, interestingly, may actually have some more room to maneuver on this. Even though the church’s opposition to contraception is deeply rooted and well-known, Fr. Thomas Nairn, senior director of ethics for the Catholic Health Association, and Prof. Andrew Getz of St. Mary’s University in San Antonio, talked about renewed attention to an old Catholic moral principal dealing with cooperation with evil.

In essence, the question is how close one is to the evil being done. The greater the distance, the lesser the moral culpability. In the contraception case, they suggested, there is some ability for Catholic institutions to work their way through this with the kind of exemptions the Obama administration has offered to require the insurance companies themselves to absorb the costs of contraceptive care.

Those exemptions are not available to non-church related employers, though. Cue the Hobby Lobby case, that will include the question of whether of corporation is a person.

Which takes us back to that framing of the religious liberty question. Whose freedom is being protected? Under what circumstances? And how to resolve those clashes.

The recurring answer throughout the day. These issues never get resolved. They are part of the tension of a democratic society.

The bright sport was the gracious spirit of everyone throughout the day toward people who were diametrically opposed to their viewpoint. Score one for civility.