SECULAR COALITION FOR AMERICA
Written Statement by the Secular Coalition for America
Herb Silverman
President
Amanda Knief
Government Relations Manager
Submitted to the House of Representatives
Subcommittee on the Constitution
Committee on the Judiciary
October 24, 2011
“The State of Religious Liberty in the United States”
On behalf of the Secular Coalition for America, we thank you for the opportunity to submit written comments for the record for the hearing on “The State of Religious Liberty in the United States.” The Secular Coalition for America is a nonpartisan advocacy organization composed of 10 national member organizations and thousands of activist citizens across the country dedicated to maintaining the separation of church and state, and to raising the voice of the nonreligious population in this country.
The Secular Coalition aims to protect the secular nature of our government and to keep religious privileging out of legislation. Through education, advocacy, and lobbying, the Secular Coalition promotes the religious liberty of all citizens by protecting the right of every individual to practice his or her faith without interference from the government. We especially work to protect the rights of citizens to be free to be nontheistic without pressure from the majority of citizens or the government that we express religious sentiments out of obligation, social pressure, or tradition.
Religion in Public Schools
One of the greatest misconceptions that the Secular Coalition encounters is that children in public schools are banned from praying and exercising their religious beliefs. Although school- (government/state-) sponsored prayer and religious readings are unconstitutional,[1] an individual student or a group of students is still free to pray, practice religious beliefs, and read religious texts so long as doing so is not disruptive to the school day or to other students.[2] If an assignment is open to a student’s choice, he or she may choose religious or secular material. Furthermore, if a school permits noncurricular clubs to form, the school must allow religious-themed and nontheistic-themed groups when students want them.[3]
The only religious speech prohibited from public schools is that which is directed by the government in the voices of teachers, school officials, and the state.[4] Religious speech promoted by a majority of students may not be coerced onto the entire student body.[5]
Public schools are open to all citizens and their children. They must remain free from being controlled by one particular religious viewpoint, and instead respect the plurality of viewpoints represented in the student population. As the law stands, individual students have the right to practice their personal religious beliefs or not. No student may be forced to participate in any religious activity contrary to his or her own views.
Faith-based Initiatives
One of the most egregious examples of offenses against religious liberty is the employment discrimination that is federally sanctioned within the executive branch’s faith-based initiatives program, now in 13 federal departments and agencies.[6] Religious organizations that seek out and accept taxpayer funds in order to provide government-contracted services are currently allowed to discriminate in hiring based on religion.[7] This is a glaring exemption to federal law that prohibits government contractors and grant awardees from employment discrimination based on religion.[8] Within the faith-based initiative, religious organizations may use taxpayer funds to hire only those who also practice the same faith as the organizations. An otherwise qualified individual who applies to a faith-based organization may be rejected solely because he or she is of the wrong religion or has no religion at all. In 2008, then-candidate Obama stated that those who receive federal grants shouldn’t be allowed to proselytize to the people they help or discriminate against those they hire based on religion.[9] President Obama has yet to reverse the executive order that makes this discrimination legal.
Religious organizations were providing government-contracted social services for decades without the faith-based initiative. The fundamental differences between then and now are the legal provisions that govern religious organizations’ participation. Previously, a religious organization formed a separate entity—a 501(c)(3) nonprofit entity—to cover charitable funds and efforts. This was completely separate from the organizational finances of any house of worship, and subject to the same laws and disclosures as any secular nonprofit organization.Today, a religious organization that obtains funding through the faith-based initiative is not only permitted to practice employment discrimination with federal funds, but also avoid some disclosure and public records laws due to being covered under the same framework as the house of worship.
It is vital to note that any charitable program that is now eligible for federal funds through the faith-based initiative could have been funded under previous law if the religious organization agreed not to discriminate in employment.
Religion in Medical Treatment
Individuals rely on medical care professionals and health care facilities to give them the best care and treatment possible. However, for millions of Americans health care options are restricted by the religious beliefs of the practitioner, not the needs of the patient!
Catholic health services consist of more than 600 hospitals and 1,400 long-term and other health facilities in all 50 states—making this the largest group of nonprofit health care providers in the country.[10] As many as 1 in 6 Americans receives care from a Catholic health service provider—many of these Americans have no other health service options due to insurance coverage restrictions, location, or income restrictions. The medical treatments and information that Catholic health service providers will provide patients are determined by the Ethical and Religious Directives for Catholic Health Care Services, which includes the following directive:
[W]ithin a pluralistic society, Catholic health care services will encounter requests for medical procedures contrary to the moral teachings of the Church. Catholic health care does not offend the rights of individual conscience by refusing to provide or permit medical procedures that are judged morally wrong by the teaching authority of the Church. (Emphasis added).[11]
The governing document for Catholic health service providers asserts that non-Catholics will not be refused treatment that is considered wrong by Catholic teachings. Yet, Catholic health service providers force Catholic religious dogma upon ALL patients—Catholic and non-Catholic alike—by refusing to provide certain kinds of medical care and treatment, including contraceptive and preventative reproductive care, and male and female sterilizations. In fact, in 2010 St. Joseph’s Hospital in Phoenix was declared to no longer be a Catholic hospital by the local bishop after the hospital’s board intervened in the case of a pregnant mother of four in November 2009.[12] The woman, who was 11 weeks pregnant, was near death, suffering from extreme pulmonary hypertension.[13] The hospital ethics board’s decision to intervene medically resulted in termination of the pregnancy to save the woman’s life.[14] The Catholic Church and bishop decried the decision and the termination of the pregnancy despite the life-threatening medical condition of the mother.[15]
The United States Conference of Catholic Bishops is petitioning Congress to pass the so-called “Protect Life Act.”[16] This would allow Catholic health service providers and any other health care provider to withhold necessary and appropriate emergency and life-saving care in order to justify protecting the Catholic or other religious beliefs of the service provider.[17] This is contrary to a law already in place that is supposed to require any hospital that accepts Medicare and provides emergency care to provide stabilizing treatment to any patient who enters with life-threatening symptoms or injuries.[18]
Even when medical treatment is not an emergency, problems arise when medical professions assert their own religious beliefs while deciding what treatment is appropriate for a patient. Health provider “refusal clauses” were first enacted after Roe v. Wade[19] to allow health care providers to avoid having to perform abortions if abortion was against their moral or religious conscience.[20] The issue has spread to pharmacists, who also claim the right to refuse patients certain services and care because doing so violates a pharmacist’s personal religious beliefs or values. The most controversial issue revolves around emergency contraception to prevent pregnancy. As of February 2011, four states (Arkansas, Georgia, Mississippi, and South Dakota) have laws that expressly allow a pharmacist to refuse to fill a valid prescription for a patient if the prescription is for an emergency contraceptive.[21] Colorado, Florida, Maine, and Tennessee have laws with broad refusal clauses that do not specifically mention pharmacists.[22] However, Illinois has an emergency rule that requires a pharmacist to dispense Food and Drug Administration-approved contraception, and New Jersey prohibits refusing to fill prescriptions solely on moral, religious, or ethical grounds.[23]
In most states, a woman who needs birth control, emergency contraception, or just has questions about her medication cannot be assured of finding a reliable and unbiased medical professional at the pharmacy counter, where there are no laws protecting her rights.
Anti-Discrimination Laws
Another concern relating to religious liberty is the supposed chilling effect of anti-discrimination laws on the ability of religious organizations to provide services and compete for government contracts. Anti-discrimination laws protect minority groups from exclusion, harm, and negative actions by those with power over a minority group. However, some religious groups claim that their actions in refusing to treat all groups equaling is due to their religious faith and shouldn’t be subject to law or treated as discrimination.
For example, in the State of Illinois, a new civil union law prohibits discrimination in the fostering and adoption of children to homosexual parents. This law violates the religious beliefs of Catholic-based foster and adoption charities. Rather than comply with the law, some religious groups pulled out of providing services altogether, and several are suing the state for the right to refuse to place children with homosexuals.[24] Thus far, only one religious group has formed a new independent charitable organization free from religious dictates in order to put the needs of the children first.[25]
Similarly, in winter 2010, the District of Columbia approved same-sex marriage despite overt threats from the Catholic Church and Catholic Charities to pull all of their support from government-run social services, including homeless shelters, foster care programs, and food assistance.[26] When the measure did pass in February 2010, D.C.’s Archdiocese responded by eliminating all Catholic foster care programs in the district.[27] The next month, Catholic Charities changed its health benefits policy to no longer cover spouses in order to avoid paying benefits to same-sex spouses of new employees.[28]
The Catholic charities in Illinois that are suing the State to allow them to discriminate against homosexuals want a special exemption from the anti-discrimination law. However, the children in the care of the charities are not necessarily Catholic and many, if not most, of the prospective parents who come seeking to be foster or adoptive parents are not Catholic. So why should either the children or the parents be subjected to the Catholics charities’ religious strictures? If each charity was private, that would be its own business. But these charities are taking government contracts, accepting taxpayer dollars, and providing public services—they should be required to service everyone in the community equally, just like a government entity is required to. A secular nonprofit that provides the same foster and adoptive services would have no grounds for discriminating against homosexuals—so why should we allow one religious organization providing the same services to do so?
As the human and constitutional rights of homosexual Americans expand across the country, it is likely more states and the federal government will be faced with similar threats and abuses of power by religious charities that seek to pick and choose the benefits they bestow on their beneficiaries according to religious dogma.
Freedom from Government Religious Tests
The first guarantee of religious liberty in the Constitution is in Article VI: “… no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” However, from federal employee oaths to elected office, this protection seems tenuous at best.
The oath of office that federal employees are required to take includes the sentence “So help me God.” [29] Though not required and not part of the oath as written in Article II of the Constitution, recent Presidents have sworn the oath and also added “so help me God” at the end. The use of “so help me God” in oaths, to swear-in juries and witnesses, and by our elected officials stigmatizes religious minorities whose beliefs do not include “God” and the nonreligious who have no supernatural beliefs. Whether the use is written in statute or is voluntary, “so help me God” creates division by marking who is part of the majority and who isn’t—or forcing those who aren’t to go along with it anyway.
The U.S. Supreme Court has consistently ruled that the states cannot impose a religious test for office based on the provision in the Constitution.[30] However, as recently as 2009 when Cecil Bothwell, an atheist, was elected to the Asheville, North Carolina, city council, opponents threatened to try to eject him using the State’s defunct statute that required anyone holding public office to believe in a deity.[31]
During the current 2012 race for the Republican nomination for president, various candidates have made specific comments alluding to prejudices and biases for and against religious and nontheistic Americans.
Mitt Romney correctly criticized the remarks made by Reverend Robert Jeffress at the Values Voter Summit while the Reverend was introducing Republican presidential candidate Rick Perry. Mr. Romney said:
What I actually found was most troubling … was he said, in choosing our nominee, we should inspect his religion. And someone who is a good moral person is not someone who we should select; instead, we should choose someone who subscribes to our religious belief. Th[e] … idea that we should choose people based upon their religion for public office is what I find to be most troubling because the founders of this county went to great length to make sure—even put it in the Constitution—that we would not choose people who represent us in government based upon their religion. That this would be a nation that recognized and respected other faiths, where there’s a plurality of faiths, where there was tolerance for other people and faiths. That’s a bedrock principle.[32]