By / Jun 26

On June 21, the Biden administration passed on its final opportunity to appeal the Eighth Circuit Court of Appeal’s ruling that struck down the “transgender mandate” in Sisters of Mercy v. Becerra. Counsel in the case, Luke Goodrich, said, “after multiple defeats in court, the federal government has thrown in the towel on its controversial, medically unsupported transgender mandate.”

The case was brought by the Sisters of Mercy, the University of Mary, and the SMP Health System in 2016 challenging the mandate that would require them to provide gender transition care against their religious convictions and medical expertise. The court struck down the mandate in December.

A similar case named Franciscan Alliance v. Becerra also succeeded in challenging the transgender mandate in August after the Fifth Circuit Court of Appeals ruled that it violated religious freedom. The group represented an association of over 19,000 healthcare professionals, eight states, and two religious hospitals. The Biden administration declined to appeal this decision, as well. 

In response to the decision, ERLC President Brent Leatherwood said,

The Biden administration’s decision to back down from the transgender mandate marks a significant victory in safeguarding the rights of medical professionals to operate in a manner consistent with their deepest held beliefs. This is an important development we should take note of because it not only represents a win for conscience rights but also furthers efforts to shield vulnerable individuals who should never become pawns in the sexual revolution.

What is the transgender mandate?

In 2016, as a part of the implementation of Section 1557 of the Patient Protection and Affordable Care Act (ACA), the Obama Administration’s Department of Health & Human Services (HHS) promulgated a rule requiring medical providers to perform and insure abortions and gender-transition procedures or face penalties. Section 1557 of the ACA is the nondiscrimination provision of the ACA, and the scope was broadened by redefining “sex” to include sexual orientation and gender identity.

The regulations came to be called the transgender mandate because they would require physicians to provide gender reassignment surgeries and administer hormones to facilitate gender reassignment, including to children, even if the doctor believed the procedure would be harmful.

In 2021, upon taking office, Biden reversed the Trump administration’s conscience protections by continuing to amend the language in the ACA to force doctors to perform gender-transition surgeries. The litigation was still in the courts pending a final decision, both of which came in 2022. The expiration of the appeal deadline terminates the Biden administration’s attempts to force the transgender mandate through the ACA. 

How has the ERLC been involved?

From the beginning, the ERLC has been an outspoken opponent of the transgender mandate because of its harmful implications for those undergoing these procedures as well as its flagrant violations of religious liberty and conscience protections for healthcare professionals.

Opposing the transgender mandate has been a top public policy priority for the ERLC, and in 2022, the ERLC filed public comments opposing the Department of Health and Human Services’ (HHS) most recent attempt to steamroll the consciences of these medical professionals. Today’s failure to appeal is a final victory after many years of dedicated advocacy from the ERLC and religious liberty allies.

Why does this matter to Southern Baptists?

As Southern Baptists, we believe that God, in his good design, has created us to be male and female to promote our flourishing. Despite how culture’s views of sexuality and gender may change over time, our commitment to this truth remains steadfast. 

Similarly, religious liberty and the protection of conscience is a bedrock principle for Baptists. As the Baptist Faith and Message describes, “God alone is Lord of the conscience.” Mandates from the government that force individuals to choose between their deeply held beliefs and their duties in the workplace must be opposed. The ERLC will always work to promote the dignity of all people and protect the religious liberty of all people of faith.

Following the decision, ERLC President Brent Leatherwood said, “Whether it is championing the preservation of individual consciences rooted in faith or defending the well-being of all image-bearers, the ERLC stands resolute, advocating tirelessly on behalf of our SBC churches. In doing so, we will not yield in our mission to protect and defend those who need it most.”

By / May 3

WASHINGTON, D.C., May 3, 2019—The Ethics & Religious Liberty Commission of the Southern Baptist Convention welcomed the news of a final conscience rule for healthcare entities and individuals from the U.S. Department of Health and Human Services Office for Civil Rights. The new regulation lends executive enforcement to longstanding federal laws that protect individuals and healthcare entities from discrimination on the basis of religious belief or conscience objections to certain healthcare practices such as abortion or assisted suicide. The ERLC submitted public comments in support of the interim rule when it was issued.

ERLC President, Russell Moore, responds to the announcement of the final rule.

“This final rule comes as a conclusion to multiple positive moves by the Department of Health and Human Services to safeguard conscience protection. I am thankful that HHS recognizes how imperiled conscience rights have been in recent years in this arena and is actively working and leading to turn the tide in the other direction. Healthcare professionals should be freed up to care for the bodies and minds of their patients, not tied up by having their own consciences bound.”

This HHS rule is the result of the administration’s effort to protect religious liberty in all aspects of federal law. Specifically, the rule will protect nurses like Cathy Cenzon-DeCarlo who in 2009 at Mount Sinai Hospital in New York was forced by her superiors to assist in the dismemberment abortion of a 22-week-old baby. When she objected, she was threatened with the loss of her job. Mount Sinai, a recipient of millions in federal funding for research, violated the Church Amendment, a related conscience protection, by coercing nurse Cenzon-DeCarlo to participate in the abortion.

The new rule places the federal government on the side of nurses like Cenzon-DeCarlo in such disputes, making clear that the choice to refrain from participating in a healthcare practice that violates one’s conscience is a choice protected by federal law.

The Final Conscience Rule is available to read here, as well as a factsheet from HHS available here.

By / Nov 9

When the Affordable Care Act (ACA) was enacted in 2010, there was much discussion about what this new law would mean in regards to the health care coverage requirements. Beginning in 2011, the Departments of Health and Human Services (HHS), Treasury, and Labor established mandated coverage of contraceptives, including those with abortifacient properties, in health care plans. The Obama Administration offered a narrow exemption for churches, religious orders, and integrated auxiliaries (organizations with financial support primarily from churches).

This new contraceptive mandate prompted numerous legal challenges from religious organizations and small businesses nationwide. The historic Burwell v. Hobby Lobby Stores, Inc. decision was made in 2014, in which the Supreme Court ruled that closely held for-profit organizations can constitutionally object and be exempted from the mandate on the basis of sincerely held religious beliefs. In the majority opinion, Justice Alito argued: “HHS’s contraceptive mandate substantially burdens the exercise of religion.” Though religious freedom advocates welcomed the success, dozens of other organizations continued the fight by filing lawsuits against the HHS on the basis of moral conviction.

In follow up to both the Supreme Court’s opinion and the moral concerns raised thereafter, the Trump Administration proposed two interim rules in October 2017. On Wednesday of this week, HHS, Treasury, and Labor issued both rules as final.

The first would provide an exemption on the basis of sincerely held religious beliefs, and the second on the basis of nonreligious moral convictions. Nonprofit organizations, closely held for-profit entities, education institutions, insurance providers, and individuals are eligible for exemption under both rules. Protections only extend to publicly-traded businesses if their opposition to the mandate is because of their sincerely held religious beliefs, but not if the opposition is because of their nonreligious moral convictions. Government entities do not qualify for either exemption. The exemptions specifically extend to certain contraceptives many view as abortifacients, and/or sterilization procedures.

In support of the interim rules, ERLC President Russell Moore commented,

The government has no business whatsoever forcing citizens to subsidize the destruction of human life and the exploitation of families and communities. More still, the contraceptive mandate revealed the audacity of a state that believed it could annex the human conscience, which is why I have long opposed it as an unlawful overreach asking citizens to choose between obedience to God and compliance with the regulatory state. A government that can pave over the consciences of some can steamroll over dissent everywhere.

After the announcement of the final rules this week, Moore added, “These exemptions are the long awaited conclusion to the crucial achievement of preserving religious liberty from an unlawful government overreach. I am thankful that this effort finally ends with religious and moral exemptions issued by the Administration.”

Between the interim rule release in October 2017 and the final rules issued in November 2018, the Administration accepted over 100,000 comments from the public, including comments drafted by the ERLC policy team affirming the proposed rules. The three federal departments considered these comments before institutionalizing the rules.

The new final rules will go into effect 60 days after their publication in the Federal Register.

By / Jan 18

WASHINGTON, D.C, Jan. 18, 2018—Russell Moore, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, commented on today’s HHS Announcement to form a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights.

“Health care professionals do not put their consciences in a blind trust when they pursue medical training. The Department of Health and Human Services’ announcement of this new office to safeguard conscience protection is a welcome and positive move. I am thankful that HHS recognizes how imperiled conscience rights have been in recent years in this arena and is actively working and leading to turn the tide in the other direction. Healthcare professionals should be freed up to care for the bodies and minds of their patients not tied up by having their own consciences bound.”

The Conscience and Religious Freedom Division has been established to restore federal enforcement of the nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.

The announcement took place at an event at HHS headquarters from 10:30-noon ET.

The Southern Baptist Convention is America’s largest Protestant denomination with more than 15.2 million members in over 46,000 churches nationwide. The Ethics & Religious Liberty Commission is the SBC’s ethics, religious liberty and public policy agency with offices in Nashville, Tenn., and Washington, D.C.

By / May 17

“In light of the positions asserted by the parties in their supplemental briefs, the Court vacates the judgments below and remands to the respective United States Courts of Appeals for the Third, Fifth, Tenth, and D. C. Circuits.” – Zubik v. Burwell, 578 U.S. ____ (2016)

Yesterday, the United States Supreme Court handed down a major victory by unanimously ordering all parties back to the drawing board to determine how to provide full and equal health coverage, including contraceptives, to women employed by religious nonprofits without placing a substantial burden on the free exercise of such organizations. The Court did not rule on the legal merits of the case, but rather empowered the parties to resolve this conflict of law and conscience in the lower courts. This order is a big win for the Little Sisters and a prudent exercise of judicial authority in an increasingly imprudent cultural moment.

This decision from the Court may not appear at first glance to be a win for religious liberty. But, it is. Zubik is the named lead case in a consolidation of seven total cases that all challenge the contraceptive mandate in the Affordable Care Act, which requires employers to provide insurance coverage for contraceptives. The United States Department of Health and Human Services (“HHS”) promulgated an ostensible regulatory accommodation for religious non-profit organizations that requires notice be given to HHS or the organization’s insurer that the organization objects to such contraceptive coverage upon religious grounds. The consolidated cases challenged the regulation under the Religious Freedom Restoration Act (“RFRA”), arguing the regulation is a substantial burden to its religious exercise and is not the least restrictive means of serving a compelling government interest. After losing in district and appellate courts, the religious nonprofits petitioned the Supreme Court to hear their case, which the Court agreed to do in November 2015.

After oral argument and supplemental briefing, the Court chose not to rule on the legal merits of the case. The Court went to great lengths to make this clear. However, implicit in the Court’s ruling is an acknowledgement that, in fact, a less restrictive means must exist to serve this particular government interest. The federal government admitted in supplemental briefing, and the Court took note, that the regulation “could be modified to operate in [a] manner” that would not infringe religious exercise of these organizations. The Court has now directed the parties to do just that, encouraging the Courts of Appeals to “allow the parties sufficient time to resolve any outstanding issues between them.”

In addition to the implicit recognition that the HHS regulation violates RFRA, the Court explicitly prohibited the federal government from taxing the Petitioners for failure to provide notice, effectively enjoining HHS from enforcing its regulation. There is no finding of substantial burden in this decision, but the Court understands the restriction creates such a burden to warrant a mediated position. To allow HHS to enforce its regulation in the interim is to substantially burden the religious organizations.

The Court could have ruled definitively – one way or the other – on the legal merits of this case. Worst case scenario for religious freedom is if the Court had ruled the notice requirement is not a substantial burden to religious exercise and the mandate remains in place. That did not happen. Instead, the Court recognized the HHS “accommodation” was not enough accommodation for religious exercise. There is no mistaking that the decision is a loss for overreaching executive power and a win for religious freedom.

Perhaps lost in the measured excitement of the Court’s decision, though, is something Christians should applaud as faithful citizens. There are some who pine for a Court to strike a death knell in the contraception mandate altogether, affirming the privileged status of our First Freedom and humbling an administration on its last leg. And, of course, there are some who wish the Court had ruled against the religious nonprofits, finding the HHS accommodation the least restrictive means of serving a compelling government interest: access to contraception. But, the Court exhibited judicial restraint and, frankly, acted like a Court of Law.

The Court, in a seldom, but much welcomed, stroke of humility, stated in its decision:

“Although there may still be areas of disagreement between the parties on issues of implementation, the importance of those areas of potential concern is uncertain, as is the necessity of this Court’s involvement at this point to resolve them.”

Yesterday, the Court recognized the best resolution to this conflict of executive power and religious freedom is mediation and compromise between parties. The Court need not rule on every legal concern, for its role is limited. Therein lies the lesson for this administration. Christians should applaud when the Court — or any branch of government, for that matter — exercises only that authority given in our constitutional republic and no further than God intends. We understand that God has given limited authority to government and that authority does not extend to the coercion of conscience.

By / Nov 6

WASHINGTON, D.C, Nov. 6, 2015Russell Moore, president of the Southern Baptist Conventions Ethics & Religious Liberty Commission, responded to todays U.S. Supreme Court decision to hear a challenge to the HHS Mandate that would decide whether religiously affiliated organizations with religious objectionsincluding Guidestone Financial Resources, a Southern Baptist entitywould be exempt from providing employees with contraceptive coverage.

It is sad that we have had to spend so much of the last several years fighting for the most basic of religious liberty protections, but the Supreme Court has the opportunity to defend the consciences of millions of Americans in what is sure to be a crucial case in the preservation of religious liberty. A government that can violate the consciences of some can easily attempt to violate the conscience of anyone. My prayer is that the Supreme Court will intervene in this administrations cavalier disregard for soul freedom that forces a decision between obedience to God and compliance with a regulatory state.

The Southern Baptist Convention is Americas largest Protestant denomination with more than 15.8 million members in over 46,000 churches nationwide. The Ethics & Religious Liberty Commission is the SBCs ethics, religious liberty and public policy agency with offices in Nashville, Tenn., and Washington, D.C.

– END –

To request an interview with Russell Moore

contact Elizabeth Bristow at 202-547-0209

or by email at [email protected]

Visit our website at www.erlc.com

Follow us on Twitter at @ERLC

By / Mar 9

WASHINGTON, D.C., March 9, 2015The U.S. Supreme Court threw out a lower court decision that originally favored the federal government today. This action revives the University of Notre Dame’s religious objection to the requirement for contraception coverage under the Affordable Care Act.

“The Supreme Court took a big step in the direction of liberty and justice, said Russell Moore, president of the Southern Baptist Conventions Ethics & Religious Liberty Commission, commenting on Notre Dame v. Burwell. I pray that the present Administration will stop its reckless disregard of soul freedom and liberty of conscience.”

The justices asked the 7th U.S. Circuit Court of Appeals to reconsider its decision against the Roman Catholic university in light of the June 2014 Supreme Court ruling that allowed certain privately owned corporations to seek exemptions from the provision. The ERLC filed a “friend-of-the-court brief”:https://erlc.com/documents/pdf/20140128-amicus-hobbylobby-conestoga.pdf in January 2014 in that case, calling for the Supreme Court to rule in favor of Hobby Lobby and other family-owned businesses that have conscientious objections to a regulation that requires employers to provide abortion-causing drugs for their employees.

The Southern Baptist Convention is Americas largest Protestant denomination with more than 15.8 million members in over 46,000 churches nationwide. The Ethics & Religious Liberty Commission is the SBCs ethics, religious liberty and public policy agency with offices in Nashville, Tenn., and Washington, D.C.

– END –

To request an interview with Russell Moore

contact Elizabeth Bristow at 202-547-0209

or by e-mail at [email protected]

Visit our Web site at www.erlc.com

Follow us on Twitter at @ERLC

By / Jan 28

Back in 2002, I traveled to Freiburg, Germany with my wife and then six month old child to visit family members who were about to have a baby of their own. We were all together in a very small and cold walk-up apartment. I spent a lot of time during the days walking the streets of Freiburg just to deal with my claustrophobic feelings. It was winter and the downtown area was beautiful. The central section of the town was a large circle. Little shops ringed the circle. In the middle of the circle was an enormous cathedral several centuries old. It was a marvel. With the snow falling I could imagine standing in the same spot centuries ago around the time of Christmas. In my mind’s eye I could see crowds of people walking into the area on its cobblestone streets to worship on Christmas Eve. This was the church as the center of a culture.

In the time of European Christendom, the Christian religion served as the religion of the people and nations. Christian churches provided the official structure of worship and values in a community. For a period of centuries, the Christian faith operated in tandem with religion in the Durkheimian sense. The pioneering sociologist Emile Durkheim viewed religion as something like society worshipping itself. At various points, devout Christians rebelled at the compromises required of being tied to the community cult and thus you had a Francis, a Tyndale, a Luther, or a Great Awakening. One might argue that we have been unraveling the interwoven fabric of Christianity and the community cult since that time, but faster in the last half century.

In America today, the antithesis between church and culture has become fairly clear. Christianity does not provide the “cult” in the culture. The American Durkheimian religion can be found in the earnest professions of movie stars, media personalities, ambitious politicians, and corporate executives. The new American religion, while shaped by Christian ideas about the dignity of human beings and Christian benevolence, is increasingly intolerant of Christian orthodoxy. We have seen a major corporation fire one of its founders who was the CEO for having donated to a traditional marriage referendum in California. The mere act of his previously unpublicized donation was enough to establish his unsuitability, his out-of-stepness with the new American faith. He had become, in fact, a type of heretic. Just this month, we have seen the mayor of Atlanta terminate his fire chief because of his expression of traditional Christian sexual morality in a book written for his Sunday school class. There is a sense in which holding ordinary Christian beliefs is now a form of heresy marking one as unfit for a position of authority.

Whether the issue is the HHS mandate regarding the provision of contraceptive products or new attitudes regarding same-sex romance and marriage, the group representing the theology of this new Durkheimian cult has demonstrated a willingness to push those who disagree into conforming.  The Christian florist or baker with objections to working on a gay wedding must be brought to heel.  There is forgiveness offered by the new faith. One may hope for a chance to attend sensitivity training so as to avoid a ruinous fine.  When the U.S. Supreme Court handed down a narrow decision in favor of Hobby Lobby despite its heretical view of biological ethics, the members of the new community cult howled as though some peasant had failed to remove his hat in the presence of the king. The dangerous Christian sect had been granted a stay.

The situation forces us to be honest about where we are as the church. Fortunately, we have antecedents to guide us. If you look at the history of the church in the west, it has really operated on two models: the comprehensive church and the regenerate church. If you think about the picture I painted of the church at the center of the city in Freiburg and my thoughts about what it might have been like at the height of European Christendom, then you have a sense of the comprehensive church. The comprehensive church was tightly interwoven with the political and legal structures. To be born into the community was effectively to be baptized as well. We still see little vestiges of the comprehensive church in Europe, but the lesson seems to be that legal establishment ultimately saps the church and leaves it subsidized and conforming.

In the United States, we had formal disestablishment early on in our history, but we continued on with an informal establishment for more than a hundred years after that. Even if we look back to the Eisenhower years of the 1950’s, you could find strong encouragement generally to “attend the church of your choice,” which really amounted to a strong nod in favor of the Judeo-Christian mix of Protestants, Catholics, and Jews. President Eisenhower laid the cornerstone of the National Council of Churches building (sometimes called “the Godbox”) in New York City.

The Christian church of America today is not comprehensive in either the formal or informal senses. We, as evangelicals, have played a part in that development. We have made it clear that we desire no weak, watered-down, pink lemonade for blood sort of cultural religion. In this age, there is virtually no chance that we will again be Christians in the comprehensive mode. We will instead be like the early Christians in the sense that will be the regenerate church rather than the comprehensive church. The regenerate church has a membership based on conviction as opposed to one centered on assumed beliefs, geography, citizenship, and social power.

There will be many who will say, “Hallejujah! May it ever be so. The worst thing that ever happened for the church was Constantine’s conversion!” And I understand that sentiment, although I give it two cheers rather than three. My reservation has to do with the fact that Constantine’s conversion was a spectacular deliverance for the church of the time and arguably set the stage for the Christianization of Europe and the west.

The regenerate church has a sincerity and a spiritual power often lacking in the comprehensive version. But the regenerate church stands more at odds with the communities in which it exists. When the regenerate church criticizes “the world” and “worldliness,” there are many who recognize themselves in the critique and do not care to hear it. The result is that the church moves from the center of things to more of an outside, challenging kind of position. That is no cause for panic. A Bible reading people should not be rattled by it. We have some expectation of being on the outside if we are faithful.

Note: This essay was adapted from a talk given at Trinity Evangelical Divinity School.

By / Apr 23

The conscience is a curious thing. It is part of each of us, and yet seems to operate independently of us. It’s like a little piece of the image of God that isn’t quite in step with our wills. An internal judge, it constantly declares us innocent or guilty as it subjects our every word, deed, and thought to its own moral standard. The Apostle Paul wrote that the conscience pronounces a person guilty or innocent of violating the law of God written on the heart (Romans 2:15). He also defended his personal integrity by claiming his conscience was clear regarding his conduct in the world and toward the church (2 Corinthians 1:12).

Conscience demands conformity to its moral code. When it doesn’t get it, it demands an explanation or accommodation it can live with. The hardest thing for any person to do is to escape its pronouncement of guilt. It can be seared (1 Timothy 4:2), but, except for the most calloused of people, it cannot be silenced.

Strip a person of everything he has, and all he will have left is his own sense of moral rectitude. Force him to violate that, and you will have finally succeeded in truly destroying him. Currently, thousands of people in this country are facing the prospects of that destructive blow as they wrestle with the competing demands of conscience and their government.

Many find themselves threatened by a mandate from the U. S. Department of Health and Human Services to provide contraceptives and abortion-causing drugs and devices in health insurance policies offered to their employees. These individuals cannot with clear conscience obey this dictate. The U.S. Supreme Court has decided to take up a challenge to this mandate. In Sebelius v. Hobby Lobby and Conestoga Wood Specialties they will decide whether or not the government has the power to dictate to people of faith whether their faith-informed consciences will be protected against government dictate. Clearly, much is at stake in this decision.

Others find themselves at odds with local non-discrimination laws and policies that make it illegal to discriminate on the basis of sexual orientation in providing commercial services. So, for example, the owners of Elane Photography in New Mexico were asked by a lesbian couple to photograph their wedding ceremony. Devout Christians, Jonathan and Elaine Huguenin believe the Bible teaches that marriage is exclusively the union of one man and one woman. For them, photography is a creative act. As photographers, they enter into the subject and interpret its meaning and significance through the camera lens. They didn’t see how they could possibly find significance in an event they believed was not even valid. Consequently, they could not bring themselves to participate in this lesbian couple’s wedding without violating their deeply held religious beliefs. They knew they could not escape the guilty verdict of their biblically-informed conscience or the displeasure of God if they accepted this job.

In an effort to be honest, something the biblically-informed conscience requires (Leviticus 19:11; Proverb 13:5), the photographers told this lesbian couple that they could not participate in their wedding because they believed that marriage was exclusively the union of one man and one woman. For this, they were hauled before the New Mexico Human Rights Commission, convicted of violating the state’s non-discrimination law, and fined. Understandably, the Huguenins sued in response. The case went all the way to the U. S. Supreme Court, as well. Regrettably, the Court chose not to hear their case. As a result, New Mexico’s religion-deaf non-discrimination law stands for the foreseeable future, as do similar laws and policies across the country.

In my conversations with people about this situation, some have stated that these photographers should just have lied about their reason for not photographing this lesbian couple’s wedding. They could simply have said that they were already committed for that date, for example. That’s a simple enough solution on the surface, and it probably would have worked. The only problem, of course, is that it would put these Christians in the position of having to violate their consciences by lying in order to avoid the repercussions of telling the truth. They chose to side with their consciences. I commend them.

What about the thousands of other faithful people who will be caught in the same situation, especially now that they know they as well may not even get the highest court in the land to hear their appeal?

Many will likely simply say their calendars are full rather than endure what this couple went through.

And what about those who decide that it’s easier to simply photograph the wedding, bake the cake, provide the contraceptives, abortion drugs and devices, or succumb to government dictates in some other way their consciences tell them they should not?

They will avoid the public haranguing, censure, and cost, but will their consciences be satisfied? Likely, for many, the loss of personal integrity will haunt them for the rest of their lives. Further, having compromised their convictions once in order to avoid a difficult situation, will they be less able to make a hard decision when the next compromise is required? As for all of us, the first lie or compromise is the hardest. Will they find it easier to lie or succumb in other areas of their lives now that they have already breached that area of personal integrity?

I am also concerned about the effect of guilt many of these men and women will live with as they are constantly reminded that they chose the path of personal protection rather than personal integrity. They will live with that uncleanness, and will not be able to wash that stain off their hands, or their consciences. The Accuser, himself, no doubt, will be whispering in their spiritual ears that they are unworthy of the Lord.

I fear for these faithful men and women who will live with the realization every day that they cannot teach their children it is always right to tell the truth or to do the right thing without being reminded by their own consciences that they themselves do not measure up to the very standard they espouse to their children. They will stand accused and convicted by their own consciences that they are hypocrites.

Some, no doubt, will believe by lying they are serving a higher standard, like the Hebrew midwives in the Bible who lied about why they could not kill the firstborn males of the Hebrew slaves. Those who compromise their convictions and participate in a conscience-defiling activity may say they decided to treat it as an opportunity to sacrifice themselves in service to their fellow man. Yet, in the very act of justifying their action, they demonstrate the cry of their consciences to be appeased.

Tragically, many others will simply decide to vacate the space and do something else with their lives. Yet, their consciences will be no more satisfied. They will have avoided one run-in with their conscience only to subject themselves to another as it reminds them daily that they are not fulfilling God’s plan for their lives. Both society and the faithful individual will be left impoverished by that choice.

The conscience is a stubborn thing. It can be suppressed, lied to, drowned in alcohol and drugs or the drone of myriad activities, but it cannot be ignored. It will require an answer, an excuse, or repentance whenever it is violated. Many thousands of Christians are about to be forced by their own governments, even their neighbors and friends, to choose between them and their consciences. This is a no-win situation for them, one which should never have been forced on them. Our governing authorities can do better. Their deafness to the demands of faith on the individual is the very thing our Founders attempted to prevent when they ratified the First Amendment to our Constitution. We must insist that government do better—for the sake of conscience.

By / Mar 26

Editor’s Note: The following is an excerpt taken from remarks at the Fortnight for Freedom, used with permission from the author.

The need for this article rose from recent actions of the government which indicate that religious freedom may be in serious danger. Specifically, the Department of Health and Human Services issued a mandate requiring all employers who offer insurance to provide coverage for contraceptive and abortifacient products and services. The mandate contained no exemption for religious institutions such as universities, charities and hospitals, which might find difficulty complying for reasons of faith and conscience.

This issue may appear to be a new one, but it is actually very old. The eighteenth-century philosopher Jean-Jacques Rousseau wrote a number of influential books and essays. One of the most notable is The Social Contract. In that book, Rousseau has a chapter titled “On Civil Religion.” In the chapter, he observes that ancient cultures traditionally united theology and politics. Each religion was tied to the laws of its state. There could be no conversion other than through conquest. The only missionaries were soldiers. There was nothing to discuss. Force decided religious disputes. There are still quite a few nations that practice the same philosophy today.

Rousseau points to Jesus as the person who disrupted that age-old system. For a time, you had the Christians operating within the context of a pagan empire while simultaneously refusing to accept the emperor worship that held the whole system together. The empire was willing to tolerate a polytheistic festival of religions as long as all would submit to the overarching religion of Rome. The Christians refused. And they were persecuted, terribly persecuted (killed by wild animals, tortured, turned into flaming lanterns), until, improbably, everything changed. Some of the powerful were converted, such as Constantine, and Christianity gained first protection, and then establishment status. The empire of Rome eventually fell. But the Christian church carried on.

From Rousseau’s perspective, Christianity presents a serious problem because there will always be the difficulty of double power since the church will not simply yield to the state. Where there is conflict, the church will go where it believes God is leading it. Rousseau thought such a conflict should be impossible. The state must rule without question. He praised Hobbes for trying to put the two powers back together under the rule of Leviathan in which the state would control religion completely. What is needed, Rousseau wrote, is theocracy such that there is no pontiff other than the prince and no priests other than the magistrate. The only real sin in this new state Rousseau envisioned is intolerance. It is not enough to have theological intolerance and civil tolerance. Theological intolerance cannot be tolerated. Anyone who “dares to say outside the church there is no salvation ought to be expelled from the state . . .”

Rousseau, of course, was one of the great intellectual inspirations for the French Revolution. The French Revolution, so different from the nearly contemporaneous American one, followed Rousseau’s logic. The revolutionary leaders carried on a massive campaign against the Catholic church and tried to create a new national civil religion. The method of the secular, statist revolutions has been that if there is to be something like a religious power, it must be a power under the control of the state and its leaders. But like the old pagans, the new pagans have found that the followers of Jesus Christ are not willing to accept the idea of the state as the supreme power. That resistance to the supremacy of the state has been and should always be one of the marks of the Christian church.

It seems to me that the mandate handed down (in an undemocratic, regulatory fashion) by the government’s department of Health and Human Services represents a return of Jean-Jacques Rousseau’s political thought in our time. In essence, the state and its rulers are saying that its conception of what is good for human beings is superior to the church’s view and it will be made mandatory (even for the church) regardless of the church’s objections. The offense is compounded because the state could simply opt to tax the people and provide the services on its own. Instead, it insists that religious institutions themselves pay for the contraceptive and abortifacient products and services it rejects. It is not enough that religious organizations have to accept it as passive taxpayers. Instead, they must be forced to directly fund the products and services as part of their employment contracts.

Whether its members realize it or not, the administration is working directly under Rousseau’s canopy. It would have been a simple thing to insert a provision into the mandate accommodating objections based on faith and conscience. Employees working for religious employers (especially Catholic ones who are the most affected) hardly represent a large portion of the labor force. But the accommodation has not been made in any meaningful sense. And one has the feeling that the accommodation has not been made because the other side is working from their own view of principle. They are saying, with Rousseau, that what they see as civil and theological intolerance cannot stand. The Catholic Church finds itself at odds with the metaphysics of the United States government. Other churches will soon find themselves in similar circumstances if we do not curb the boldness of the government quickly. Though it is in a relatively low key way (low key as opposed to the French Revolution), the government is essentially saying that a particular view of the Catholic church will not be permitted to shape its organizational behavior, even though the church’s view does not threaten anyone with harm. Individuals who work for Catholic organizations could easily work elsewhere. The church does not force anyone to sign a contract of employment.

I have frequently been surprised to find people who should know better supporting the administration and its mandate. What it often comes down to is one’s political sympathies. Those who prefer a larger government and believe government is the primary provider for the good of people tend to think the mandate is a just measure. But I have discovered that they are able to see the problem with the mandate when I change the fact situation to one with which they are more sympathetic. Let us imagine a Quaker college with a core conviction regarding pacifism. Let us further imagine that the government were to insist that such a college host an ROTC unit on campus. Given these facts, would you insist that the Quaker college must simply buckle under, ignore its core beliefs, and do what the government says? When I put it that way, I find that supporters of the mandate suddenly understand the problem with the situation the government is putting the church in. If the issue is pacifism rather than sex or reproduction, then the matter of conscientious and spiritual objection becomes more clear. We can be blind to important principles when our particular ox is not being gored.

Criticism of the HHS mandate is aimed at improving our understanding of religious liberty, but I would submit to you that maybe the issue is simply liberty itself. I recently read an interview between Bart Stupak and Greta van Susteren. If you don’t recall, Congressman Stupak and a group of pro-life Democrats held up passage of the president’s health care bill because of their concerns about taxpayer money being spent for abortion and because of a desire to make sure that conscience would be protected. After the president signed an executive order aimed at alleviating their concerns, Stupak’s group provided the winning margin in the House. Stupak and his group of fellow Congressmen had attempted to protect religious liberty and rights of conscience in the massive piece of legislation, but all that is a faint memory now. What I am suggesting to you is that if we insist on continuing to expand the power we give to the government, then we should not be shocked and dismayed when we see fundamental rights and freedoms, such as religious liberty, eroded. Where government power increases, freedom is diminished. The relationship is axiomatic. It means that we must be very careful and very sure of what we are doing when we seek to expand the power of the state. It sounds good to solve problems by simply having the government pass a law, but there are often unintended consequences. A laudable attempt at providing health care coverage for more Americans has ended up strengthening the hand of persons or organizations who lack respect for rights and freedoms we cherish.

I have discussed Rousseau’s point of view and how it connects directly to the state of mind that issues something like the HHS mandate heedless of the serious problems it creates for individuals and organizations with objections based on faith and conscience. Rousseau, meaning well, wrote a philosophy fit for totalitarians. He is remembered for lamenting that man is born free, but is found everywhere in chains. Less often do we hear another thought of his connected to freedom, which is that if a citizen finds himself or herself in disagreement with the general will of the nation, then he or she must be forced to be free! Freedom for Rousseau means being in step with the general will. That is what the secular statists think they are doing to the Catholic Church with the HHS mandate. They are forcing you to be free!

Thankfully, however, America is not a country that has tended to take its cues from Jean-Jacques Rousseau. Far more influential on our shores has been the thought of a man named John Locke. Like Rousseau, Locke reasoned about the nature of the social contract. But he did not conclude that we should end up forced to be free by following the general will. Instead, he said that we have government to make us more truly free, free in a sense that you and I can actually understand and support. In a state of nature, there is still a natural law of right and wrong that exists, but our ability to enforce it is in question. For example, if a seven-foot barbarian steals your property and takes your home for his own, you may have the right on your side, but there is doubt as to whether the demands of justice will be satisfied. Locke says that we lose little by creating a state to protect us from violent or dishonest acts of others when we have a low probability of achieving the same result without a government. In other words, we gain freedom by empowering a state to punish criminal acts. Rather than being forced to be free, the government will use force to protect freedom.

Locke would not have approved of something like the HHS mandate, which impairs religious freedom. He said that we come out of the state of nature into a civil society with a government to gain what we could not secure in nature. The goal of government is to protect freedom, not to diminish it. The HHS mandate is an exercise of government that reduces freedom. Worse, it is the kind of government act that infringes on freedom of religion and conscience. These are the freedoms we would be least likely to bargain away because they mean the most. A government that infringes on these freedoms is one that is making us worse off rather than better off. It is a government that forces us to be at odds with the entity that is designed to protect us in the exercise of our freedom. It makes an enemy of us (and this is the important part) when we have done nothing that should make it see us as an enemy. The government has engineered a crisis in which churches are more and more likely to be caught between God and Caesar. This is the last thing a government should be doing to its people when they are committing no wrong.

The bottom line is that there are certain things that belong to the state and others that don’t. The state is an instrument, not some kind of grand end. It is a tool. It is temporary. It is designed to solve a simple problem, which is the problem of restraining evil. The state is designed to serve persons. We are not designed to serve the state. The great French Catholic scholar Jacques Maritain said it best: “The state is made for man, not man for the state.”

The United States, traditionally, has been one of the nations that most clearly understands the proper role of the government. We have welcomed the existence and development of many institutions of civil society performing tasks that need not belong to the state. But Rousseau saw a society with two powers of church and state as a liability, something that needed to be destroyed. And the French Revolution accordingly attempted to destroy it. What Rousseau missed that Locke understood is that when government attempts to rule over too much of life, then there are too many areas in which disagreement can only be settled with the exercise of coercive power, including things such as civil penalties and imprisonment. We should only resort to those things when the stakes are very high. Why would we subject more things to that official (and ultimately punitive) sphere than we must?

Having strong institutions in the society other than the government actually improves the prospects for freedom. The family, the church, the private school, charitable organizations . . . all of these represent alternative allegiances for people. Alternative allegiances help limit the power of the state and curb its ambitions. A totalitarian state prefers to have only two entities in society, the individual and the state. In that situation, the vision of the state will always be supreme.

When we protest that something like the HHS mandate might eventually have the effect of forcing the church to abandon its efforts in running schools, universities, hospitals and social services, a pragmatic person might well rethink the whole project out of worry for the loss of all the good religious institutions do. But for people of a certain ideological stripe, when we say the HHS mandate could force the church out of various endeavors, they think silently to themselves, “Good.”

I am not saying these people are villains. They have a big vision for society based on government action. They believe it is for the best. They believe strongly enough in this vision to take an amazingly bold action against the church. But the experience of the twentieth century should make us reluctant to agree to these large and ambitious plans. Karol Wojtyla, the man who became Pope John Paul II, lived his life in the service of a church forcibly repressed by first the Nazis and then the Soviets, both of whom carried out their programs in service of their plans for the good for humanity. As a younger man, he made a practice of taking young people out into the country for hiking and canoeing. He wanted to show them that even under totalitarians, one can and should carve out space for a life they do not control. He was teaching them that the state is not the supreme reality. The supreme reality is the church seeking after the will of God. And that is why Peter and apostles told those who wished to imprison them that “We must obey God rather than men.”

If the church fails to stand up and be counted at this moment, then the HHS mandate will simply be the first of many more such rulings and regulations in the future. We need to protect religious freedom now. The church has never been intended to set its course to fit the prevailing winds of public opinion or the edicts of state. In his profound Letter From Birmingham Jail, Dr. Martin Luther King, Jr. wrote that the church must be a THERMOSTAT, not a thermometer. It does not simply reflect public opinion. It sets out to influence public opinion. It means to work a change in people. The church must maintain its freedom to speak and act in a distinctive fashion. When it makes deals with power in order to survive, it accumulates shame and infamy just as the “German Christianity” of the Third Reich did.

I have spent a good bit of time explaining why I think the HHS mandate is fundamentally misguided and violates the basic American understanding of government power. My hope is that if anyone needs convincing that perhaps I have made a case for restricting government power and resisting the siren call that issues forth every so often telling us that the millennium will come when we have composed the perfect package of government rules and programs. My suggestion is that we all become a great deal more modest in terms of what we expect a government to do so that we can maintain our confidence in our freedoms. The big solutions usually disappoint us. And freedoms do not typically return once they have been surrendered to the state.