Religious freedom in America is under attack as never before. With more and more clashes ending up in court, let’s consider the principles that support the operation of religion and the exercise of belief in civil society. They have never been more important.

Sincerity

First, although courts should avoid questioning the “truth” of a particular belief, there are occasions when it is proper to demand that a person or group explain or provide supporting evidence of the sincerity of their belief. The manipulation of the principles and legal precedent of religious freedom in a desperate attempt to undermine new state laws restricting abortion is a perfect example. 

The Indiana chapter of the American Civil Liberties Union has filed suit in state court on behalf of “Hoosier Jews for Choice” and four anonymous women. Their complaint asserts that Judaism, Islam, Unitarian Universalism and paganism demand unfettered abortion access and the state’s new law infringes on their religious beliefs and violates Indiana’s Religious Freedom Restoration Act (RFRA). 

Indiana sensibly argued in court that the plaintiffs failed to meet this burden because abortion is not a religious exercise. A state appellate court disagreed. Citing the Supreme Court’s decision absolving the craft-store giant Hobby Lobby from the Affordable Care Act’s “contraceptive mandate,” that court held that “if a corporation can engage in a religious exercise by refusing to provide abortifacients … it stands to reason that a pregnant person can engage in a religious exercise by pursuing an abortion.” 

Such a leap of logic is as astounding as it is disturbing. 

A religious teaching permitting (not prohibiting) an activity is not the same as requiring that activity. Becket, the religious-freedom legal powerhouse that has litigated cases under state and federal RFRAs and represented Hobby Lobby in the U.S. Supreme Court, filed an important amicus brief in the case now before the state Supreme Court. The brief pointed to evidence that “plaintiffs’ beliefs are insincere,” adding that there is “reasonable inference” that plaintiffs “disagree with the Supreme Court’s intervening decision in Dobbs — not because their alleged religious beliefs are ‘truly held.’” 

Becket’s brief also noted that “plaintiffs cite no case finding a religious right to take a life, the court below cited no such case, and Amicus is unaware of any such case.” The case is now before the Indiana Supreme Court.

 

Autonomy

Autonomy is another principle that can guide our understanding of religious freedom. 

Autonomy allows the faithful to exercise the tenets of their religion without fear of government interference. This includes respecting the inner workings of churches and their ministries. The Supreme Court has repeatedly recognized that a “ministerial exemption” stops the government from interfering in the hiring decisions of churches and church-run entities.

 

Equality 

The third principle is equality. Religious activity and institutions must not be treated less fairly than secular activity. We saw this during the pandemic, when — until the Supreme Court finally intervened — church attendance was restricted in certain places while shopping was not. The court’s treatment of recent school-choice cases also affirmed this principle, declaring unconstitutional the exclusion of religious schools from school-choice initiatives.

 

Accommodation

The final principle is accommodation. This is essential when religious exercise clashes with the demand for ideological conformity in support of other newly recognized civil rights or policy priorities. 

Just think about the Little Sisters of the Poor, whose successful fight to be exempted from the Affordable Care Act’s contraceptive mandate created a platform for discussing not only the Church’s opposition to abortion but also the risk of finding us unwillingly complicit in actions that violate Church teaching.

 

Churches and Schools

So what are some of the current challenges and likely future conflicts? It's not good news, I'm afraid. These new threats to religious freedom are reducing educational options for our nation’s children. 

St. Isidore of Seville Catholic Virtual School in Oklahoma, for example, was recently forced to file a petition for review with the Supreme Court to keep its certification as a charter school. 

Church-run schools need to make it very clear to staff that they have a role in promoting Catholic teaching in both word and deed. These are, after all, Catholic schools. The clue is in the name. Asking staff to live coherency and in commitment to the teaching of the Church — or at least not promoting anything in conflict — is important if positions are to be considered ministerial. 

Let’s not forget that, when the Supreme Court in Bostock v. Clayton County expanded Title VII to include sexual orientation and gender identity in the statute’s prohibition of discrimination based on sex, it specifically noted that religious defenses had not been presented to the court. 

Defenders of freedom must also be ready to stand up to the misapplication of the court’s decision — which defines discrimination on the basis of sex to include sexual orientation and gender identity — to other civil-rights laws and the Affordable Care Act with scant regard for religious and conscience objections.  

 

Adoption and Foster Care

We also need to worry about the increasingly strident demand for ideological conformity from anyone willing to foster or adopt. 

Despite a historic win in the Supreme Court for Philadelphia’s Catholic foster-care placement agency in Fulton v. Philadelphia, the assault on faith-based foster care is not over. 

Many prospective foster and adoptive parents are being turned away because of their Christian beliefs. One case involving Oregon mom Jessica Bates is under review by the 9th Circuit. A Catholic couple in Massachusetts, Mike and Kitty Burke, have survived a motion to dismiss their complaint after their certification as foster and adoptive parents was denied because they would not affirm identities in children at odds with their Catholic beliefs. 

The Biden-Harris administration has finalized rules that impose gender ideology on foster care — going so far as to limit the placements for a child who identifies as LGBTQ+ to those who will indulge the dangerous fantasies of the cult of gender ideology. It is only a matter of time before these same standards are applied to custody disputes and social-service interventions in all homes where a child struggles with gender confusion.

We are certainly facing some horrible dilemmas; it feels like the worst of times in our country. But this, too, is God’s time. He is in charge. We must act, and fast — but our prayers can shed light on the right path to take in order to clear the ideological fog creeping across our country.

 

This column was derived from a recent talk the author presented at the Catholic Bar Association’s annual conference and general assembly in Louisville, Kentucky.