The changing standard of religious liberty
5 March 2012
My award for prescient observation of the moment goes to Peter Laarman, who, at the end of last year, wrote a list of the top ten under-reported religious stories of 2010. At number six:
6. Upside-Down Ideas about Religious Liberty
The dramatic new push for religious liberty exemptions for faith-connected providers of taxpayer-supported health services underscores the radical way in which understandings of religious liberty have changed in recent years. It’s not that the push for exemptions hasn’t made the news; it’s that no one is writing (at least in the MSM) about the radical nature of the shift. In the past, the social service arms of religious bodies understood that if they wanted public money they would need to honor public law regarding the disposition of the money: i.e., provide the full range of mandated services on a universal basis. We used to say to objectors, “If you don’t like the mandate, don’t take the money.”
Apparently such a commonsensical response is now insufficiently deferential to religion. More and more people seem willing to say that if a Catholic health care provider doesn’t “believe” in providing reproductive health care to women, that private belief can trump public law. This is a particularly thorny problem because of the many regional health care system mergers involving Catholic partners: there are now many places in the country where, if a dominant provider that toes the bishops’ line won’t provide the service, area women will be out of luck and deprived of benefits they are entitled to receive by law. Does anyone defer to them? Afraid not.
Since then, this new idea of what constitutes religious liberty has reared its head in a new realm: contraception. The federal government is requiring employers to offer their employees health care plans that cover the cost of contraception, a mandate that some conservatives and religious groups believe violates the First Amendment right to freedom of religion. (Mitt Romney said in reference to the mandate, “I don't think we've seen in the history of this country the kind of attack on religious conscience, religious freedom, religious tolerance that we've seen under Barack Obama.”)
Meanwhile, here's Ross Douthat on the subject:
[The New Yorker's George] Packer believes that forcing Catholic colleges and hospitals to buy health insurance plans that pay for sterilization and morning-after pills does not impinge upon religious liberty in any way, but allowing Catholic colleges and hospitals to decline to cover drugs and procedures that their faith considers gravely immoral is analogous to an official establishment of religion.
This really gets to the crux of the matter, but not in the way Douthat intends. Let's be clear: Hospitals aren't Catholic. Universities aren't Catholic. People are Catholic. And if Catholic people — or any kind of people — want to run a hospital or a university, they must do so according to the laws laid out by the federal government. Expecting religious people to conform to labour or health care regulations doesn't prevent them from practising their religion. No one is forcing Catholics to run hospitals or universities. The government is just saying they shouldn't expect special treatment because they're religious.
Obama does not hate religion
24 February 2012

The Obama administration’s attempt to mandate that many religiously affiliated organisations offer birth control coverage as part of their health insurance plans set off a wave of backlash amongst conservatives. The White House quickly backed away from this requirement, but the Republican candidates have capitalized on this controversy, seeking to portray President Obama and his administration as radical secularists who want to purge all traces of religion from public life. Rick Santorum remarked that it’s “pretty obvious that they don't think religious liberties are a particularly high priority," and Mitt Romney added that, "I don't think we've seen in the history of this country the kind of attack on religious conscience, religious freedom, religious tolerance that we've seen under Barack Obama."
These may be good campaign sound bites, but they ignore what Obama has actually said about the complex relationship between politics, religion and public life. Consider these comments from a 2006 speech at the Call to Renewal Conference.
More fundamentally, the discomfort of some progressives with any hint of religion has often prevented us from effectively addressing issues in moral terms. Some of the problem here is rhetorical - if we scrub language of all religious content, we forfeit the imagery and terminology through which millions of Americans understand both their personal morality and social justice.
[...]
But what I am suggesting is this - secularists are wrong when they ask believers to leave their religion at the door before entering into the public square. Frederick Douglas, Abraham Lincoln, Williams Jennings Bryant, Dorothy Day, Martin Luther King - indeed, the majority of great reformers in American history - were not only motivated by faith, but repeatedly used religious language to argue for their cause.
So to say that men and women should not inject their "personal morality" into public policy debates is a practical absurdity. Our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition.
And later in the same speech he explained how laws alone could not create social change.
I believe in vigorous enforcement of our non-discrimination laws. But I also believe that a transformation of conscience and a genuine commitment to diversity on the part of the nation's CEOs could bring about quicker results than a battalion of lawyers. They have more lawyers than us anyway
[....]
I also think that we should give [children] the information about contraception that can prevent unwanted pregnancies, lower abortion rates, and help assure that that every child is loved and cherished
But, you know, my Bible tells me that if we train a child in the way he should go, when he is old he will not turn from it. So I think faith and guidance can help fortify a young woman's sense of self, a young man's sense of responsibility, and a sense of reverence that all young people should have for the act of sexual intimacy.
These hardly sound like the remarks of a hardened secularist, but maybe Obama just pays lip service to these ideals while ignoring them in practice. However, the evidence does not bear out this claim. Chicago Tribune columnist Steve Chapman explains that the Obama administration has actually been very accommodating on issues of religious freedom.
Most notably, Chapman points out that the administration has not repealed the Bush administration policy of allowing religious organisations who receive federal funding to “only hire people of their own faith.”
In this instance, Obama may be accused of ignoring the establishment clause of the First Amendment, which forbids government support of religion. But if so, it's because he has given too much deference to religious freedom rather than too little.
Chapman goes on to list numerous other instances in which the White House has sought to defend religious liberty.
His commitment is also on display in defending churches against municipal governments that would prefer to do without them. Under federal law, houses of worship are assured equitable treatment in land-use decisions. But mayors and community groups often tell churches to go to the devil.
When that happens, they often find themselves at odds with the Civil Rights Division of the Justice Department. Last year, it forced the town of Schodack, N.Y., to retreat after it barred an evangelical church from renting space in a commercial area where nonreligious meetings were allowed.
It filed a brief in support of a Hasidic Jewish congregation's lawsuit against the city of Los Angeles, which had forbidden it to hold services in a private home. A federal court ordered the city to back off.
The administration has also intervened in cases where prisoners are denied religious literature. After a South Carolina sheriff prohibited inmates from getting devotional materials and other publications in the mail, the Justice Department sued. In the end, the county agreed to let inmates receive Bibles, Torahs, Qurans and related fare.
There’s nothing wrong with criticizing Obama on these issues. I felt that the contraception mandate went too far in curtailing religious freedom. But to claim that the president is actively hostile towards religion is to be ignorant of his statements and actions.
Streets is talking.
15 June 2010
When you go around putting government secrets on the Internet for all to read, as Wikileaks founder Julian Lassange does, perhaps you shouldn't be surprised when those governments start asking questions about where you got the info. Still, this kind of thing is a bad look for the Obama administration:
Julian Assange, the Australian-born face of the web iconoclast WikiLeaks, is in hiding overseas after the US military arrested one of its own soldiers, Bradley Manning, and accused him of leaking a a secret video of a US Army helicopter gunning down civilians in Iraq in 2007.
The video was released on Wikileaks this year, and the US is now desperate to find Mr Assange before he leaks thousands of hugely embarrassing state diplomatic cables, which are believed to discuss the Middle East, its governments and leaders.
The video in question is a highly graphic recording of an assault on Iraqi civilians by the US military which the Americans judged to be a legitimate military engagement.
It's not just the US government that isn't fond of Assange; the Wikileaks founder told the Age last month that customs officials at Melbourne Airport told him the Australian government plans on cancelling his passport. This comes after Minister for Broadband, Communications and the Digital Economy Stephen Conroy set the Federal Police on the guy because he leaked the blacklist of websites Conroy is trying to ban Australians from seeing under his plans to censor our Internet access.
If Assange were a one-off, I might be inclined to see the American interest in him as merely unfortunate. But it looks like Obama's trying to extend the no drama policy he holds his team to into a larger and more pernicious dictum. You don't have started a shadowy online repository of government secrets to have the Feds on your tail these days.
The New York Times reported last week that Obama and his Attorney General Eric Holder have "outdone every previous president in pursuing leak prosecutions," charging run-of-the-mill whistleblowers under anti-espionage laws. This is not OK. It was not OK when the George W. Bush assigned five prosecutors and 25 FBI agents to work out who told the Times about the National Security Agency's warrantless wire-tapping program, and it's not OK now. The United States is a nation that guards the freedom of the press so jealously that it enshrines that freedom in its first amendment. Governments that hunt down whistleblowers with this intensity instead of addressing the problems they revealed are not only working against the spirit of the First Amendment, they're badly serving the public that elected them to office.

This photograph shows Obama signing the Daniel Pearl Freedom of the Press Act. That law requires the State Department to determine whether foreign governments are violating the rights of a free press. That's a good thing for the State Department to do. But the U.S. needs to maintain the freedom of its own reporters, as well as of the sources who deliver them information. The President has already reversed his stance on a badly-needed Federal shield law for reporters. Obama, like every president before him, should worry less about reporters and the folks delivering them their info, and more about the job he was elected to do.
You're gonna reap what you sow...
23 April 2010
Earlier this month, Erin set off a minor storm in American-Australian relations when she quizzed Jeffrey Bleich, the U.S. Ambassador to Australia, on America's sour reaction to the Labor Government's plans to censor Australia's Internet connections. The Sydney Morning Herald today reported that Australian representatives have been discussing the issue with U.S. officials in D.C. It prompted me to revisit the comments Bleich made to Erin on Q&A, and I'm wondering if the ambassador may have been having a dig at another area of Australian-American disagreement:
The internet needs to be free. It needs to be free of the way the way we have said skies have to be free, outer space has to be free, the polar caps have to be free, the oceans have to be free. They have to be shared. They’re shared resources of all of the people of the world.
How carefully chosen were these examples, I wonder? Australia has long claimed a big chunk of Antarctica to be its own — 5.8 million square kilometres we call the Australian Antarctic Territory — just as other nations have made similar claims to other sections of the continent. The U.S., which holds no territory in Antarctica, considers these claims to be invalid; it holds that, in Bleich's words, the polar caps are free.
Clearly, U.S. opposition alone to the Australian government's Internet censorship plans is not meaningful enough to put an end to the proposal. And though ownership of an icy wasteland is less volatile an issue than a democratic country shutting down free speech, Australia and the U.S. have managed to disagree on issues before and nonetheless maintain good relations.
But those who seek to keep the Internet free in Australia — and I am one of them — face a significant problem: We in Australia haven't taken free speech seriously enough in the past.
Communications Minister Stephen Conroy says that the Internet is not special, and just as Australia censors books, television programs, magazines, and movies, it should be able to do the same for online material. The bad news for opponents of Conroy's filter is that he sort of has a point.
In Australia, unlike the U.S., we think it perfectly reasonable for the government to control what speech we are allowed to see or hear. To sell a movie or a book or a video game in Australia, you need to get the government's permission. If it refuses to classify the work in question, then too bad; it's illegal to distribute it. And apart from the occasional complaint Margaret Pomeranz makes when an artsy European flick gets banned, Australians don't bat an eyelid at this.
Even opponents of Conroy's filter seem OK with the government banning other forms of speech. The Herald article I linked above quotes the University of Sydney's Bjorn Landfeldt splitting hairs over different form of censorship:
University of Sydney associate professor Bjorn Landfeldt said the difference between submitting a book for classification and having an organisation classifying and blocking websites without anyone's knowledge was that, in the book case, "it is well known that the book was censored and there can be a debate about the correctness of the decision."
The U.S. has a much more robust conception of freedom of speech, and even though the U.S. Supreme Court does not consider it totally illegitimate for the government to ban certain types of non-political speech, in practice it tends to side with the First Amendment's sweeping instruction that "Congress shall make no law ... abridging the freedom of speech." That's why in America, there is no equivalent of Australia's Office of Film and Literature Classification. Classification bodies like the Motion Picture Association of America are industry-run and submission of content to them is voluntary. Even the infamous Federal Communications Commission, which is a government agency, has authority over a very small slice of American media; it can ban content from network television and radio, but it has no authority over cable.
In America, people consider it far less legitimate for the government to decide what sort of speech is acceptable for adults to make and hear. That's why the U.S.'s own attempt at Internet censorship, the Communications Decency Act of 1996, was found to breach the First Amendment in Reno v ACLU.
I disagree with Conroy; the Internet is special. It combines content distribution with telecommunications in a way that makes it comparable to neither magazine publication nor telephone discussions. But it is not that special. The reason Australia is even considering joining dictatorships like China and Iran in online censorship is that, unlike the U.S., we consider it fundamentally reasonable for the government to control our speech. It is no wonder the U.S. and Australian governments disagree on this issue; they are operating from different cultural assumptions as to what constitutes free society.
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