Wednesday, July 2, 2014

The Wall Doesn't Exist: What the Contraceptive Mandate Reveals About the Separation of State and Church

In light of Monday's Supreme Court decision on Hobby Lobby, I thought I would offer a free chapter from my book The Death of Death: Engaging the Culture of Death With the Gospel of Christ which deals with the issue.

As part of the Affordable Care Act, more commonly known as “Obamacare,” passed in 2010, the Obama administration enacted a mandate forcing businesses and most institutions, including religious institutions, to pay for contraceptives and abortifacient drugs like Plan B (also known as the “morning after pill”) which resulted in a firestorm of protest from both Catholic and Protestant leaders who have decried the overreach of the federal government in general and the Obama administration in particular. To them, this contraception and abortifacient mandate violates their Constitutional right of religious freedom. The Catholic Church does not believe nor does it support any use of contraceptives like condoms or birth control pills. Evangelicals, for the most part, support the use of most contraceptives but reject any form of abortion or abortifacient drugs. This means that Christian organizations, both Protestant and Catholic, cannot support any public or private health care plan that pays for abortions or abortifacients nor can they support a government that mandates they violate their conscience and religious convictions.

Thus when the Obama administration announced that religious institutions like hospitals would be forced by the State to cover such drugs and procedures even if the institution has a moral objection to them, there was an immediate uproar. To the Christian community, this mandate is a major encroachment on the First Amendment protection of religious liberty. The response of Cardinal Timothy M. Dolan, archbishop of New York and President of the US Conference of Bishops, in light of the mandate is particularly accurate, “In effect, the president is saying we have a year to figure out how to violate our consciences.”[1]

This debate is not limited to religious institutions. Private companies that refuse to support the mandate out of religious and moral convictions are not exempt. Hobby Lobby, founded and led by the Green family who openly embrace the Christian gospel and seek to run their company after biblical precepts, will have to pay $1.3 million in fines for every day it fails to comply with the federal law. Such a fine will inevitably bankrupt the company leading to the loss of thousands of jobs in a nation that has suffered from high unemployment and underemployment for years. If Hobby Lobby does not win in the courts, which is costing the company thousands of dollars itself, the company has chosen to refuse to pay the fines in an act of peaceful civil disobedience.

The Obama administration failed to understand that people of faith cannot and will not leave their faith at the door. The distinction oftentimes made by progressives and secularists between the freedom of worship (faith is private) and the freedom of religion (faith in the public sphere) is a distortion of the Constitution and freedom itself. The Founders assumed and encouraged religious beliefs to have a voice in the public square denying government the authority to silence it. Thus, if Catholics reject the use of contraceptives and abortion, then a Catholic hospital should not be forced to pay for them.

Such a mandate that encroaches on religious liberty should not come as a surprise. As secularism continues to grow in America, the faithful will continue to be silenced into secular obedience. Secularism runs on the conviction that religion should be completely ostracized from public square. That is not to say that Christians, Jews, Muslims, or Hindus are not welcome in public debate, but that their arguments must be secular. Secularists and progressives continue to push faith from both the public square and from the Constitution itself.[2] The Obama administration, who are not the first to verbalize this shift, have repeatedly suggested that faith is a private matter meant to stay within the walls of the church. Following the President’s 2009 Cairo, Egypt speech where he offered an olive branch to the Muslim world by emphasizing the freedom of religion, the Obama administration mysteriously spoke only of the freedom of worship in subsequent speeches. This subtle shift, missed by many, implies religious liberty is limited to the church walls and thus when government mandates a hospital to provide contraceptives to their employees, there is no reason they should complain. After all, a hospital is not a church even if it is named after a saint.

What is most telling about this controversy, as outrageous as the mandate is, is how many Americans seem to miss the important point it illustrates. The Founders understood something profound about religion and government. A nation will be defined either by its faith or by its mandates; big religion or big government. That is to say, a nation will either be heavily religious or dominated by the state. As the federal government continues to expand, it will continue to push other institutions and traditions out of the way.

Briefly consider a different issue. A nation cannot have both economic liberty and statism because one will overpower the other. Big government regulates everything thus quenching the power of the free market. On the other hand, a nation driven by laissez faire economics must have a very limited, small government in order to operate. As the government grows, it begins to pass mandates, laws, and regulations that tell entrepreneurs how to build, where to build, what forms to file, what taxes to pay, what to pay their employees, etc. As a result of an ever increasing government, economic freedom begins to shrink.

A good example of this would be the string of lemonade stands run by children shut down by local authorities. The first public instance seems to have happened in the summer of 2011 in Midway, Georgia when police shut down a lemonade stand operated by three young girls, who were saving money for a trip to the water park, because they did not have the required permits or business licenses. In defense of their actions, the chief of police, Kelly Morningstar, said that they did not “know how the lemonade was made, who made it or what was in it.”[3] Later in Coralville, Iowa police shut down a four-year-old’s lemonade stand because her father did not have a permit. According to a city ordinance, all food venders must be inspected and apply for a permit – something the little girl failed to do.[4] All of this, among other similar stories, led one father, Robert Fernandes, to declare August 20, 2011 Lemonade Freedom Day.[5]

The point of all of this is to show how small mandates suffocate personal liberties. The larger the reach of the State, the less economic and personal freedom citizens enjoy. After over a hundred years of progressivism in America, it is virtually impossible to find anything in the economy not regulated or taxed by the government. As government grows, freedom – in this case economic freedom – shrinks. It is impossible to have both statism and a free market.

The same is true regarding religious liberty.[6] Like the economy, every new mandate affects religious institutions including hospitals, orphanages, and churches. No one, not even institutions that supposedly have a First Amendment right, can escape the reach of the government at all levels.

At its founding, America’s government was extremely small resulting in almost unlimited religious liberty. This turned America into a religious melting pot and, for the most part, the federal government did not encroach one’s religious beliefs. But as government began to pass bills, mandates, policies, executive orders, and regulations it naturally and slowly began to intrude on religious liberty. Much of this growth is fairly harmless. Zoning laws and building mandates, for example, have their place. The faithful want to worship in a building without the fear of the roof caving in because the church was built by contractors that met certain qualifications. But when the government begins mandating health care, insurance, hospitals, and even religious convictions with things like contraceptives, abortion “rights,” homosexuality, marriage, hate crimes, etc., religious liberty begins to shrink. This, it is believed, is what is taking place under President Obama’s health care reform law.

So America will have to decide. Either it will be diversified in its religious heritage and one will be free to worship and practice their faith every day of the week or every religion and its practices will have to be pre-approved by the federal and state governments. For every religious American that has supported an ever-growing government no First Amendment will prevent the state from continually trampling on religious liberty. Many Christians have favored a growing government in the name of social justice but are now realizing that they may have been sleeping with the wrong partner. The state is now coming after them.

Either religion will influence the state or the state will regulate, mandate, and limit religion. The contraception and abortifacient mandate against Christian convictions is only additional proof to this truth. The so-called “wall” of separation has always been a ruse. The saint is as much a believer influenced by their convictions as he is a voter and the two cannot be separated. Likewise, the public servant cannot so easily separate his metaphysics from his policies. Either religious voters will apply their faith to politics or secular politicians will mandate their ideology on the church. It is impossible for anybody to live in two separate worlds divided by a wall that does not exist. Too often Christians have tried to befriend a massive federal government surrendering small freedoms along the way assuming that the relationship between the government and religion would never be put in jeopardy.

What the Founders feared is becoming a reality. A bloated government will inevitably step over the imaginary line of separation taking away religious liberty. Either America will have religious liberty and the challenges that arise from it or she will be mothered by a nanny state which will demand each individual and faith to leave their convictions at the church door.

Choose this day whom you will serve.


[1] Robert Pear, “Insurers Must Pay For Birth Control” The Boston Globe.
[2] A helpful survey of this with several examples is Mohler, Culture Shift, 7-21. Mohler quotes former Secretary of Labor Robert Reich as writing “It’s perfectly find for [Radical Conservatives] to declare strong personal convictions about sex and marriage – convictions often based on sincere religious beliefs. But it is quite another thing to insist that everyone else must share the same convictions. As I’ve said, the liberal tradition has wisely drawn a sharp boundary between religion and government. We’ve got to stop the [Radical Conservatives] before they impose their narrow-minded agenda any further.” Ibid., 10-11. For a more thorough survey of secularism and the Christian view see Hunter Baker, The End of Secularism (Wheaton, IL: Crossway Books, 2009).
[3] Tiffany Gabbay, “Georgia Cops Shut Down Girls’ Lemonade Stand for Lack of Business License” The Blaze.
[4] “Girl's lemonade stand shut down,” Omaha World-Herald.
[5] Fox News Business host John Stossel, a libertarian, in light of these stories, tried to set up his own lemonade stand in New York City to prove a point. Six of the things he had to do in order to “set up shop” were “Register as sole proprietor with the County Clerk’s Office . . . Apply to the IRS for an Employer Identification Number . . . Complete 15-hr Food Protection Course! . . . [R]egister for an exam that takes 1 hr. You must score 70 percent to pass . . . If you pass, allow 3-5 weeks for delivery of Food Protection Certificate. . . . Register for sales tax Certificate of Authority. . . . Apply for a Temporary Food Service Establishment Permit. Must bring copies of the previous documents and completed forms to the Consumer Affairs Licensing Center.” John Stossel, “I Tried to Open a Lemonade Stand,” Fox News.
[6] A website has been set up for the event
[7]By this, it is meant that one was not free to do anything in the name of religious liberty. Certain practices were off limits. This means that the debate over religious liberty has always been a contentious one. A practice like polygamy, for example, has been problematic. Historically, polygamy has been illegal in America and thus Latter-Day Saints and other religious groups were not free to practice it.

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