The Vagaries of Religious Freedom

Today's guest post comes from Eric McKinley, who is finishing his Ph.D. in German history at the University of Illinois. Eric posted this originally at the blog The Everyday Historian; it is reposted with permission here. Here, Eric uses his research in German history to comment on an issue of contemporary significance in American religious history.

The Vagaries of "Religious Freedom"

by Eric McKinley
This is a story of two fabricated scandals. The first is that religious freedom in the United States today is being violated through the mandatory inclusion of contraception in health care packages. The villain is not only Obamacare, but the notion that the structure of the healthcare law provides the state with undue authority to intervene in religious matters. The second is historical. It involves a legal redefinition of marriage in nineteenth century Germany. The law indicated that all marriages needed to be registered civilly. Some interpreted this to mean that civil servants would then have the power to marry monks to nuns, nuns to priests, or any other combination of two avowed celibates. The villain was the state and its intrusion upon religious authority. In both, the relationship between church and state is the central issue. 
In 1875, the German governing body debated the implementation of obligatory civil marriage for the entirety of the newly unified German Empire. The separation of church and state and the protection of religious liberty were two of the most pressing issues in the debate because the law transferred the regulation of marriage from religious institutions to the state. In decrying such an infringement on religious liberty, some dismayed German Catholics postulated on a few of the nefarious consequences the law would have. They were right about them. Of course the state would marry a priest to a nun. Unspoken but all important, however, was that of course nuns, monks, and Catholic priests self-regulate their celibacy and vows not to marry. Obligatory civil marriage meant that it was compulsory for those who desired to marry; it didn’t make marriage, civil or otherwise, mandatory for citizenship. I suspect that any county clerk in the United States today would also knowingly allow a nun to marry; unsurprisingly, the issue doesn’t come up.  
Individual autonomy, however, is not enough for some religious institutions in the United States (mostly the Catholic Church). The Catholic Church claims that the compulsory inclusion of free contraception to employees, especially those working for religious institutions, is a grave violation of religious freedom. Because Catholic doctrine and a tiny minority of practicing Catholics (based on past contraceptive use) find contraception to be against their religious beliefs, the availability of it infringes upon their religious liberty, they say. Smartly and pragmatically, the Obama administration compromised. Religious institutions would not have to pay for contraception as part of the health care plans offered to employees, but instead contraception would be available, still free of charge, through the insurance provider. Providers are all too willing to offer contraception for free because it is much cheaper than covering childbirth or abortion, both of which increase when contraception is unavailable. The Catholic Church still rejectedit as a violation of religious freedom. What the Catholic Church never seems to acknowledge openly is that self-regulation should be enough for Catholic parishioners to abstain from taking contraceptives. The required availability of contraception does not mean that women are compelled to take them any more than obligatory civil marriage mandated that a nun marry a monk.
However fabricated, these scandals approach the core of the conflicted relationship between church and state. Defining the appropriate bounds of this relationship goes beyond easily resolved issues such as prayer in public schools or the Ten Commandments decorating courthouse lawns. The state should not violate the autonomy of religious institutions; that is, it should not violate it until those institutions begin to intrude upon the individual autonomy of their parishioners or, in the case of contraception under Obamacare, employees at non-profit, religiously affiliated organizations. In such cases, freedoms are being suppressed, and the oppressor is the religious institution. In such cases, “religious freedom” stands in for the ability for religious institutions to limit actual freedom. This argument has recently been taken to a new level of absurdity, as Domino’s Pizza founder has sued the United States government over the issue of contraceptive in healthcare, and Hobby Lobby’s owners have indicated that they would rather pay a million dollar fine a day than adhere to contraception mandates. The reasons put forth are that contraception is “immoral” and that the requirement violates someone’s “religious beliefs.” The existence of such claims is directly tied to the claims made by religiously affiliated institutions, and it thus exposes the claims as disingenuous political maneuvering concerned only with the “religious freedom” of those in a position of power.  
These comparative “scandals” illuminate something about the relationship between church and state. Previously, I thought that the strict and complete separation of church and state was the progressive opinion. In this case, that isn’t true. For Germany in the nineteenth century, as well as the contemporary US, the purveyor of a complete separation of church and state is the Catholic Church. The reason for this is that the separation is perceived to lead to an increase in institutional autonomy, which in turn provides the church with more authority in regulating the practice of its members (tax-exempt status is another benefit in the contemporary context). I have found that it is more progressive to advocate for the necessarily incomplete separation of church and state. The reason is because religious institutions sometimes have to be regulated from an outside authority in order to protect the individual rights of its members. At best, the Catholic Church in the US today doesn’t trust its parishioners to follow prescribed religious precepts, so they have to circumvent individual choice in order to secure institutional regulation; at worst, they don’t trust parishioners (mostly women) to regulate their own bodies. The latter suggests that the Catholic Church has broader political aims. Nineteenth century Germans had the good sense to dismiss nuptial nuns and matrimonial monks as fabricated panics with an ulterior motive—to be autonomous from the state. I suspect, and hope, that today’s US citizens will similarly disregard appeals to “religious freedom” as intellectual sleight of hand. Otherwise we risk losing a central component of actual religious freedom: freedom from religion.


Tom Van Dyke said…
Because Catholic doctrine and a tiny minority of practicing Catholics (based on past contraceptive use) find contraception to be against their religious beliefs, the availability of it infringes upon their religious liberty, they say. Smartly and pragmatically, the Obama administration compromised.


I suspect, and hope, that today’s US citizens will similarly disregard appeals to “religious freedom” as intellectual sleight of hand. Otherwise we risk losing a central component of actual religious freedom: freedom from religion.

[Bold face in the original.]

The current administration's policies compared favorably to the Second Reich's? I'm intrigued, and at first blush, appalled. Thank you for posting this. I had no idea.

Pardon my Britannica:

Kulturkampf, (German: “culture struggle”), the bitter struggle (c. 1871–87) on the part of the German chancellor Otto von Bismarck to subject the Roman Catholic church to state controls. The term came into use in 1873, when the scientist and Prussian liberal statesman Rudolf Virchow declared that the battle with the Roman Catholics was assuming “the character of a great struggle in the interest of humanity.”


The conflict began in July 1871, when Bismarck, supported by the liberals, abolished the Roman Catholic bureau in the Prussian Ministry of Culture (i.e., ministry of education and ecclesiastical affairs) and in November forbade priests from voicing political opinions from the pulpit. In March 1872 all religious schools became subject to state inspection; in June all religious teachers were excluded from state schools, and the Jesuit order was dissolved in Germany; and in December diplomatic relations with the Vatican were severed. In 1873 the May Laws, promulgated by the Prussian minister of culture, Adalbert Falk, placed strict state controls over religious training and even over ecclesiastical appointments within the church. The climax of the struggle came in 1875, when civil marriage was made obligatory throughout Germany. Dioceses that failed to comply with state regulations were cut off from state aid, and noncompliant clergy were exiled.

Scott said…
Your argument really stretches the definition of "oppressor." Religious institutions and private businesses that don't want to provide (or pay for, in the case of Hobby Lobby and Domino's) aren't oppressing anyone, or even limiting their freedom. People who want contraception are not being told that they can't purchase it. It's not being made illegal.

I do agree with you on one thing: that "religious freedom" is not the best category for this discussion. Employers (religious or not, profit or non-profit) should be free to offer the kind of insurance that want to offer. They're the ones footing the bill. Although I'm pro-life, I would not want the GOP using this kind of power to make employers pay for pre-abortion ultrasounds.

Demanding that someone else pay for your freedom is not a particularly stable basis for maintaining your freedom.

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