US Supreme Court

Ancient sacraments vs. paperwork for the modern state

Father Patrick Henry Reardon's note to his flock at All Saints Orthodox Church was short and simple -- yet a sign of how complicated life is becoming for traditional religious believers.

"Because the State of Illinois, through its legislature and governor's office, has now re-defined marriage, marriage licenses issued by agencies of the State of Illinois will no longer be required (or signed) for weddings here at All Saints in Chicago," he wrote, in the parish newsletter.

The key words were "or signed." The veteran priest was convinced that he faced a collision between an ancient sacrament and new political realities that define a civil contract. Reardon said he wasn't trying to "put my people in a tough spot," but to note that believers now face complications when they get married -- period.

The question priests must ask, when signing marriage licenses, is "whether or not you're acting on behalf of the state when you perform that rite. It's clear as hell to me that this is what a priest is doing," said Reardon, reached by telephone.

"Lay people don't face the sacramental question like a priest. They are trying to obtain the same civil contract and benefits as anyone else and they have to get that from the state. It's two different moral questions."

This is a timely question, as the U.S. Supreme Court nears a crossroads on same-sex marriage.

The quest for safe, generic, 'ceremonial' prayers

As the members of the Town of Greece Board prepared for business, a local Catholic priest rose to offer a short prayer. "Heavenly Father, you guide and govern everything with order and love," said Father John Forni, of St. John the Evangelist parish. "Look upon this assembly of our town leaders. ... May they always act in accordance with your will, and may their decision be for the well being of all. The Lord bless you and keep you. The Lord let his face shine upon you and be gracious to you. The Lord look upon you kindly and give you peace. Amen."

Perhaps it was the "Father" God reference, or even that final trinity of blessings, but this 2004 prayer was listed (.pdf) among those considered too "sectarian" during the Town of Greece v. Galloway case that recently reached the U.S. Supreme Court.

Most religious conservatives cheered the high court's 5-4 ruling, which said local leaders could continue to allow volunteers from different faiths to open meetings with "ceremonial" prayers that included explicit doctrinal references to their traditions, even references to Jesus Christ. The court majority also said it was crucial that one faith not dominate others and that prayers must not be allowed to "denigrate" other viewpoints, to "threaten damnation" or to "preach conversion."

However, Justice Anthony Kennedy noted for the majority: "To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town's current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact."

Kennedy's bottom line: "It is doubtful that consensus could be reached as to what qualifies as a generic or nonsectarian prayer."

Even among church-state analysts who disagreed on the decision, this theme -- that the state must be denied the power to determine which prayers are generic or safe enough -- emerged as crucial common ground.

"Put bluntly, government has no right to declare that the only God welcome in public is a 'generic God,' " noted the Rev. R. Albert Mohler, Jr., president of Southern Baptist Theological Seminary, in online commentary. "That is a profoundly important constitutional argument. For Christians, this is also a profoundly important theological argument. We do not believe that any 'generic God' exists, nor can we allow that some reference to a 'generic God' is a reference to the God of the Bible."

On the liberal side of Baptist life, Bill Leonard of the Wake Forest School of Divinity openly challenged the belief that the state should have the power to determine when prayers cross the line and become oppressive. "What government official," he asked, "will judge when one person's prayerful 'conviction' becomes another's 'damnation?' "

Labeling his perspective that of an "old-timey Baptist," Leonard said the big question is why so many rush to embrace "ceremonial" prayers in the first place.

"There may be government-centered ceremonies where the deity is addressed in various forms, but let's not stoop to calling it prayer," he said, in online analysis. "Prayer is talking to God, not to the Emperor, the President, the Congress, political parties, county commissioners or people gathered for hearings about potholes, zoning or sanitation. They may all need prayer, but certainly not the ceremonial kind.

"Prayer is anything but ceremonial; it burns in the soul, dances in the feet, erupts from the gut. ... No, no, Mr. Justice. Government use of prayer to tout privileged 'religious leaders' or their 'institutions' trivializes faith's most wondrous connection: a confrontation with the Divine."

This complex debate is packed with political and religious ironies, noted Francis Beckwith, who teaches philosophy and Church-State Studies at Baylor University.

Many liberals, especially unbelievers, would like to ban public prayer altogether, yet accept non-sectarian prayers as "their own kind of don't ask, don't tell policy," he said. Meanwhile, some conservatives feel "so squeezed out of everything" and "so under attack" that they grudgingly accept watered-down expressions of public faith.

In the end, he added, "Christians -- on the left or the right -- should worry about representatives of the state trying to co-opt their leaders and their symbols and their language to serve some particular political cause or movement. ... That temptation is always out there."

Guess the winner: Woodstock vs. religious liberty

Blame it on Woodstock.

Cultural changes unleashed by the sexual revolution are affecting how millions of Americans understand religious liberty, according to University of Virginia law professor Douglas Laycock, speaking at a recent Newseum symposium marking the 20th anniversary of the Religious Freedom Restoration Act. It doesn't help that disputes about the free exercise of religion have increasingly turned into bitter partisan battles pitting Republicans against the majority of mainstream Democrats.

What is happening? It helps to remember that churches were on the winning side of the American Revolution, he stressed, and that fact has shaped America ever since.

"What if we had a new revolution in our time? The sexual revolution that began in earnest in the '60s carries on with the current front about same-sex marriage" and contraception, said Laycock.

Religious groups have consistently "been on the losing side of this revolution. … In each of the remaining sexual issues -- abortion, same-sex marriage, contraception, sterilization, emergency contraception -- every one of those issues has this fundamental structure: What one side views as a grave evil, the other side views as a fundamental human right. ... And for tens of millions of Americans, what religious liberty now does is empower their enemies."

Only 20 years ago, it was possible for left and right to find common ground on key religious liberty issues. The Religious Freedom Restoration Act passed unanimously in the House and by a 97-3 vote in the Senate, backed by a coalition that ranged from the American Civil Liberties Union to the Christian Legal Society.

Only five years later, another similar effort failed.

"We had gone from 97-3 to partisan gridlock ... and disagreement over religious liberty has only gotten worse since that time," Laycock told the Newseum audience. He was speaking the day after addressing the U.S. Supreme Court on yet another tense case about public prayer.

The key change, he said, is that there has been a violent legal and political clash between gay rights and the rights of religious conscientious objectors. At this point, it may be too late to find a compromise that would protect citizens on both sides of this constitutional firefight.

One crucial problem, he explained, is that conservative religious leaders have been "so focused on entirely defeating" same-sex marriage bills that they have paid little attention to religious-liberty exemptions "until they have been totally defeated and then, of course, it is too late. They have no leverage. They have nothing to bargain with."

Meanwhile, as the gay-rights cause has gained momentum, its leaders have grown increasingly bold. More than a few liberals, said Laycock, not only want to seize sexual freedoms, but to force religious objectors to affirm their choices and even to pay for them. Some on the left, he said, are now "making arguments calculated to destroy religious liberty."

Consider, Laycock said, language used by state Sen. Pat Steadman of Denver, as he fought for a civil unions bill in the Colorado Senate last February. What should liberals say to those who claim that their religious liberties are being violated?

"I'll tell you what I'd say -- get thee to a nunnery," he said, in debate recorded on the Senate floor. "Go live a monastic life, away from modern society, away from the people you can't see as equals to yourself. Away from the stream of commerce where you might have to serve them, or employ them, or rent banquet halls to them. Go someplace and be as judgmental as you like. Go inside your church, establish separate water fountains, if you want."

This was provocative language, but this gay leader was using arguments now common in American politics, said Laycock. "No living in peace and equality and diversity for him. If you are a religious dissenter you have to conform or withdraw. For many people this hostility to religious liberty is a growing and intuitive reaction."

It's too soon to predict the death of religious liberty in America, as it has been known and defended for generations, he said. But the current trends are sobering.

"Maybe compromise will prevail yet," he concluded. "Maybe the judges will do their jobs and protect the liberty of both sides. But the tendency of both sides to insist on a total win -- liberty for them and not liberty for the other side -- is a very bad thing for religious liberty."

Hot words in top 2012 religion stories

'Twas the Sunday night before the election and the Rev. Robert Jeffress was offering a message that, from his point of view, was both shocking and rather nuanced. His bottom line: If Barack Obama won a second White House term, this would be another sign that the reign of the Antichrist is near.

Inquiring minds wanted to know: Was the leader of the highly symbolic First Baptist Church of Dallas suggesting the president was truly You Know Anti-who?

"I am not saying that President Obama is the Antichrist, I am not saying that at all," said Jeffress, who previously made headlines during a national rally of conservative politicos by calling Mormonism a "theological cult."

"What I am saying is this: the course he is choosing to lead our nation is paving the way for the future reign of the Antichrist."

That's some pretty strong rhetoric, until one considers how hot things got on the religion beat in 2012. After all, one Gallup poll found that an amazing 44 percent of Americans surveyed responded "don't know" when asked to name the president's faith. The good news was that a mere 11 percent said Obama is a Muslim -- down from 18 percent in a Pew Research Center poll in 2010.

Could church-state affairs get any hotter? Amazingly the answer was "yes," with a White House order requiring most religious institutions to offer health-care plans covering sterilizations and all FDA-approved forms of contraception, including "morning-after pills." The key: The Health and Human Services mandate only recognizes the conscience rights of a nonprofit group if it has the "inculcation of religious values as its purpose," primarily employs "persons who share its religious tenets" and primarily "serves persons who share its religious tenets."

America's Catholic bishops and other traditional religious leaders cried "foul," claiming that the Obama team was separating mere "freedom of worship" from the First Amendment's sweeping "free exercise of religion." In a year packed with church-state fireworks, the members of Religion Newswriters Association selected this religious-liberty clash as the year's top religion-news story. Cardinal Timothy Dolan of New York, the point man for Catholic opposition to the mandate, was selected as the year’s top religion newsmaker – with Obama not included on the ballot.

The story I ranked No. 2 didn’t make the Top 10 list. I was convinced that the 9-0 U.S. Supreme Court decision affirming a Missouri Synod Lutheran church’s right to hire and fire employees based on doctrine could be crucial in the years – or even months -- ahead.

Here’s the rest of the RNA Top 10 list:

* The Pew Forum on Religion & Public Life finds that religiously unaffiliated people – the so-called "nones” -- is America’s fastest-growing religious group, approaching 20 percent of the population.

* The online trailer of an anti-Islam film, "Innocence of Muslims,” allegedly causes violence in several countries, including a fatal attack on U.S. consulate in Libya.

* GOP White House candidate Mitt Romney's Mormon faith turns out to be a virtual non-issue for white evangelical voters.

* Monsignor William Lynn of Philadelphia becomes first senior U.S. Catholic official found guilty of hiding priestly child abuse, followed by Bishop Robert Finn of Kansas City, Mo.

* Vatican officials harshly criticize liberal U.S. nuns, citing the Leadership Conference of Women Religious for its history of criticism of church teachings on sexuality and the all-male priesthood.

* Voters in Maine, Maryland and Washington affirm same-sex marriage. Minnesota defeats a ban on same-sex marriage, while North Carolina approves one.

* Episcopal Church leaders adopt ritual for blessing same-sex couples.

* A gunman described as a neo-Nazi kills six Sikhs and wounds three others in a suburban Milwaukee temple.

* Southern Baptist Convention unanimously elects its first African-American president, the Rev. Fred Luter of New Orleans.

Secular unions vs. Holy Matrimony, Part II

EDITOR’S NOTE: This is the second of two columns on current debates about Holy Matrimony and civil unions.

Gay-rights advocates know the formula and so do their opponents: If gay marriage becomes a civil right, then religious believers who dare to defend ancient doctrines on marriage will become de facto segregationists and suffer the legal consequences.

The problem for the left is that this happens to be true.

"Before we shrug and reply, 'So what if it's religious? It's still bigotry, it's still intolerable,' we need to remember that religious liberty is America’s founding principle. It is embedded in the country’s DNA, not to mention in the First Amendment," argued gay commentator Jonathon Rauch, writing in The Advocate.

"If we pick a fight with it or, worse, let ourselves be maneuvered into a fight with it, our task will become vastly harder. ... Even if you don't happen to believe, as I do, that religious liberty is, like gay equality, a basic human right, the pragmatic case for religious accommodations is clear: Being seen as a threat to religious freedom is not in our interest."

This is the state of things, as the U.S. Supreme Court ponders whether the time is right to address this hot-button topic. Meanwhile, gay-rights groups recently won several ballot-box victories in liberal zip codes.

Some conservatives have proposed radical strategies in response, such as scholar George Weigel's suggestion that it may be time for the Catholic church to "preemptively withdraw from the civil marriage business, its clergy declining to act as agents of government in witnessing marriages for purposes of state law."

That would be a powerful symbolic gesture, but "taking that action would do nothing to resolve the religious-liberty issues that are causing conflicts here in America, or will cause additional conflicts in the future," said Stanley Carlson-Thies, director of the Institutional Religious Freedom Alliance. Even if traditional religious leaders attempt to legally separate Holy Matrimony from secular marriage, it is still the government's definition of marriage that will decide a variety of issues outside sanctuary doors, especially in public life.

"The other question, " he said, "is whether those on the cultural left will be willing, at this point, to settle for civil unions. ... We will need people on both sides to work together if there are going to be meaningful compromises."

One divisive issue in these gay-marriage debates overlaps with current fights over White House mandates requiring most religious institutions to offer health-care plans covering sterilizations and all FDA-approved forms of contraception, including so-called "morning-after pills." These Health and Human Services requirements recognize the conscience rights of employers only if they are nonprofits that have the "inculcation of religious values" as their primary purpose, primarily employ "persons who share ... religious tenets" and primarily serve those "who share ... religious tenets."

Critics insist this protects mere "freedom of worship," not the First Amendment's wider "free exercise of religion."

Here is the parallel: In gay-marriage debates, almost everyone concedes that clergy must not be required to perform same-sex rites that violate their consciences.

The question is whether legislatures and courts will extend protection to religious hospitals, homeless shelters, summer camps, day-care centers, counseling facilities, adoption agencies and similar public ministries. What about religious colleges that rent married-student apartments or seek accreditation for their degrees in education, counseling or social work? What about the religious-liberty rights of individuals who work as florists, wedding photographers, wedding-cake bakers, counselors who do pre- or post-marital counseling and other similar forms of business?

These are only some of the thorny issues that worry many activists on both sides of the gay-rights divide. Law professor Douglas Laycock, then of the University of Michigan, provided this summary in a letter to the governor of New Hampshire.

"I support same-sex marriage," he stressed. Nevertheless, the "net effect for human liberty will be no better than a wash if same-sex couples now oppress religious dissenters in the same way that those dissenters, when they had the power to do so, treated same-sex couples in ways that those couples found oppressive.

"Nor is it in the interest of the gay and lesbian community to create religious martyrs in the enforcement of this bill. ... Every such case will be in the news repeatedly, and every such story will further inflame the opponents of same-sex marriage. Refusing exemptions to such religious dissenters will politically empower the most demagogic opponents of same-sex marriage. It will ensure that the issue remains alive, bitter, and deeply divisive."

Stalking the pro-life feminists

Few journalists paid attention when two teen-aged mothers from Grant County, Ky., won their legal fight to enter the National Honor Society.

Somer Chipman and Chasity Glass were barred from the 1998 induction ceremony for one simple reason -- both were pregnant. The American Civil Liberties Union said this was illegal discrimination.

Feminists for Life agreed and backed the ACLU case. Executive director Serrin Foster told the court: "If Ms. Chipman and Ms. Glass had had abortions, their sexual activity would not have become known to school officials. Actions such as those of the Grant County School District thus send a message that a decision to carry a pregnancy to term will be punished."

This court affidavit was quietly handled by the group's legal counsel -- Jane Sullivan Roberts.

Little ink was spilled.

That was then. This is now.

"We've had our share of media attention, but I've never seen anything like what is happening in the mainstream press right now," said Foster, referring to the storm caused by this link between Feminists for Life and the wife of Supreme Court nominee John Roberts Jr. "Maybe the time is ripe. It's been three decades since Roe and it seems that some people are beginning to realize that abortion isn't solving all the problems it was supposed to solve."

Then again, it is also possible that journalists cannot resist stories involving (a) abortion, (b) the Supreme Court, (c) feminism, (d) Catholicism or (e) "all of the above." The twist in the Roberts case is that Feminists for Life is a nonsectarian group and is often viewed as the odd secular sister at faith-based rallies against abortion.

Over and over, Foster has explained that this 33-year-old organization is as committed to the welfare of women as it is to defending the unborn. This is a hard sell in America's balkanized public square, where everything is starkly divided into blue vs. red, "pro-choice" vs. "pro-life," Democrats vs. Republicans, Anthony Kennedy Catholics vs. Antonin Scalia Catholics.

Foster and her colleagues winced when journalists pinned a "committed anti-abortion activist" label on Roberts, and by proxy her husband, because of her volunteer work with Feminists for Life. But Foster was surprised that some scribes kept listening.

The New York Times did quote the group's mission statement: "Abortion is a reflection that our society has failed to meet the needs of women. Women deserve better than abortion." Foster went further, confirming that "reversing Roe v. Wade ... is a goal," but also telling the Times that this action is "not enough."

This is precisely the two-pronged message what progressives who are opposed to abortion have been trying to communicate for decades, said theologian Ronald J. Sider, president of Evangelicals for Social Action. Hopefully, the upcoming confirmation hearings for John Roberts can focus on both sides of this delicate equation.

"What this all illustrates is the fact there are many Christians -- evangelicals and Catholics alike -- who are strong defenders of human life, yet are in no way right-wingers on many other issues," said Sider, who two decades ago wrote a manifesto entitled "Completely Pro-Life: Building a Consistent Stance on Abortion, the Family, Nuclear Weapons, the Poor."

"I suspect," he added, "that a majority of the American people want to find a way -- somehow -- to respect and protect unborn children while respecting and protecting the rights of women. Can we find the will to do both?"

Foster has felt that tension and, as a result, has started referring to herself as a "Demorepublicat." Then there is the tension caused by those who assume that her fight against abortion is built on religious dogma alone, rather than a heritage of early feminist opposition to "child murder" and "foeticide."

More than once, Foster has described her beliefs and heard journalists say, "That sounds Catholic to me." Issues linked to the sanctity of life are too complex for this old framework, she said. It will be hard to fit groups such as "Wiccans for Life" and "Gays and Lesbians for Life" into the old stereotypes.

"We can pledge to support every mother and to welcome every child," she said. "We don't have to be at war with our own bodies and our own children. We don't have to settle for that. We can change the status quo."

(Pro) Life after Scheidler

There was a time in the late 1980s when Georgette Forney didn't want to turn on the evening news because she kept seeing the same frightening scenes over and over.

Waves of Operation Rescue activists were doing sit-ins at abortion facilities, often handcuffing themselves to the doors while others collapsed nearby chanting, singing, praying and reading scripture. Then police would drag everyone off to jail. This cycle of civil disobedience kept repeating itself at other clinics, in other towns, in other states.

"I remember thinking, 'They're all nut cases,' " said Forney. "Those tactics were so intimidating to me as a woman and, especially, as a woman who had had an abortion. ... I wanted to stay as far away from that extreme anti-abortion stuff as I possibly could. It was all dangerous, as far as I was concerned."

Then her spiritual walls began to collapse. She had a daughter, which reminded her again of the daughter lost in her 1976 abortion. Eventually Forney had a soul-shaking experience of grief, reconciliation and healing. By the late '90s she was a leader in the National Organization of Episcopalians for Life. But she still could not embrace the tactics of the Operation Rescue era.

Nevertheless, Forney was one of many who cheered after the U.S. Supreme Court's 8-1 decision that the federal Racketeer Influenced Corrupt Organizations Act could not be used against groups that protest at abortion facilities. While the cases -- Scheidler v. NOW and Operation Rescue v. NOW -- stirred up the usual combatants, the anti-abortion coalition also drew wide legal support from other activists who saw the importance of this legal precedent for all forms of protest. Among those showing support were People for the Ethical Treatment of Animals, Greenpeace, the Seamless Garment Network, Citizens United for Alternatives to the Death Penalty and Pax Christi USA. Actor Martin Sheen and the activist priest Daniel Berrigan even signed on.

This decision may have closed the door on an era in which anyone who wanted to oppose abortion had to worry about being associated with illegal forms of protest.

Finally, an intimidating link to the past is gone, said Forney. The emphasis now is on finding ways to reach women before and after their abortions. In January, she helped lead a "Silent No More" campaign in 46 states built on the testimonies of women who have had abortions. They held quiet demonstrations at state capitols and other public places, holding black-and-white "I regret my abortion" signs.

"After 30 years, we have to try to teach our choir a new song," she said. "We can't keep using the same pro-life words and images that we've always used. We have to talk to the women and try to see things through their eyes. We have to let women know that they deserve something better than abortion."

Meanwhile, there are still legal issues to be resolved about the legal rights of those who still want to pray, preach and protest on public sidewalks, said Joe Scheidler, the activist whose Chicago-based Pro-Life Action League was caught up in the Operation Rescue-era legal wars.

After all, the 1994 Freedom of Access to Clinic Entrances Act calls for sanctions against those who conduct "threatening" protests in or near the "safety zones" around abortion clinics. And after this Supreme Court decision, NOW President Kim Gandy vowed to see to it that "religious and political extremists do not resume their reign of terror at women's clinics. We are looking at every avenue, including the U.S.A. Patriot Act, in order to protect women, doctors and clinic staff from these ideological terrorists."

No one expects conflicts to cease near abortion facilities, said Scheidler. But the momentum is behind those willing to find ways to do sidewalk counseling, hold vigils and to distribute information -- even coupons for free ultrasound tests -- without inspiring fear or lawsuits.

Nevertheless, one person's free speech may be another's harassment.

"I don't know how often we've been outside Planned Parenthood saying the Rosary and then suddenly four squad cars roll up," said Scheidler. "The cops say, 'We got a call saying you have weapons.' So we hold up our Rosary beads. ... For some people, saying the Rosary can be a form of intimidation."