Washington, USA - A pair of momentous new government decisions on religion—in particular on whether religious institutions are exempt from secular laws—has given advocates of religious liberty a severe case of whiplash.
Early this month, the Supreme Court held (in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission) that a Lutheran school's decision to dismiss a teacher is an internal church issue that cannot be challenged under federal employment laws.
Just as the decision was beginning to sink in, the federal department of Health and Human Services (HHS) announced that numerous religious organizations won't be exempted from ObamaCare's requirement that employer health-care plans cover all of the costs of contraception. The message to Catholic hospitals and ministries that object to contraception: No accommodation for you.
After several decades in which the central church/state issues involved to what extent religious symbols and practice can appear in the public square, the key question of the coming decade will almost certainly involve to what extent federal and state regulations will inject the government into internal religious affairs. The Supreme Court this month called for accommodation, but HHS didn't answer.
And this doesn't appear to be an accident. In the Hosanna-Tabor case, President Obama's solicitor general filed a brief insisting that the employee be permitted to sue the school and argue that the real reason she was dismissed was her decision to invoke employment laws. The government also suggested that, with regard to such laws, religious organizations are no different than other forms of association.
The Supreme Court swatted these arguments away by a 9-0 vote, recognizing an exception from the employment laws for those whose role is in some sense "ministerial." "[I]t is impermissible," Chief Justice Roberts wrote, "for the government to contradict a church's determination of who can act as its ministers." The court called the government's claim that religious organizations are no different than other organizations "hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations."
Consider the ironies: An administration that swept into office in 2008 promising to bring together people of all kinds seems to have less interest in accommodating diverse views than either the Supreme Court or many state legislatures, several of which have carved out robust religious exemptions for recent gay-marriage legislation. New York, for example, not only exempted religious organizations from any obligation to perform or make their facilities available for gay marriages, but it also ensured that they won't be deprived of government benefits such as tax exemptions and licenses.
The Obama administration's reluctance to accommodate is also at odds with many years of progressive efforts to enhance protection for those whose religious views are out of the mainstream. Liberals were strong supporters of the Supreme Court's decision to exempt Jehovah's Witnesses from saluting the flag in 1943, and they were vociferous critics of a 1990 Supreme Court decision that upheld the denial of unemployment benefits for Native Americans who smoked peyote, an illegal drug, in religious ceremonies.
To be sure, although the administration's HHS ruling flouts the spirit of the Supreme Court's decision, it probably satisfies the letter because it allows that religious organizations whose purpose is "the inculcation of religious values" aren't subject to the contraceptive-coverage requirement. This limited exception—which covers churches and some Catholic schools but not Catholic hospitals—appears consistent with the language of Hosanna-Tabor, as narrowly construed.
But it is also the worst possible solution to the deeply held commitments that divide us. Courts are precisely the wrong place to resolve the difficult accommodation issues that are pressing in from every side. Far better to hash them out legislatively, or through practical accommodation by the affected groups themselves. By adopting the stingiest plausible interpretation of the Constitution's protections for religion, the administration is steering us toward years of unending legal battles.