May 2004

ARTICLE TOOLS

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If congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, then understanding what religion is becomes very important. Tragically, judges are engaged in linguistic gerrymandering by redefining religion in ways that threaten the traditional understanding of our right to free exercise of religion.

A March decision from the California Supreme Court is the starkest example. Even though Catholic Charities opposes contraception, the court said, it isn't exempt from a state law requiring businesses to pay for employees' artificial birth control because the church-affiliated social service organization isn't a religious employer. Here's how a California law defines religious employers: "Those organizations for which the inculcation of religious values is the sole purpose of the entity, that primarily employ only adherents of their own faith tradition, that primarily serve only people who share their religious tenets, and that qualify as nonprofit organizations."

Since Catholic Charities hires and serves non-Catholics, and because its evangelism is indirect rather than direct, it can't be a religious employer, the court majority said.

"This is such a crabbed and restrictive view of religion that it would define the ministry of Jesus Christ as a secular activity," wrote Justice Janice Rogers Brown, the sole dissenting judge in the case (her nomination to a federal judgeship, by the way, is stalled in the Senate). "Here we are dealing with an intentional, purposeful intrusion into a religious organization's expression of its religious tenets and sense of mission. The government is not accidentally or incidentally interfering with religious practice; it is doing so willfully by making ...