Lines Crossed: Separation of Church and State
Has the Obama Administration Trampled on Freedom of Religion and Freedom
of Conscience?
US House of Representatives Committee on Oversight and Government Reform (16 February, 2012)
Testimony of Rabbi
Meir Soloveichik
Director of the Straus Center for Torah and Western
Thought,
Yeshiva University.
Associate Rabbi,
Congregation Kehilath Jeshurun
In refusing to extend religious liberty beyond the parameters of what
the administration chooses to deem religious conduct, the administration
denies people of faith the ability to define their religious activity.
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In August of 1790, Moses Seixas, a leading member of the Hebrew
Congregation of Newport, Rhode Island, composed a letter to then
President George Washington, who was visiting Newport. In his letter,
Seixas gave voice to his people's love of America and its liberties.
"Deprived as we heretofore have been of the invaluable rights of free
citizens," wrote Seixas, "we now (with a deep sense of gratitude to the
Almighty disposer of all events) behold…a Government which to bigotry
gives no sanction, to persecution no assistance." Washington responded
with sentiments that Jews hold dear to this day. "The Citizens of the
United States of America have a right to applaud themselves," wrote
Washington, "for giving to Mankind . . . a policy worthy of imitation.
All possess alike liberty of conscience and immunities of citizenship."
On Friday, in an op ed in the Wall Street Journal, I joined Catholic and
Protestant leaders in protesting a violation of religious freedom
stemming from the Department of Health and Human Services' new
directive obligating religious organizations employing or serving
members
of other faiths to facilitate acts that those religious organizations
consider
violations of their religious tradition. Later the same day, the
administration
announced what it called an "accommodation": not religious organizations
but rather insurance companies would be the ones paying for the
prescriptions and procedures that a faith community may find violative
of its
religious tenets. This putative accommodation is, however, no
accommodation at all. The religious organizations would still be
obligated to
provide employees with an insurance policy that facilitates acts
violating the
organization's religious tenets. Although the religious leaders of the
American Catholic community communicated this on Friday evening, the
administration has refused to change its position, thereby insisting
that a
faith community must either violate a tenet of its faith, or be
penalized.
What I wish to focus on this morning is the exemption to the new
insurance policy requirements that the administration did carve out from
the
outset: to wit, exempting from the new insurance policy obligations
religious
organizations that do not employ or serve members of other faiths. From
this exemption carved out by the administration, at least two important
corollaries follow. First: by carving out an exemption, however narrow,
the
administration implicitly acknowledges that forcing employers to
purchase these insurance policies may involve a violation of religious
freedom. Second, the administration implicitly assumes that those who
employ or help others of a different religion are no longer acting in a
religious capacity, and as such are not entitled to the protection of
the First Amendment.
. . .not only does the new regulation threaten religious liberty in the
narrow sense, in requiring Catholic communities to violate their
religious tenets, but also the administration impedes religious liberty
by unilaterally redefining what it means to be religious.
This betrays a complete misunderstanding of the nature of religion. For
Orthodox Jews, religion and tradition govern not only praying in a
synagogue, or studying Torah in a Beit Midrash, or wrapping oneself in
the blatant trappings of religious observance such as phylacteries.
Religion and tradition also inform our conduct in the less obvious
manifestations of religious belief, from feeding the hungry, to
assessing medical ethics, to a million and one things in between.
Maimonides, one of Judaism's greatest Talmudic scholars and
philosophers, and also a physician of considerable repute, stresses in
his Code of Jewish Law that the commandment to "Love the Lord your God
with all your heart" is achieved not through cerebral contemplation only
but also requires study of the sciences, and engagement in the natural
world, as this inspires true appreciation of the wisdom of the Almighty.
In refusing to extend religious liberty beyond the parameters of what
the administration chooses to deem religious conduct, the administration
denies people of faith the ability to define their religious
activity. Therefore, not only does the new regulation threaten religious
liberty in the narrow sense, in requiring Catholic communities to
violate their religious tenets, but also the administration impedes
religious liberty by unilaterally redefining what it means to be
religious.
Washington concluded his missive to the Hebrew Congregation of Newport
by saying: "May the children of the stock of Abraham who dwell in this
land continue to merit and enjoy the good will of the other
inhabitants-while every one shall sit in safety under his own vine and
fig tree and there shall be none to make him afraid." Benefiting from
two centuries of First Amendment protections in the United States, the
Jewish "children of the stock of Abraham" must speak up when the
liberties of conscience afforded their fellow Americans are threatened
and when the definition of religion itself is being redefined by
bureaucratic fiat. Thank you for the opportunity to do so this morning.