The massive Women’s March against Donald Trump was billed as being open to all, but they would not have made room on the podium for the Little Sisters of the Poor as they did for Planned Parenthood. And I doubt the Little Sisters would have wanted to march – whatever they think of Donald Trump – against an administration that will end their persecution at the hands of the healthcare bureaucracy.
Donald Trump is personally irreligious, vulgar, mean-spirited and fond of the smack of firm government – against illegal Mexican aliens, Muslim refugees and outsourcing corporate executives – but he might save religious liberty in the United States for another decade or more. While most political attention is focused on whether President Trump will undo President Obama’s healthcare programme, his moves on religious liberty bear close watching too.
A priority of the Obama administration was to make religious liberty, the free exercise of which is secured by the first amendment in the American Bill of Rights, a secondary liberty. In the early days of the administration, “religious liberty” or “freedom of religion” was dropped in Obama’s foreign policy in favour of “freedom of worship”, a narrower concept which excludes the right of religious citizens to participate in civil life precisely as religious believers, in concert with their co-religionists. At the end of his administration, Obama’s state department had to be cajoled and threatened into declaring the obvious, that a genocide was underway against Christians by ISIS.
Yet it was at home that Obama most dramatically sought to reduce religious liberty to a right secondary to sexual liberties. Obama unleashed the considerable force of the American bureaucratic state against religious institutions. Had he handed over power to Hillary Clinton, religious schools in America would have faced government sanction for any dissent from the entrenchment of the sexual revolution, including transgender bathrooms for children.
The critical flashpoint was the implementation of the Affordable Care Act, known as Obamacare. In 2011, Obama’s department of health and human services (HHS) issued a mandate that required all employers to include contraceptives and abortifacients in their health insurance plans. There was a narrow exemption for religious employers, but the HHS mandate limited the definition of such employers to the parish itself. A Catholic soup kitchen, because it did not serve only Catholics, would not qualify.
Dozens and dozens of lawsuits were filed against the HHS mandate by private businesses, religious employers and churches themselves. On this issue, more lawsuits were filed against the federal government than at any time in American history, including racial discrimination suits during the civil rights era.
Opponents of the HHS mandate thought they had a politically powerful case when the Little Sisters the Poor filed suit. Would the federal government really go to court to force the Little Sisters to pay for contraceptive and abortifacient services, threatening them with non-compliance fines that would mean an end to their care for the indigent elderly? Yes. The Obama administration took them to the Supreme Court, where the justices told it to find a way to implement its mandate without forcing the Little Sisters to compromise their religious beliefs.
For the Obama administration the publicity for its extreme position was a feature, not a bug. The government made an example of the Little Sisters pour encourager les autres. In his 2012 re-election campaign, Obama blasted his opponents for waging a “war on women”, suggesting that those who insisted upon their religious liberty wanted to take contraceptives away from women using them. The Little Sisters and others only baulked at being forced to pay for them, but no matter, the campaign was effective in casting a foundational American liberty as a threat to the freedom wrought by the sexual revolution.
In his second term, Obama championed a gay rights agenda and, after the Supreme Court created a constitutional right to same-sex marriage, authored a wave of regulation that whittled away any religious liberty claim which dissented from the new regnant sexual orthodoxy. In the new environment, a state initiative in California failed only at the last minute to force Christian universities to embrace gay marriage, or risk their financial solvency.
In June 2015, Obama lit up the White House in rainbow colours to celebrate the court decision on gay marriage. A few months later, Pope Francis departed from his official Washington itinerary to visit the Little Sisters of the Poor, clearly signalling his support for their protest against the HHS mandate.
On the campaign trail, Trump repeatedly promised not only a repeal of Obamacare – and its associated mandates – but also to protect religious liberties. The latter was one of the critical issues on which the contrast with Hillary Clinton was most stark.
When President Trump first meets Pope Francis, he will get an earful from the Holy Father about immigrants and refugees. But he might also get a word of thanks on behalf of the Little Sisters and other Catholic agencies who seek the freedom to care for the poor.
Fr Raymond J de Souza is a priest of the Archdiocese of Kingston, Ontario, and editor-in-chief of Convivium magazine