Ever since the U.S. Department of Health and Human
Services decided to require that health-insurance plans cover
contraception, many Catholics and evangelicals have protested that the mandate violates their religious
freedom: it forces them to pay for procedures that go against their beliefs.

Conflicts between laws and religious beliefs come up regularly.
In October the Supreme Court heard arguments on whether religious
organizations are subject to antidiscrimination laws when they hire and fire
ministers. State legislatures recognizing same-sex marriage have debated
protections for adoption agencies and wedding photographers.

Where should religious progressives stand on such
questions? I'd argue that they should support significant accommodations for
religious beliefs--even those with which they disagree. Let me offer three

1. The faith commitments of people and organizations are
important, and societal interests don't automatically trump them. Progressives
may be friendlier than conservatives toward government, but government doesn't always
promote the common good. Often the forces driving it reflect pathologies of
self-centeredness and fear.

Such pathologies are on full display in Alabama's
draconian statute forbidding anyone to "transport," "harbor" or rent to an
undocumented immigrant. Catholic, Episcopal and Methodist bishops from the
state have brought a suit alleging that the law would
expose their ministries and employees to criminal punishment for providing
services without first verifying people's immigration status. In Minnesota,
churches successfully challenged a state law that would have
forced them to allow people to carry concealed weapons on their property.

When progressive Christians' commitments conflict with
the law, they need a tradition of accommodation to appeal to.

2. Arguments against religious-freedom protections often
rely on troubling premises. For example, one way to shrink an exemption is to
narrow the category it applies to. In the contraception dispute, HHS defined
exempt religious employers very narrowly: only those that exist
primarily for the "inculcation of religious values" to their own members.

But for progressive Christians, acts of mercy and
justice, serving all people, are at the heart of the gospel, even if these acts
witness implicitly rather than explicitly. Catholic social services and
health-care institutions reflect that model, as do many evangelical agencies.
Thus many Catholic progressives have joined in protesting that HHS's rule would
categorically deny protection to these organizations. The pro-choice group
Emily's List responded by calling such ministries "so-called 'religious employers.'" That's a disturbing
dismissal, whatever your views on contraception.

3. Without significant exemptions, it can be hard to
enact or preserve social legislation. In 2010, the Catholic bishops withdrew
their long-held support for health-care reform in part because they feared the
very conflicts that have materialized in the HHS rule. The Catholic Health
Association, which clashed with the bishops by supporting reform, now finds
itself compelled to oppose the contraception mandate.
Health-care reform is vulnerable to repeal. Is it necessary to alienate a group
of Catholics who put themselves on the line to support it?

Or take same-sex marriage, opponents of which have raised
some unreasonable fears but also at least one reasonable one: recognizing
same-sex marriage could cement the idea that religious organizations opposed to
it deserve no accommodation. Gay-marriage proponents could defuse a key
objection if they accepted provisions allowing religious adoption agencies to
decline to place children with same-sex couples (when other providers are
available), or allowing religious colleges to decline to open married-student
housing to same-sex couples. Indeed, same-sex-marriage passed in New York and elsewhere only when the legislatures strengthened religious

Of course, not every claim that appeals to religious
freedom should be granted. Religious beliefs cannot excuse direct harm to
others' person or property. Government funding should not preclude
religious-freedom claims altogether, but it does complicate matters, because
government enjoys some extra discretion over how it spends its money. And our
laws give virtually no accommodation to religiously based racial

In the contraception dispute, however, a broader exemption
from the HHS mandate would fall within our tradition of accommodating religious
organizations. This would not harm the person or property of employees of
Catholic organizations; nor would it take away anything they currently have.
HHS's rule is a flat mandate: organizations cannot escape it by refusing
government funds. And since many employers are exempt-because they employ few
people, have been "grandfathered in" or have received a waiver from HHS-the
constitutionally recognized interest in religious freedom deserves at least as
much weight.

The mandate's negative effects may be far-reaching. The
belief systems conflicting with the law are the same ones that motivate
Catholics and evangelicals to do their work of mercy and justice. Several
Catholic Charities branches have stopped facilitating adoptions because of
conflicts with laws against sexual-orientation discrimination. If a Catholic
college avoids the HHS mandate by dropping health insurance altogether, or if a
social-service provider simply ceases operations, the bad results will affect

There is some momentum right now to dramatically
constrict the scope of religious freedom. Religious progressives should not
stand by and watch this happen--even if it's conservatives who are in the vise.

Thomas C. Berg

Thomas C. Berg teaches law and public policy at the University of St. Thomas in Minneapolis.

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