Monday, October 31, 2011

Bishop Lori Defends Religious Liberty In Front Of House Judiciary Committee

Here is Bishop Lori's testimony before the House Judiciary Committee. 

 Mr. Chairman and distinguished members of the Subcommittee, allow me to 
thank you for the invitation and opportunity to be with you today to offer testimony 
on religious liberty.  Let me also express my appreciation to you for calling this 
hearing on a topic of fundamental importance to our Church and to our Nation.
I am here today representing the United States Conference of Catholic 
Bishops (USCCB).  I serve as Bishop of the Diocese of Bridgeport, and as the 
newly appointed Chair of the USCCB’s Ad Hoc Committee for Religious Liberty. 
I will summarize my remarks and ask that my full written testimony be entered into 
the record.

I hope to address three topics today.  First, I would like to offer a few brief 
reflections on the Catholic vision of religious freedom for all, as rooted in the 
inherent dignity of every human person, and this vision’s deep resonance with the 
American experiment.  Second, I would like to identify certain threats to religious 
liberty that have emerged with particular urgency in America today.  And third, I 
would urge you to action in support of particular legislative measures that would 
secure religious liberty against these threats.

Religious liberty is not merely one right among others, but enjoys a certain 
primacy.  As the Holy Father, Pope Benedict XVI recently explained: “It is indeed 
the first of human rights, not only because it was historically the first to be recognized 
but also because it touches the constitutive dimension of man, his relation with his 
Creator.”   (Pope Benedict XVI, Address to Diplomatic Corps, 10 Jan. 2011.)   The 
late Pope John Paul II taught that “the most fundamental human freedom [is] that 
of practicing one’s faith openly, which for human beings is their reason for living.”  
(Pope John Paul II, Address to Diplomatic Corps, 13 Jan. 1996, No. 9.)   Not 
coincidentally, religious liberty is first on the list in the Bill of Rights, the charter of 
our Nation’s most cherished and fundamental freedoms.   The First Amendment 
begins: “Congress shall make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof….”   It is commonly, and with justice, called our 
“First Freedom.”

Religious liberty is also prior to the state itself.  It is not merely a privilege 
that the government grants us and so may take away at will.  Instead, religious 
liberty is inherent in our very humanity, hard-wired into each and every one of us by 
our Creator.  Thus government has a perennial obligation to acknowledge and 
protect religious liberty as fundamental, no matter the moral and political trends of 
the moment.   This insight as well is reflected in the laws and traditions of our
country from its very inception.  The Declaration of Independence boldly 
proclaimed as a self-evident truth that our inalienable rights are “endowed by our 
Creator”—not by the State.

Religious freedom is most commonly understood as an individual right, and it 
certainly is that.  Religious freedom proceeds from the dignity of each person, and 
so protects each person individually.   “[T]he exercise of religion, of its very nature, 
consists before all else in those internal, voluntary and free acts whereby man sets the 
course of his life directly toward God” (Second Vatican Council, Dignitatis 
Humanae, No. 3).   Therefore individuals are “not to be forced to act in manner 
contrary to [their] conscience,” nor “restrained from acting in accordance with [their] 
conscience.”   (Ibid.)   Congress has shown special vigilance in protecting these 
individual rights of conscience, for example, in the form of the Religious Freedom 
Restoration Act (RFRA), which forbids the federal government from imposing any 
“substantial burdens” on religious exercise absent the most compelling reasons.

But religious freedom also belongs to churches and other religious 
institutions, comprised of citizens who are believers and who seek, not to create a 
theocracy, but rather to influence their culture from within.  The distinction 
between Church and State, between God and Caesar, remains “fundamental to 
Christianity” (Pope Benedict XVI, Deus Caritas Est, No. 28).  We look to the State 
not to impose religion but to guarantee religious freedom, and to promote harmony 
among followers of different religions.  The Church has “a proper independence 
and is structured on the basis of her faith as a community the State must recognize”
(Ibid.).   An indispensable element of this independence is the right of churches
“not to be hindered, either by legal measures or by administrative action on the part 
of government, in the selection, training, appointment, and transferral of their own 
ministers” (Second Vatican Council, Dignitatis Humanae, No. 4).  We are grateful 
that federal courts in the United States—at least to date—have uniformly 
recognized this core protection under the Religion Clauses of the First Amendment.

Finally, the Church teaches that these rights of religious freedom—prior to all 
other rights and even to the State, and protecting both individuals and 
institutions—are held not just by Catholics, but by all people, by virtue of their 
common humanity.   Government has the duty “to assume the safeguard of the 
religious freedom of all its citizens, in an effective manner, by just laws and by other 
appropriate means” (Second Vatican Council, Dignitatis Humanae, No. 6 (emphasis 
added)).  Even in societies where one particular religion predominates, it is 
“imperative that the right of all citizens and religious communities to religious 
freedom should be recognized and made effective in practice” (Ibid.).   The United
States stands strongly for the principle that these rights of freedom are also rights of 
equality—that government should not impose any special civil disadvantages or 
otherwise discriminate against its citizens based on religion.  And although it may 
not have always lived up to this or other religious freedom principles in practice, our 
country’s unique capacity for self-correction has always provided avenues to repair 
to these principles that have made it a great nation.

Regrettably, now is the time for such self-correction and repair.  In the 
recent past, the Bishops of the United States have watched with increasing alarm as 
this great national legacy of religious liberty, so profoundly in harmony with our 
own teachings, has been subject to ever more frequent assault and ever more rapid 

As I mentioned previously, I am the Chair of the USCCB’s new Ad Hoc 
Committee for Religious Liberty, which was instituted precisely to help resist these 
assaults and reverse this erosion.  The Bishops of the United States decided in 
principle to institute a committee like this in June of this year, based on 
developments over the months and years preceding that date.   That I am already 
appointed as Chair represents action at near light-speed in Church time, and attests 
to the urgency of the matter from the Bishops’ perspective.

Although the Bishops’ decision was based on facts arising before June, I am 
here today to call to your attention grave threats to religious liberty that have 
emerged even since June—grim validations of the Bishops’ recognition of the need 
for urgent and concerted action in this area.   I focus on these because most of them 
arise under federal law, and so may well be the subject of corrective action by 

· In August, the U.S. Department of Health and Human Services (HHS) issued 
regulations to mandate the coverage of contraception (including 
abortifacients) and sterilization as “preventive services” in almost all private 
health insurance plans.  There is an exception for certain religious 
employers; but to borrow from Sr. Carol Keehan of the Catholic Health 
Association, it is so incredibly narrow that it would cover only the “parish 
housekeeper.”  And the exception does nothing to protect insurers or 
individuals with religious or moral objections to the mandate.   The 
“preventive services” mandate is but the first instance of conscience 
problems arising from the Patient Protection and Affordable Care Act 
enacted in March 2010 – an act whose goal of greater access to health care the 
Bishops have long supported, but that we had persistently warned during the 
legislative process did not include sufficient protections for rights of 

· In May, HHS added a new requirement to its cooperative agreements and 
government contracts for services to victims of human trafficking and to 
refugees who are unaccompanied minors, so that otherwise highly qualified 
service providers, such as USCCB’s Migration and Refugee Services (MRS), 
will be barred from participation in the program because they cannot in 
conscience provide the “full range” of reproductive services—namely, 
abortion and contraception.   This requirement is exactly what the American 
Civil Liberties Union (ACLU) has urged HHS to adopt in a lawsuit 
challenging the constitutionality of MRS’s longstanding contract with HHS
to serve victims of human trafficking.  Ironically, ACLU has attacked the 
Church’s exemplary service to these victims as a violation of religious 
liberty.   Already, HHS has taken its major program for serving trafficking 
victims away from MRS and transferred it to several smaller organizations 
that frankly may not be equipped to assume this burden.

· The State Department’s U.S. Agency for International Development 
(USAID) is increasingly requiring contractors, such as Catholic Relief 
Services (CRS), to provide comprehensive HIV prevention activities 
(including condom distribution), as well as full integration of its programs 
with reproductive health activities (including provision of artificial 
contraception) in a range of international relief and development programs.  
Under this new requirement, of course, some of the most effective providers 
helping to prevent and treat AIDS in Africa and other developing nations will 
be excluded.

· The federal Department of Justice (DoJ) has ratcheted up its attack on the 
Defense of Marriage Act (DOMA) by mischaracterizing it as an act of 
bigotry.  As you may know, in March, DoJ stopped defending DOMA 
against constitutional challenges, and the Conference spoke out against that 
decision.  But in July, the Department started filing briefs actively attacking 
DOMA’s constitutionality, claiming that supporters of the law could only 
have been motivated by bias and prejudice.  If the label of “bigot” sticks to 
our Church and many other churches—especially in court, under the 
Constitution—because of their teaching on marriage, the result will be 
church-state conflicts for many years to come.

· DoJ has also undermined religious liberty in the critically important 
“ministerial exception” case now pending before the Supreme Court, 
Hosanna Tabor v. EEOC.   DoJ could have taken the position that the 
“ministerial exception,” though generally providing strong protection for the 
right of religious groups to choose their ministers without government 
interference, didn’t apply in the case before the court.   This would be 
consistent with the uniform judgment of the federal Courts of Appeals for 
decades, as well the DoJ itself until now.   Instead, DoJ needlessly attacked 
the very existence of the exception, in opposition to a vast coalition of 
religious groups urging its preservation through their amicus curiae briefs.

· At the state level, religious liberty protections associated with the redefinition 
of marriage have fallen far short of what is necessary.  In New York, county 
clerks face legal action for refusing to participate in same-sex unions, and gay 
rights advocates boast how little religious freedom protection individuals and 
groups will enjoy under the new law.   In Illinois, Catholic Charities has been 
driven out of the adoption and foster care business, because it recognizes the 
unique value of man-woman marriage for the well-being of children.

These are serious threats to religious liberty, and as I noted previously they 
represent only the most recent instances in a broader trend of erosion of religious 
liberty in the United States.   The ultimate root causes of these threats are profound, 
and lie beyond the scope of this hearing or even this august body to fix—they are 
fundamentally philosophical and cultural problems that the bishops, and other 
participants in civil society, must address apart from government action.  But we 
can—and must—also treat the symptoms immediately, lest the disease spread so 
quickly that the patient is overcome before the ultimate cure can be formulated and 

As to the “preventive services” mandate, and related problems under the 
health care reform law, there are three important bipartisan bills currently in the 
Congress:  the Protect Life Act (H.R. 358), the Abortion Non-Discrimination Act 
(H.R. 361), and the Respect for Rights of Conscience Act (H.R. 1179).  All three go 
a long way toward guaranteeing religious liberty and freedom of conscience for 
religious employers, health insurers, and health care providers.   United with my 
brother bishops, and in the name of religious liberty, I urge these three bills be 
swiftly passed by Congress so they may be signed into law.   We welcome the fact 
that H.R. 358 was recently approved by the House in a bipartisan vote, and that the 6
text of H.R. 361 has been included in the House subcommittee draft of the 
Labor/HHS appropriations bill for Fiscal Year 2012.

As to the illegal conditions that HHS and USAID are placing on religious 
providers of human services, this may call for a Congressional hearing or other form 
of investigation to ensure compliance with the applicable conscience laws, as well as 
to identify how these new requirements came to be imposed.  Additional statutes 
may be appropriate, possibly to create new conscience protections, but more likely 
to create private rights of action for those whose rights under the existing protections 
have been violated.  Unfortunately, the authority to enforce the applicable 
conscience protections now lies principally with the very federal agencies that may 
be violating the protections.
As to the attack on DOMA, this body should resist legislative efforts to repeal 
the law, including the Respect for Marriage Act (H.R. 1116).  We also applaud the 
decision of the House to take up the defense of DOMA in court after DoJ abandoned 
it, and we urge you to sustain that effort for as long as necessary to obtain definitive 
confirmation of its constitutionality.  Moreover, DoJ’s decisions to abandon both 
DOMA and the “ministerial exception” seem to warrant congressional inquiry.

The religious freedom threats to marriage at the state level may fall beyond 
the scope of authority of Congress to control—except to the extent that state 
adoption and foster care services are federally funded.  We believe this avenue for
protecting the religious liberty of faith-based service providers should be explored 
more fully.

Thank you for your attention, and again, for your willingness to give religious 
freedom the priority it is due.  

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