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From the September, 2004 issue of Touchstone


Faith-Based Restrictions by James Hitchcock

Faith-Based Restrictions

In England a crowd assaulted a street preacher who posted a sign saying, “Stop Homosexuality.” The police arrived and made an arrest—of the preacher. He was convicted of insulting and harassing behavior. Also in England, an Anglican bishop was investigated by the police after he publicly suggested that homosexuals seek counseling.

Meanwhile the Irish Council for Civil Liberties has warned the Catholic Church of possible prosecution if it promulgates the Holy See’s official statement on “same-sex unions.” In Canada a teacher has been suspended for writing a letter to a newspaper saying that homosexuality is immoral.

The preacher was being deliberately offensive, and the teacher’s letter no doubt upset any homosexuals among his students. But would there have been similar actions by the authorities if the preacher had attacked the Catholic Church, or if the teacher had denounced “religious fundamentalists”? I know of no such cases.

These are only a sampling of numerous recent episodes in which, where homosexuality is concerned, governments are prepared to abrogate civil liberties. The American tradition of free expression so far has resisted these measures, but there are no grounds for complacency.

Restricted Liberty

Just outside public view, in books and journals read only by scholars, influential American political and legal theorists openly advocate the restriction of religious liberty in order to prevent the “wrong” ideas from being circulated. In particular, these theorists bluntly insist that parents have no right to inculcate their own beliefs in their children. (For a survey of this movement, see my article in last February’s issue of the journal First Things.)

The Catholic Church is paying heavily, both in money and in credibility, for having minimized the problem of priests sexually molesting boys. Historically, scandals of this kind often lead to restrictions on the freedom of those who acted irresponsibly, and this is another way in which the church may now be forced to pay. Already famous for having found homosexual “marriage” to be a constitutional right, the Massachusetts Supreme Court recently handed down, on a related matter, a decision that is a direct threat to religious liberty.

The Jesuit order paid a large amount of money to high-school students molested by a Boston Jesuit. Before the criminal trial, the court ordered the Jesuits to turn over records of confidential meetings between the priest and his superiors. Now, it has never been entirely clear whether the seal of the confessional is protected in law, and it is even less clear whether a priest’s meetings with his superiors, who have responsibility for his spiritual state, enjoy such protection.

However, the court’s reason for requiring that the records be turned over is startling: the possibility that they will include an admission of guilt by the priest and that this could be used to avoid a trial that would be traumatic for the victims. In other words, the accused is to be denied his day in court. His guilt is to be proved by statements he may have made in a situation he had every reason to think was confidential, even though it is a firm principle in law that no confession can be used if the accused has not been warned of his rights.

If this decision stands, no pastor of any sort will ever again be able to speak candidly to his superiors about the condition of his soul, for fear that eventually what he reveals will be made public and used in court. But that is not the most ominous part of the decision. The court justifies it on the grounds that no issue of religious liberty is involved, because turning over the confidential records does not inhibit the priest or his superiors “in their performance of any religious ritual or ceremonies of worship.”

The implications of this are breathtaking. For almost seventy years, courts have been expanding the scope of religious liberty. Now Massachusetts reduces that liberty to the freedom merely to perform rituals or ceremonies. The decision reeks of the prejudice of the secularist: Religion is a matter of “meaningless rituals,” but however meaningless, it cannot be allowed to play a public role. It can be tolerated only so long as it remains merely a matter of ritual.

If the decision, and the definition of religion upon which it depends, stands, all kinds of religious activities—charity, education, moral witness—will cease to enjoy constitutional protection.

—James Hitchcock, for the editors

James Hitchcock is Professor emeritus of History at St. Louis University in St. Louis. He and his late wife Helen have four daughters. His most recent book is the two-volume work, The Supreme Court and Religion in American Life (Princeton University Press, 2004). He is a senior editor of Touchstone.

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“Faith-Based Restrictions” first appeared in the September 2004 issue of Touchstone. If you enjoyed this article, you'll find more of the same in every issue. Support the work of Touchstone by subscribing today!

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