Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law. Griffin is author of Law and Religion: Cases and Materials (4th edition, 2017) and Practicing Bioethics Law (2015). She holds a Ph.D. in religious studies from Yale University and a J.D. from Stanford Law School.
The first Catholic president of the United States, John F. Kennedy, made a famous promise about his presidency during a pre-election speech to the Greater Houston Ministerial Association. In his words:
"Whatever issue may come before me as President—on birth control, divorce, censorship, gambling or any other subject—I will make my decision in accordance with...what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates. And no power or threat of punishment could cause me to decide otherwise."
President-elect Joseph R. Biden, the second Catholic in that position, speaks frequently of his faith and regularly attends Mass. Many people have already commented on whether he is a good Catholic…or not. Vice President-elect Kamala Harris was raised in both Hinduism and Christianity, and her name means lotus in Sanskrit. She is a Black Baptist and is married to a Jewish man. Biden and Harris will enter office when the Supreme Court is composed of six or seven Catholics—Justices Thomas; Roberts; Alito; Sotomayor; Kavanaugh; Barrett; and Gorsuch, who was raised Catholic.
Biden and Harris will enter office when the Supreme Court is composed of six or seven Catholics.
As a scholar who was raised Catholic and studied Catholic theology, I would like all these people to follow Kennedy’s promise and vote their conscience in the national interest, instead of according to their religious beliefs. Religious beliefs vary from religion to religion. Catholics don’t always understand that because they think their teaching is universal. Following Kennedy’s ideal means Biden would protect civil rights, public health, and religious equality instead of the right to discriminate, harm children, and jeopardize public health. His administration would focus on the individual, instead of on religious communities, and understand that constitutional and statutory law are supposed to protect individual rights, not some ill-defined and rights-denying religious autonomy or religious superiority.
Women and Health Care
Women have a constitutional right to use contraception without interference from the state. Many religions, however, oppose women’s rights. Their members do not want individual women to use contraception because they believe it is immoral. The religions have won this battle, with help from the Supreme Court, the Religious Freedom Restoration Act (RFRA), and both the Obama and Trump administrations. Obama wanted women to have contraceptive insurance, but he gave a small religious exemption to churches, which was then expanded by numerous lawsuits to religious for-profit and non-profit organizations. Trump then successfully expanded the exception so that any employer with a religious or moral objection to contraception does not have to provide contraceptive insurance. As usual, thanks to RFRA, women are left paying for their contraceptives, even though the Affordable Care Act was supposed to free them from such payments.
President Biden and the new Congress should set up a government program that provides all women with contraceptive insurance. It is a woman’s choice, not her employer’s or her church’s. Put the individual’s interest first, and things turn out differently. They would also do well to repeal RFRA, a statute that gives religious organizations the right not to follow the law, as the plaintiffs did in the contraceptive cases during the Obama and Trump administrations.
President Biden and the new Congress should set up a government program that provides all women with contraceptive insurance.
Religions have long opposed the constitutional right to abortion and still seek to make abortion illegal because of their religious support for human life from the moment of conception. These teachings ignore the autonomy of women and the hard choices that women face when their embryo’s health or their own life is threatened. Women individually should make their decisions about abortion, not states guided by religious adherents to limit women’s rights or religions who do not support women’s rights. Biden needs to support pro-choice legislation.
Health care is muddled by religious exemptions. Numerous medical personnel have conscience clauses, which protect their right not to give a service even if the patient’s health requires it. President Trump expanded the right of medical personnel to deny treatment without legal challenge. In addition, as we should know, especially in the time of COVID-19, vaccinations protect public health. Religion and philosophy should not be respected as reasons not to do what is best for public health. Too often they are. The new administration needs to proclaim that vaccinations are for everyone.
Religious Freedom and Discrimination
Current Supreme Court precedent gives religious institutions a right to fire ministers. No matter why the employer fired them, the minister has no right to sue the employer for discriminating against her or him on the basis of race, gender, sexual orientation, disability, age, or any other factor in anti-discrimination law. Even when the employers say they subscribe to the anti-discrimination laws, they are allowed to discriminate. This past term, the Court expanded the exemption so that many teachers at religious schools are ministers, even if they never knew they were.
It will take a long time to get the courts to see that the ministerial exception is a license for discrimination in religious schools, universities, hospitals, nursing homes, and any other religious organization. As we wait for change, the administration should clarify that any religious organization is currently a place not covered by any of the country’s anti-discrimination laws. We might as well be honest about it. The Supreme Court has protected religious organizations as places that have a religious right to discriminate. At the same time, the Court has recently stated that those institutions are entitled to public funding, even though they do not have to obey the anti-discrimination laws.
The situation may get worse this term, because a Catholic agency is currently at the Supreme Court, arguing that it has a free exercise right to participate in a foster children program, even though it will not consider same-sex couples as parents. Although Philadelphia law forbids such discrimination, the agency is claiming a free exercise right to discriminate. If the Court agrees, it would be another step that protects the institutional church at the expense of children’s and parents’ rights. The new administration must become as firm as possible in its support of LGBTQ rights, no matter what the religions say.
The new administration must become as firm as possible in its support of LGBTQ rights, no matter what the religions say.
We should never forget the sexual abuse of children. For a long time, courts used the First Amendment to keep churches out of court when they were charged with hiding sexual abuse and protecting abusers. Finally, the courts saw the problem with that argument. By opening the courts, we have learned very sad stories, not only of ministers abusing children but of church officials promoting the abusers and ignoring the children’s complaints. Indeed, the Vatican recently released an investigation that showed that Pope John Paul II promoted Theodore McCarrick to a cardinal’s position even though there were long and repeated complaints that McCarrick had abused seminarians. Years went by while McCarrick did prominent church work, despite his terrible history of abuse.
The restraints on contraception and abortion, the conscience clauses, the many ministers fired by religious organizations, and the massive numbers of abusers and survivors of the child abuse crisis should teach politicians that religions do not always work for the public well-being. They are human institutions, just like others that unless overseen do harm to people.
Keeping Everybody Healthy
Some churches are now opposing government rules about COVID-19. Five justices on the Court, including the new Justice Amy Coney Barrett, voted for religious organizations’ right to keep holding services mid-pandemic, in defiance of New York laws set by a state that had suffered a severe COVID-19 outbreak. One man who went to an Ohio church infected 91 others. God does not protect people at religious services from COVID-19. The government needs to support public health, not religious freedom to ignore what keeps people healthy.
What keeps everybody healthy: How much time do you spend thinking of religions that are not Christian or, perhaps, Jewish? We do not hear much about the Buddhists, Hindus, Muslims, Sikhs, atheists, agnostics, or the “nones” (people who are not affiliated with any religious tradition)—unless any of them becomes an immigration problem.