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.

I.

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.

II.

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 

erosion.

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 

Congress.

· 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 

conscience.

· 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.

III.

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 

delivered.

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.