A country as large, diverse and modern as ours depends on an elaborate system of laws to run efficiently and fairly. The number of laws grows as the nation gets bigger and the economy more complex. Consider, as a crude measure of growth, the size of the Code of Federal Regulations (the collection of rules made by federal agencies). For a century and a half there were so few agencies that we didn't even need it. In 1938, its first year, it ran 728 pages. In 2010 it was 35,298.
In a society so heavily regulated, the only practical way to protect religious freedom is to carve out exemptions from the laws for people who have strong objections. We have done this since the Revolutionary War for people like Quakers, who have conscientious objections to killing. We exempt the Amish from paying Social Security taxes, because their faith requires them to take care of their own sick and elderly.
Earl Warren court ruled in 1963 that the federal courts should supervise this system of religious exemptions. And its supervision was pretty strict: The government had to have a compelling reason to deny one.
The court changed its mind in 1990. Justice Antonin Scalia, speaking for the court in Employment Division v. Smith, held that we should usually look to the political process for the protection of religious freedom. But there was no cause for concern: "a society that believes in (the value of) religious belief can be expected to be solicitous of that value in its legislation as well."
A quick review of our history offers some support for the court's optimism. The year our Constitution was adopted, George Washington wrote to assure Quakers of his belief that "the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard for the protection and essential interests of the nation may justify and permit."
Congress has enforced Washington's promise by accommodating Quakers and the Amish; by exempting Jews from military rules that forbid nonuniform head coverings; by exempting Native Americans from drug laws against peyote. In 1993, Congress passed the Religious Freedom Restoration Act, an attempt (ultimately unsuccessful) to overturn Smith. In 2000, Congress gave special protection to churches, prisoners and mental inmates.
What a difference we have seen in the last year. The Department of Health and Human Services has been battling with religious colleges and universities, health care providers and social service agencies about the insurance coverage they must provide their employees and students. Religious institutions are directed by law to provide health care plans. And all plans will have to cover (at no added cost to the subscriber) surgical sterilization, contraception and drugs that work after fertilization to cause early term abortions.
•The Department of Justice filed a brief on behalf of the Equal Employment Opportunity Commission arguing that religious groups were not exempt from employment discrimination laws in dealing with their employees who teach religion. (Fortunately, the Supreme Court disagreed.)
•HHS announced that its Human Trafficking Victim Assistance Program would redirect its funds to grantees that provide "the full range of legally permissible" reproductive services. It has since cut out Catholic groups like Migration and Refugee Services and Catholic Relief Services because they will not provide or refer for abortions.
•The National Labor Relations Board regional office ruled that St. Xavier University in Chicago was not Catholic enough to be exempt from federal labor laws. The board's New York office ruled the same way against Manhattan College, a Christian Brothers school.
• HHS repealed a 2008 regulation that provided explicit conscience protection for health care workers opposed to participating in abortions.
What explains the recent indifference to religious scruples? The Supreme Court said in 1990 that we could trust the political process. Notice, though, that the exemptions I mentioned were enacted by Congress. The recent denials have come from departments and agencies controlled or strongly influenced by President Barack Obama.
It is hard to imagine Congress passing a law that ordered Catholic colleges and Catholic hospitals to offer insurance plans covering contraceptives, sterilizations and abortions. Such a bill would never get out of committee. If it did, it would need 218 votes in the House and 51 in the Senate before going to the president for his signature.
But HHS does not need to hold a vote when it wants to make a rule. That makes it more nimble, and more responsive, to the agenda of the party in power. We control these administrative agencies by confirming (or not) the people the president nominates to run them, and by re-electing (or not) the president whose policies they implement.
People who care about religious freedom are understandably upset about the recent abandonment of the American tradition of conscience protection. The administration's apparent lack of concern for that value is likely to be an important issue in the presidential campaign
John Garvey is president of The Catholic University of America, former dean of Boston College law school and the author or co-author of five books, including "What Are Freedoms For?"