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If congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, then understanding what religion is becomes very important. Tragically, judges are engaged in linguistic gerrymandering by redefining religion in ways that threaten the traditional understanding of our right to free exercise of religion.

A March decision from the California Supreme Court is the starkest example. Even though Catholic Charities opposes contraception, the court said, it isn't exempt from a state law requiring businesses to pay for employees' artificial birth control because the church-affiliated social service organization isn't a religious employer. Here's how a California law defines religious employers: "Those organizations for which the inculcation of religious values is the sole purpose of the entity, that primarily employ only adherents of their own faith tradition, that primarily serve only people who share their religious tenets, and that qualify as nonprofit organizations."

Since Catholic Charities hires and serves non-Catholics, and because its evangelism is indirect rather than direct, it can't be a religious employer, the court majority said.

"This is such a crabbed and restrictive view of religion that it would define the ministry of Jesus Christ as a secular activity," wrote Justice Janice Rogers Brown, the sole dissenting judge in the case (her nomination to a federal judgeship, by the way, is stalled in the Senate). "Here we are dealing with an intentional, purposeful intrusion into a religious organization's expression of its religious tenets and sense of mission. The government is not accidentally or incidentally interfering with religious practice; it is doing so willfully by making a judgment about what is or is not religious. This is precisely the sort of behavior that has been condemned in every other context."

Not absolutely every other context, however. A similar dispute is brewing in New York. The Salvation Army—a Christian denomination, no less—has been sued for religious discrimination for "injecting religion into the workplace" (see "Out in the Cold," p. 17). Also, in San Diego, the Boy Scouts have had their longtime lease of public parkland revoked. U.S. District Court Judge Napoleon Jones ruled that the Scouts' organizational tenet of belief in God (and, he suggested, their policy against gay scoutmasters) makes them a "religious" organization—so a city lease would be an unconstitutional "establishment of religion." So, Catholic Charities isn't religious, but the Boy Scouts of America is? The only consistency in both rulings is conformity to the tenets of the sexual Left.

This trend isn't restricted to California and New York courts. The U.S. Supreme Court is also muddying the waters by supporting discrimination in Washington state's Promise Scholarship Program. Students who receive the scholarships may attend any accredited college in the state, even a religious one. They may even choose any major they wish, including theology. There's just one catch: Don't major in theology at a school that teaches it "to induce religious faith"—in other words, the American Center for Law and Justice argued, "from the point of view of actually believing what is being taught."

In recent years, the Supreme Court has repeatedly affirmed neutrality and fair treatment as the standards for assessing whether discrimination exists. But not this time.

"Washington's program imposes neither criminal nor civil sanctions on any type of religious service or rite," Chief Justice William H. Rehnquist wrote for the five-member majority. "It neither denies to ministers the right to participate in community political affairs, nor requires students to choose between their religious beliefs and receiving a government benefit. The State has merely chosen not to fund a distinct category of instruction."

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May 2004, Vol. 48, No. 5