Religious Liberty, Executive Orders, and Laws of General Application

Religious liberty seems so simple. Everyone should have the right to believe what they want and practice what they believe. Right?

So…a few questions, as we await yet another Executive Order--this time, addressing Trump’s (or more probably, Pence’s) version of religious liberty.

Should parents whose beliefs include what we Westerners call genital mutilation–what they call female circumcision–be allowed to perform that surgery on children who are too young to give informed consent? If not, how do we distinguish that practice from the routine circumcision of male babies, especially Jewish infants?

Should parents who believe in faith healing be allowed to refuse medical treatment for their minor children?

Should churches that depend upon local police and fire protection, and who benefit from other city services, be exempt from paying the property taxes that fund those services?

Should devout individuals who believe that God wants to keep the races separate and women subservient be allowed to ignore nondiscrimination laws? If not, how do proponents justify ignoring civil rights laws that protect LGBTQ citizens?

Do parents who want a religious education for their children have a right to taxpayer subsidies of that education? If secular taxpayers are justified in objecting to voucher programs that support religious schools, how is that objection different (as a thoughtful commenter asked yesterday) from the theory of the Hobby Lobby case, in which the court said a religious employer had the right to refuse a federal mandate requiring coverage of birth control?

Let me answer that last question first.

The problem with the Hobby Lobby decision was its attribution of religious belief to a corporate entity. The Court was not faced with a situation in which an individual shopkeeper or business owner relied upon religious liberty as a defense to providing his employees with birth control coverage; the central issue was whether the religious beliefs of a closely-held corporation’s major shareholders could be asserted by the business entity.

In Citizens United, the Court bestowed free speech rights on the legal fiction that is corporate existence. In Hobby Lobby, it extended that fiction. Corporations–Mitt Romney to the contrary–are not people, and the notion they should be entitled to be treated as indistinguishable from human beings for purposes of constitutional analysis is troubling, to put it mildly.

But let’s go back to the initial inquiry: should individuals (the breathing kind) be allowed to violate generally applicable laws with which they disagree, if that disagreement is based upon their theological commitments?

We don’t accept even the most passionate philosophical disagreement as an excuse for lawbreaking. Pacifists who withhold taxes meant for the Defense Department, environmentalists who drive nails into trees and protestors who engage in various types of civil disobedience are all aware that they will be punished for breaking laws that were duly passed and generally applicable. Why should people claiming religious motives for behaviors deemed socially harmful be entitled to special treatment?

The Courts have struggled with the questions with which I began this post, and with other conflicts between individual belief and government’s obligation to protect the vulnerable and insure civil equality. They haven’t always gotten the balance right–more “traditional” (dare I say “established”?) religions have often gotten a pass for behaviors not tolerated when practiced by less “mainstream” faiths. But the answer to such inequities is not the Pence approach, which would privilege otherwise lawless behaviors when the ostensible motive is “religion.”

What the Courts have generally gotten right is the basic principle: in the United States, people are free to believe–and preach–pretty much anything. But they are only free to act upon those beliefs until those actions harm others, or violate a law of general application.

Ironically, it’s the most outspoken and judgmental critics of Islamic theocrats who want to elevate religious doctrine (only theirs, of course) over secular laws of general application. Apparently, in their view, a Christian Taliban is different.

To the rest of us, not so much.


  1. Pence is far worse than Trump, and this EO version of our RFRA law proves it. His sick version of Christianity and his beliefs about how his religion should be applied to the rest of us makes him a very special piece of shit. I can only hope that when Trump goes down in Russian fueled flames that Pence is along for the ride.

  2. Please excuse that this is off today’s subject, but I received an email from Common Cause Indiana this morning. It will cover gerrymandering and other Indiana issues.

    It is – Indiana Citizen Lobbyist Training April 29th. I am planning to attend this.

    You can read about the details at Common Cause Indiana or contact:
    Julia Vaughn, Common Cause Indiana <causenet@commoncause.or

  3. “Why should people claiming religious motives for behaviors deemed socially harmful be entitled to special treatment?”

    They shouldn’t. The reason our fanatics are so mad at other religions’ fanatics are they’re fanatical.

    As for taxing churches, hell yes! They’ve been funneling money into the political realm and preaching about it as well. You own a parcel, you pay a tax.

    That goes for hospitals and universities as well.

    Religious zealots are bad for this country just like they are bad for other countries. However, when half of SCOTUS is funded by the same people funding Pence, guess what?

  4. There was a Bill in either the Indiana Senate or House that may have recently passed. It was in regard to letting children (or adults?) practice their religion or pray in school, without discrimination. My immediate thought about this Bill was that it was most likely intended for “Christians” and not intended for “other” religions. Does anyone else know anything about this Bill?

  5. Good news Wiccans and Rastafarians! Soon you’ll be able to practice your religions in the public schools.

  6. Under Trump’s mentally unbalanced leadership, upheld by Congress and the GOP, with Pence waiting in the wings to take over the helm when Trump has worn out his usefulness; we are fast approaching life in the United States when all we will be allowed our freedom of thought without speech and freedom of religion but not allowed to practice it except in our thoughts. Trump’s daily Tweets, emptying his addled brain of its verbiage, threats and accusations casting blame for all the world’s ills on others.

    Theresa Kendall; you are correct in your assessment that Pence is far worse then Trump but between them they will cover the gamut of our civil and human rights to be denied. Trump leads the money changers in the temples and Pence is the self proclaimed godhead to rule the country under his personal religious beliefs while denying the Constitution and Declaration of Independence and Bill of Rights. His time is coming.

    And; as I asked late on yesterday’s blog, will the Democratic party again try to fight these two demonic leaders by supporting Hillary Clinton for a third time? “Religious Liberty, Executive Orders, and Laws of General Application” Did she support any of these issues in either of her past two presidential campaigns? Has she spoken out on these issues or anything else since November 9, 2016?

    “What the Courts have generally gotten right is the basic principle: in the United States, people are free to believe–and preach–pretty much anything. But they are only free to act upon those beliefs until those actions harm others, or violate a law of general application.”

    First Church of Cannabis is as legal as the Church of the Flying Spaghetti Monster was in its time but we are gradually being relegated to the religions of Hobby Lobby and Chick-Fil-A and RFRA. The Fundamentalist Latter Day Saints is an unrecognized offshoot the the Moron church is dangerous to all of its congregants but it flourishes in the southwestern part of this country as Jim Jones’ People’s Temple did here in Indianapolis and later on the west coast. Today, the “Laws of Application” support Hobby Lobby, Chick-Fil-A and RFRA and Trump as the warm-up before the Pence games begin in earnest…IF we haven’t been nuked before Trump’s usefulness to Congress, the GOP, Putin and Russia has run out.

  7. The whole praying in school thing is just BS. Kids can pray now anytime they want, and any way that they wish. I know of two Metro Indy high schools that have “culture rooms,” where students that have specific praying rituals, such as using a prayer rug, can go and practice their faith. All of this is done without any fanfare or attention to the kids that participate. Everyone should know that prayer cannot be led or forced on the student body by teachers or administrators. The legislators that introduce this stuff are only trying to perpetuate the false belief that there is no prayer in schools; and they are pandering to their base for votes.

  8. It violates my sincerely held religious beliefs-I of the Flying Spaghetti Monster faith- to allow wingnuts to breathe and procreate on my Earth. Or to hold political office for that matter. Or vote. Or teach children.

  9. The problem with religious based anything in my opinion is that it is not possible to clearly define the word. What is religion in terms that specifically include and exclude and allow the majority of us to agree on who, what, where is in and out?

    Once someone figures that out the next question is why should things that meet the definition be treated in any special way? What’s exceptional about them? What greater good results from any specific exceptional treatment.

    I think an easier question for Americans is, should everything that falls into the definition be treated the same. Our Constitution clearly says yes they should be.

  10. In reading Shelia’s blog this morning I kept thinking of Sharia law (a hopelessly intertwined combination of religion and politics) and wondering if she were going to mention that. She finally did at the end of her effort with her reference to Islamic theocrats though she did not use the phrase “Sharia Law” per se, and perhaps for good reason as its mere mention is toxic these days.
    What to do when you are sitting on the Supreme Court and are confronted with the Establishment Clause versus a Sharia system that is both theocratic and legalistic as well as one that Pence and his ilk are trying to establish with his brand of theology as a hopeless admixture of theology and government, deliberately made murky by claims of religious freedom, and now with the wrongly-decided Hobby Lobby, which holds that closely-held corporations are entitled to “religious freedom” in refusing to follow the law? How do you rationally unpeel the theocratic from the governmental and go from there with your legal reasoning? How can you honor separation of church and state when one of the parties to the appeal claims to be both?
    How far can this go? Can I form a closely held corporation and claim that the corporation’s religion compels it and me as its sole owner not to pay income taxes? Not to drive on the right side of the road? Hobby Lobby has opened a can of worms that (under the guise of freedom) invites mayhem as all sorts as claims can be made in the name of “religious freedom” which will inevitably result in civil mayhem in practice. So much for the church-state argument unless and until some brave jurists peel off the layers of this legal onion and clearly delineate where freedom of any sort is claimed versus the public good.
    Bad as the political scene is these days, I find it preferable to one dominated by imans, rabbis, priests and preachers. Historically, we have tried such forms of government and they didn’t work then, won’t work now and won’t work in the future, not so long as there remain theological Bastilles to storm by those of us who, speaking of freedoms, wish to exercise our democratic freedoms of self-government, consent to be governed and other democratic norms free of control of unelected theocrats. In this connection, I am reminded of Winston Churchill’s statement that “Democracy is the worst form of government there is, except for all the others.”

  11. My rant for today concerning governments’ favoring and promoting religion and churches:

    I have never understood why churches and other property owned by religious orders, sects, cults, whatever, shouldn’t have to pay for the police, fire and other civic protections and services, i.e., garbage, sanitation, public roads, government provides for them. You and I have to pay what the government decides is our “fair share” for the costs of providing us with those necessary services.

    Why shouldn’t those who erect these edifices to their chosen “Gods” have to pay too? Doesn’t not having to pay for the government services they use and rely on constitute direct government financial support for religion? Of course, since they don’t pay anything, everyone, including you and I — willing or not — all pay for the churches’ “fair share” too.

    Even if imposing a “tax” on churches and religion owned property isn’t sound policy — on the theory long used to support this discrimination in favor of religion that the power to tax is in essence also the power to destroy — why in “heaven’s” name can’t the government be allowed to charge them a “service fee?” Surely paying a fair share fee for the services they use can’t destroy a religion.

  12. David F – You are right on with your observation. Why should other taxpayers have to pay for these gifts to religious institutions, and if you want to call them service fees rather than taxes, fine. Just show me the money, however you want to define it. Personally, I prefer calling it what it is – taxes – and by the way, I am also tired of paying exempted corporate income taxes, too. Police, fire, sewers, we’re all in this together – or are we?

  13. Sheila,

    I noticed that the article you have linked is dated February 1, 2017. Is there any new news about this issue?

  14. Please correct me if I am misinformed, but I have always understood that churches, temples, mosques, any religiously based non-profit organization, are given tax-exempt status in recognition of the services to the poor, ill, addicted, etc. that they offer to their communities. Those services would otherwise have to be provided at cost to the taxpayers of the communities.
    Assuming that it is a fairly complicated and subjective subject, I wonder if we can apply the same to the corporations that are given tax abatements, deferments and other types of subsidy that offer jobs to the communities as a form of charity recognition.
    If we want to be fair and apply the law equitably to all the same, should not business and religious charities as well as other non-profits be taxed for essential services like all of us are?
    Whether we call it a service fee or a tax, the results are that all pay the same.
    Or am I way off here?

  15. When ever I hear of the concept of refusing service based on religious convictions I am reminded of my early working career. When I started out in the working world I was an IBEW Journeyman Lineman. I was an apprentice and journeyman for a Rural Electric in the Southern part of Indiana. From time to time I was sent out to preform utility work on religious properties. I was at that time and currently devoutly opposed to theistic religions. Now my question was and is, under the concept of religious liberty did I have the right to refuse to work on said properties. Under the ideas set for by the likes of Mike Dence, I did have the right. However, under the reasonable man concept I did not and felt that way then and now.
    By making allowances for religious beliefs in everyday discourse and commerce we start on a slippery slope to chaos. Our government must remain neutral on these items. Churches should be taxed on property and net income and private schools should not receive tax dollars in any form. If parents want to send their children to private type schools a tax credit of some form could be offered but vouchers are not the way.
    We are on a dangerous course right now, it has me very pessimistic about our Nations future. The ideological chasm is large and in my assessment growing larger. Religious ideology is at the epicenter of this chasm. The result of which will be , I fear, violent upheaval of our society. Of this, I hope not, but at the same time I see more signs of it each day and am preparing accordingly.

  16. There should be no official recognition of religion of any kind, any more than there should be official recognition of any other mass fantasy or delusion.

  17. One problem with the RFRA type laws that we haven’t talked about, in fact I have seen no one talk about it, is that under RFRA you never know what the law will be. As example I give you the following hypothetical.

    Imagine that Kim Davis of not giving out marriage licenses to gay couples fame, came to her local clerk for a marriage license for she and her third husband. And then imagine that the clerk in that county in KY was a member of the Church of God, that does not believe in divorce. So he tells Kin and her husband, “get thee back to your first, your real husband! No marriage license for you, who are already married!”.

    So depending on who happens to be your county clerk, and what happens to be their particular religious beliefs, so will go your legal rights. And of course if it works for Kim and can work for any other government employee. If you get a religious right judge in your divorce case, where you spouse accuses you of infidelity, could the judge sentence you to be stoned? After all he is only following his beliefs!

  18. RFRA are special rights wingnuts and right wingers want bestowed upon themselves so they can legally discriminate against any and all types of people they choose. The fed should put an end to this non-sense and declare no one gets to discriminate and enforce the federal supremacy law clause.

    Is GoSuck’s nomination in trouble over plagiarism concerns?

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