Religious Freedom–Again

For the past several years, religious rights have been “front and center” in America’s culture war.

In recognition of the increased salience of these conflicts,  I included a question on my Law and Policy final  about the operation of First Amendment religious liberties in a religiously diverse society. As I previously noted, that question read as follows:

The First Amendment protects religious liberty. Over the past few years, Americans have engaged in heated public debates about the nature and extent of that liberty. Some people argue that requiring employers to provide health insurance that includes contraception, or requiring businesses like florists or bakers to serve same-sex customers, is a violation of the religious liberty of those whose religions teach that contraception or homosexuality is a sin. Others disagree. What is the proper definition of “religious liberty”—that is, how far should the free exercise of religion extend in America’s diverse religious landscape? What religiously-motivated actions can government legitimately limit, and what are the justifications for those limits?

The Trump Administration (undoubtedly influenced by Pastor Pence) has promised sweeping new protections for religiously motivated actions that would otherwise be seen as violating what lawyers call “laws of general application.” Religious figures–virtually all  Christian– have complained that limiting their right to ignore civil rights laws is anti-religious oppression.

Given their insistence on the perquisites of the faithful, I wonder what those pious folks will think about a case in Detroit, where a couple of doctors are proposing to test the limits of those First Amendment protections. 

Two doctors in Detroit, along with one of their wives, are about to take the first religious defense of female genital mutilation to a US Federal court. The case stems from a FBI investigation into Dr. Jumana Nagarwala after the authorities received a tip that the physician was performing the procedure on young girls.

According to the original criminal complaint, the investigation revealed that Nagarwala allegedly performed FGM on two seven-year-old Jane Does, who had travelled from Minnesota with their families.

With or without an Executive Order from Team Trump, such an argument has virtually no chance of succeeding. Even if female genital mutilation is found to be a religious rather than cultural practice (an assertion that is contested), U.S. law has long protected children from harms inflicted by reason of their parents’ religious beliefs.

A competent adult can refuse a blood transfusion for religious reasons, but that same adult cannot prevent her child from receiving needed medical care. Devout parents may believe they can “pray away” their child’s diabetes, but if they act on that belief, they’ll be convicted of child neglect or endangerment.

What the case does illuminate is the conflict between individual belief and government’s obligation to enforce laws necessary for public safety and civic equality. The line is not always so clear (as the unfortunate–and in my opinion, utterly wrongheaded–Hobby Lobby decision demonstrates), but taken as a whole, the jurisprudence of religious liberty offers citizens an absolute right to believe anything, and close to an absolute right to communicate those beliefs–to preach, to attempt to persuade, even to harangue. But that jurisprudence has never endorsed an absolute right to act on the basis of one’s beliefs.

We simply do not allow people to harm others with impunity and claim a religious privilege to do so.

Granted, we don’t always agree on what constitutes harm, and people of good will can argue about cases at the margins. But when we have gone so far in the direction of privileging religion that practitioners of female genital mutilation think that the Free Exercise clause should protect that practice, that should be a wake-up call.

We are all entitled to our own beliefs. We are not entitled to impose those beliefs on non-consenting others. That goes for forced childbirth as well as genital mutilation–and the beliefs of Christians as well as the doctrines of more exotic religions.


  1. I am not a lawyer. I took a course in high school whereby the teacher told us, “when in doubt, fall back on common sense.” This advice has served me well for many years. Do you lawyers still follow this axiom?

  2. When are we as a society going to start fighting back against the evangelical Christian Taliban in this country?

  3. How far will we allow the evangelical Christian Taliban in this country overstep the boundaries of of our civil rights laws before we start fighting back against their abuses?

  4. The irony of all ironies is that the very issue that drove so many to the shores of America is the one that threatens our liberty the most. Extremism in religion has destroyed more lives, caused more wars, ruined more of civilization than any other belief system. And now it is here in the United States of America.

    How to fight it? So far voting has done little, and the rule of law has been bent toward religious extremism with the judicial appointment of scores of religious extremists to the courts. Now we are allowing tax monies to support the education and thus the indoctrination of children into such extremist thinking.

    My experience when speaking out against such an assault on the Constitution has been to be ostracized, even by those who do not attend any church regularly. To the uneducated mind, liberty and freedom are personal only to themselves, no to the ALL as in “all the people”.

    I don’t know how to fight this.

  5. Religious fanatics have been around since the beginning of organized religion. Cults, groups focused on taking away your money for God’s use, fundamentalists who believe the literal word of the bible and more. People can justify any behavior by claiming it was inspired and wanted by God. Common sense is a great idea; however, my Irish Dad always said that, sadly, common sense is not very common.

  6. Blog readers, prepare for a sermon:

    Americans, men and women who decide to use birth control, homosexuals who were born homosexuals the same as heterosexuals were born heterosexuals; also have their religious rights which should be protected by the 1st Amendment of OUR Constitution. Contrary to Pence, et al, Christianity as they interpret it is just that…THEIR interpretation which is forced on the rest of us through laws, often upheld by SCOTUS, denying us our Constitutional right to freedom of (and from) someone else’s religion, as well as our freedom of speech to speak out against them. I say that as basically a Christian who accepts the beliefs of other religions and atheist beliefs in science and evolution. We are all Americans; we were all given the promise to be protected by the Constitution being upheld by those officials we elected to act as our emissaries before those who would deny us our rights. Too many of those elected officials are now working against the majority of Americans and denying the Constitution as protection for all.

    This is Memorial weekend; it was once known as Memorial Day, always on May 30th no matter which day of the week it fell on, to pay tribute to our fallen military protectors and all veterans. It; like all holidays, has become a commercial sham, always Monday off from work to cookout and drink…or attend the 500 Mile Race here in Indianapolis. Here in Indianapolis, the race is now always on Sunday, a day which many businesses are not allowed to sell cold beer which is a hangover (pardon the pun) from old “blue laws” based in someone’s version of religion disallowing the sale of liquor anywhere on Sunday. Was the law closing all bars on election day from 6:00 a.m. to 6:00 p.m. based in religion, making it a connection to our elections? The Indiana legislature is scheduled to mull over the issue of selling cold beer on Sundays for those now denied that source of income, during their recess this summer. Will they bother to mull over the religious denial of rights to the majority of Americans or any of the many serious issues facing this country today as they sip cold beer.

    This weekend is also the beginning of the Muslim religious month of Ramadan, a time of fasting and spiritual renewal for all Muslims. Will they be allowed the extra time for the additional prayers which are part of this renewal? Or will Pence’s RFRA deny this right to them through their employment based on HIS version of Christianity?

    “We simply do not allow people to harm others with impunity and claim a religious privilege to do so.”

    A post on Facebook showing the picture of a young man in his college graduation cap and gown, reported his murder by white supremacists as he protected two young Muslim women from attack. White supremacy is NOT a religion but it is now in an uppermost position in our current presidential administration with Pence leading the congregation in support of KKK based “christianity” which shames me as a Christian.

    The Church of the Flying Spaghetti Monster is now debunked but we still have the First Church of Cannabis here in Indianapolis for those who are interested.

    Can I get an Amen!

  7. I completely agree with your point of view. However, those who are passionately anti-abortion would say that, because they believe that a fetus is a person from the moment of conception, this same argument actually supports the “child’s” right to life, and that no harm should be allowed to that “child”. I do believe that there are other arguments that contradict that conclusion. But it IS complicated.

  8. Pastor Pence is great at pastoring but very lax in practicing the words of Jesus. No more evidence is needed to prove my point.

    Yet, how many people in this country still believe he’s the greatest. Facts don’t mean anything to illiterates. They know that God is greater than all human power or laws created by man.

    That’s it. Case closed.

    It’s simple faith. If Mike says he’s a “Man of God first.”, then we take his word for it. It’s not for us to judge…God does the judging.

    That’s it. Simple.

    We’re just grateful a great man like Donald Trump has chosen a faithful man as Vice President. Praise God. Liberals have done enough harm in this country.

  9. Almost every person with whom I discuss issues covered by Constitutional Amendments believes that each individual amendment is absolute. So, when I offer an example of an issue to which more than one amendment might apply, such as the tension between religious freedom and individual rights, and when I suggest that sometimes a court has to decide which amendment is predominant, my discussion pals suddenly veer their eyes to some point in the air where they always find the words: “Yeah, that’s where we get activist judges. That’s what’s wrong with the law.” These same people like to brandish their values, as if they are absolute, also. Maybe they do have commendable values, but they do not have a sense of proportion. Somehow the proportion gene is missing, and when faced with a situation in which they have to choose between two or more of their own values, they are confused to the point of hysteria. It would be hysterically funny, if it were not so troublesome. I find the presence or absence of the “proportion gene” to be the primary difference between liberals and conservatives.

  10. The scriptures are clear about mutilating the body. Our forefathers used “natural law” to make distinctions about common sense laws and rulings by judges.
    The real problem is that many small businesses are reportedly being targeted with lawsuits by groups if they don’t accept new cultural standards made by law thru courts not legislators or state legislation. In small towns where there is no other alternative it is acceptable to coerce to obey new cultural standards and the business can subcontract if it is offensive to them.
    Where there are multiple businesses in an area, targeting those who follow natural law of the past guidelines is tyrannical to personal freedom. Business owners who want to protect their religious convictions and stay legal need to put in operational clause of subcontracting for any reason to any client. Freedom is the ultimate thing as long as no one is harmed.

  11. JoAnn Green, amen! And I’m a firm believer in the church of Karma, as in “what goes around comes around”, “the chickens come home to roost” or “God’ll getcha for that.” It’s just about the only comforting thought I have these days.

  12. In current U.S. policy, religious freedom is only for Christians, who are constantly being “persecuted” by those who would ask them to extend the courtesy of freedom to others.

  13. It clearly and demonstrably violates my sincerely held religious beliefs (Flying Spaghetti Monster) to have to share Earth with religious wingnuts who do not practice what they preach. I want them banished. 🙂

  14. Larry Kaiser; there are three titles for the group you refer to, tunnel vision, closed minded and staunch Republicans.

    Regarding the current administration; I see nothing “right” or “conservative”, in the true meaning of those words, in any action they have taken or their plans for our futures.

  15. seems theres a run on whos freedom we must endure. any religion is a following usually handed down by past family values. though our country was following christian values from the start,other religions were accepted. In a long fought time,religion has remained previlent in society in america. But,why if religion is so generous to all, we fight for our values and go as far as killing others for their values? seems cult like…. I am a devout non believer,and my stand gets the eye from many. Im a typical working class white guy. I have a set of morals i believe is as good if not better than most religious people. I dont damn because your skin is not white,I dont judge by your beliefs,and I dont,spend a day in church summarizing ones faults,glories or plan a attack on civil rights. If religion is so compassionate,then the hobby lobby ideals are, not in the interests of all, but of a few fanatical s who wish to destroy your so called religious freedoms,and our rights to be free from harm,by the constitution. If we allow more of this to come to the courts,again we show more for contempt,than for the needs of all. If your religious view is so hard that you undermine the growth of a free citizen to have and hold the freedoms granted us by our country,then you,have deprived a person of the right to live free from harm in America,and have become the very problem you speak of. is it compassion or rule of your beliefs? seems thats the question here? No child should ever be harmed for any reason..they are your future….

  16. “U.S. law has long protected children from harms inflicted by reason of their parents’ religious beliefs.” If female genital mutilation is ruled illegal as a human rights case, I certainly hope we’ll see the end of male circumcision being a parental choice. I can’t imagine anti-circumcision activists wouldn’t leap all over the opportunity. Will be fasinating to watch folks try to weasel out of that epic double standard. (See remarks about common sense above.)

  17. @Johnsmith – “whose” scriptures are clear about mutilating the body? The same scriptures that prescribe circumcision? If you choose to live by the beliefs associated with “those” scriptures, then do it, but don’t expect others to believe the same.
    If you’re referring to the small number of bakeries and florists who have been “targeted” for violating their local civil-rights ordinances (which were indeed legislative not judicial actions), then ask yourself whether these same merchants will provide services for second, third, and fourth marriages, marriages between different faith groups? How deep is their devotion to whatever set of scriptures they follow? Would you also support the religious rights of a landlord who refuses to rent to a mixed-race family, on the grounds that his interpretation of “natural law” forbids it?

  18. JM; the medical reasons for male circumcision is not the same as the Middle Eastern social reason/demand for female circumcision which relates only to control of women’s sexual activity. Of course, the medical reasoning of cleanliness and related to prevention of female infections and preventing the spread of STDs had more meaning in the past in monogamous relationships than it does today. Wives of uncircumcised men had a much higher rate of UTIs, yeast infections. general irritations and cervical cancer as proven by medical research…and patient’s medical records.

  19. Religion is the opiate of the masses…or so I’ve heard and read. But, if one reviews history, it’s not hard to discern that that statement is, if fact, the truth.

    Imagine what the world would be like if everyone’s prayers were answered. “Oh!”, you say.
    “Not everyone’s prayers GET answered.” Really. And you know this how? God’s will? Really? Your massive ego assumes you know God’s thoughts?

    Of course, religious freedom is everyone’s right…unless it conflicts with the other guy’s religion. We don’t often see atheists start holy wars, do we?

    Ironically, religion will be the single thing that causes mankind to cross that final Rubicon to total extinction as a species. It’ll be God’s will that somebody will start the thermonuclear finale for human life on Earth.

    Can I get an AMEN for that?

  20. If a religious person does not respect the rights of others who may belong to a different denomination or have no religion at all, then how can such a person complain that they are disrespected for their particular religious views? One must show respect in order to garner respect. That’s one arena of dispute.
    The other arena is in the attempt of one or more sectarian religious people to have their real or supposed views imposed on their fellow citizens via such atrocities as legislative pronouncements of religious liberty and the disgusting holding of Hobby Lobby by the courts, both wrongly at odds with the First Amendment. Under the rationale of Hobby Lobby, for instance, the Supreme Court (if the case gets that far or unless the Supreme Court dodges the issue) should approve female genital mutilation, wearing headgear and faceveils, facing Mecca during work hours, refusal to sell beef by Hindu butchers. pork by Muslim butchers etc. etc. etc. Why should Christian idealists have all the fun with their phony claims become those of the rest of us? Why, indeed!
    We are secular citizens as well as citizens who have varying beliefs and disbeliefs at one and the same time, and clear line of demarcation should be drawn by both statute and court holdings that is compatible with the First Amendment. Church and state are conceptually apples and oranges, and rightly so. They are oil and water and the church has no business in regulating secular matters and doctrines any more than the government has in marching in to regulate church matters and doctrines. Hobby Lobby and Pence-driven “religious liberty” statutes blur if not obliterate this crucial distinction. Like, how would Pence like it if the state police came into churches to announce a new belief system? He would be rightly outraged at this intrusion of government into the affairs of church and should, in my view, be just as outraged at the church’s intrustion into matters of state. Christians, Jews, Muslims and Hindus (among others) are, if they are to live by Jeffersonian and Madisonian pronouncements in the Constitution and Amendments thereto as fleshed out to some extent in the Federalist Papers learn how to be religious and good secular citizens simultaneously, and they can start by respecting their fellow citizens’ rights to their own or to no religion by keeping their noses out of the secular business of such citizens. Unfortunately, the Supreme Court has effectively given religious rights to corporations if owned by religious citizens, a step in the wrong direction certain to lead to further litigation such as the one to which Shelia alludes today in her blog. Meanwhile, Christian, Jewish, Muslim and Hindu butchers have another choice – they can go out of business.

  21. Several reactions to the comments above:

    @Andy: Since most laws are created by human beings, law and common sense are often at great odds.

    @ Marie: I like your father’s observation that “common sense isn’t common.” One of the favorite questions prosecutors seem to always ask when selecting juries is whether the jurors believe they possess “common sense,” and will use it to reach a verdict. Invariably, every juror puts their hand up and answers that, “Yes, they do have common sense.” But as your father observed, we all know that “common sense” is actually in short supply, and we see indisputable evidence of that everyday.

    @AgingLGrl: YES! Tax the churches. Or at least make them pay for the services they receive — police, fire, etc. (BTW: are you now back in Arizona?)

    @JoAnn: As JM alludes to, there are many, even within the medical establishment, who dispute that there are now any compelling medical reasons or benefits flowing from routine male circumcision shortly after birth in an age when daily bathing and/or showering are the norm; assuming a man follows good hygienic practices. And although male circumcision shortly after birth is performed in other Western societies, it’s done so most routinely in the U.S., and often without much thought being given to it by those making the decision whether to have it done to their son or not.

    My point isn’t to take sides in the pro or anti circumcision debate, but rather to posit that if male circumcision shortly after birth is actually a personal choice, not based on compelling medical necessity or benefits to the boy having part of his body removed, the case for holding that male circumcision is different than female genital mutilation becomes a lot less compelling. And that in turn is directly relevant to the topic of religious liberty in Professor Kennedy’s blog today, since male circumcision shortly after birth is a tenet of some religious faiths, most notably the Jewish faith. As another of today’s comments mentions, “it’s complicated.”

  22. David F. Yes, back for almost 3 months now. Finally have the house fixed up after the tenants repairs with a handyman. I am finally able to join the activities of the Southern AZ resistance teams. 🙂

  23. Nancy – I am in sympathy with your postings at 7:10 and 7:14am today re: Christian Taliban. I call it Christofascism. Either moniker expresses my frustration with persons who proudly believe in their own righteousness, embrace unreasoned principles, and even reject the obvious, especially those who believe that theory, not truth, is found in science. I have “faith” that there is no conflict between science and religion, that knowledge is sacred whether found in scripture or in mathematics. There are no theories so wildly fantastic as those of religion yet are taught as immutable fact.

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