Religious Liberty – Page 23

Religious Liberty and Civil Rights

Indiana citizens continue to engage in arguments over RFRA, and I was recently asked to address our local Pride organization on the presumed conflict between religious liberty and civil rights. Below is an abbreviated version (still long–sorry) of my remarks.

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A lot of anti-LGBT bigotry is justified as “religious liberty.” There was RFRA, of course, not just in Indiana but in several other states, and most recently, the Republican Platform endorsed both a national version of RFRA and passage of a so-called “First Amendment Defense Act,” which would allow any entity that receives public funding to discriminate against LGBTQ Americans on the basis of religion.

So this might be a good time to review the history and purpose of the religion clauses of the First Amendment– the Establishment Clause and the Free Exercise Clause—that together define this country’s approach to the subject of religious liberty.

What the phrase “Religious liberty” meant to the Pilgrims who landed at Plymouth Rock was the “liberty” to impose the correct religion on their neighbors. The idea that Church and State could even be separated would have been incomprehensible to the Puritans; the liberty they wanted was freedom to “establish” the True Religion, and to live under a government that would impose that religion on their neighbors.

The Puritans defined liberty as freedom to do the right thing, to impose the correct religion. The religious wars in Europe were all about which religion government should impose.

A hundred and fifty years later, however, the men who crafted a Constitution for a new nation were products of an intellectual paradigm shift that had produced a very different understanding of the nature of liberty. Between the time the Pilgrims landed and the time that George Washington took the oath of office, the philosophical movement we call the Enlightenment had given birth to science and empiricism, privileged reason over superstition, and caused philosophers like John Locke and others to reconsider the purpose and proper role of government.

After the Enlightenment, liberty—religious or otherwise—had come to mean a right to self-government, the right to decide for oneself what beliefs to embrace. Liberty now meant personal autonomy, and the right of individuals to live their lives in accordance with their own consciences, free of both state coercion and what the founders called “the passions of the majority.”

Although the new government got its legitimacy from majority rule, from the “consent of the governed,” the Bill of Rights limited what government could do even when a majority of citizens approved.

The problem we have in today’s America is that, although our Constitution and legal framework were products of the Enlightenment, the country is still home to a whole lot of Puritans. What we sometimes call the “culture wars” are part of an ongoing conflict between people holding very different visions of liberty.

The Mike Pence’s of the world aren’t just against equal rights for gays and lesbians, they aren’t just anti-abortion and anti-birth control. They are deeply Puritan: anti-science, anti-reason, anti-diversity. They are absolutely convinced of their own possession of the Truth, and like the original Puritans, absolutely convinced that a proper understanding of “religious liberty” should give them the right to make everyone else live by their particular Truth.

The fact that these irony-challenged theocrats are the same ones running around proposing legislation to prevent imposition of “Sharia law” would be funny if it weren’t so dangerous.

Under the Constitution as it actually exists, Americans have an absolute right to believe anything we want, but we don’t have an absolute right to act on those beliefs. (You can believe God wants you to sacrifice your first-born, but we don’t let you do that.) You only have to listen to some of the public debates about civil rights to understand that people have a lot of trouble understanding that distinction.

Let me give you an example.

When South Bend was considering adding sexual orientation to the City’s Human Rights ordinance, opponents objected that the religious exemption that had been included was inadequate because it only covered religious organizations and didn’t protect “religiously motivated” hiring and firing decisions.

The exemption for religious organizations is constitutionally required–if your religion disapproves of gay people, or unwed mothers, or atheists, the Free Exercise Clause of the First Amendment forbids government from forcing your church to employ such people for jobs having theological dimensions.

For our friendly culture warriors, however, protecting the right of churches and religious organizations to follow the dictates of their faith–even when those dictates are inconsistent with civil rights laws–isn’t sufficient. According to their argument, if I can’t fire employees I discover are gay, if I can’t refuse to rent my apartment to LGBT folks, then the government is denying me religious liberty. (This is a variant of the argument that anti-bullying legislation infringes the “free speech rights” of the bullies.) The argument is apparently that I should be able to pick on gay people—or black people, or women, or Muslims–if I claim that my motivation is religious.

Obviously, an exemption for “religious motivation” would eviscerate civil rights laws.

The religion clauses of the First Amendment require that government be neutral between religions, and between religion and non-religion. To use a sports analogy, government is supposed to be an umpire, not a player. But there are people who simply cannot abide the notion of a neutral government, people who experience “live and let live” and civic equality as affronts to the primacy to which they feel entitled. In that peculiar worldview, a government that insists on fair play for gay people in the public sphere is a government that’s denying them religious liberty.

This is the same argument that erupted when Congress enacted the 1964 Civil Rights Act. Opponents argued that being forced to hire or do business with women or people of color violated their liberty to choose their associates. And they were correct; it did limit their liberty. In a civilized society, our right to do whatever we want is constrained in all sorts of ways; I don’t have the liberty to take your property, or play loud music next to your house at 2:00 a.m., or drive my car 100 miles per hour down a city street. And so on.

Here’s the deal: The guy who opens a bakery– or a shoe store or a bank or any other business– relies on an implied social contract. He expects the local police and fire departments to protect his store, he expects local government to maintain the streets and sidewalks that enable people to get there. He expects state and federal agencies to protect the country, to issue and back the currency used to pay for his product, to make sure that other businesses and institutions are playing by the rules and not engaging in predatory behaviors that would put him out of business. We the People of all races, religions, genders and sexualities pay the taxes that support those services, and in return, We the People expect retailers and others who are “open for business” to provide cakes or shoes or other goods to any member of the public willing to pay for them.

Opening for business implies a “come one, come all” invitation to the general public.

If you don’t approve of gay people, or African-Americans, or Muslims, or whoever—the Constitution says you don’t have to invite them over for dinner. You have the right to exclude “sinners” from your church, your private club and your living room.

Your hardware store, not so much.

We live in a society with a lot of other people, many of whom have political opinions, backgrounds, holy books, and perspectives that differ significantly from our own. The only way such a society can work–the only “social contract” that allows diverse Americans to coexist in reasonable harmony–is within a legal system and culture that respects those differences to the greatest extent possible. That means laws that require treating everyone equally within the public/civic sphere, while respecting the right of individuals to embrace different values and pursue different ends in their private lives.

When the government refuses to make everyone live by a particular interpretation of a particular holy book, that’s not an attack. It’s not a War on Christianity. It’s recognition that we live in a diverse society where other people have as extensive a right to respect and moral autonomy as the right we claim for ourselves.

Ironically, a legal system that refuses to take sides in America’s ongoing religious wars is the only system that can really safeguard anyone’s religious liberty. Genuine civic equality is only possible in a “live and let live” system—in an open and tolerant society.

If everyone doesn’t have rights, they aren’t rights—they’re privileges that government can bestow or withdraw. In such a society, no one’s rights are safe.

Here’s the “take away.” A better world is a world where different people with different beliefs, living different kinds of lives, can co-exist without privileging some at the expense of others, which is what the faux religious liberty bills do. That world won’t appear by accident. America has actually made a lot of progress; but right now, we are living through a very scary political moment, a moment that could easily reverse all the progress that’s been made.

We still have lots of work to do.

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Government, Grants and God….

Sunday seems an appropriate day to consider–once again– the relationship between God and government.

Propublica recently reported on an effort by constitutional lawyers that highlights the increasing conflict between this nation’s commitment to government neutrality in matters of religion and the demands of religious organizations for special accommodations.

The Obama administration has roundly criticized states such as North Carolina and Mississippi for passing laws that allow discrimination in the name of religious freedom. But at the same time, the administration has left in place a 2007 memo from the Bush White House that allows religious charities with federal contracts to discriminate in hiring for federally funded programs.

Now, as Obama prepares to leave office, a group of prominent constitutional lawyers is calling on the Obama White House to revoke the legal memo, which they argue has been used by religious groups to refuse to provide services, including emergency contraception for human trafficking victims, that conflict with their beliefs. Their arguments are detailed in a legal analysis published this morning by Columbia Law School’s Public Rights/Private Conscience Project, which includes contributions of scholars from George Washington, Emory and Brigham Young universities, among others.

A good deal of my research when I first entered academia centered on Bush’s so-called “Faith Based Initiative,” and his effort to contract with religious organizations for the provision of government services to the needy. (In fact, I co-wrote a very boring book on the subject.) There were a number of faulty assumptions that prompted the Initiative, and as the Propublica article explains, such partnerships frequently created conflicts between the organization’s religious mission and the government’s obligation to refrain from funding religious discrimination.

Bush administration lawyers wrote the memo after the Christian charity World Vision, which serves the poor in nearly 100 countries, objected to a nondiscrimination clause in a $1.5 million Department of Justice grant to fund a mentoring program for at-risk children. World Vision argued that it should be allowed to hire only Christian employees for the program and that not allowing the group to do so would put a “substantial burden” on it.

The Free Exercise Clause of the Constitution protects the right of religious congregations and certain other religious organizations to hire and fire on the basis of their doctrinal beliefs–when those organizations are spending their own money.

Discriminating with taxpayer dollars received via a government contract is a different matter.

When a government agency is requesting proposals from for-profit, nonprofit or religious organizations to partner in the provision of services, it generally requires that the successful bidder agree to obey applicable laws, including civil rights laws forbidding discrimination.

Religious congregations or organizations can choose to bid on a contract or not; if the terms of the award are inconsistent with the organization’s religious beliefs, it need not participate. As a local pastor once put it: “with the government’s shekels come the government’s shackles.”

If you aren’t willing to play by the rules, don’t join the game.

It is unfair to exempt religious bidders from compliance with rules others must obey– in essence, to give such bidders special rights not enjoyed by others.

The lawyers calling on Obama to end such preferential treatment have both the Constitution and fundamental fairness on their side.

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This is Why People Reject Religion

Permit me a Sunday Sermon.

If you want to understand the recent rise of the “nones”–people, especially young people, who do not affiliate with any organized religion, and who explicitly reject the “Christianity” that dominates headlines– you need only read about the prayer recently given by Senator David Perdue, Republican of Georgia, at a Faith and Freedom Rally.

Numerous media outlets have reported that Perdue told his audience to “pray like Psalm 109:8 for Obama.” And what does Psalm 109:8 say?

Let his days be few; and let another take his office.

Let his children be fatherless, and his wife a widow.

Let his children be continually vagabonds, and beg: let them seek their bread also out of their desolate places.

Let the extortioner catch all that he hath; and let the strangers spoil his labour.

Let there be none to extend mercy unto him: neither let there be any to favour his fatherless children.

Let his posterity be cut off; and in the generation following let their name be blotted out.

Let the iniquity of his fathers be remembered with the Lord; and let not the sin of his mother be blotted out.

Evidently, suggesting Psalm 109:8 as an appropriate prayer for Obama has become a right-wing meme; the biblically knowledgable “pious” folks even buy bumper stickers and shirts that carry the reference.

My Facebook feed was filled with reports about–and reactions to–the Senator’s “prayer” yesterday, right before Indianapolis’ annual Pride celebration. The contrast between those who– like Perdue– use religion in the service of hate and the churches and religious organizations promoting love and inclusion in the Pride parade was striking.

I’ve attended most of Indianapolis’ Pride celebrations since 1992. My husband and I still remember the very first year there was a parade; as I recall, it had all of eight participants. Yesterday’s parade lasted more than two hours, and had well over 100. (In the hot sun, it seemed like 1000…)

In addition to the businesses, the banks, the universities, the LGBT and civil rights organizations, a significant number of participants were churches: Quaker, Presbyterian, Episcopalian, Baptist, United Methodist, Unitarian, Christian, UCC and others. The Jewish Community Relations Council represented the Jewish community.[Update: There were actually twelve Jewish organizations participating; the JCRC was one of the twelve. H/T to Paula Winnig for the correction.]

Several denominations had more than one church participating (the Episcopalians had 4!). The messages on their banners were the absolute antithesis of the mean-spirited and hypocritical prayers of the so-called “Christians” who dominate the Republican party. (The most recent evidence of that domination? Indiana’s GOP platform committee just declined to allow convention delegates to even consider a proposal to bring that document into conformity with the law of the land by eliminating language insisting that marriage should only be between a man and a woman.)

When the image of religiosity is the image conveyed by theocrats and fundamentalists who insist that their highly selective reading of their bibles should supersede the U.S. Constitution and the rule of law, it shouldn’t surprise anyone that decent and loving human beings reject that narrow and self-serving “Godliness.”

When “Christian” folks pray publicly for the death of our President, when Indiana’s Governor defines “religious liberty” as the right of his kind of Christian to discriminate against LGBT Hoosiers (but not the right of women to follow the dictates of their own religions or consciences with respect to reproduction), it’s no wonder good people prefer to define themselves as “nones.”

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Killing for Life…

Well, evidently, failed Presidential contender Ted Cruz had a “pro life” adviser who wants to execute abortion providers. (“Pro life” folks like these always remind me of that Cold War-era Second City skit: “Kill a Commie for Christ.”)

Abortion is a very thorny issue. Unlike so much of the culture war agenda, there is a genuine argument to be made by those who see abortion as equivalent to murder. They tend to start from very different premises than those of us who defend a woman’s right to control her own autonomy–they see a human being from the moment of conception, and believe that the interests of that potential human should be given priority over the rights of the woman who is carrying it.

Pro-choice defenders have many responses to that viewpoint, both moral and practical, but we can–and mostly do– respect the legitimacy of that perspective, and the sincerity of many people who hold it.

Unfortunately for the conduct of the “abortion wars,” however, the loudest voices claiming the “pro-life” label are anything but legitimately pro-life. Their ranks are filled with fundamentalist culture warriors fanatically opposed both to women’s autonomy and to our equality. Their concern for “life” rather pointedly excludes the life of the woman, and it extends to the fetus only until it is born. These are the dishonest “filmmakers” who doctor surreptitious videos, the “pro life” legislators unwilling to spend money to feed or house or properly educate poor children once they are born, the opponents of birth control…Well, you all know the drill.

But the worst of the worst are the men (and they’re almost always men) who advocate killing in the service of “life.” The men who murder abortion doctors, the political opportunists who argue that women should carry their rapist’s baby to term, the un-self-aware pontificators who advocate prison or even execution for those who help desperate women avoid back-alley abortions.

Let’s get real.

As my friends in Planned Parenthood point out, women didn’t start getting abortions after Roe v. Wade. They just stopped dying from them. But theirs are clearly not the lives that matter to the sanctimonious “pro life” culture warriors like Cruz and his “advisor.”

There’s a reason that so many observers considered Ted Cruz even more dangerous than Donald Trump. Although–as Lindsay Graham memorably put it–choosing between the two of them would be like choosing between death by gun or by poison….

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What About the Flying Spaghetti Monster?

We Americans treasure religious liberty. We’re just a bit vague on the definition of “religious.” (Actually, we aren’t too clear on what we mean by “liberty,” either.)

I still recall a conference I attended early in my academic career; I approached a religious studies scholar who had delivered what I considered a brilliant paper, and during the ensuing discussion, she shared her belief that the First Amendment should simply have protected “intellectual integrity”–that the problem with specific references to religious liberty was that they required courts to decide what should count as “religious” for purposes of constitutional analysis.

And what should count as “religious” has been–and remains– hotly contested.

Think, for example, about the awkward history of conscientious objector jurisprudence. For a long time, courts only recognized moral objections to engaging in combat if the person registering the objection belonged to a “recognized” (um..established??) pacifist church. Others claiming that status were challenged. But–as the courts ultimately came to recognize– there are many non-theists and members of other denominations and religions who have sincere and deeply-felt pacifist beliefs.

More recently, of course, we are seeing people claim religious sanction for a right to discriminate, and it is hard not to suspect that their “sincerely held beliefs” have more to do with bigotry than godliness.

The point is, it is by no means clear what sorts of beliefs and conduct can properly be labeled “religious,” as opposed to “political,” “ideological,” “philosophical” or even delusional.

I receive Sightings, a digital newsletter from the University of Chicago Divinity School, and that publication recently referenced a Massachusetts lawsuit raising precisely that issue:

But courts do get asked about “religion,” and can’t wiggle out of exchanges on this. It was easier to define in historic cultures where a manifestation of religion, e.g. “an established church” got to define religion in “we” versus “they” terms. Today, propose a parlor game in which participants have to define the term, and listen. If “established” versions you will hear are too constricted, others are too protean. One hears then: “if everything is religious, then nothing is religious.” Now, pity the people who are called to fight over religious subjects not in games but in courts…

O’Loughlin’s case involves the keepers of a Massachusetts “religious” shrine whose property is tax-exempt for those parts of its workings which strike “everyone” as being focally religious: worshiping, nurturing, shaping spiritual life. But, strapped-for-tax-revenue neighbors of the shrine-keepers argue, should parts of the property used for what some would call “secular” purposes be tax-exempt because the owners or custodians of the shrine deem them and claim them to be ‘religious’?

Unsurprisingly, religious leaders of several traditions filed a brief in support of the tax-exempt status of the entire facility.

The notion that local assessors or any government actor is equipped or would presume to deem whether one use of a religious organization’s property or another falls within the definition of ‘religious worship’ is antithetical to religious freedom,” said the brief, signed by leaders representing Jewish, Christian, and Muslim organizations. Catholic bishops in Massachusetts, including Boston’s Cardinal Sean O’Malley, also weighed in, arguing in a brief that the shrine’s grounds offer “communion with nature,” which “is a core religious activity with ancient roots in Christianity’s past.”

Gee–I “commune with nature” in distinctly unChristian fashion…But I digress.

According to this argument, courts and other secular institutions are simply precluded from drawing distinctions between properties used for authentically religious purposes (whatever those are) and those simply owned by religious organizations–although to the extent properties are tax-exempt, secular taxpayers’ rates increase. (Someone has to pay for the public services such properties enjoy–streets, police and fire protection, garbage collection and the like.)

I can’t help thinking of Flip Wilson’s inspired “Church of What’s Happening Now” rants (you youngsters can Google that), or the more contemporary “worship” of the Flying Spaghetti Monster.

Despite rightwing rhetoric, it isn’t the LGBT community that is demanding “special rights.”

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