When Indiana went through the “great RFRA battle,” the focus of the arguments pro and con centered on the law’s impact on LGBTQ citizens .The measure was seen as an effort to legitimize discrimination against the gay community (and as a defiant response to the Supreme Court’s same-sex marriage decision), since that was transparently the intent of its supporters.
But the law was not limited to matters of sexuality.
A more recent assertion of religious liberty–and the question of the degree to which RFRA protects that liberty over and above the requirements of the Free Exercise Clause–illustrates the more fundamental and wide-ranging conflict between the rights of individuals who are acting on the basis of their religious beliefs, and the duty of government to act on behalf of the public good.
30-year old Kin Park Thaing is a good Christian woman who feared for her son’s salvation when the 7-year old allegedly engaged in what she says was dangerous behavior that would have harmed his 3-year old sister. So she beat him with a plastic coat hanger to save his soul and teach him how Jesus wants him to behave. She is fully within her right to do so, based on her deeply held religious beliefs, under Indiana Governor Mike Pence’s Religious Freedom Restoration Act (RFRA), her attorney is arguing in Marion Superior Court before Judge Kurt Eisgruber.
“I was worried for my son’s salvation with God after he dies,” Thaing, a Burmese refugee here under political asylum, says in court documents, according to the Indianapolis Star. “I decided to punish my son to prevent him from hurting my daughter and to help him learn how to behave as God would want him to.”
Unfortunately, we live in an era that doesn’t “do” nuance, doesn’t recognize complexity and rarely engages with the genuinely difficult questions that arise in diverse societies when government tries to respect everyone’s individual rights–the right of religious people to live in accordance with their sincerely held beliefs, and the right of others not to be victimized by those beliefs. So we are unlikely to engage the really hard questions.
When does protection of religious liberty function to privilege certain people and their beliefs to the detriment of those with different (or no) faith commitments? What sorts of harms may government forbid, even when those harms are inflicted by sincerely religious people?
If the welts and bruises inflicted by this mother had been the result of a temper tantrum or a drunken rage, she would clearly be guilty of child abuse. Does her religious motivation insulate her from legal sanction? If so, who protects that child from further, possibly more serious harm?
The First Amendment’s Free Exercise Clause protects the rights of Americans to believe anything, but it has never been interpreted to allow citizens to act on the basis of those beliefs if such action would violate otherwise valid laws of general application.
If your assertion of religious liberty requires harming someone else, or denying them rights or protections to which they are otherwise entitled, surely RFRA doesn’t prevent government from intervening.
But that, evidently, is the argument. [To be continued…]
Yesterday’s post referencing religious exemptions from child neglect and abuse laws joined a number of prior posts considering the intersection of religion–usually, but not always, conservative Christianity–with legal and constitutional requirements of civic equality and public safety.
Given that ongoing focus, you can understand why a recent headline in the Washington Post caught my eye. It read “White Christian America is Dying,” which turned out to be an interview with the author of a just-issued book titled “The End of White Christian America.”
The book (eulogy??) was written by Robert P. Jones, founding CEO of the Public Religion Research Institute (PRRI). Jones’ analysis is particularly timely because–despite having been written before Trump entered the Presidential race– it offers an explanation of The Donald’s support among white Evangelicals.
As Jones noted in the course of the interview,
Trump’s appeal to evangelicals was not that he was one of them but that he would “restore power to the Christian churches” if he were elected president. This explicit promise, along with his anti-immigrant and anti-Muslim rhetoric, signaled to white evangelical voters that when he crowed about “Making America Great Again,” he meant turning back the clock to a time when conservative white Christians held more influence in the culture. Trump has essentially converted these self-described “values voters” into “nostalgia voters.”
If PRRI’s research is accurate, there are not nearly enough of these “nostalgia voters” to elect Trump or anyone else; furthermore, their ranks are steadily–and rapidly– diminishing.
According to PRRI research, young adults between the ages of 18 to 29 are less than half as likely to be white Christians as seniors age 65 and older. Nearly 7 in 10 American seniors are white Christians; fewer than 3 in 10 young adults are in that category.
Some of this, obviously, is due to large-scale demographic shifts — including immigration patterns and differential birth rates. But Jones notes that the other major cause is young adults’ rejection of organized religion–they are three times as likely as seniors to claim no religious affiliation.
It is notable that the decline measured by PRRI is not limited to mainline Protestant churches, which was the narrative a few years ago. Membership in Evangelical congregations and suburban “mega” churches has dropped substantially as well. As a result, the white evangelical Protestants who made up 22 percent of the population in 1988 were down to 17 percent in 2015.
Looking ahead, there’s no sign that this pattern will fade anytime soon. By 2051, if current trends continue, religiously unaffiliated Americans could comprise as large a percentage of the population as all Protestants combined — a thought that would have been unimaginable just a few decades ago.
The obvious question is, what has caused this precipitous decline? PRRI’s answer to that question prompted the reference to karma in the title of this post.
When PRRI surveys have asked religiously unaffiliated Americans who were raised religious why they left their childhood religion, respondents have given a variety of reasons — stopped believing in teachings, conflicts with science, lack of time, etc. — but one issue stands out, particularly for younger Americans. About 70 percent of millennials (ages 18-33) believe that religious groups are alienating young adults by being too judgmental about gay and lesbian issues. And 31 percent of millennials who were raised religious but now claim no religious affiliation report that negative teaching about or treatment of gay and lesbian people by religious organizations was a somewhat or very important factor in their leaving.
In other words, every time self-identified “Christians” use religion as an excuse to marginalize gays and discriminate against LGBTQ citizens, they increase the rate at which their churches decline. (Karma really is a delightful bitch…)
A couple of weeks ago, I shared a speech I’d given about the perceived conflict between “religious liberty” and civil rights. The basic thrust of the talk was that even in the freest societies, all liberties –including religious ones–have limits.
As an example, I pointed out that we don’t allow people to commit infanticide even if they have a totally sincere belief that their God wants them to sacrifice their firstborn.
When we discuss First Amendment freedoms in my classes, we talk about the more common questions that arise when parents have religious beliefs that forbid medical interventions even for children who are desperately ill, or parents who believe they are “called” to beat the devil out of their children. Courts generally do not look favorably on these assertions of “religious liberty” or “parental rights.”
Idaho is one of only six states where you can escape charges of negligent homicide, manslaughter, or capital murder as long as it happened as an exercise of your religious faith.
So if your child dies because your Christian Science religion prevented you from taking her to a doctor, you won’t be punished. And Idaho is the only state of those six where children have actually lost their lives as a result of their parents’ religious beliefs.
Evidently, an Idaho legislative committee is “studying” whether this law needs to be changed. A prosecutor who testified at a hearing convened by the committee explained that the law prevents her from charging such parents with child abuse or neglect, even though parents engaging in identical behaviors not based upon doctrinal belief would be criminally liable.
All states prosecute parents whose children come to severe harm through neglect. But in 34 states (as well as the District of Columbia, Guam and Puerto Rico), there are exemptions in the civil child abuse statutes when medical treatment for a child conflicts with the religious beliefs of parents, according to data collected by the U.S. Department of Health and Human Services.
Additionally, some states have religious exemptions to criminal child abuse and neglect statutes, including at least six that have exemptions to manslaughter laws.
Law is all about drawing lines. Respect for other people’s religious beliefs is an important value, but one would think that the well-being–indeed, the lives– of children would be an even more important value, one that would take precedence when that particular line is being drawn.
Where are all those “pro life” people when you need them? (Oh–I forgot–they’re not really “pro life,” they’re pro birth.)
I can’t help wondering–given the rhetoric of this election season–how much “respect” for “sincere religious belief” our lawmakers would display if the parents in question were Muslims…
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.
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.
