Category Archives: Religious Liberty

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.

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The Bully Pulpit

I recently attended the bat mitzvah of a cousin’s daughter at the synagogue in which I grew up.  My cousin’s daughter did a great job with her Torah portion, but I was particularly struck by the sermon, in which Rabbi Dennis Sasso forcefully and eloquently connected those ancient teachings to America’s contemporary challenges.

I sometimes need to remind myself that for every judgmental scold or religious con-man, there is a religious leader like Rabbi Sasso wrestling with the nature of human community and authentic moral behavior.

He was kind enough to share a copy of his remarks.

 Judaism is not just a set of general principles or lofty ideals. It is the living out of those values in the here and now, in the everyday of human encounter between a person and his/her neighbor, a man and woman, parents and children, elected officials and the people, nation and nation.

And so, in this week’s Torah portion, entitled Mishpatim (“Ordinances”), we have the fleshing out of the Ten Commandments. We find here the beginnings of a constitutional biblical tradition, upon which future post-biblical (rabbinic) legislation will evolve, not just as a faith tradition but as a religion of ethical nationhood.

The Rabbi noted that the book of Exodus contains many laws that mirror those of our civil state, including, most significantly, “laws forbidding the oppression of the powerless, the weak, the widow, the orphan, the poor and the stranger — the disenfranchised members of society.”

The commandment to “love your neighbor” occurs in Leviticus 19. However, the commandment to “love the stranger,” the foreigner, the immigrant, (a much more difficult task) – occurs here twice and 36 times in the Torah (“Love the stranger…” “for you know the heart of the stranger, as you were strangers in the land of Egypt”).

The heart of the sermon–at least to me–was the explicit application of Jewish teaching to matters pending at the Indiana legislature.

Reading through this week’s portion we can find guidance regarding many bills currently before our State and Federal Legislatures.

There is SB 439 – regarding Hate Crime Laws – likely not to pass in Indiana because of the pressure of conservative forces that feign to promote themselves as religious.      Well, they are quite out of sync with the biblical heritage they purport to uphold – a heritage that teaches – “You shall not hate your neighbor in your heart.”

The growing vitriol expressed in words and acts of anti-Semitism, Islamphobia and other ethnic and gender directed prejudice speak of an epidemic of hate that must be contained. We should be alarmed by what is happening to words in our times – particularly in the political and religious arenas. Language has become shrill, offensive and misleading. Words, angry and hostile weapons.

Then there are legislative initiatives to curtail rights for LGBTQ+ citizens and to impose doctrinal understandings of reproductive health and abortion rights. Interestingly, this week’s Torah portion contains the key passage that defines miscarriage and abortion not as murder, but as a civil matter (Ex. 21:22-24).

Abortion is a painful and serious decision to be made by a woman in consultation with her physician, loved ones and in keeping with her religious values. In the Jewish legal and moral tradition, termination of pregnancy is never defined as homicide, and it is not only permissible, but required to protect the life and health of the mother, in some cases even her mental health. In Jewish law, the fetus is not defined as a “person,” with independent legal and moral status, until the moment of delivery. Judaism does not share the view that human life begins at conception. Throughout pregnancy the fetus is potential life, to be honored and protected, but dependent on and subordinate to the life of the mother.

To impose particular doctrinal restrictions on abortion constitutes not only a violation of privacy and civil rights, but a limitation of religious rights, by imposing beliefs and values that counter the faith traditions of others. And certainly to muddle legislation with unscientific and potentially injurious information is a pious fraud.

Consider the higher health risks for women and infants that proposed legislation – which includes threats to cut funds for Planned Parenthood – would involve. Our state’s infant mortality rate, already among the highest in the country, would rise dramatically.

Ironically, some of the same groups that counter hate crime laws, and advance restrictions on health care and civil rights, piously advocate for prayer in public schools and, paradoxically, promote liberalization of gun laws – guns that can kill in schools, domestic settings and hateful social encounters…

Today, our nation struggles with the issue of immigration, our response and responsibilities to the stranger in our midst. Our deepest Jewish convictions tell us that protecting the humanity of immigrants, who have come to the United States to better lives for themselves and their children, puts our communities on a path towards strengthening families and society and ultimately, the moral values of our nation. By all means, we need to ensure the safety of the homeland, and guard the security of our borders, but not in ways that discriminate, intimidate and create a siege mentality and police state.

Keeping families together, allowing immigrants to fully contribute to our communities, providing relief for millions of aspiring Americans from unnecessary deportation and family separation, these are at the heart of the Jewish legislative and moral traditions. It is also the best of the American tradition which we as Jews have helped to shape and from which we have benefited.

The Rabbi closed with this profound and increasingly relevant quote from Abraham Joshua Heschel:

When faith is completely replaced by creed, worship by discipline, love by habit; when the crisis of today is ignored because of the splendor of the past; when faith becomes an heirloom rather than a living fountain; … its message becomes meaningless.

Words applicable to both religion and political ideology–and definitely worth pondering.

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Walking in that Other Guy’s Shoes

Martin Marty is an eminent religious scholar at the Divinity School of the University of Chicago. He also issues a weekly newsletter, called Sightings because it “sights” public reports with religious or spiritual dimensions. His most recent reflection was thought-provoking, to say the least:

What if the Sioux Nation decided to build a pipeline through Arlington Cemetery? This question from Faith Spotted Eagle—who lacks a Ph.D. in comparative religion and who would never be employed to teach the phenomenology of burial ritual—got at the heart of at least one of the three main issues in the prolonged debate over the Dakota Access Pipeline project.

The other two issues, of course, were environmental degradation and the behavior of Big Oil, and those issues certainly generate a significant percentage of the opposition to the pipeline. Marty’s focus, however, was on the religious importance of the site to the Sioux–and the lack of appreciation of its sanctity by Americans who would have been horrified by a similar proposed desecration of their holy sites.

Why the comparison to a sacred place like Arlington Cemetery? Or the Tomb of the Unknown Soldier, or key monuments at Gettysburg? What makes this Sioux site sacred, inviolable in the eyes of those for whom this place in North Dakota has drawn so much national attention? The environmental concerns alone would have been ominous enough to agitate the Native Americans on the scene. But the Cannonball River, which flows nearby, and the complex of tributaries connected to the Missouri River, are not merely sources of water. No, Spotted Eagle has said, water is “the best medicine,” the sustainer of life from a mother’s womb until its issue, years later, breathes no longer. Water is necessary for the sweat lodge, so important in Sioux worship, and it serves as a purifier and calmer in sacred ceremonies. And much more.

What motivates her and her fellow worshippers, above all, is concern that the pipeline will profane the burial sites over and around and through which it will flow. All of the governmental action is thus, in the eyes of the Native Americans, a profanation.

Sightings spends so many lines on this one out of many contested revered sites in the “flyover country” of the Great Plains—my homeland—in the interest of giving attention to the rites of some of the peoples who have been plundered, exploited, silenced, and murdered for more than 500 years by us newcomers, who now make the rules, establish the rituals, and bring the edicts and the guns to enforce them. Weekly, if not daily, we hear and read of the ins and outs, the ups and downs, of this most recent conflict. We observe how readily disdained the protesters are. But we are moved by the fact that leaders and sympathizers of many religious bodies, including Jews and Muslims, Catholics at the highest level, mainline Protestants, and some Evangelicals, have publicly sided with the Sioux.

There may be perfectly valid, even persuasive arguments for building the pipeline and for  its chosen route. I don’t know enough to evaluate those arguments. Ultimately, however, those arguments are irrelevant to the injustice being perpetrated here.

The undeniable fact is that a pipeline routed through a site designated as holy by a more privileged, more powerful, more “established” religious constituency would have received far different–and far less dismissive– treatment. At the very least, the claims of such a constituency would have met with more official respect.

It has been–and remains– difficult to ensure the constitutionally-required equal protection and application of the laws. I wonder if we will ever achieve–or even approach– equal civic respect for the rights of people who don’t look or worship like us.

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Pastoral versus Ideological Church and State

Speaking of religion, as we did yesterday, I’ve been mulling over a column by E.J. Dionne that I read a couple of weeks ago, because I think it has application to what I will (somewhat grandiosely) call the human condition.

Dionne is a Catholic, and he was examining the differences between the approach to that religion of two other Catholics–the Pope, and Steve Bannon.

Bannon believes that “the Judeo-Christian West is in a crisis.” He calls for a return of “the church militant” who will “fight for our beliefs against this new barbarity,” which threatens to “completely eradicate everything that we’ve been bequeathed over the last 2,000, 2,500 years.”

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Persecuted? Puh-leese

Imagine you and three friends rent a house together. You all pay your shares of the rent, maintenance, utilities and food costs. One of your roommates is vegan, and insists that no food can be purchased or brought into the house that does not meet strict vegan requirements.

If you protest, saying that you are happy to keep your preferred foods separate, but that as an equal contributor to the household, you have a right to eat in accordance with your own dietary preferences, he whines that you are persecuting him.

Most of us would say that the roommate is being an unreasonable bully. Yet his argument is no different from that of the “Christians” who demand laws that privilege their beliefs while ignoring the rights of those whose beliefs differ.

Hemant Mehta over at The Friendly Atheist has a perfect example.

The Florida High School Athletic Association (FHSAA) has a simple rule when it comes to reciting Christian prayers over the loudspeakers before football games: Don’t do it. It’s a fair policy considering it echoes what the U.S. Supreme Court said more than 16 years ago.

Last year, two Christian schools made it to the championship game, which would be played in a government-owned arena, the Citrus Bowl. The coach of one of the teams asked to say a prayer over the arena’s loudspeaker. Because the Citrus Bowl is a public facility, the FHSAA refused, and a Christian “defense” group sued. As Mehta noted,

The state didn’t do anything wrong. They didn’t block kids from praying. They merely said a public loudspeaker in a public facility couldn’t be used to broadcast prayer during a state event. This isn’t hard to understand unless you work for a Christian legal group, and your paycheck requires you to scream “Persecution!!!” three times a day…

The Establishment Clause of the First Amendment prohibits government from endorsing or sponsoring religion. The Free Exercise Clause prohibits government from interfering with private religious expression. As Mehta quite accurately explained,

This game was overseen and managed by the state, even if Christian schools were involved, and that meant following state law. Both teams were obviously allowed to pray before the game, and after the game, and during halftime, and silently whenever the hell they want. They could pull a Tebow during the game if they wanted to. And because they were private schools, the coaches could legally join in.

The lawsuit argued that just giving the schools this expansive right to pray wasn’t enough:

By denying access to the loudspeaker,” the suit states, “the FHSAA denied the students, parents and fans in attendance the right to participate in the players’ prayer or to otherwise come together in prayer as one Christian community.”

Evidently, prayer only counts when it’s Christian, and done publicly and loudly.

A couple of quotes from representatives of Freedom From Religion are worth sharing:

Their right to their own religious prayer practice ends where the rights of non-adherents begin, especially as it involves students. To think that the government should be required to concede to this demand is arrogance of highest order. Would they sit still for Muslim or Hindu prayers over the loudspeakers should such a group field a championship football team? Would they want the government to effectively endorse those religions through such largess?

Cambridge Christian is within its rights to force prayers on students and parents over its own loudspeakers, but not at a state-sanctioned high school championship. We hope the court will see that this is not a matter of censorship, but the appropriate use of a public facility for a secular sporting event and not a religious revival.

The libertarian principle that underlies our Constitution gives each of us the right to “do our own thing,” so long as we do not thereby harm the person or property of others, and so long as we are willing to give an equal right to others.

Forbidding government from privileging certain religious beliefs over others is not censorship, and demanding respect for the “equal right” of all citizens (or roommates) is not “persecution.”

It’s time for religious bullies to get over themselves.

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