Religious Liberty – Page 42

God and Caesar

In his regular Monday e-letter today, noted theologian Martin Marty tackles the recent uproar over HHS regulations requiring religious institutions—including charities, hospitals and schools–to provide health insurance to their employees that covers some procedures with which their church and members disagree. He notes that this sort of conflict between government rule making and religious dogma is hardly new.

“We could have added any number of others that had to do with the collision of interests pitting “the common good” versus “individual freedom,” especially freedom of religion. Pasteurization of milk, vaccination, and chlorination of water were among them. Beyond the needs of the body but dealing with the body politic have been vast numbers of others: the military draft, Sabbath and Sunday laws, and compulsory flag-salutes were or are among them. Often small religious groups best raise conscience matters. Jehovah’s Witnesses, Christian Scientists, Scientist, Seventh-Day Adventists, Latter-Day Saints, the Amish. None of the issues could be resolved to everyone’s satisfaction, so majorities of voters or legislatures or justices ruled. This means that they used “coercion against conscience,” driving some citizens to inconvenience and prison. There were often accommodations and compromises along the way. Somehow the republic survived.”

These are uncomfortable issues, because they don’t fall neatly into the American presumption that every argument has a “right side” and a “wrong side.” In these situations, policymakers are faced with a conflict of rights.

Citizens have the right to believe as they see fit, although the practice of those beliefs has often been curtailed by the courts. You can believe in smoking peyote, for example, but if “laws of general application” forbid drug use, you can’t actually smoke it. (For what it’s worth, I think the Court was wrong in that case, but what if your religion required sacrificing your first-born? Certainly, the government could intervene.) The law requires parents to provide medical treatment to their seriously ill children even when their religion rejects such treatment. Etc.

The conflict, as Marty points out, is between what we believe to be necessary for the public good and respect for the beliefs of all citizens. The resolution of that conflict requires us to exercise restraint–it is not enough to say “the majority of people want this.” The Bill of Rights is–as I keep telling students–a counter-majoritarian document. In America, the majority does not always rule. We are obliged to respect the beliefs and practices of people with whom we disagree so long as those beliefs and practices do not harm others.

What constitutes harm, as Marty reminds us, has been a matter of debate throughout American history.

In this case, the harm was to the many thousands of employees of religious organizations who don’t share that organization’s beliefs. Should a Protestant nurse working in a Catholic hospital be denied coverage for birth control, when such coverage is required in other places of employment? On the other hand, should the religious employer providing that insurance be forced to enable her use of contraception? What does respect for individual rights and religious liberty require?

I tend to feel the Administration made the right call on this particular issue, but in a country that truly respects religious autonomy, these conflicts between God and Caesar are never inconsequential.

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A Question for the Godly

The New York Times recently reported on a town clerk in upstate New York who was refusing to issue marriage licenses to same-sex couples, despite passage of the recent New York law recognizing such unions. She cited evangelical Christianity as a bar against performing her official duties.

“For me to participate in the same-sex marriage application process I don’t feel is right,” Rose Marie Belforti told The Times. “God doesn’t want me to do this, so I can’t do what God doesn’t want me to do, just like I can’t steal, or any of the other things that God doesn’t want me to do.”

I’m impressed by Ms. Belforti’s godliness. But since she seems to have an intimate relationship with God, and seems to know what He/She wants with such precision, I’d love to ask her a couple of questions. For example, how does God feel about her issuing licenses to divorced folks? People who’ve previously been convicted of crimes God disapproves of?

But most of all, I’d like to know how God feels about her continuing to take a government paycheck while refusing to perform the duties she’s being paid for. Isn’t that like stealing?

Ms. Belforti is absolutely entitled to her religious beliefs; however, she is not entitled to work for the government. If she can’t do her job–for whatever reason–she should be replaced by someone who can.

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Pathetic Policy Discourse

There are a lot of examples of what happens when those making policy don’t know what they are talking about, but here’s one that just annoys the hell out of me every time it comes up.

The New York legislature is preparing to vote on whether the state will recognize same-sex marriage. The Times reports that one of the “concessions” being demanded is explicit language protecting churches that refuse to officiate at such unions.

I know I harp on the importance of constitutional literacy, but this is a perfect example of what happens when even the most basic, rudimentary constitutional knowledge is absent.

The First Amendment religion clauses not only protect all of us from governmentally-imposed religion, those clauses also protect the free exercise rights of religious organizations. That means–at a minimum–that government cannot force churches to engage in activities that are counter to their beliefs. Churches and other religious organizations are even exempt from civil rights laws when hiring for religious positions. Bottom line, it would be unconstitutional to demand that clergymen officiate at same-sex weddings, and any effort to sue them for refusing to do so would be immediately tossed out of court.

Furthermore, the “marriage” that government recognizes is civil marriage only. Government classifies people as married for purposes of determining who is entitled to the 1000+ legal benefits that accompany recognition of that contractual relationship. Civil and religious marriage are different. Governments do not and cannot “sanctify” a marital union–for that, people have to go to their respective churches (a growing number of which are willing to do so). Our constitution separates church and state (no matter what Michele Bachmann and her ilk think), and that separation means government has no authority over religious doctrine and belief.

When political actors demand statutory “protection” for churches, you can be sure the actor is either dishonest or ignorant (not that these categories are mutually exclusive). Granted, adding language that duplicates the existing constitutional protection doesn’t require proponents of same-sex marriage to give anything up. But it implicitly suggests that–absent such language–the government could make the demand in the first place, and adds to the ever-growing stupidity of our national discourse.

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Constitution 101

A few years ago, the American Constitution Center conducted a poll to assess the country’s constitutional literacy, and drew a depressing conclusion: Americans revere the Constitution, but have virtually no idea what it says or means.

If that conclusion seems a bit “over the top,” consider some of the more indignant reactions to two recent court opinions applying the religion clauses of the First Amendment. In a case close to home, Judge Sarah Evans Barker ruled that a public high school’s graduating class could not vote to have prayer at its official ceremony. A decision with more national scope held that a Presidential designation of a Day of Prayer is improper. I found the homegrown case particularly ironic, since I invented a virtually identical fact situation a few years ago, and have been using it as part of my midterm exam. Unlike the school officials involved, my students almost always recognize that the issue is not whether students may pray, but whether the government can sponsor prayer.

In a recent column, Russ Pulliam declared that the founders did not want to eject religion from the public square. True. There is an important difference, however, between the public square and the public sector—a difference that evidently eludes many Americans.

There are two religion clauses in the First Amendment. One—the Establishment Clause—prohibits government from sponsoring, endorsing, favoring or otherwise getting involved with religion. The second—the Free Exercise Clause—forbids government from interfering with individuals’ voluntary expression of religion. Together, those clauses send a message to government: hands off.

If you want to take religion into the public square, you are absolutely free to do so. You can post religious verses on your house, wear tee shirts with religious messages, hand out religious handbills on the public streets, place religious messages in newspapers or magazines, or hold revivals in public parks. If you have the means, you can buy a television network and broadcast religious messages 24/7. You can engage in these and innumerable other religious activities in the public square and agencies of government will be constitutionally prohibited from interfering.

If, however, you want the public sector (government) to weigh in—if you want a publicly-owned building to post your bible verse, a government official to endorse or lead your prayer, or a legislative body to ensure that your neighbors are behaving in accordance with your religious beliefs, you have a constitutional problem, because the Establishment Clause prevents any group of citizens, no matter how numerous, from using the power of the state to impose their religious beliefs on other citizens. Your neighbors cannot take a vote to make you an Episcopalian or a Baptist or a Muslim, and the senior class cannot vote to have an agency of government—the public schools—impose a religious observance on those attending the graduation ceremony.

We should all have learned the difference between the public sector and the public square in Government 101. Unfortunately, too many of us skipped class.

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Whose America? Whose Values?

What with the charges and counter-charges about the war in Iraq, the use—actually, abuse—of Executive Privilege, and locally, the uproar over property taxes, this little tidbit hasn’t gotten much ink. But it is a telling indicator of the wildly different definition of the term “American values” held by today’s citizens.

Sessions of Congress begin with a prayer. (A religious exercise that is itself a dubious one in a nation committed to freedom of religion and conscience). The prayer is often offered by guest clergy invited for that purpose, and a couple of weeks ago, that guest was a Hindu cleric.

You know what’s coming, don’t you?

The “usual suspects” screamed bloody murder; Family Research Council President Tony Perkins opined that “In God We Trust” refers only to the God worshipped by Christians and Jews (as a Jew, I can attest to the fact that our inclusion in this formulation was long in coming and is even now quite begrudging). Worse, three members of the rabid anti-abortion group Operation Rescue stood up in the congressional gallery and interrupted the invocation by bellowing out “Jesus is America’s true and only God” and similar sentiments.

When the hecklers were ejected, Religious Right leaders immediately played the “victim” card, insisting that this was yet another example of government’s “anti-Christian” bias.

(Why do I doubt they’d have complained about bias if the cleric had been Christian and those who were disrupting the prayer Hindu—but consistency has rarely been the defining characteristic, let alone the purpose, of these rants.)

I probably paid more attention to this episode than many people, because my most recent book, God and Country: America in Red and Blue, was an exploration of the larger phenomenon of which this is evidence: the fact that Americans occupy different realities.

When I think of America’s foundational values, I think of individual liberty, tolerance—even celebration—of all kinds of diversity, equal treatment under the law. When people like Tony Perkins or James Dobson think of American values, they think of Christianity, and not even all Christianity. Just their version.

These wildly different realities begin with wildly different definitions of liberty. To AVA members and others like us, liberty is the right to decide for ourselves what we believe and how we should live. To Christian Right true believers, liberty means “freedom to do the right thing,” as they define “the right thing.”

In my book, I wrestled with the central challenge posed to our Republic by the existence of these dueling worldviews: how do we talk to each other? How do we come together to engage in the grand experiment of self-government?

I make some suggestions, but the jury is out.