Tag Archives: religious liberty

Religious Liberty And the Marketplace

Most of us have heard the military admonition against “fighting the last war.” The point is obvious: generals and political actors need to evaluate and respond to the reality in which they live; getting stuck in the past–fighting the last war– is a formula for failure.That admonition also suggests one way of analyzing America’s current political situation.

Much of our contemporary political and cultural polarization is between people I have previously described as Puritans and those I have dubbed Modernists.

America’s Puritans still see liberty as “freedom to do the right thing,” defined as behavior consistent with their particular theology. They still believe, with the earliest American settlers, that government should have the authority to weigh in on the side of “Godliness” as their theology conceives it.

Modernists–in and out of religious communities–accept the post-Enlightenment notion that liberty means personal autonomy, your right to do your own thing, so long as you aren’t harming anyone else and so long as you are willing to grant an equal right to your fellow citizens.

The shorthand for modernism is “live and let live.”

Conflicts over recognition of same-sex marriage and bathroom use by transgender individuals, and efforts to allow “religious” merchants to refuse service to LGBTQ customers are really conflicts between America’s Puritans and its Modernists. Puritans  believe that government should throw its weight behind their theological beliefs; Modernists understand the importance of separating church and state, of preventing  particularized religious doctrines from marginalizing or disadvantaging otherwise law-abiding citizens.

Even in the churches, the Modernists are winning. As the Religion News Service reports,

In no U.S. religious group does a majority think it’s acceptable for businesspeople to invoke their religious beliefs to refuse service to gays.

This finding from a 2016 Public Religion Research Institute survey is a first, said Robert P. Jones, CEO of the nonprofit research group.

The change in opinion among even conservative religious adherents has been relatively rapid:  In 2015, more than half of white evangelical Protestants and Mormons surveyed approved of merchants who cited religious belief to deny service to LGBT customers; in the 2016 survey, the percentage of white evangelical Protestants who expressed approval had dropped to 50% from  56% the year before.

The percentage of white mainline Protestants who approved of businesspeople who withhold services to gay people dropped to 30 percent in the recent poll, down from 37 percent in 2015.

Overall in 2016, twice as many Americans disapproved than approved of those who refuse service to a gay person based on religious beliefs (61 percent to 30 percent).

PRRI’s findings corroborate a more dramatic overall shift in attitudes about same-sex marriage and LBGT Americans in the past decade.

Most religious groups today support same-sex marriage, Jones noted. “The religious groups in which majorities oppose same-sex marriage make up less than 20 percent of the public.”

Despite the diminishing number of Puritans, state and federal legislators continue to support discriminatory measures aimed at the LGBTQ community, just as they continue to support a variety of measures disadvantaging women–all piously justified as “protecting religious liberty.”

They are fighting the last war. And thankfully, they’re losing.

 

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.

Freedom to Oppress

A week or so ago, I shared the questions on my Law and Policy take-home final, and a couple of commenters wondered whether I would share student responses.

Although I won’t share others, I was struck by one student’s essay on the second question, which involved the principle of religious liberty. The question read:

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?

This student suggested that many people confuse “freedom” with “freedom to oppress,” and went on to explain the difference.

I hadn’t seen it phrased quite that way before, but I think he’s on to something.

I thought about his essay when I read in the Washington Post that Vice-President Mike Pence had told participants at a World Summit in Defense of Persecuted Christians in D.C. that “no other faith group faces more persecution than Christians,” and lauded Trump’s recent RFRA-like Executive Order.

Mike Pence shares a definition of “persecution” with other fundamentalist believers that beautifully illustrates my student’s observation: “persecution” in Pence-speak goes well beyond the actual mistreatment of Christians abroad; for him, “persecution” has always included the inability to use the coercive power of the state to impose his particular version of Christianity on others here at home.

Think of the horrors: the nasty courts have prevented public schools from requiring (Christian) prayer in classrooms occupied by children of diverse faiths, and have upheld the teaching of science, rather than the Christian doctrine of Creationism, in public school science classes.

Those same courts have required government to recognize marriages by sinful same-sex couples  (who can now file joint tax returns, just like real married couples), and they’ve insisted that when retail establishments open for business, they actually do business with anyone willing to pay for their merchandise.

These “persecuted” Christians must live under a legal regime that accords Jews and Muslims and Hindus and atheists the same civil rights that bible-believing Christians have! A society where stores like Target can allow transgendered people use the bathroom when nature calls! A society that allows women to follow their own religious and moral beliefs about reproduction, rather than the Word Of God as Revealed to Mike Pence and his fellow fundamentalists.

I’m sure it is only by the grace of their God that these poor, persecuted Christians can continue to live here.

I would completely understand if they moved en masse to somewhere like Ghana or Uganda, where the government understands the threat posed by homosexuality and uppity women. But of course, the inhabitants of those countries are black, and a lot of  Pence Christians aren’t too sure God likes black people…

 

Well, I Guess I Stand Corrected

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.”

So imagine my surprise when I came across this headline: “Idaho Is Reconsidering the Law Allowing Religious Parents to Kill Their Kids Without Punishment.”

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.

Pew recently posted a review of the states having the same or similar exemptions.

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…

 

Religious Organizations and Civil Rights

Every once in a while, a court decision provides a “teachable moment.” A recent case provides one such instance, in another clash of dogma and civil rights.

In Massachusetts, a Superior Court Judge has found a Catholic High School guilty of discrimination for withdrawing a job offer it had extended to one Matthew Barrett; the offer was withdrawn when Barrett listed his husband as his emergency contact on his employment forms, and the school became aware that he was in a same-sex marriage.

The job in question was food services manager.

The nature of the position at issue is important, because the Courts have long held that the Free Exercise clause of the First Amendment exempts religious organizations from civil rights laws inconsistent with their religious principles—that religious organizations may discriminate on the basis of their religious dogma— when the position being filled is religious in nature.

As a post to a Law Professors’ blog reported

The school argued that it was justified in not hiring Mr. Barrett because his marriage was inconsistent with the school’s religious teachings. Judge Wilkins based his decision on several findings. Noting that the school was entitled to control its message, he said that right is limited to those in a position to shape the message, including teachers, ministers and spokesperson. Justice Wilkins noted that Mr. Barrett’s position was not in a message shaping catagory and Mr. Barrett has not been an advocate for same sex marriage.

Law is all about drawing lines and making distinctions. We distinguish between killing in self-defense and murder, between free speech and harassment, and—as here— between discrimination necessary to the exercise of religious liberty and discrimination that exceeds that narrow category.

Where those lines get drawn is always subject to debate and dependent upon facts and evidence.

Here, the issue appears to be straightforward: should a religious organization be entitled to hire and fire non-religious support staff-–janitors, secretaries, cooks, food services managers—on the basis of compliance with the institution’s religious doctrine?

This case is likely to go to the U.S. Supreme Court.  As the Law Professors’ blog says, “stay tuned.”