religious liberty – Page 5

Religious Liberty? Hardly.

Historians tell us that the Establishment Clause of the First Amendment went through more than 20 drafts, with the Founders rejecting formulations like “there shall be no National Church.” The Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” The courts have uniformly held that this language not only forbids the government from establishing an official religion or state Church, but also prohibits government actions that endorse or sponsor religion, favor one religion over another, or that prefer religion to non-religion, or non-religion over religion.

In other words, government is prohibited from playing favorites–from either benefitting or burdening citizens based upon their beliefs or lack thereof.

There’s constitutional principle, and then, of course, there’s real life.

A woman named Margaret Doughty, who has lived in the U.S. for 30 years, recently applied for US citizenship. One of the standard questions asked of applicants is whether they would be willing to take up arms to defend the country. According to Ed Brayton over at Dispatches from the Culture Wars, Doughty replied as follows:

“I am sure the law would never require a 64 year-old woman like myself to bear arms, but if I am required to answer this question, I cannot lie. I must be honest. The truth is that I would not be willing to bear arms. Since my youth I have had a firm, fixed and sincere objection to participation in war in any form or in the bearing of arms. I deeply and sincerely believe that it is not moral or ethical to take another person’s life, and my lifelong spiritual/religious beliefs impose on me a duty of conscience not to contribute to warfare by taking up arms…my beliefs are as strong and deeply held as those who possess traditional religious beliefs and who believe in God…I want to make clear, however, that I am willing to perform work of national importance under civilian direction or to perform noncombatant service in the Armed Forces of the United States if and when required by the law to do so.”

Seems like a heartfelt and entirely acceptable position to me, but no. The immigration service responded by demanding that she “submit a letter on official church stationery, attesting to the fact that you are a member in good standing and the church’s official position on the bearing of arms.” In other words, unless she can demonstrate an affiliation with an established church with an established position on the bearing of arms, this 64-year-old woman cannot become a citizen.

The official position of the immigration service, evidently, is that atheists cannot have moral objections to killing other humans. (Nor, presumably, can members of churches without “official positions” against violence. If you are a Quaker, okay; if you are a Presbyterian or a Jew, not so much.)

When the U.S. still had a military draft, this same approach imposed a real burden on conscientious objectors who could not claim membership in a pacifist congregation. Eventually, the courts agreed that personal moral positions would be deemed adequate–but only if the individual claiming conscientious objector status could “prove” that he had long harbored such compunctions. Members of religious congregations could simply verify that membership; non-members and non-believers had to provide “clear and convincing” evidence of their beliefs, by bringing in people who would testify to past conversations, letters they’d written expressing pacifist sentiments, or the like.

You might think about that, and about Margaret Doughty, the next time some rightwing pundit whines about the advance of the secular hordes, or the (non-existent )”war on Christianity.”

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Letters, They Get Letters…

Sometimes, the Letters to the Editor are just jaw-dropping excursions into the depths of illogic. This morning’s entrant into the “it ain’t what you don’t know that hurts you, it’s what you know that just ain’t so” sweepstakes is a prime example.

The writer says there is no “war on women,” rather, it is a war for “immorality, secularism and the destruction of Christianity.” And what is the weapon being deployed in this war? The requirement that health insurance include coverage for birth control.

Where to begin?

Perhaps we might question the writer’s assumption that use of birth control equates to “immorality.” (“Procreation is a gift from God. It is not a form of recreation.”) Evidently, only participants in “recreational” sex use birth control. We probably should tell that to the doctors who prescribe contraceptives to treat a variety of medical conditions, including but not limited to menorrhagia.

We might also note that the writer’s defense of this position by Catholics who believe in the “sanctity of life” conveniently ignores the lack of Church outrage over the use of its tax dollars to fund capital punishment and war.

Finally, we might gently note that the First Amendment religion clauses are not violated when taxes paid by “Christians and people of faith” are spent for purposes of which they disapprove. If that were the case, every dollar spent on war and weaponry would violate the religious liberty of Quakers. Money spent to enforce “blue laws” would violate the rights of Jews and Seventh Day Adventists. Taxes supporting high schools would violate the religious liberty of the Amish. In a religiously diverse nation, there are hundreds of other examples.

Religious liberty does not mean government must impose your religious beliefs on your neighbors. Catholics, who not so long ago struggled against state imposition of Protestant norms, should be particularly sensitive to that bit of legal revisionism.

That, of course, would require the use of logic.

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Church, State, Gay, Straight

Okay, it’s time for one of my broken-record rants.

In the wake of President Obama’s endorsement of same-sex marriage, we’ve had a predictable–and increasingly tiresome–outpouring of criticisms to the effect that government recognition of such unions violates the “religious liberty” of those who oppose them.

No, it doesn’t.

Government recognition of civil same-sex marriages is no different from government’s recognition of heterosexual divorce. Divorce violates the religious doctrines of Catholics and several other Christian denominations. Those denominations remain free to expel divorced congregants, to refuse to recognize their newly single status, to preach against divorce, or to take such other congregational action as may be dictated by their particular theologies. Meanwhile, the government adjusts the legal, civil and tax status of divorced folks. It recognizes the reality of their severed relationship.

If every state in the country were to recognize same-sex marriage tomorrow–if they were to recognize the reality of same-sex relationships–churches would still be free to reject gay parishioners, to refuse to perform same-sex unions, and to preach about the sin of homosexuality in accordance with their doctrines. But gay couples could file joint tax returns. Their children would be covered under their employers’ health insurance policies. They would be entitled to hospital visitation, Social Security survivor benefits, and the full panoply of civil rights to which legally married folks are entitled. Last time I looked, there were well over a thousand such rights that my husband and I enjoy automatically because the government recognizes our marriage.

It has been obvious for a very long time that the only genuine objection to same-sex marriage is religious. There are no credible secular arguments, as was painfully clear from the trial testimony in California’s Proposition 8 litigation. Numerous studies have confirmed that children raised by gay parents–and there are millions of them–are just as well-adjusted and happy as those raised by heterosexuals. All of the public policy reasons for encouraging heterosexual marriage apply with equal force to homosexual ones. The “slippery slope” argument has best been rebutted by Bill Maher, who noted that allowing women to vote did not–surprise!–usher in voting rights for dogs or vegetables.

Furthermore, not all religions are homophobic. A growing number of denominations are welcoming gays and lesbians and celebrating same-sex marriages.

What we are seeing now is the last gasp of the fundamentalists who believe–contrary to history and the American constitution–that the U.S. is a Christian Nation, and not simply Christian, but their particular brand of Christian. When we deconstruct their argument, it boils down to a conviction that whenever the government allows behavior of which they disapprove, government has violated their religious liberty.

Next time we go to war, tell that to the Quakers.

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Deconstructing “Special Rights”

I heard someone make the claim again yesterday: gays want “special rights.”

So let me understand this argument: If government respects the civil rights of Christians—and if Human Rights agencies protect those Christians from being picked on because of their beliefs—that’s simply government protecting equal rights.

But if government treats LGBT folks just like it treats everyone else—if it empowers those same Human Rights agencies to protect gay folks from being picked on because of their sexual orientation—that’s “special rights.”

When laws protect Christians, that isn’t a violation of the religious liberty of Jews, Muslims or atheists—it is a simple recognition that all religious people are entitled to hold their beliefs freely, without fear of discrimination. But if laws protect gays and lesbians, that’s an impermissible endorsement of the “gay lifestyle” and a violation of the religious liberty of those Christians who condemn homosexuality.

Got it.

I routinely encounter people who hold these logically incompatible beliefs, and to be honest, I’m getting pissed off. One of these days, I’m going to get in the face of one of these “Christian Nation” folks and demand to know just how they manage to twist the definition of “liberty” to mean their right to impose their beliefs on those who don’t share them.

We’ve had the “special rights” accusation—lame as it is—for quite some time. But the charge that requiring businesses to treat people fairly violates “religious liberty” is a relatively new wrinkle on that argument—and it is driving me up the wall.

I posted recently about a hearing at which the South Bend, Indiana, Common Council was considering the addition of sexual orientation and gender identity to the categories covered by the city’s Human Rights ordinance. The measure passed handily, but not before a number of people asserted that forcing them to hire or retain qualified GLBT workers, or rent to same-sex couples, would violate their religious freedom.

Very similar claims were made when the Obama Administration ruled that employer-provided health insurance had to cover birth control for female employees who wanted it.

The argument seems to be that “religious freedom” means government can never interfere with me if I am acting on the basis of a genuine religious belief. That, needless to say, is not and never has been the law—I may sincerely believe that I should sacrifice my first born, or deny my child medical treatment, or smoke peyote during a religious ceremony, but the law doesn’t allow me to do any of those things, or hundreds of others, merely because I claim a genuine belief that God wants me to.

One reason that isn’t the law should be fairly obvious, at least to rational people. How on earth would we know that an employer was denying women workers birth control because he believed its use to be sinful, and not just because he wanted to save a few bucks? How would we know whether a landlord’s refusal to rent an apartment to a gay single or a same-sex couple was motivated by theology rather than by garden-variety homophobia?

This is the same problem prosecutors now face in the Trayvon Martin shooting, under the ridiculous “Stand Your Ground” law. Self-defense has always been a defense to a charge of murder—but only as part of a trial, after an initial arrest. Stand Your Ground laws are self-defense on steroids; they allow anyone to make a subjective claim that the government must initially treat as objectively true. Such a practice is simply contrary to the rule of law.

Religious liberty means that each of us has the right to believe what we wish, to follow the dictates of our consciences and theologies, and to observe the tenets of our faiths so long as we do not thereby infringe the equal rights of others or violate laws of general application (i.e., we can’t “kill a commie for Christ” as the 50s joke went). Religious liberty is not a “get out of jail free” card allowing us to deny an equal right to liberty to people we don’t like.

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Defining “Religious Liberty”

Tomorrow, the South Bend City Council will consider amending its Human Rights Ordinance to include protections against discrimination based on sexual orientation.

HR Ordinances–while relatively toothless in Indiana–express a municipality’s intent to discourage some people from picking on other people based solely upon their religion, race, gender and other markers that are irrelevant to the question whether those people can pay the rent or perform the duties required for the job.

I’ve agreed to serve as a sort of “expert witness” at the Council hearing, and as a result, over the last week or so I’ve been copied with the various arguments being made in opposition to the proposal. As often happens when I find myself immersed in indignant justifications of homophobia, I’m increasingly feeling like an inhabitant of the Twilight Zone.

One example is the “legal memo” submitted by the Alliance Defense Fund. I’ve seen most of its arguments before–it’s pretty much a retread of similar arguments made when other Indiana cities passed similar measures. The ADF insists that Indiana municipalities lack the authority to pass such ordinances–despite the fact that over the past decade or so several have done so, and none have been challenged. The memorandum mis-characterizes court cases, and engages in the other tactics lawyers resort to when they find themselves on the losing side of a legal argument.

I understand those tactics; at one point or another, we all find ourselves desperately trying to find a legal basis for what are really policy arguments.

The jaw-dropping argument, however, and the most ridiculous claim in the entire 30+ page “brief,” is a claim that the religious exemption is inadequate because it does not protect “religiously motivated” discrimination.

Let’s think about that for a minute.

The proposal before the South Bend Council contains an exemption for religious organizations. This exemption, in my opinion, is entirely appropriate–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 or other religious organization to employ such people. The law requires that we accommodate even beliefs that are at odds with basic American values.

Apparently, however, protecting the right of religious organizations to follow the dictates of their faith–even when those dictates are inconsistent with civil rights laws–isn’t sufficient. According to the ADF argument, if I truly believe gay people are sinners, that belief alone should allow me to discriminate with impunity–If I can’t fire employees I discover are gay, if I can’t refuse to rent to GLBT folks, the government is denying me religious liberty.

This is similar to 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 say my motivation is religious.

There’s a yiddish word for that argument: Chutzpah.

Obviously, an exemption for “religious motivation” would eviscerate the law. But this is part and parcel of the worldview of those who oppose equal civil rights for GLBT folks. Stripped of the “legalese” and rhetorical devices, that argument is simple: legislation that is inconsistent with my particular religious beliefs is a denial of my religious liberty.

The religion clauses of the First Amendment require government to 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 citizens who simply cannot abide the notion of a neutral government–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 is a government that’s denying them religious liberty.

I can hear the theme from “Twilight Zone” as I type…..

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