Does religious liberty in the U.S. go too far?

Does religious liberty in the U.S. go too far? July 1, 2016


Given that many religious groups have some very socially undesirable beliefs and, even more, practices, how much does religious liberty in America need to be restricted?


Here’s a sketch of a very complex constellation of issues. The question provides no examples of what’s offensive but The Guy guesses that Norman is a liberal critic of religion who especially decries “socially undesirable” religious stands on moral matters like homosexuality. Such hostility from liberals, in turn, provokes deeper worries among traditionalists about religious freedom than we’ve seen since perhaps the 19th Century (something candidate Donald Trump hopes to capitalize on).

Preliminary points: Most religions and most believers agree society’s common good overrules any claimed religious justifications for heinous crimes. That would include terrorism enacted in God’s name by today’s Muslim extremists or, in centuries past, human sacrifice rituals of non-biblical faiths. Some religious activism is generally regarded as positive for society (abolition of slavery, women’s vote, civil rights) and other campaigns as negative (alcohol prohibition).

Certain “new atheists” are so intent on restricting religion that they would forbid parents from teaching their children about faith (while avoiding whether freethinkers should likewise be barred from teaching children that viewpoint). Some democratic nations have sought to discipline preachers who advocate traditional moral beliefs.

In the U.S., the Constitution erects a barrier against such extreme anti-religion tactics. But local and state legislatures, and increasingly powerful administrative rulings, have sought religious limits in various ways. For instance, a pending California law would drop a religious exemption to facilitate gay and transgender students’ discrimination suits, potentially affecting 42 colleges.

U.S. Supreme Court rulings draw the ultimate legal lines and thus provide many of the examples below. Recent cases: The court in 2012 unanimously slapped down an Obama administration bid against a Lutheran school’s employment policy and declared, “We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.” By a 5-4 breakdown, the justices ruled in 2014 that Hobby Lobby, as a family business, could avoid covering under “Obamacare” treatments the Protestant owners considered tantamount to abortion.

The Obama administration has long resisted appeals for such exemptions. Important legal theorists — not just “religious right” activists — worry that the government seeks to revise Christianity’s historic self-definition, protecting freedom to worship but applying different rules for agencies that serve the general public (schools, hospitals).

Recent actions have forced religious adoption agencies out of business. Future disputes could conceivably involve professional certification, college accreditation and admissions, government grants to charities, access to public facilities, or participation in public programs. Challenges to tax exemption would be all-important.

On that, the Supreme Court decided by 8-1 in 1983 that Bob Jones University should lose tax exemption because (at the time) it barred students’ interracial dating and marriage on religious grounds. The court said government has an “overriding interest” in upholding important public policies such as countering racial discrimination. (The high court ruled in 1971 that religious tax exemption as such is legal, as with other non-profits.)

Some history: When the Founders launched the American experiment they rejected Europe’s models, outlawing any official national creed and guaranteeing individuals and groups freedom of conscience and activity. This innovation is widely hailed as among America’s most important contributions to western civilization and democracy.

Hallmarks of that process were Thomas Jefferson’s 1786 Virginia Statute for Religious Freedom (“Almighty God hath created the mind free . . .”) and the first clause of the Constitution’s Bill of Rights, ratified in 1791: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. This is known as “separation of church and state,” though that phrase is not in the Constitution.

These principles did not originally affect the several states, and Massachusetts only decided to abolish the last surviving church establishment in 1834. Much later, the Supreme Court’s “incorporation” doctrine fully applied the “free exercise” guarantee to the states (in 1940), then the “establishment of religion” ban (in 1947).

The Supreme Court placed the first federal limit on “free exercise” in the Mormon polygamy cases of 1878 and 1890. The Latter-day Saints’ founding prophet clearly taught “plural marriage” as divine revelation. But the court deemed polygamy a crime so “odious” to western culture that religious liberty must be restricted. (The LDS church then abandoned this practice.)

Meanwhile, religious pacifists can avoid the military draft, Santeria’s animal sacrifices are allowed despite animal-cruelty laws, the Old Order Amish can ignore compulsory high school attendance, and Jehovah’s Witnesses schoolchildren need not recite the Pledge of Allegiance. However, the court’s crucial Smith ruling from 1990 eliminated the former strict requirement that government must prove a “compelling interest” in order to limit religious freedom. In response, Congress and various states passed “religious freedom restoration” acts that are central to many current controversies.

Scholars have found the court’s religious freedom decisions puzzling, and much moreso its many limitations to avoid any “establishment of religion” by government. Also confusing is the terminology underlying this question. “Conservative” religious groups stake out “liberal” claims for their rights, over against socio-political “liberals” who say state power should limit liberties. Got that?

Religion Q and A update: Some may recall our April 21, 2014, skepticism about a Harvard claim that some ancient Christians thought Jesus was married:  That claim is now further undercut in a thorough investigation by The Atlantic magazine:







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