Freedom of Religion? Did Someone Say Something About Freedom of Religion?
As you are doubtless aware, last week, a group of House Republicans, led by Darrell Issa (R-Cal), brutally gang-raped the First Amendment. With “yeehaw’s” and everything. And in the time-honored tradition of ideological rapists, they motivated their heinous conduct by their supposed love of liberty. Not everyone’s liberty, of course (don’t be silly) — just the liberty of authoritarian men to control and punish sexually active women, and the liberty of fundamentalist religious officials (similarly authoritarian men, all) to be above the law. I make no apologies for my choice of strong language, for what happened last week was the Founding Fathers’ worst nightmare come to life: a bunch of clergy explicitly dictating policy in Washington. And by “dictating”, I mean “bodily present in Congress and telling said Congress what laws it may or may not pass, in a hearing whose whole premise was the idea that public policy must comply with clerical law in order to pass Constitutional muster”.
The awful implications of this go far beyond the committee’s barring of women, both from itself and from the witness list, at least on the first day — although that too, is shocking. (Actually no, it is not.) Issa and his buddies set a terrible precedent last week, as from now on, any law may require the clergy’s stamp of approval. Who’s to say the clergy won’t feel violated by their faithful having to pay for the Moon base, Mr. Gingrich? After all, scientific research continues to demolish Biblical explanations of reality and existence, so I can see how some religious wingnut’s feelings may be hurt. The government and society itself being at the mercy of religious authorities is precisely what the First Amendment was meant to address. So it is ironic indeed that it was so spectacularly subverted by people whose constituents like to put on tri-cornered hats and fake-quote the Founding Fathers.
Of course, when conservatives say “religion”, what they really mean is “Christianity” or, at most “the Judeo-Christian tradition”. Because when it comes to that other confession, you know, the enfant terrible of the Abrahamic Trio, Republicans do a complete about-face when it comes to freedom of religion. For example:
- Newt Gingrich has said he would support a Muslim-American for President if such a candidate would publicly renounce Sharia. You know, I think this is a great idea. I think any candidate for President would do good to publicly declare that he would never let religious convictions interfere with his duties as President and that he would treat the Constitution as the supreme law of the land, superior to his scriptures. Of course, I would apply that principle to an adherent of any faith. Yet when it comes to real-life Presidential candidates, not only aren’t they expected to publicly renounce the Bible or church law, but quite the contrary — they must twist themselves into a pretzel arguing how much they love Jesus and how gingerly they will tiptoe around “religious” (read: “Judeo-Christian”) sensibilities while in office.
- Thirteen states (you can guess which ones) have enacted, or are working on, or tried to enact legislation banning Islamic law from state courts. Arizona also tried to ban karma. Of course, such bans are entirely symbolic. But what are the chances that any legislature would even consider a law banning the Bible? To be clear — I am good with banning religious law in secular courts, but there is clearly a double standard going on here, isn’t there?
- Republicans in Tennessee have introduced a bill which makes the following of Sharia a crime of treason, punishable by a term of up to fifteen years. The effect of the bill, in other words, is to ban Islam in Tennessee — since even prayer, consumption of halal meat or religious study is practice of Sharia. The bill would also give the state’s attorney general the power to investigate allegations that someone is practicing Sharia, an unpredecented intrusion into homes and private lives.
- In 2007, the Right Wing completely lost it over the University of Michigan’s decision to install some ritual wash basins for Muslim students. This time, conservatives took the separation of church and state seriously, instead of whining in the usual fashion that the First Amendment means the opposite of what it says. I was not able to ascertain, by the way, whether the University of Michigan paid for the basins out of its own funds, or if — which is more likely — this was funded by a private donation. If it is the former, I do agree that public universities should not spend money on special accommodations of religion. Unlike conservatives, however, I believe they shouldn’t spend any money on accommodating Christians, Jews, or any other religion, either.
The major problem I have with organized religion is that it invariably serves as a proxy for various hatreds — xenophobia, greed, authoritarianism, you name it. In the case of the latest contraception “controversy”, religion is serving as a proxy for misogyny. Conservatives’ claims that women’s health or liberty are supposedly “irrelevant” to the issue being debated is clearly belied by how hypocritically they approach the issue of religious freedom to begin with.
In 1990, the United States Supreme Court handed down a decision in the case of Employment Division v. Smith, which has since become a staple of law school curricula. The plaintiffs in that case were followers of a Native American religion and used peyote in their rituals. The state of Oregon had outlawed the consumption of peyote, however, and when the plaintiffs’ were discovered to have used it, they were fired from their jobs. Subsequently, they applied for unemployment benefits, but were denied on the ground that they had lost their jobs as a result of criminal activity. Thereupon, they sued the state of Oregon, claiming that the law banning peyote was unconstitutional because it made no exception for religious use. The majority upheld the statute, holding that as long as the law in question was generally applicable and neutral towards religion, it was constitutional regardless of any burdens it imposed on actual religious exercise. I quote the majority opinion:
Respondents in the present case [...] seek to carry the meaning of “prohibiting the free exercise [of religion]” one large step further. They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They assert, in other words, that “prohibiting the free exercise [of religion]” includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning. It is no more necessary to regard the collection of a general tax, for example, as “prohibiting the free exercise [of religion]” by those citizens who believe support of organized government to be sinful than it is to regard the same tax as “abridging the freedom . . . of the press” of those publishing companies that must pay the tax as a condition of staying in business. It is a permissible reading of the text, in the one case as in the other, to say that, if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax, but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.
[T]o say that a nondiscriminatory religious practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts. It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.
For ten points, do you want to guess which one of the Supreme Court Justices wrote that opinion?
When the present contraception squabble has finally wound its way up to the Supreme Court, I have no doubt that Antonin Scalia — a religious conservative with a solid record of supporting legislation that abridges women’s liberties and passionately opposing legislation that protects them — will vote to invalidate the coverage requirement. I will, however, await with baited breath to see what kind of superconvoluted argument he will come up with in an attempt to disengage himself from the opinion in Smith — which he himself wrote — and to claim that its plain language somehow does not apply when the religion supposedly burdened is Christianity, and the law in question benefits women.
That is, of course, unless he leaves the bench, one way or another, before then — in which case, I’m sure we’ll all be disappointed.