This Ruthless World

Adventures in absurdity

Religious Freedom: Does the Constitution Really Favor Religious People Over Others?

No, it doesn’t. Still, this hasn’t stopped the outcry over the recently enacted Federal regulation that requires religious employers — such as parochial schools, church-run hospitals and “faith-based” social service organizations — to cover the cost of birth control for their employees. The complaint is that this act by the current Administration is an assault on religious freedom. The legal question is, how much religious freedom does the US Constitution guarantee, exactly?

In an effort to be a nicer person, I’ve decided to scrap my original plan to begin this post with a crude hypothetical. I’ll just point out the obvious.

We have laws prohibiting assault or unjustified homicide, but few people think that religion is a fitting justification for killing someone. Such laws undoubtedly interfere with the religious practices of people who believe it is both their God-given right and duty to lord over and chastise their spouses and children in any way they deem fit, up to and including killing them. It also interferes with the religious liberty of people who sincerely believe in honor killings.

We have laws that make it impossible to legally marry more than one person. Such laws abridge the religious freedom of people whose faith sanctions polygamy.

We have laws that establish the minimum age of consent. Such laws interfere with the freedom of those whose faith requires that girls be married off as soon as they begin menstruating. People whose religion places them in a position of complete authority over their children are also disadvantaged by such laws.

We have public health laws that make it difficult to engage in religious practices, however heartfelt, that are unsanitary or dangerous to neighbors.

We have laws against assault that doubtless inconvenience people whose religion dictates that girls’ genitalia must be extensively mutilated.

There certainly exists a certain school of thought that otherwise immoral, violent and even criminal conduct should be excused if it is done in furtherance of one’s religious convictions. But that of course raises the fundamental question whether an act, any act, is exempt from all secular regulation if it is part of someone’s sincere religious observance. Well — the First Amendment begins with the words “Congress shall make no law respecting an establishment of religion”, the word “religion” clearly being used in a general sense. Since putting religious people essentially above the law is tantamount to establishing religion, the answer is contained in the plain words of the Constitution.

“But,” I am routinely told by religious people with whom I have had this discussion, “You can’t possibly compare MY humane and reasonable religion with crazy cults, and you can’t liken me to monsters who mutilate children. Besides, how many people practice a religion that requires human sacrifice?” There are several problems with this. For one, I have never come across any definition distinguishing a “legitimate religion” from a “cult” in a way that wasn’t subjective and didn’t boil down to religion being basically the same as a cult but older and accepted by a greater number of people in the mainstream of society. The second, and by far the more important problem is that neither on the face of the Constitution nor in the body of Constitutional jurisprudence is there any rule distinguishing between “good” religions and “bad” ones. Whether or not society at large is willing to tolerate someone’s quaint beliefs and practices simply isn’t part of the Constitutional analysis when a law is challenged on the ground that it violates religious freedom.

Although many Supreme Court cases dealing with religious freedom were closely decided, the hard-and-fast rule is this: A law that’s enacted in furtherance of a neutral public policy is valid even if it abridges someone’s freedom of religion — as long as the policy itself isn’t to reduce religious freedom. In other words, when secular public policy and religious observance are in conflict, secular public policy wins. See e.g., Cox v. New Hampshire, 312 U.S. 569 (1941).

The law that mandates coverage for birth control is clearly enacted in pursuance of neutral public policy. Taking birth control pills is not an act of observing atheism — it’s an act of preventing unwanted pregnancy, undertaken for practical and personal reasons. So the purpose of the law, on its face, isn’t to promote atheism — it is to promote reproductive choice. There are many good arguments in support of that policy that have nothing to do with religion: regardless of public services available, proliferation of unwanted pregnancies is correlated with loss of tax revenue, poverty, low standard of living and rising crime rates. The only argument against, that I am aware of, is that we need to encourage people to reproduce as a way of funding services for seniors in the future — and it’s a bad one. You can’t have infinite expansion in a finite world. Relying on constant growth of the population for sustaining the pubic fisc is a pyramid scheme.

And so, with good neutral reasons for promoting access to birth control, no, the new law does not violate the First Amendment, even if it is contrary to the religious beliefs of certain people who have to comply with it. Whether the secular policy in question is a socially beneficial one (which I think it is) is a separate discussion. And, whether or not promoting faith-based policies is a good thing is moot: the Constitution prohibits any promotion of religion.

As an aside, one of the problems with religion, at least with Abrahamic religions, is that a strict interpretation of their scriptures suggests a religious freedom founded on routinely trampling on the freedoms of others. One’s religious observance is not truly complete unless one lives in a community of believers, under clerical law — and so, the very fact of having to co-exist with people of different religions, or no religion, and to comply with laws that promote the welfare of a heterogenious society at the expense of religious practices — all this can be fairly characterized as reducing one’s freedom to practice his or her religion fully, as their scriptures and theologians dictate. It is not surprising, therefore, that religious fundamentalists routinely see forcing everyone to conform to their beliefs and practices, or at least excluding those who don’t, as essential to their religious freedom. And that leads me to the inevitable conclusion that organized, doctrinal religion in and of itself is incompatible with Constitutional liberty for all.

But, I am most bewildered by complaints that having to pay for one’s secretary’s birth control offends devout people — that and the claims that religion is under attack in this country (despite the existence of a de facto religious test for high public office), and that religious people are being oppressed. Fundamentalists sure do have a thin skin.

As I have said many times previously, I am a secular person with a very dim view of organized religion. Still, I view the question of faith as primarily a personal one. Therefore, it doesn’t offend me if someone believes in God. I don’t faint from outrage if someone wishes me a Merry Christmas. If someone talks to me about God, and does so in a non-confrontational manner, I will smile politely and remain civil (although I confess the sight of missionaries stalking emotionally vulnerable people right after 9/11 only blocks from Ground Zero made my blood boil). It doesn’t offend me if someone prays a dozen times a day, goes to church/synagogue/mosque/temple/whatever or observes wacky dietary laws. If doesn’t offend me if someone sees a source of beauty and enlightenment where I see only darkness and ignorance. I reciprocate courtesies, and in social settings, I will gladly accommodate other people’s religious beliefs as long as I don’t have to go to extraordinary lengths to do so. So bottom line, the existence of faith in and of itself does not offend me.

But you know what does offend me?

It offends me that my tax money is used to subsidize religious organizations that are not true charities. It galls me that centers of mass worship, religious lobbying organizations and proselytizers are excused from paying taxes for activities that boil down to making obscene amounts of money by selling “the Word of God” as a marketable product. The fact that these organizations do not pay taxes despite their appallingly merchantilistic ways means that everyone else — including me — has to pay more to keep this country going. I feel picked on and cheated because my hard-earned dollars go to support people who deliberately fabricate lies about the Founding Fathers (complete with fake quotes), and put my money towards efforts to undermine democracy and due process in this country. It insults me as a citizen and a patriot that my taxes pay for the activities of apocalyptic wackaloons who are now truly brazen in their efforts to destabilize this country at its very foundation as a way (I suppose) of bringing about their much-awaited Rapture. Needless to say, the complaints of religious zealots, that having to pay for their employees’ contraception is a form of anti-religious oppression, ring hollow to me.

Stop living on the public’s dime, and then maybe we won’t make you pay for contraception. Until then, bite the bullet and be a citizen, goddammit.

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11 thoughts on “Religious Freedom: Does the Constitution Really Favor Religious People Over Others?

  1. Jueseppi B. on said:

    Very well said.

  2. Another spot-on essay that makes the point clearly. You really made it clear that the Constitution protects us all from the extremes in our country, be they religious or political. It’s ironic that religious people are offended because they cannot impose their delusions on the rest of us. Everyone is entitled to their own beliefs. Just don’t try to make your delusions a requirement for the rest of us.

  3. Well said, indeed. I have always thought that fundamentalists’ cries of “religion is under attack” and attempts to legislate their beliefs display a stunning insecurity. Is your faith so weak that you think the only way people will follow it is if you legally compel them to? Is your marriage so weak that the mere existence of a happy gay couple threatens to destroy it? Are you so insecure in your faith that you have to shove it down people’s throats just so others will believe that you believe? In my opinion, true faith is quiet, tolerant, and introspective. If you are secure in your beliefs, you should have no problem leaving others to theirs.

    Just my 0.02, thanks as always for the excellent post.

  4. Amen.

    Ironically much of this push back is from the religious Left who supported the current administration overwhelmingly, so I expect to see this overturned/compromised in some fashion as to save face. Yes… there is plenty of folks “on the right” who oppose this too but it will not be them who influence any change to this policy as they are not fellow travelers and do not donate to the cause.

    It also speaks to forcing religious based companies (individuals) to provide access to services antithetical to their doctrine. So the next step is to force Catholic Charities to perform abortions? Interesting… I like your position in regard to a church forcing it’s doctrine upon others, but I have to ask… why is it OK for the state to do the same thing? Have we fully embraced Statism and given up our individual rights.

    We’ll see.

    Excellent post as always. Thanks.

    • I don’t think the ruling has much at all to do with religion, but more with equal access to health services. Since our government has decided that universal health care should be provided by private insurers rather than the government, it is necessary to ensure that those private insurers provide the same coverage for all customers. Just because you are Catholic, Mormon, Druid, or Scientilogist, does not exempt you from meeting the minimum health insurance standards for all employees. If you are a job provider, you are also a health insurance provider. The government regulates insurance providers to protect us all against unfair practices and to entire we all get equal coverage.

      Nowhere is there an attack on religions forcing them to do something they don’t agree with. In this case, equal access trumps any private preferences of an employer. Health insurance is definitely a special case in employment. Since government has decided not to provide health care to all citizens, it has levied that burden on private employers.

  5. Thanks for your comments, guys.

    Mike: As I’ve explained, it’s okay for the State to force its “doctrine” — but let’s be fair and call it what it is, policy — on religious people, because the supremacy of neutral, secular policy is enshrined in our Constitution. The government may not abridge the exercise of religion for its own sake, but it is free to do so in furtherance of a legitimate public interest that has nothing to do with religion. And I have explained how making birth control freely available serves a legitimate public interest.

    You ask whether forcing Catholic hospitals to perform abortions is “next”. Well, here is the thing: the entitlement to freedom of religion isn’t an entitlement to government subsidies or exemptions from neutral legal obligations. It’s not an entitlement to do whatever you want, however you want to do it, in he name of your beliefs. I don’t see how compelling hospitals to perform elective abortions would be in furtherance of a good public policy, but when it comes to therapeutic abortions, you BET I want the government to force Catholic hospitals to perform them. The reason for that isn’t because I want to impose atheism on Catholics, but because all hospitals — whether parochial or not — should be subject to the same standards of good medical care. If a Catholic organization wants to operate a hospital, that hospital should be required to practice good medicine and provide sound, evidence-based medical advice, not religious dogma cloaked in misinformation. And when some woman dies or becomes an invalid because that hospital failed to provide minimally competent care, I want her family to be able to sue the hell out of those people, and for religious belief not to be considered a valid defense in a court of law. If certain Catholics don’t like it, fine — they don’t have to operate a hospital. Every profession and commercial activity is subject to regulation for the benefit of consumers, especially when it is consumers’ lives that are at stake; and being religious should not place anyone above the law.

    A note about “Statism”. It is healthy, or at least understandable, to be suspicious of the government’s extensive involvement in various spheres of life. But turning the government into a cartoonish boogeyman runs the danger of one becoming oblivious to the fact that there are other powerful entities that can act as a source of malevolent force. If your phones are being tapped and your communications are being scanned, does the fact that a big private corporation is doing it, as opposed to a government, make it okay? If someone you love dies because an unregulated hospital is run by zealots who practice their religion at the expense of patients’ lives, are you really going to celebrate it as a triumph of individual liberty over “statism”? How free are you, really, if you have no recourse whatsoever against entities that are bigger and stronger than you, and that you have absolutely no control over? The liberties of ordinary people are always in greater peril from encroachments by the rich and powerful, by Big Business and Big Religion, than the the liberties of corporate and clerical giants from governmental intervention. People and entities will always have unequal bargaining powers; but if one entity is markedly more powerful than everyone else, I prefer for it to be one that all of us have a hand in operating.

    • “If someone you love dies because an unregulated hospital is run by zealots who practice their religion at the expense of patients’ lives, are you really going to celebrate it as a triumph of individual liberty over “statism”?”

      My disdain for undo influence does not stop strictly at the government. My concern applies to all of the entities who seek political favor in order to limit competition and especially influence regulation. (i.e.. Fascism.) Our founders never wanted us to “trust” government. In fact, they believed a healthy dose of cynicism was required to be a good citizen.

      My primary concern, however, is the mindset used by beagle when replying; “Since our government has decided that universal health care should be provided by private insurers rather than the government…”
      Somehow Beagle fails to see the extra-constitutional force since it is being applied to insurance companies. Strange the disconnect.

      Your response is similar considering the statement that regulations exist to protect the consumer… some might, but many are in place to create barriers to entry and competition within a specific market segment. (This is supposedly the argument against lobbying…) Regulations are also used for political gamesmanship, like EPA regs that the Clinton Admin. pass the very last day of their tenure. These regs were so oppressive that they knew they would have to be overturned immediately thus giving them the ability to accuse the Bush administration of “wanting” dirty water and air. Thinking about issues several steps deep does not make one paranoid. I’m clearly a drunk, Bi-Polar, under educated drug user… and I like your stuff. Hmmm…

      I would like to turn something back to you because my feelings are a little hurt that you would employ a rhetorical device to elevate your position above mine… Let me ask you;

      “If someone you love dies because of regulated hospitals run by secularists who practice medical rationing at the expense of patients’ lives, are you really going to celebrate it as a triumph of the community over “individual liberty”?”

      People die in hospitals (I’ve heard this is common)… currently we have a choice as to which ones we go to and what treatments we want. As I have explained… It’s always about choice.

      (The idea that we all control government is simply not true. Our government is luckily not designed that way. While we can “un-elect” our representatives we certainly do not have “a hand in controlling them”. This is demonstrated in beagle’s reply.)

      BTW, are they walking this back yet? I don’t think they should. I too don’t think “private” hospitals should be taking public $. I don’t think that money should be offered in the first place.

  6. Mike, five things:

    1. Sorry, but I don’t accept your definition of fascism as a system where competition is limited by regulation. (Besides, an absence of regulation can very well stifle competition as well — something that you don’t seem to be taking into account.) Please don’t tell me your feelings are hurt by unduly emotional arguments when you yourself use a term like “fascism” in an inflammatory fashion. I define “fascism” as a combination of totalitarianism and nationalism, but I am sure you are aware of this definition. I also do not equate all regulation with totalitarianism — and I grew up in a totalitarian state, so I daresay, I speak from personal experience here. Still, I see this is a matter of personal conviction at this point, so we’ll just have to agree to disagree on this one.

    2. I also don’t accept the idea of treating hospitals as purely commercial enterprises that should thrive on unrestricted “competition”. In such a case, we might as well allow hospitals to kidnap the poor and hack them to pieces to sell their organs. Treating someone for a serious illness isn’t like selling them an ipod. The “customer” here may not have a chance to withdraw their “business” the next time around, and this is a situation where human lives, not dollars, are at stake. Once again, we just have a difference in values here, and I don’t think it’s one we are going to resolve.

    3. In any event, your advocacy of a laissez-faire free market approach to medical care is based on the Efficient Market Hypothesis, which has been roundly debunked. And quite frankly, I don’t even think professional debunking was ever necessary here, because EMH defies common sense. You, as a “consumer” finding yourself on the brink of death, don’t really have a true choice of hospitals in a world where (1) freedom from regulation and dependence on profits guarantees that hospitals will lie to patients about their religious affiliation, their commitment to evidence-based medicine and their past history of success; (2) there is little to no access to exhaustive and accurate information about all hospitals in the area and (3) the patient’s critical condition makes it impossible to meaningfully review and evaluate all relevant information even if it WERE available.

    4. Skepticism about the government is one thing; reflexively calling for the government’s withdrawal in absolutely every case, context be damned, is quite another. If the latter is what the Framers really wanted, they would not have established governments in the first place. And they would not have drafted a constitution that grants governments extensive powers, including the general police power. There is absolutely no historical evidence, and no evidence on the face of the Constitution, that the Framers intended the government to have no power to, you know, pass laws regulating private conduct, including commercial and professional activity. It’s fine to be generally anti-government, even anarchist, but the Constitution is not some anarchist manifesto, and the Framers were not anarchists.

    5. I regret that your feelings are hurt, but making the issue personal was not a rhetorical device on my part. Detachment is necessary for healthy rationality, but so is perspective. It’s very easy to talk dismissively of faceless, nameless “people” who die in hospitals every day, and to treat them as stupid billing units who only have themselves to blame when, in the midst of a crisis, they “choose” the wrong hospital. If you don’t acknowledge their humanity, it is easy to make the argument that because hundreds of thousands of people die in hospitals already, we should not do anything about it and allow millions more to die, because boo-hoo, too bad, so sad. When you see them that way, of course it’s easy to rail against the slightest modicum of protection that may be provided to them against fraud, incompetence or murderous zealotry. The question of whether such an assumption is beneficial to society at large is really put to the test when you remember that these people, who die in hospitals, are real human beings, with families and feelings — and there isn’t a more effective way to understand that than to put yourself in that patient’s shoes, or someone to whom the patient is important. I am sorry, but I don’t share the dismissive views that I know are espoused by many on this subject, that combine an almost religious reverence towards big corporations on the one hand and an utter disdain for human beings on the other; and I don’t see forcing a Catholic hospital to perform a life-saving abortion as a greater evil than letting a patient die needlessly to satisfy some executive’s religious sensibilities. But that, again, this is a question of values, and one where I’m afraid we won’t come to an agreement.

    • What a great debate this has been!

      And, the winner is . . .

      The American woman (and her consenting man) who will be able to use contraceptives through her health plans without going broke no matter where she works*.

      (*Catholic Church employees exempted).

  7. Dear Amused,

    I liked what I have read from you…I like the quote in your profile…Life is a dream for the wise, a game for a fool, a comedy for the rich, a tragedy for the poor. ~ Shalom Aleichem

    God made the great joke that is the world, and us as well, so God is the master of laughter and sadness. God dreamed the universe, and us in it, and we have our rational reasoning and perceptions of reality and everything we may believe to be the reality or the ultimate truth.

    Keep your head cool and your body warm.
    Yilmaz

  8. Freedom of religion also includes freedom FROM religion. Everyone has the right to practice whatever religion they choose, or no religion at all, but they do not have the right to impose their religious beliefs and practices on others through secular laws. It’s just that simple and they don’t get it.

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