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.