Religious liberty seems so simple. Everyone should have the right to believe what they want and practice what they believe. Right?
So…a few questions, as we await yet another Executive Order--this time, addressing Trump’s (or more probably, Pence’s) version of religious liberty.
Should parents whose beliefs include what we Westerners call genital mutilation–what they call female circumcision–be allowed to perform that surgery on children who are too young to give informed consent? If not, how do we distinguish that practice from the routine circumcision of male babies, especially Jewish infants?
Should parents who believe in faith healing be allowed to refuse medical treatment for their minor children?
Should churches that depend upon local police and fire protection, and who benefit from other city services, be exempt from paying the property taxes that fund those services?
Should devout individuals who believe that God wants to keep the races separate and women subservient be allowed to ignore nondiscrimination laws? If not, how do proponents justify ignoring civil rights laws that protect LGBTQ citizens?
Do parents who want a religious education for their children have a right to taxpayer subsidies of that education? If secular taxpayers are justified in objecting to voucher programs that support religious schools, how is that objection different (as a thoughtful commenter asked yesterday) from the theory of the Hobby Lobby case, in which the court said a religious employer had the right to refuse a federal mandate requiring coverage of birth control?
Let me answer that last question first.
The problem with the Hobby Lobby decision was its attribution of religious belief to a corporate entity. The Court was not faced with a situation in which an individual shopkeeper or business owner relied upon religious liberty as a defense to providing his employees with birth control coverage; the central issue was whether the religious beliefs of a closely-held corporation’s major shareholders could be asserted by the business entity.
In Citizens United, the Court bestowed free speech rights on the legal fiction that is corporate existence. In Hobby Lobby, it extended that fiction. Corporations–Mitt Romney to the contrary–are not people, and the notion they should be entitled to be treated as indistinguishable from human beings for purposes of constitutional analysis is troubling, to put it mildly.
But let’s go back to the initial inquiry: should individuals (the breathing kind) be allowed to violate generally applicable laws with which they disagree, if that disagreement is based upon their theological commitments?
We don’t accept even the most passionate philosophical disagreement as an excuse for lawbreaking. Pacifists who withhold taxes meant for the Defense Department, environmentalists who drive nails into trees and protestors who engage in various types of civil disobedience are all aware that they will be punished for breaking laws that were duly passed and generally applicable. Why should people claiming religious motives for behaviors deemed socially harmful be entitled to special treatment?
The Courts have struggled with the questions with which I began this post, and with other conflicts between individual belief and government’s obligation to protect the vulnerable and insure civil equality. They haven’t always gotten the balance right–more “traditional” (dare I say “established”?) religions have often gotten a pass for behaviors not tolerated when practiced by less “mainstream” faiths. But the answer to such inequities is not the Pence approach, which would privilege otherwise lawless behaviors when the ostensible motive is “religion.”
What the Courts have generally gotten right is the basic principle: in the United States, people are free to believe–and preach–pretty much anything. But they are only free to act upon those beliefs until those actions harm others, or violate a law of general application.
Ironically, it’s the most outspoken and judgmental critics of Islamic theocrats who want to elevate religious doctrine (only theirs, of course) over secular laws of general application. Apparently, in their view, a Christian Taliban is different.
To the rest of us, not so much.
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