“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
The First Amendment of the U.S. Constitution includes the clause we’ve come to think of as the separation of church and state. The intention was to ensure that the practice of religion would be free from government intervention, and limiting the power of the federal government to enact religiously-based laws.
Though the Bill of Rights was ratified more than two centuries ago, how the amendments are to be understood and enforced continually changes.
Challenges to the First Amendment have been in the news recently. There are two issues, in particular, at hand. One is the exemptions allowed religiously-based institutions from complying with government mandates. One is the passage of a state law, which would allow discrimination specifically when the discriminating party claims religious belief. Both have the potential consequence of theological anarchy.
In March 2016 the Supreme Court heard arguments concerning the Affordable Care Act and prerogatives of religiously-affiliated institutions to deny insurance coverage to employees for reproductive health care. These institutions include schools, hospitals, and orders of Catholic nuns. The organizations were already granted a legal accommodation, allowing them to file a two-page form with either the federal government or with their health insurance provider. The form would allow them to opt out of having reproductive health care coverage under their plans. In so doing, the reproductive care would be insured separately and at no cost to the employer.
The religious organizations object, complaining that filing a two-page form is a substantial burden, too much to ask. Though seven appeals courts disagree, the Eighth Circuit Court found for the plaintiffs. The fact that the appeals courts had a split decision is what sent the issue to the Supreme Court.
In other news, the Mississippi legislature passed a bill allowing private citizens, government employees, corporations, and other organizations to discriminate in a wide range of ways, if they claim they do so because of their religious beliefs. The legislation is still subject to resolution of differences between the House and Senate versions. According to the Washington Post,
Mississippi’s House Bill 1523 says, among other things, that public employees, businesses, and social workers cannot be punished for denying services based on the belief that marriage is strictly between a man and a woman. Same goes for people who act on the belief that “sexual relations are properly reserved to such a marriage” and that gender is determined at birth. It says the government can’t prevent businesses from firing a transgender employee, clerks from refusing to license a same-sex marriage, or adoption agencies from refusing to place a child with a couple who they believe may be having premarital sex.
… It prevents the government from “discriminating” (through taxes, fines, withholding benefits, or other forms of retaliation) against a “person” (broadly defined as an individual, religious organization, association, corporation and other kinds of businesses) for acting on their religious convictions regarding sexuality and marriage. That includes employers, landlords and rental companies, adoption and foster care agencies, people and companies that provide marriage-related services (rental halls, photographers, florists, etc.).
The bill protects doctors who refuse to provide counseling, sex-reassignment surgery, fertility treatments and other services based on their religious convictions, and allows companies and schools to establish sex-specific policies regarding dress and bathroom use. It allows state employees to recuse themselves from licensing or overseeing a same-sex marriage, so long as they take “all necessary steps” to ensure that the marriage isn’t impeded or delayed as a result. And it gives foster and adoptive families license to “guide, raise or instruct” children as they see fit, a rule that Human Rights Campaign argues would make LGBT children vulnerable to being forced into “conversion therapy.”
Emphasis above added in bold by me. But read it again: “It prevents the government from “discriminating” (through taxes, fines, withholding benefits, or other forms of retaliation) against a “person” (broadly defined as an individual, religious organization, association, corporation and other kinds of businesses) for acting on their religious convictions regarding sexuality and marriage.” In essence, the bill says a person, broadly defined, can act however they want with regard to someone else’s sexuality or marriage, as long as that person claims it is due to their religious convictions.
Supposedly these two current issues are narrow, one about contraception and reproductive health care, and the other about sexuality and marriage. But why stop there? Why is SEX so special, that it gets special exemptions? If a person (or organization or corporation) can be exempt from following the law in these circumstances, why should they ever follow the law, any law they don’t like? Why can’t they claim their religious conviction prevents them from serving people of color? Or requires that they marry their daughters off at age 10? Or requires them to stop paying taxes? Or allows killing other people because they don’t like them? What is off limits here?
And what accurate test is there of religious conviction? Is it like the Monty Python test for witches? How can we tell who is acting out of conviction and who is just plain mean and ugly?
In other words, anyone could claim any moral or religious position and ignore standing law, not just relative to health care or insurance or marriage or sexuality, but on any issue. All the hypotheticals we saw in the Hobby Lobby case regarding insurance coverage of birth control or other reproductive care, blood transfusions, vaccinations, diabetic care for those who “eat too much,” etc., these don’t begin to scratch the surface. Anyone could claim exemption from any law, on the basis of their claimed religious or moral beliefs. Corporations will be able to rape the Earth with no constraints, claiming that “man is to have dominion over the Earth.”
There is NOTHING out of bounds.
Theocratic Anarchy: no rule of law except each person’s or organization’s own interpretation of what is allowed based on their beliefs.
The only upside? No legislators would be needed, as no law passed would ever have teeth again.
Our View From Iowa 
Good question, but the question cuts both ways.
The social justice community has unquenchable thirst to press the frontier of rights without limit. If anyone doubts this is the case, I challenge them to define where the limits are.
Reasonable people have limits but movements do not – because it is human nature for the most unreasonable of people to assume leadership.
Having said that, the majority of people in our culture are reasonably content to have things just the way they are, which makes change both slow and difficult.
We will always have clumsy, ill considered laws as well as clumsy, ill-considered court decision. We simply have to live with them.
However, I strongly disagree with bringing these issues to the courts. All government rests on the willingness of the people to accept its authority and the bedrock of that acceptance is for people to have a say. When the court short-circuits the natural process of debate, rallying to the cause, compromise and final acceptance of change, it cripples the ability of society to evolve.
The consequences of disregarding the psychological mechanisms of democracy can be seen in the fact that forty three years after Roe v. Wade, roughly half the nation still disagrees with it.
This is less a mater of social issues as it is of the mechanisms by which people govern themselves and societies evolve.
Absolutely: “Good question, but the question cuts both ways.” It does cut both ways, because our laws and our comfort as a society depend on balance between the rights of all parties. When a very small number of people claim exemption from laws that have a larger societal good, perhaps their claim is “valid” or perhaps not. But if their real intention actually does harm to other people, as denying health care, and as discrimination for arbitrary categories do, they should not get their way.
Thanks for reading and commenting.
Hold on there… The entire point of the Engel v. Vitale. (School prayer) decision was that a very small minority of people could bend the majority to their will and overthrow 200 years worth of precedence. If the founders had made it clear that the Establishment Clause outlawed prayer at official gathering, the amendment would read much differently.
The court moved the constitutional goal posts without asking for societal buy in – and thus set a very dangerous precedent. Now the courts have been forced to come full circle and deal with the rights of those who do not accept the tumultuous social changes of the last half century.
I do not believe that people who have not accepted societal change are “mean and ugly”. I know many such people and know them to be good and generous people who happen to be more influenced by the past than the future.
Change takes time…. it also takes kindness and understanding.
I’m not sure if you are disagreeing with me. I don’t believe those who haven’t accepted societal change are necessarily mean and ugly, but I do believe there are those who cloak their meanness under the guise of faith.
That certainly is the case – but then there are those who cloak their meanness under the guise of social progress.
Please understand, I am not trying to get into a chest-thumping tribal war here, instead I am saying that there can be no justice in the world unless we see ourselves in others – and especially in those who we strenuously disagree with.
Societal change is messy and at times nasty. Because of that, it demands more of us than most of us are willing to give.
But here is a ray of hope, I like to tease that the reason I oppose gay marriage….. is that it is too expensive. Having financed the marriage of my daughter to her partner, I can attest to that. I can also say that we invited my in-laws, who are strict Catholics, to the wedding – and they came because in their view, family trumps all else.
It’s the logical outcome, isn’t it? After all, the Celts (my ancestors) practised human sacrifice as part of their religious beliefs.
I liked this bit – “How can we tell who is acting out of conviction and who is just plain mean and ugly?” Here’s an obvious follow-up question: who would want to follow a religion that is just plain mean and ugly?
My understanding of the major religions of the world is that they are not based on mean and ugly, but call on us to be more caring and compassionate and respectful. So, those who are mean and ugly may claim religious conviction, but I believe they are misinterpreting the teachings of their faith. Or they are lying. Or both.
The Bill seeks to give freedoms to those who wish to deny rights of others to live their lives ‘as they see fit’ in matters very personal. The Bill also seeks to give foster and adoptive families freedoms in the very personal matters of raising children ‘as they see fit’.
Denying rights to one group and advancing those of another group in the same Bill is what I call discrimination.
Agreed. The conflict of course comes where what you claim as rights and what I claim as rights differ. But your right to inflict pain on me is not in the Bill.
Perhaps in the short term the answer if for all secular/agnostic/atheist citizens to form an organized religion of non-region, resister the necessary paperwork, file for tax-exempt status, and start claiming religious freedom laws as their own. No, of course that’s not the answer, but I like to think about it sometimes when I get infuriated with these hypocritical laws. Are these businesses serving adultery? Those who took the Lord’s name in vain? People who don’t go to church or who don’t tithe or who have coveted their neighbor’s wife? The idea of picking and choosing which religious laws are worth discriminating over and which aren’t is mind-boggling. And don’t get me started on the Hobby-Lobby. Why are vasectomies covered but not IUDs? A thoughtful, articulate article. Thanks for posting the link!
Thanks for taking the time to read and comment. Yes, there is so much here I don’t understand. As you say, choosing which religious laws to discriminate on and which to ignore… In the case of Mississippi I sincerely wonder if it will be okay for Muslims to discriminate using the same justification. And yes Hobby Lobby. Let’s just say I haven’t shopped there for more than 4 years, and as a quilter sometimes I wish I could do so. Can’t. Make. Me.
You did a great job with this, Melanie. The hypocrisy and the “picking and choosing” of which so-called sins to punish and which religions should be honored in the name of “freedom of religion” . . . I become completely inarticulate in the face of it all. I’m glad you’re here to articulate it for me!
Inarticulate… Yes, I wrote a different version of this post (vastly different) in 2012, when the Blunt amendment was discussed relative to insurance coverage choices for “moral objections.” And I nearly re-wrote it when Hobby Lobby was on the agenda. And again now. So I’ve actually been kicking these thoughts around for at least 4 years, and finally managed to get them out again. Thanks for reading.
I’m not going to try and litigate anything here other than to state the obvious. This is why we have elections. If anyone can’t appreciate the importance of this one, the I suggest that they eat some carrots and open their eyes.
I think many, maybe most people don’t understand the impact of appointments to the courts, and especially the Supreme Court. The cases seem very removed from their lives, generally, and the rulings are arcane and shrouded. So they don’t connect their votes to the possibilities for long into the future. It’s hard enough to get people to vote for reasons that seem imminent.
It is obvious to me, but not to many, that the founders understood the problem with mixing religion and government, and it goes to the nature of religion. Religion is problematic in that it is not open to rationality, but even more problematic in that it is subject to interpretation by a special class of persons, i.e., priests, shamans, TV preachers, and the like. Thus, the give and take of open secular discussion is denied when religion provides the rules. As an example, I submit the centuries-long animosity between the two major sects of Islam, the shiites and the sunnis. There is no room in religion for even small differences.
At the very heart of the First Amendment matter, then, we see what the founders wisely intended: tolerance for harmless diversity. That is the bedrock principle on which our nation is founded. That is what makes us different from every other nation. And that is what the Mississippi legislature wants to change.
Thanks for this post, Melanie. You did a good job of it and it deserves more discussion than it’s getting lately.
Your summary is a wonderful way of putting the whole conundrum: “At the very heart of the First Amendment matter, then, we see what the founders wisely intended: tolerance for harmless diversity. That is the bedrock principle on which our nation is founded. That is what makes us different from every other nation. And that is what the Mississippi legislature wants to change.” It would do us all well to roll our eyes and shrug and just get along, if we can’t do any better than that. That old “love thy neighbor” thing might be a stretch, but certainly “tolerate thy neighbor” seems like it should be more possible.
Jim wheeler hit the right points home. Great post!
He did, indeed! Thanks.