What Religious Freedom and What is Discrimination?

The recent Supreme Court decision regarding the rights of Hobby Lobby have echoed throughout public opinion, with defenders on the right and critics on the left. The 1st Amendment of the U.S. Constitution states that there shall be no laws passed that would abridge on the freedom of religious expression. The courts have a long history of cases of how to interpret that amendment: how absolute it is and when the public interest overrides it. The courts therefore have held that there are some limits to religious activities but have been more open in terms of religious beliefs. The debate is when the right to believe what you want comes into conflict with the impact of how your expression of those beliefs may impact the rights of others. Does the amendment allow you to discriminate against others based on your religious beliefs? The courts generally have said that does not apply in terms of voting rights, employment, etc., but have been more circumspect in terms of property rights.

The Civil Rights Act of 1964 does not mention LGBT people as one of the protected classes, and the current argument about the Employment Non-Discrimination Act is that some versions allow for exceptions based upon religious beliefs. In other words, if I believe that it is OK to discriminate against you because you’re gay or lesbian or transgender, then I’m allowed to do so because my rights trump yours.

The narrow debate over religious beliefs and expression ignore the context in which the 1st Amendment was written. At that time the common situation in most countries was that of an official state-sanctioned religion. Everyone was required to observe the practices of the official religion and pay taxes to support it. In many European countries that is still the case. In England, there were narrow exceptions for dissenters who were allowed to practice certain aspects of their beliefs as long as they didn’t conflict with the official religion.

The founding fathers said that there must be a separation of church and state and that no one religion may be the official church of the state and that everyone must be allowed to establish his or her own church and to practice the dogma of that church. They did not want a theocracy such as exists in Iran. So we have Catholic, Jewish, Muslim, Hindu, Buddhist, and hundreds of Protestant denominations that function within the US without restrictions. Churches are exempt from paying taxes although religious individuals are not. The debate sometimes has focused on exactly what constitutes a church. If I have a congregation of 10 people who meet in my house, is that a church? What if a church operates a business? (See the following article from the Advocate: Advocate Commentary )

Because the federal government cannot impose laws upon our religious expression does that mean that churches, religious-supported organizations such as hospitals, schools, and universities are free to discriminate? What about corporations, which the Supreme Court has now declared to have the same rights as people, although some folks interpret to mean that legally they are real persons rather than some artificially contrived legal construct. If you carried that to its logical conclusion then you might say that corporations are exempt from paying taxes if that is the religious belief of their board of directors. In the Hobby Lobby case the exception was made because they were “closely-held,” i.e. privately owned rather than public corporations. Well, once you start unraveling the legal strings then the whole system collapses.

It is not my intention to debate the Hobby Lobby case since I am not qualified to comment on the legal arguments. In my opinion when religiously based organizations try to stretch their exemptions from federal laws too far then they weaken the entire structure of separation of church and state. When they claim that they are without exception above the law, then that rationale weakens the concept of the rule of law in this country.

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