The Bill of Rights attached to the Constitution of the United States begins with a firm assertion of religious freedom; but recent interpretations of those words have us moving toward full-bore confusion.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”
It is known as “the first freedom.”
Over the years, this freedom of religion has been commonly understood to allow religious people to gather without intrusion by government authorities and to engage in the practices essential to their faith, such as baptizing, or eating meals, or handling snakes or certain kinds of drugs. It has gradually expanded to include engaging in these activities outside the worship space, such as wearing certain clothing or jewelry in the workplace or in public.
In recent years, however, some religious people have invoked this “religious freedom” to avoid serving some customers or providing some services. A pharmacist is now allowed to refuse to fill certain prescriptions, and this comes into play when the doctor orders contraceptives. Many Christians, especially Roman Catholics, reject the use of contraception and consider it an attack on life itself.
This stance on contraception went all the way to the Supreme Court in the Hobby Lobby case, in which a company (owned by Protestants) won the right to resist several mandates in Affordable Care Act, specifically, that they provide contraception services through their corporate health insurance benefit.
Then, the “religious freedom” clause was invoked by people who don’t’ like gay marriage. Merchants now refuse service to gay people or married gay people because it violates their freedom to practice a religion that considers gay behavior and gay marriage as immoral.
These cases are still in the legal pipeline. Judges and juries are trying to sort out the various ways in which these situations impinge upon rights and responsibilities.
The outcome of these cases will clarify whether religious people have rights to reject services to others whose behavior they reject; examples might be inter-racial marriages, co-habitation, alcohol consumption, or even adherence to a religion other than your own.
Who knows where such logic could lead!
The appeal to religion has, for years, enabled some people to avoid certain common things: pledging to the flag, for instance, working on a holy day, and serving in the military.
This new wave of “religious freedom” claims are part of the strategy in the long-running culture wars, now a half century old, in which some people resist the widening freedoms of people to live where they want, work where they want, marry whom they want, and be free of religious rituals in government-run spaces (like schools and courts).
But citizens could also invoke this understanding of “religious freedom” to provide sanctuary to illegal immigrants or to refuse service to people legally carrying guns. Or further, a citizen could claim his right to be free from association with any religious person and thus refuse to rent an apartment to a practicing Catholic or Muslim.
This week’s story of Scott Daniel Warren offers a warning. Warren was acting out of religious conviction when he aided persons who had entered the country illegally, who had crossed from Mexico into Arizona through a desert and were at the point of death when Warren assisted them.
What he did was against federal law; but what he did was motivated by his religion. Does he have the right to follow his religion rather than the law? Suppose the federal prosecutor in this case had religious convictions as well—does he have the religious freedom to refuse to prosecute?
The jury convened this week in Tucson to hear the charges against Warren. It resulted in a hung jury, but even that raises the question: did jurors recognize that he broke the law but refuse to convict him because the law violated their religious freedom, their right to put religious conviction ahead of some law?
As the country becomes more diverse—culturally, religiously, and otherwise—will this guarantee of “religious freedom” continue to disrupt what had become standard American practice of receiving people and serving people regardless of their race, gender, religion, language, identity, disability, or sexual orientation?
Instead of clarity in this matter of “religious liberty” we are moving toward confusion!