My hobby meets Hobby Lobby - Religion in America II

I can hear people snickering. Too busy working to write your blog, hah, hah, hah. Fine. I admit it. I've been very busy being an attorney lately.  Or busier, anyway. I can't even really complain because I still do have a lot of free time - but - this work stuff has cut into my extra-free free time and I'd rather it wouldn't. And what has take the brunt of it? The best unread  blog in the world. But, now I'm back.

 

A few weeks ago I wrote on a case involving the practice of prayer before legislative sessions ("Religion in America: A Town called Greece").  The case was my segue  into some general questions about religion in America.  I broke the discussion into two parts, because I know my posts are too long for the few who actually read this evalovin' blog, but I think I can finish up this topic here today. One thing I've learned about myself - give me a computer and no editing restrictions (such as an article in a newspaper would have) and I will write and write and write. I never know until I get to somewhere between 6-8 Word.doc pages whether it has to be finished another day.  But, I'm going to try.

 

I'm not going to summarize the Town called Greece post other than to say that the court's decision is that legislative prayer continues to be allowed. My prediction was that it would, but in a slightly less Christian manner. Justice Breyer wrote a dissent which I had thought might have been where the majority came out. But, I was wrong in that and it was just allowed.  Instead I'm just moving on to another case, known by the name of the company arguing against Obamacare, Hobby Lobby, which is also more an introduction to the general question of religion in America, and where we draw the lines in the battle of the first amendment clauses. I think it is by far the more important of the two cases. Because while the outcome of the Town called Greece case is important, the idea that legislatures can continue to do what they've done forever in America - start the session with a prayer  - may be an annoyance for some, but is hardly scary. To the contrary, Hobby Lobby has a tremendous reach into whether we have the same law for everyone in this country or laws subject to individual religious notions.

 

As with the Greece case, Hobby Lobby deals with a serious problem concerning religion in America, albeit in a different form.  It concerns how to interpret the two first amendment religion clauses - the establishment clause and the free exercise clause, such that the law can be "fairly" applied - obviously a fluid concept - but at least in the minds of a majority of people, such that we can still say, in "so far as we approve of monarchy, that in America the law is king" (Tom Paine).

 

The facts of Hobby Lobby go like this. The Affordable Care Act ("Obamacare") has certain requirements for employers of a certain size to make health care available to their employees or face a tax penalty. The act also requires that the policies provide contraceptives. The owners or managers of some companies have religious beliefs that include the notion that contraceptives are immoral. They do not want to provide their employees with policies that provide contraception which they believe constitute abortion by preventing the egg from implanting in the uterus (e.g., Plan B - the Morning After pill), though apparently contraceptives like condoms are okay because there is no fertilized egg.  On the other hand, they also claim they feel a religious duty to provide health care to their employees (don't look in the Bible - you won't find it there).  If they do not do as the federal government tells them to do, they face significant penalties.

 

Here is where it gets complicated. To get past outrage from religious organizations the government later determined that actual houses of worship would be exempt. So, the church that employs a gardener does not have to comply. But religious organizations that become involved in secular businesses with a certain amount of employees, such as a hospital, do have to comply. And they too have sued.

 

More complicated, if those religious organization fill out a short form that states they are taking a religious exemption, they avoid the penalties and the insurer has to pick up the cost. It is argued that this is still no good, because if they comply and exempt, then another entity will have to comply -probably the insurer, which ultimately means other insurance customers pick up the tab - and they feel that is no better; abortion will still be taking place on account of them.  So, there are essentially two groups - corporations where the management does not want to provide insurance coverage including what they consider abortion - and religious groups running secular businesses.

 

Of course, to even consider these arguments you must be able to ignore some of the other issues surrounding abortion. You can't just say - well, I believe in abortion; therefore too bad on them - without ignoring the religious freedom issue that even you yourself might want to exercise.  Those are very generally the facts.

 

There can be no legitimate doubt but that religion has been given a preferential position in our constitution. I went through in the last post the actual clauses and how we got there. Though I have never been religious nor understood the desire for it (which I feel can be easily distinguished from morals or ethics) myself, I am damn glad that we do this. And, in some cases, what is meant by religious belief has been expanded, particularly during the civil revolutions of the '60s to include the broader notion of conscience in general, whether connected to a deity or theology or not.  There is probably no other non-homogenous country that has handled its religious disputes so well as we, however imperfectly that may be, though I cannot say I have exhaustively researched this. But, no doubt as well that this is as a result of our first amendment.

 

But, what is wrong with the idea that people, exercising their religious freedom, may ignore laws that would require them to violate their beliefs?  In my view, a lot. But, like almost everything constitutional, it is a bit complicated and has been wrestled with long before we were a country or Europeans even lived on this continent.  But, since the continuous modern Republic with the notion that here the law is king, it has been developed here more than anywhere else.

 

It is not the only question, of course. Alongside it is the right of people to believe (as opposed to act) however they please and the freedom from religious persecution which has existed probably everywhere religion has force. The domination of one group over others is the common story of mankind and one that even today in some places is an argument that ends with torture and death. Even where toleration has been extended to other groups, it very often still exempts others.  And, I will suggest, when it comes to the issue of today, whether there should be religious exemption from the law, that the supremacy of one religion over another is still the issue. For I maintain that when you make an exception for any group's or any individual's religious beliefs against a neutral law that does not single it out, then the government is implicitly, even if never mentioned, picking one set of beliefs over another.

 

Certainly in our country, as far back as the 17th century, when colonies were still forming and populating, John Cotton, among others, championed the idea of religious purity and persecution. Opposed to him was a founder's founder, who is so infrequently mentioned in historical discussions about religion that it is almost secularly heretical - and that would be Roger Williams, who preceded by decades and was even broader in his ideas of religious freedom than John Locke of England (to whom he is most often compared) and Baruch Spinoza of Holland. When you study him you realize that two of our great religious toleration figures - Madison and Jefferson (and I will leave off beating Jefferson today) - took so much from him. Indeed, even Jefferson's most famous phrase on religion, found in a letter he wrote, concerning a wall of separation between church and state, was first put forth not by Jefferson (much that he thought was entirely derivative), but as far as we know by Williams.

 

It is not that Williams was not religious - he was devout. He just believed that intolerance was far, far worse than heresy, which should be argued only by persuasion.  This was not new to him either and he stood upon the shoulders of some great religious figures I have written of in earlier posts.  But, his piousness is one that modern people will recognize and generally approve of as it is greatly concerned with notions of peace and gentility as opposed to the fire and brimstone of Cotton and many others.  Williams, born and raised in England was trained in part by the great 17th century lawyer, Edwin Coke, and also studied with the famed writer (though I just can't read him) and sometimes apostle of freedom, John Milton. But, he took his beliefs much further than they or most others in his time ever contemplated. And there are many ideas that he formulated which are important to us, but none so important to our success and greatness as a nation as the notion that civil law may be made by a majority - but not one which excluded the beliefs of others - even non-Christians.  Thus, he protested the taking of Indian lands and made the first American law banning slavery even before the 18th century. Oddly, he quarreled with the Quakers, who could be quite annoying, though they are perhaps the most vociferous champions of religious freedom and abolition in our history for a religious group.

 

Look how the Williams' Rhode Island charter prefigures our own constitutional ideas of religious freedom (I have rendered it into modern English, for  though he came after Shakespeare, he is sometimes in his spelling much harder to read than the Bard for modern English speakers:

 

"No person within the said colony, at any time hereafter, shall be in any way molested, punished, disquieted, or called into question, for any differences in opinion in matters of religion, which do not actually disturb the civil peace of said colony; but that all and every person and persons may, from time to time, and at all times hereafter, freely and fully have and enjoy his and their own judgments and consciences, in matters of religious concernments, throughout the tract of land hereafter mentioned; they behaving themselves peaceably and quietly, and not using this liberty for licentious or profane behavior, nor to the civil injury or outward disturbance of others; any law, statute, or clause, therein contained, or to be contained, usage or custom of this realm, to the contrary hereof, in any wise, notwithstanding."

 

Notice that the key is the separation of law from religion. You could make an argument, of course, that the exclusion of "licentious or profane behavior" from the protection of the charter means it is only a paper tiger, but, in truth, you could make that same argument even today as we still exclude certain speech from the protection of the first amendment when it is deemed obscene (whatever that means), even if this is lightly enforced in the internet age.  We too still have on the books laws against adultery and even those are sometimes, if rarely, enforced.

 

But, while praising Williams as much as I can any of our pre-constitutional forefathers in the religious arena, I also think he was partially wrong.  For, if you read it closely it also means that law is also subordinate to religious beliefs, at least to the extent that the civil peace of the colony is risked.  And thus, to a large degree, is born (here and in his writings) the tension between law and religious belief that has stayed with us to this day and can be the subject of a modern case. In its time it was fairly revolutionary.

 

But while I may think he took a wrong turn here, our country does not.  For the idea of accommodation to (as opposed to dominance of) religion is to some extent still the law of this land and very popular with a majority of people. My disagreement is not in wanting religion to take second place to any other type of thought (and it has clearly been given a high place by the constitution) and it has nothing to do with my lack of belief in a deity, but my concern that any accommodation of a person's religious belief over the rule of law requires a decision about an individual or group that their beliefs are - in respect to the law - given precedence to others. Thus, in trying to provide more freedom of conscience by religious accommodation, the other great American principles of equal protection under the law and preceding principle that we have rule of law and not men are shaken if not destroyed. And that means there is a tension between religious freedom and all other freedom.

 

But, don't get me wrong. You cannot just apply black and white law on it. Judgment is often required. And judgment can always be deemed incorrect by others. And culture and mores can change over time, which make it even more difficult to navigate the whirlpools in this river.  There are many examples I could give which demonstrate this. Two come most easily to mind.

 

The first is the prohibition against polygamy, practiced for a long time by Mormons.  A number of Supreme Court cases have visited this issue and the conclusion has always been that there is no religious discrimination but merely the application of secular law. Of course, this merely demonstrates our inability to adequately demonstrate a way to separate legal morality from its religious sources. We have used similar rhetoric to uphold other religious customs. Blue laws that closed commerce on Sunday, not coincidentally the Christian Sabbath, was deemed to have become a secular day of rest and therefore - constitutional.  It was hard for many in opposition to see how this was doing anything but just making law out of a religious preference. Believe it or not this was an issue even in Roger Williams' day and Rhode Island did not have blue laws while he lived.

 

Though almost every judge has deemed this to be the case with polygamy (one district court judge in Utah has now slightly weakened this prohibition - at least as far as cohabitation is concerned, though not government recognition of what is officially deemed a marriage), I think it is wrong. Religious liberty must give way before generalized freedom or we must pick one religion or one person's conscience over another. For once you determine that marriage is between one man and one woman only, you decide (depending on whether you consider Mormons Christian) either that the Christian view of religion prevails over those of some Mormon believers (though they are rare) not to mention Muslims. Though we are very used to this in the United States, and I never even considered the idea that marriage could be other than between one man and one woman until I was long an adult. It doesn't mean it is right. The libertarian side of me wants to see government out of the business of regulating the relationships couples or quadruples want to form amongst themselves, particularly in aspects of it that are social institutions that are basically consensual associations between people determined to enrich their lives -- even if they are mistaken.  I feel the same way about it that I do about whether people themselves should control what day they want to close their shop, if at all. Individuals should control, not the government.

 

The second example is a well known Supreme Court case known as Employment Division v. Smith (I'll call it Smith).  In this case American Indians were fired for violating state prohibitions against peyote use. They challenged it on religious freedom grounds and it appears that their use was genuinely linked to religious ritual. The Supreme Court - and Judge Scalia, no enemy of religious accommodation, wrote the opinion, concentrating on the idea that though people have freedom of belief, they cannot violate "neutral law of general applicability" or, in other words, laws that don't single out religion for discrimination, apply to everyone cannot be violated. The peyote users wanted the well known formula of the state being unable to limit prevent their religious freedom unless it had a compelling reason applied in the least restrictive way (known as strict scrutiny).  It should be noted that the court held that the state could have accommodated the religious beliefs if they had wanted.

 

Our unemployed freedom seekers lost, but, in the end, the country decided they didn't like the decision. Congress quickly passed and Clinton signed into law The Religious Freedom Restoration Act, a law that I hold with the same contempt I do the equally poorly named Defense of Marriage Act, also enacted in Clinton's terms. The RFRA required the courts to apply strict scrutiny.  But, the battle wasn't over. The court ruled in City of Boerne v. Flores that the law was unconstitutional as applied to the states. I'm not going into the federalism issues underlying why it still applied as to the federal government, but, congress fired back with a similar law giving protection to religious land owners (a law which you can look up under the mellifluous acronym RLUIPA . It never ends. 
 

I want to state, I am not against all religious accommodation so long as it is extended to any conscientious belief and not just ones with well established dogma or ritual. The government should not be in the business of deciding what is a religious belief and what philosophical or political. Of course, this would make it, frankly, not much of a law at all, but a mere suggestion.  But, this should be made part of the initial neutral law of general applicability and not the whim of a judge who likes this bit of conscience or ritual or dogma over that one.

 

Let me bring this back to Hobby Lobby because I have my own conundrum with respect to it.  I don't like Obamacare to begin with. Why, because I feel the federal government has no right to determine our healthcare. Frankly, I feel the state governments should have very limited right to do so and only to prevent things like fraud or disease or other safety issues that are not easily recognizable and preventable by a willing person. I am not opposed to our having safety nets for people who need them, but they must be modest and not impinge on the freedom of those who do not want to participate. These are general freedom issues. However, I do not believe the owners of Hobby Lobby or a religious organization running a secular business should have any more right to disobey a neutral law of general application than I would, simply because they claim religious motivation.  The conundrum is this. The powers that be don't agree with me when it comes to the freedom issue. It has long been determined that save a few small areas of law, the government is pretty much going to run everything save a few small areas we still can call our own.  So, while I want everyone to get to make their own healthcare choices or to give their employees the benefits they desire which the insurance companies determine they want to make available, I'm not going to get it. And, while I don't want Hobby Lobby or others to get to have a privilege the rest of us don't, I'm torn by the dilemma of hoping they lose the case I think that everyone should win.


We simply cease to have equal protection and a rule of law (instead of men) if Joe can decide he's not violating the law and Mary has to obey it simply because she doesn't phrase her objection as a religious one.

 

Complicated? Of course, and more than this will be too deep for one little blog post. My prediction - I think the Court gets this one right and sticks with the wisdom surrounding neutral laws of general application.  But, seriously, what do I know?  When it comes to Supreme Court decisions I'm wrong all the time.