Scalia was not an originalist on church-state separation

By Ken Burrows

A little over a month before he died on February 13, Supreme Court Justice Antonin Scalia told a Catholic high school audience in Louisiana that “there is no place in our constitutional tradition” for the argument that the state should refrain from endorsing religion. It was a position he embraced persistently, on the bench and in public and private speeches. This is the same justice who was quoted in a 2013 New York magazine interview as insisting it is only rational to believe in the devil. The same justice who argued in a 2005 Supreme Court case that the Ten Commandments stand for the direction of human affairs by God and are the basis of our institutions. The same justice who once said, echoing Jerry Falwell and Pat Robertson, that God had been good to America because we honor him. This was a justice who took his religion seriously.

Yet throughout his tenure on the Court, Scalia also made a point of saying his judicial philosophy was committed to “originalism” (also called “textualism”), defined as interpreting the Constitution according to the meanings and intentions of the Framers. But here we have a disconnect. Because while Scalia may have adhered to originalism in deciding most issues before the Court, he freely and consistently abandoned it when it came to cases that involved separation of church and state. On this he eagerly dismissed, often pejoratively, the Framers’ intents he claimed to revere and appeared to have little familiarity with the staunch separationist views of the two most pivotal Framers —James Madison, the Father of the Constitution, and his colleague Thomas Jefferson. On this issue Scalia did not take his orginalism seriously.

A couple examples serve to illustrate his discontinuity. In the Supreme Court’s Greece vs. Galloway decision in 2014 approving of town boards opening meetings with predominantly Christian prayer, Scalia wrote that the Establishment Clause is not violated when nonbelievers experience “subtle pressures” to conform to religious favoritism, because such pressure is not the same as the religious “coercion” the Framers were focused on eliminating.

Further, he said the church-state relationship in the 18th century was “far from settled,” and he concurred with Justice Clarence Thomas in Greece that this lack of consensus meant the First Amendment is “agnostic” on the subject of church establishments by individual states; so in his view the states are thus, constitutionally, free to establish religions if they so choose. It’s a position that would surely leave Madison and Jefferson dumbstruck.

To Scalia, not all religions were equal

In a 2005 decision in McCreary County v. ACLU of Kentucky that banished a Ten Commandments display from the McCreary and Pulaski County courthouses, Scalia defended the Ten Commandments, but he didn’t stop there. He went on to say that the Establishment Clause does not protect religious minorities or nonbelievers from majoritarian sentiment, and it is a “demonstrably false principle that the government cannot favor religion over irreligion.” In addressing the conflict between minority religions or nonbelievers and majority religious belief, Scalia astonishingly claimed, “Our national tradition has resolved that conflict in favor of the majority,” so the Establishment Clause “permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.”

(Adopting his logic, one could also say the Constitution permits disregarding Muslims, Jews, Quakers, or any other “minority” faiths. By contrast, Justice Sandra Day O’Connor, concurring with the majority in McCreary, said, “We do not count heads before enforcing the First Amendment.”)

So according to Scalia, the Constitution gives a green light to “disregard” citizens who embrace faiths, or nonbelief, that majorities disapprove of. It must be asked: Not only did Scalia have a truncated, if not warped, grasp of the Founders’ history, but did he even understand the most basic meaning of religious freedom as the Founders envisioned it? Did it cross his mind that it was people like Madison and Jefferson who, in the founding era, salvaged his own often maligned Catholicism from the “disregard” heap, thanks to their demand that government have no preferences or influence in matters of religion?

In a 1992 Supreme Court case, Lee v. Weisman, two parents successfully challenged the constitutionality of clergy-led prayers being said at their daughters’ public school graduations. The Court’s majority viewed that situation as making students face real pressures to join in prayer, so they ruled the prayers ought not be allowed. Scalia in dissent noted that President Bush had asked people attending his inauguration to bow their heads in prayer, and he said these students and their family should be willing to do the same. In other words, Scalia’s view was that this family should, at least temporarily, abandon their own freely and conscientiously held faith and accept the majoritarian religion in its place.

Not a “ghoul” to Madison or Jefferson

Scalia was known for acerbic, colorful opinions. One that’s been frequently referenced since his death was his describing something called the “Lemon test” as being akin to a “ghoul in a late-night horror movie that repeatedly sits up in its grave” to frighten people about government crossing the line of church-state separation. But what is this Lemon test? It’s derived from a 1971 Supreme Court case, Lemon v. Kurtzman, which ruled the Establishment Clause was violated when public school monies were used to reimburse private schools (mostly Catholic) teachers’ salaries when they taught using public textbooks and instructional materials. Chief Justice Warren Burger (a conservative Nixon pick) used the case to outline a new three-part judicial test for statutes involving church-state separation. Burger said such statutes must 1) have a secular legislative purpose, 2) have a primary effect that neither advances nor inhibits religion, and 3) must not foster an excessive entanglement of government and religion.

Contrary to Scalia’s characterization, such a test would almost certainly not have struck the Founders as “ghoulish,” as a brief look at Madison’s and Jefferson’s views will show. Let’s now examine how their views—their intents—measure up against Scalia’s claimed originalism in matters of church-state separation.

Madison

Madison’s views on the proper relationship between government and religion were most enduringly spelled out in his 1785 Memorial and Remonstrance Against Religious Assessments, a 15-point opposition to Patrick Henry’s proposal to use state funds in Virginia to pay teachers of the Christian religion. Here we find Madison making a number of statements of resounding clarity. For example:

“The religion then of every man must be left to the conviction and conscience of every man.”

“In matters of religion, no man’s right is abridged by the institution of Civil Society and Religion is wholly exempt from its cognizance.”

“Instead of holding forth an Asylum to the persecuted, it [Patrick Henry’s bill] is itself a signal of persecution. It degrades from the equal ranks of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority… the bill implies either that the civil magistrate is a competent judge of religious truths, or that he may employ religion as an engine of civil policy. The first is an arrogant pretension falsified by the contradictory opinions of rulers of all ages and throughout the world; the second an unhallowed perversion of the means of salvation.”

But his Remonstrance was by no means Madison’s only commentary on the subject. In a letter to Edward Livingston in 1822 he opened by saying, “I observe with particular pleasure the view you have taken of the immunity of Religion from civil jurisdiction… This has always been a favorite principle with me.  … in some parts of our Country there remains a strong bias towards the old error, that without some sort of alliance or coalition between Govt and Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded against. … Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion and Govt will both exist in greater purity, the less they are mixed together.”

Using religion to abridge natural and equal rights

In a post-presidency Detached Memorandum Madison pointed out inconsistencies he saw between government practice and the spirit of church-state separation embodied in the First Amendment. (For one thing, Madison opposed having government monies pay for military or congressional chaplains, calling it unconstitutional.) He refers to attempts that were made by some delegates in Virginia to insert the words “Jesus Christ” after “our Lord” in the preamble to Jefferson’s Statute for Religious Freedom. [Note: In these 18th and 19th century times, terms such as “Lord” referred primarily to God in a generic sense and not to any individual such as Christ.] Madison said such an insertion would have implied “a restriction of the liberty defined in the Bill to those professing his religion only,” and applying the name Jesus in such a context would profane it “by making it a topic of legal discussion, & particularly by making his religion the means of abridging the natural and equal rights of all men.”

Madison’s Memorandum went on to criticize the issuance of religious proclamations by government, saying that although they might be recommendations only, “they imply a religious agency… [and] seem to imply and certainly nourish the erroneous idea of a national religion.” A related problem he saw was that the practice tends to narrow the recommendation to the standard of the predominant sect “and naturally terminates in a conformity to the creed of the majority.” He concluded forcefully that “members of a Govt can in no sense be regarded as possessing an advisory trust from their Constituents in their religious capacities. They cannot…issue decrees or injunctions addressed to the faith or the Consciences of the people.”

Around 1832, Madison penned another Memorandum in which he called upon states that still had formal ties with religious bodies to emulate Virginia’s example of religious freedom through church-state separation. “Make the example of your Country as pure & compleat,” he wrote, “in what relates to the freedom of the mind and its allegiances to its maker, as in what belongs to the legitimate objects of political and civil institutions.” In other words, a pure and complete separation of religion from government.

Jefferson

For his part, Jefferson most famously expressed his church-state views in his Virginia Statute for Religious Freedom, first drafted in 1777 and passed by the General Assembly in 1786. The statute opens with the statement that “Almighty God hath created the mind free.” Only a few lines later Jefferson notes that even the “Holy author” of religion chose not to propagate faith by coercing the mind, and he goes on to castigate “the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions.”

His statute goes on to say “our civil rights have no dependence on our religious opinions” and for a civil magistrate to “intrude his powers into the field of opinion…is a dangerous fallacy, which at once destroys all religious liberty.”

In writing to Dr. Benjamin Rush, a co-signer of the Declaration of Independence, Jefferson said, “Religion is a subject on which I have been most scrupulously reserved. I have considered it a matter between every man and his Maker, in which no other, and far less the public, had a right to intermeddle.”

Protect every denomination, even infidels

And, of course, there is the well known response Jefferson sent to the Danbury Baptists in 1802 after they’d expressed concern about the security of their own religious freedom. In this period Baptists were a minority faith and were frequently discriminated against and excluded as a result of collusions between government and majority religions. They wrote to Jefferson to ask that he do what he could as president to ensure their religion would be given fair and equal treatment. In his response Jefferson wrote: “Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with solemn reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”

Yet one more indication of Jefferson’s view on religious preferencing is in his autobiography where he recounts the arduous effort to get his Virginia Statute for Religious Freedom passed. Recalling, as did Madison at one time, that an amendment had been proposed to add “Jesus Christ” after his own phrase “the holy author of our religion,” Jefferson notes: “The insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination.”

The insight Scalia lacked

So the original intents of Madison and Jefferson are abundantly clear, even if Scalia chose to misread or completely ignore them. Scalia insisted that government not only could advocate for religion but also could consider what the “majority” favors in religion and what beliefs can be “disregarded.” He labeled as ghoulish the contention that government and religion should carefully avoid entanglements. He insisted that legislation, courts, and public policies should never stray from the Founders’ original constitutional intents but was untroubled by the practice of appending “so help me God” to the presidential oath even though the phrase is not prescribed in the Constitution, a document that was made 100% secular by original intent.

The Framers embraced a distinction that was revolutionary for its day: the ability to subscribe to a personal faith (most were one brand or another of Deist) while purposefully avoiding imposing it on others. That is, the ability to separate church from state. It’s an insight and a capacity Scalia lacked, as he seemed blinded by his faith.

Scalia might have claimed that nothing in our constitutional history calls for government to remain neutral on religion, but he could have never reconciled this with the fact the Constitution’s main architect advocated for “every new & successful example of a perfect separation between ecclesiastical and civil matters”?

How did Scalia, self-avowed originalist, not see the “original intent” in that?

Minority Rights, the Fight Against Terrorism, and the Constitution

Sky-Photoby Dr. Schuyler Foerster

 

Professor Edward Corwin, an eminent legal and political scholar, wrote that the U.S. Constitution is an “invitation to struggle”—an invitation to struggle among competing ideas, among competing centers of power, and among competing responsibilities in the exercise of governmental authority.

In the domain of national security, the “invitation to struggle” built into the Constitution has been tested many times.  In combatting terrorism, these Constitutional issues have taken on different and much more complex forms.  They also require more careful attention on our part if we are to strike the proper balance and preserve both our security and the values that define our free society within the rule of law.

There are many facets to this important question, but in this essay I want to focus on the impact of the so-called “war on terrorism” on civil rights, in particular the rights of minorities.

Since President George W. Bush announced a “Global War on Terror,” critics have pointed out that there was no definition and no boundary to that against which we were waging war.  Before 9.11, we treated terrorism as a criminal act, not as an act of war.  Now, those two things have been conflated.  The National Security Agency (NSA) may be focused on foreign intelligence surveillance and the Federal Bureau of Investigation (FBI) on domestic counterterrorism, but those lines are increasingly blurred.  The Paris bombings in November 2015—like the recent Brussels bombings—were, for us, acts of international terrorism.  The attack in San Bernardino, less than three weeks after Paris, was domestic—the terrorist, Syed Farook, was an American citizen, and his wife had been allowed to join him in the U.S. after passing two background checks.  Yet, in the public eye, San Bernardino was seen as an extension of the Paris bombings, and both events were viewed as a demonstration of the presumed reach of the Islamic State.

If the line between foreign threats to national security and domestic crimes is getting blurred, other lines are getting drawn more firmly.  When we think of the long arm of terrorist attacks, we think of Fort Hood shootings in 2009, the Boston Marathon bombing in 2013, Paris last November, San Bernardino in December, and, now, Brussels.

However, between Paris and San Bernardino last year, there was another shooting—in Colorado Springs—when a white Colorado resident with an arsenal of weapons and a self-appointed “religious mission” shot his way into a Planned Parenthood clinic, held the place hostage for the afternoon, and left three dead and nine wounded (it could have been many more), before giving himself up to police.

That wasn’t called terrorism.  People tended not to think of it as related to Paris (which occurred two weeks before) or San Bernardino (which occurred only five days after).

After the Planned Parenthood attack, my students at the Air Force Academy asked me a great “what if” question: what if the police had discovered when they searched his rural cabin that the perpetrator of that crime had been perusing Islamist websites?  Would that have made a difference in how we looked at that incident?  Should it make a difference?

They answered their own question, correctly in my view—it probably would make a big difference in how we would think about the Colorado Springs attack, but it shouldn’t.

The public debate about the Planned Parenthood shootings tended to focus more on the merits of Planned Parenthood as an organization—which surely does not justify the attack even if the now disproven allegations were true.  Much of that debate also emphasized the sanctity of the 2nd Amendment.

On the other hand, the debate about the San Bernardino shootings made no reference to any disputes the gunman may have had with his office mates, or about the 2nd Amendment; it was seen as an act of radical Islamist terrorism and as part of a global plot.

Any similarities that might exist between these two incidents were totally lost in the public debate.  The two shootings were deemed to be fundamentally different, presumably because the killers in San Bernardino were linked to the so-called Islamic State, while the killer in Colorado Springs was avowedly a Christian.

Since then, of course, the heightened political rhetoric of a presidential campaign has given forth all sorts of simplistic notions that, frankly, fly directly in the face of the values that underpin our Constitution.  There have been calls to deport Muslims, to block Muslims from coming into the U.S., to differentiate between Syrian refugees who are Muslim and those who are Christian, to close all mosques in the United States, to ban Islam as a religion in the U.S., and—most recently—to “patrol” Muslim communities.  At least to some of its loudest advocates, the much-heralded cause of “freedom of religion” from the First Amendment may not apply to all religions after all.

There is a dark precedent for all of this.

In 1798—before our new Constitution was barely a decade old—Congress passed the Alien and Sedition Acts.  Although three of those four laws expired long ago, the substance of the Alien Enemies Act remains in force.  This act empowers the President to imprison and deport non-citizens who are deemed dangerous or who are from a hostile nation.  This act was used in World Wars I and II to detain or deport non-citizens in the U.S. who were immigrants from those countries against which we had declared war—Germany, Austria-Hungary, Italy, and Japan, among others.

Beyond the Alien Enemies Act, however, President Roosevelt also signed in 1942 an executive order ordering the relocation of all Japanese-American citizens—numbering 127,000 people—to internment camps on the grounds that their ancestry made them a security risk.  Two Supreme Court cases in 1943 upheld the rulings—including the use of racial criteria for detention—on the grounds of “wartime necessity.”

Even after the war, Japanese-Americans found it difficult to return to their communities because of the rampant anti-Japanese sentiment.  In 1988, President Reagan signed the Civil Liberties Act to compensate surviving Japanese-Americans and their families.  A Congressional commission created in 1980 to investigate the internment legacy, called the incarceration a “grave injustice” motivated by “racial prejudice, war hysteria, and the failure of political leadership.”

Most of us know little of this history, but today’s rhetoric is ominously reminiscent.  At least one presidential candidate has advocated using this specific precedent as a rationale for barring Muslims from entry into the United States, and public opinion polls in many parts of the country suggest that many Americans would go much farther.  In communities across this country, Muslim-Americans and others from the Middle East and South Asia are treated as if they are threats to national security just because of their religion or ethnicity.  Depending on the results of this year’s election—especially if there were another terrorist attack in the U.S.—there may be considerable public pressure to repeat this “grave injustice,” motivated, again, by “racial prejudice, war hysteria, and the failure of political leadership.”

Context, however, is important.  FDR’s 1942 Executive Orders were upheld by the Supreme Court on the grounds that “the United States was at war with the Japanese Empire.”  Recall that Congress had formally declared war on Japan, so the Court ruled that “reasonably expedient military precautions” were appropriate, and that “what might be unlawful in times of peace might be lawful in time of war.”

Hence, from a legal and constitutional point of view, it matters very much whether there is a declaration of war, with boundaries.

In 1943, in an especially insightful dissenting opinion when the Supreme Court upheld the internment of Japanese-Americans, Justice Robert Jackson countered (emphasis added):

“A military order, however unconstitutional, is not apt to last longer than the military emergency. …  But once a judicial order rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens.  The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.  Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.” 

Two years ago, the late Justice Antonin Scalia warned that the Court’s decision to uphold internment in World War II was “wrong, but it could happen again in wartime.”

In the absence of a declaration of war, however, “wartime,” is no longer defined by legal and constitutional boundaries.  In today’s war against terrorism, the functional equivalent of a declaration of war is a 2001 open-ended congressional authorization to use military force, which affirmed the President’s authority to do whatever is necessary “to prevent future acts of international terrorism against the United States.”  Since, to many, “international terrorism” now conceivably extends to any violent act by any Muslim in the United States, whether citizen or not, Justice Jackson’s warning that this principle still “lies about like a loaded weapon” is especially poignant.

Nowhere does the tension between “security” and “liberty” come into sharper focus than in questions of war and peace.  This is the classic clash between the security of the whole—the general welfare—versus the freedom of individuals.  Today, “war” is a much more pervasive and ill-defined concept, especially as we are told we are at war not with a country, or with a specific political entity, but with a form of political violence used by extremist groups all over the world.

Before 9.11, America enjoyed a unique sense of invulnerability.  The only real national security threat to the U.S. mainland was from Soviet nuclear weapons.  Now, we have felt the pain of terrorist attacks on our own shores.  We have tried to fight terrorism “over there”—in Afghanistan and Iraq, especially—but we have discovered that radical Islamic terrorism is not readily confined to a centralized group or location.

Terrorism is not a definable enemy.  By its nature, it is a political act against which traditional military force has had demonstrably little enduring impact.  Terrorism is a form of warfare that has few boundaries and can be used by anyone, including us, were we to choose to do so.  As with other forms of violence within society, the boundaries set by the rule of law are critical, and they must be respected.

In combatting terrorism, moreover, the distinction between “combatant” and “civilian” is virtually invisible, complicating not only the laws of armed conflict that guide the use of military force, but also blurring the lines between the laws of war and the rule of law within the United States.

Ultimately, the answer to this problem is political, rather than legal, which, I’m afraid, puts the onus back on us.  As Alexander Hamilton wrote, in Federalist 84, “liberty … must altogether depend on public opinion, and on the general spirit of the people, and of the government.”

Public opinion can and does shape the direction of our government.  But if that public opinion is shaped largely by fear, ignorance, and anger, then the results can be disastrous for this country.

This was also a core concern for the founding fathers.  As James Madison famously wrote in Federalist 10, “when a majority is included in a faction … popular government … enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.”

It is also worth recalling Madison’s words from Federalist 51:  “If men were angels, no government would be necessary.  … In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself.”

The foundations of our Constitution reflect not only the laws and institutions within it, but also the values that gave rise to it in the first place.

Terrorism is a real threat to Americans and to America’s interests, but the threat of a terrorist attack does not pose the existential threat that nuclear warheads pose.

Terrorism does, however, pose a more immediate existential threat to this country.  Depending on how we respond to that threat, we could seriously and even irrevocably undermine the very foundations of our Constitution.

Which is exactly what every terrorist group that hates this country wishes will happen.

 Dr. Schuyler Foerster is president of the Colorado Springs World Affairs Council and currently teaches at the U.S. Air Force Academy as the Brent Scowcroft Professor of National Security Studies.  This essay is excerpted from his lecture delivered at the Donald C. Katt Institute for Constitution Studies at The State University of New York (Ulster campus), on 14 March 2016.  The views expressed here are his own and do not necessarily reflect the views of any organization with which he is affiliated.

 

Perils of RFRA: How “extreme” religious liberty violates the no-harm rule

Perils of RFRA: How “extreme” religious liberty violates the no-harm rule
Why Colorado’s HB 16-1180 is fraught with damaging consequences

**NOTE: On March 16, 2016 House Bill 1180 was postponed indefinitely.

By Ken Burrows

In the historical archives of church-state issues in America, no line is quoted more often than that in Thomas Jefferson’s reply to the Danbury Baptists in 6a00d8341cb34753ef017ee8fff32b970d-800wi1802 in which he endorsed “building a wall of separation between church and state.” However, a less quoted line in that same letter is becoming more and more relevant to church-state controversies today. It is Jefferson’s observation, leading into his “wall” conclusion, that “the legislative powers of government reach actions only, and not opinions.”

Jefferson of course meant the government can never restrict what a person religiously believes (“opinions”), a liberty that virtually no American challenges. But at the same time he affirmed that government power does legitimately reach actions. What is happening with increasing frequency today are efforts to give freedom of belief an unfettered license for freedom of action—to the point of allowing the infliction of harmful actions on others while invoking religious belief as justification.

Colorado has been among several church-statestates enacting, or at least proposing, “freedom of religion” legislation that would result in harm to others. The most recent is House Bill 16-1180, introduced in February, a measure titled the “Colorado Freedom of Conscience Protection Act.” While beguilingly labeled as conscience protection, it would grant broad license to discriminate in religion’s name. According to Americans United for Separation of Church and State (AU), which closely monitors such legislation, HB 1180 “would create a potential religious exception to every single existing and future state and local law in Colorado,” including laws against child abuse and domestic violence and laws protecting public health. Some specifics on this will be discussed below.

The Burwell / RFRA influence

Such legislative efforts around the nation seek to give broad legal approvals for what are known as “religious freedom exemptions” to abiding by public law and policy. These exemption claims have their genesis in the federal Religious Freedom Restoration Act (RFRA). RFRA says government may not “substantially burden” a person’s exercise of religion unless it furthers a “compelling governmental interest” and is done with the “least restrictive means” possible. Discussed in further detail below, RFRA was the federal law on which the Supreme Court based its 2014 decision in Burwell v. Hobby Lobby, which said a private business owner’s religious beliefs granted it an exemption from providing employees the contraceptive insurance coverage required under the Affordable Care Act.

In the wake of that Burwell ruling, state-level RFRA measures are proliferating. They gained even more steam as a reaction to the 2015 Supreme Court’s ruling in Obergefell v. Hodges, guaranteeing the right to same-sex marriage. State RFRA legislation typically embraces a nearly unlimited deference to religious belief in granting the aforementioned “religious freedom exemptions.” Colorado’s proposal is no exception.

“Mischievous projects”

But such an imbalance ignores Jefferson’s common-sense observation that legislative powers can and must reach actions to ensure a functioning society and safeguard certain rights and principles. This was true when he said it 214 years ago and is still true today. It hearkens back to the “no-harm rule,” a concept promoted by John Locke in the 17th century as being indispensable to ordered liberty. It was among many of Locke’s ideas that influenced the Framers.

Jefferson famously said that while freedom of belief is sacrosanct, the limiting powers of government do extend to acts that are “injurious to others.” Specifically with regard to religious belief, he wrote to James Madison in 1788 that including freedom of religious belief in a bill of rights “does not give impunity” to wrongful acts dictated by religion. For his part, Madison, considered to be the father of the Constitution, recognized unrestricted freedom of belief but was wary of abuses of power if religion were in some way backed by the state. When this happens, he said, the practice “…tend[s] to great ignorance and corruption, all of which facilitate the execution of mischievous projects.”

But in the 21st century we now witness more and more efforts to exempt religiously motivated dissenters from adhering to laws citizens in general must follow, asking the state to bless such exemptions in deference to religion, even when they cause harm. We are indeed seeing a proliferation of “mischievous projects” that are “injurious to others.”

Too much liberty

One person who has examined this trend in depth is former Supreme Court justice clerk, religious issues litigator, and noted church-state scholar Marci A. Hamilton. She is a leading spokesperson on the dangers of exaggerating the meaning of “religious freedom.” She sees several of today’s religious freedom exemption claims as extreme, such as allowing discrimination against gays and lesbians in business or housing, permitting medical neglect, withholding health and social services, or engaging in other biases and risks that impact others, all the while claiming a “religious freedom” right to do so.

Hamilton points out that James Madison himself held a view that there can be too much liberty, something the culture in his day referred to as “licentiousness,” defined not as personal immorality but as a generic disregard for rules or legal restraint. So it was that many early state constitutions placed limits on how citizens exercised their religion. This early position of the Founders is exemplified by Rev. John Witherspoon, a signer of the Declaration of Independence, who said in 1805: “[The] true notion of liberty is the prevalence of law and order, and the security of individuals.” This means, he said, that one objective of civil laws is “limiting citizens in the exercise of their rights, so that they may not be injurious to one another, but that the public good may be promoted.” Witherspoon was also a member of the Continental Congress who trained the Framers on principles of governance. Hamilton says this documented early thinking proves it is time “to put to rest the pervasive—but misguided—belief that religious liberty at the time of the Framing meant that religious entities were superior to the law.”

HB 1180 broadens the RFRA scope

Colorado’s HB 1180 generally mirrors the language in the federal RFRA but actually goes further. Under the federal law there must be a “substantial burden” on religion for its provisions to be activated. HB 1180 sets the bar lower at, simply, a “burden” on religion, said to occur not just when one’s exercise of religion is denied but also when such exercise is even “indirectly” curtailed. At one point the bill’s language says a person can assert a violation when exercise of religion “has been burdened or is likely to be burdened” [italics added], thus accommodating even speculative burdens and giving still wider deference to religion.

Further, the bill defines “exercise of religion” as the ability to act or refuse to act in a manner “substantially motivated by a person’s sincerely held religious beliefs, whether or not the exercise is compulsory or central to a larger system of belief.” This elasticizes the definition of “religion” and suggests a person could make a “freedom of religious exercise” claim to justify actions that harm others, even if such exercise is not central to the religion involved. History has shown that under such loose defining, simple prejudice can be dressed up as an individual’s “religious belief.” AU points out that around the country RFRA measures have been used to trump nondiscrimination laws, avoid ethics investigations, thwart access to health clinics, and engage in other harmful acts, and lessening the “burden” threshold facilitates such harm. So too does stretching the definition of “religion.”

Notably, while HB 1180 broadens the interpretations of “burden” and “religion” to increase the scope of deference to religion and widen the harm this can cause, it severely restricts the groups to be protected from such harm. The bill specifically states that one’s guaranteed free exercise of religion “does not include the ability to act or refuse to act based on race or ethnicity.” That’s it: race or ethnicity. This says more about whom the bill is excluding from protection against religiously motivated harm than about whom it is giving a safe haven. It’s no surprise that sexual orientation and gender identity would remain as permissible bases for discrimination, since these groups were obviously among the primary targets of the bill. But the bill would apparently also allow “religious freedom” discrimination based on age, gender, disability status, and—yes—even a different and/or “unapproved” religion.hobby-lobby

In what seems a stark nod to the Burwell Hobby Lobby court decision, HB 1180 specifically defines “person” to include “any partnership, corporation, church…or other legal entity.” Apparently, as with Burwell thinking, inanimate and/or manmade entities can once again possess religious beliefs. Which serves to augment the broad deference to religion the bill promotes.

Ginsburg’s “minefield” arrives

Hamilton contends it is Burwell’s overly broad interpretation of RFRA that has spawned the ensuing raft of “religious freedom” exemption claims that fail to consider the harm these exemptions would bring to others. (Justice Ruth Bader Ginsburg’s dissenting comment in Burwell has proved prophetic: “The Court, I fear, has ventured into a minefield.”) How did the original RFRA come about? It was an outgrowth of a 1990 Supreme Court ruling that did attempt to affirm reasonable boundaries on religious practice (not religious belief). Boundaries even Justice Antonin Scalia, perhaps the most religion-friendly justice the Court had known in modern times, agreed with. The case was Employment Division v. Smith, in which two Native American drug counselors contested their denial of unemployment benefits after being fired from their job for illegal use of peyote in what they said was a religious ritual. The Court ruled against plaintiffs, saying religious motivation does not automatically place individuals beyond the reach of a generally applicable law.

“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate,” the decision read. The Court said religious exemptions cannot “in effect permit every citizen to become a law unto himself.” Scalia specifically warned that allowing people to pick and choose which laws they would follow on the basis of religion “would be courting anarchy,” and he cautioned that legislating those kinds of exemptions could endanger numerous laws, including child neglect laws, child labor laws, nondiscrimination laws, and military service laws. Yet the language of HB 1180 specifically criticizes the Smith precedent by name, saying a more “sensible balance” between religious freedom and governmental interests is needed. But “balance” is what is missing in HB 1180, as it tilts markedly toward allowing a nearly unlimited concept of “religious freedom” to trump virtually any governmental/public interest or any reasonable effort to prevent religiously motivated harm to others.

Departing from precedent

The Smith ruling hit many nerves. Religious and even civil liberties forces “wrongly responded” and “overreacted” to it, Hamilton contends, and launched a mission to win protection for a sort of extreme religious right to be exempted from generally applicable laws. The result was the RFRA language that permitted pretty much all exemptions when a law was a “substantial burden” on religious exercise and the government could not show a “compelling interest” being served through the law by the “least restrictive” means possible. These criteria, referred to legally as “strict scrutiny,” are what won Hobby Lobby Stores its religious exemption to the Affordable Care Act’s requirement for contraceptive coverage, with the business owners arguing this would burden their exercise of religious belief. The matter of the harm this caused Hobby Lobby employees (including, of course, many who did not share the employer’s religion) was essentially ignored.

RFRA represented a change from preceding criteria, which held that when a law is neutral (i.e., not discriminatory) and generally applicable (i.e., it applies equally to everyone who does the same thing), then a “religious freedom” claim does not relieve one of following such a law. In fact, Hamilton says, calling RFRA “freedom restoration” was disingenuous (though also a PR masterstroke) since it did not “restore” anything but rather introduced “a new standard never before employed by the Supreme Court in a free exercise case.” I.e., it carved new ground on defining religious freedom. And with RFRA the balance between freedom of belief and freedom of action was being starkly tilted toward the religious believer, with comparatively scant attention paid to the no-harm principle.

“Congress did not do its homework” on RFRA, Hamilton argues. For one thing, it bought the lobbyists’ false notion that it was already standard free exercise doctrine to subject every law to strict scrutiny. It also did not look closely enough to perceive RFRA’s destructive impacts. She said no one discussed how RFRA might apply, for instance, to cases of clergy sex abuse or religiously motivated medical neglect. There was no testimony whether for-profit companies could evade legal obligations to employees. No discussion of how RFRA might facilitate discrimination based on sexual orientation or gender. No consideration if employers could limit medical benefits according to religious belief. And “there was certainly no discussion of the fact that a number of religious groups hoped to use it [RFRA] to trump the Fair Housing Act so as to keep renters whose beliefs differed from theirs from moving into their apartment buildings, particularly if they were single mothers, unmarried couples, or same-sex couples.” In fact, argues Hamilton, the main agenda behind the original RFRA had nothing to do with religious use of peyote or, strictly speaking, religious practice at all, but rather had to do with the fact that conservative religionists were losing the fight against fair housing laws.

RFRA was seductive, but overreaching

“RFRA was built on propaganda…sold on propaganda, and… perpetuated via propaganda,” Hamilton says. It sounded reasonable, having a nearly Mom-and-apple-pie character. Who would not be for more religious freedom? As proof of its seductiveness, it enjoyed the support of virtually every major religious group in the country plus such diverse factions as the ACLU, Americans United for Separation of Church and State, and People for the American Way. (Many organizations have since admitted their support was embarrassingly narrow-sighted and wrong.) Both Ted Kennedy and Orrin Hatch were for it. President Bill Clinton said RFRA showed that the legislative process can result in “miracles.” (Less well known, Hamilton points out, RFRA also had the support of such nefarious actors as the Ku Klux Klan, World Church of the Creator, and a Berkeley-based child sex cult.)

The original RFRA did eventually prove to be something of an overreach. In a landmark case defining congressional power, City of Boerne v. Flores (1997), the Supreme Court said RFRA changed the meaning of the free exercise clause and trampled on principles of federalism as applied to the states. (Re the latter, the Court had for several decades up to this point allowed Congress to breach the limits of its power vis-à-vis the states, severely weakening federalism. The Court used this case in part to reverse that trend.) In Boerne the Court had to address what power Congress holds to expand rights of religious liberty against either the federal or state governments. It said Congress did not in fact have the power to increase constitutional rights at will, and RFRA violated the separation of powers.

“Congress does not enforce a constitutional right by changing what the right is,” the Court said. Congress had in effect imposed a new interpretation of religious freedom, making RFRA a super-statute that trumps all other law. Hamilton argues (as did many other critics) it was tantamount to establishing a new constitutional amendment while skirting the rigorous review and approval process one requires. In the process it placed religious entities above the law and elevated religious beliefs above citizen rights.

Boerne rejected the notion that Congress could assume these powers as applied to the states but allowed RFRA to continue to apply to federal law. Instead of repealing RFRA, which Hamilton said would have been the right action to take, Congress amended it in 2000 to apply only to federal law. So the federal RFRA remains, and meanwhile some 20+ states have enacted their own RFRA’s with varying breadth of language as far as who and what can be exempt from generally applicable laws based on a religious freedom claim. Even Indiana and Kentucky, which have had widely publicized problems with faith-based discrimination, are said to be pressing ahead in 2016 with potentially even stronger RFRA-like measures. Some legislators in Colorado seek to jump on this bandwagon with HB 1180, regardless of the harm that would come to thousands of citizens if they were to succeed.

Accommodation that harms too many

Regardless of the overall fluid nature of RFRA legislation nationally, the outcome as Hamilton sees it remains consistently troubling: “Religious exemptions granted without thought for persons harmed…religious accommodation that yields too much to the believer and harms too many affected by the believers’ conduct.”

What are some of these harms? Hamilton enumerates several in her 2014 book God vs. the Gavel: The Perils of Extreme Religious Liberty. (This book is the source for much of the material in this document.) A few examples:

  • The Catholic Church has claimed, successfully, a religious freedom right to shield from discovery its files containing details of priest pedophilia.
  • Jehovah’s Witnesses won a First Amendment claim that they had no duty to protect children from abuse as long as actions were within their religious freedom right to “decide matters of faith and doctrine.”
  • Religious defendants in multiple states have successfully argued that applying “neutral principles of law” to charges of child abuse would require inquiry into defendants’ beliefs, and this is forbidden by their religious freedom.
  • Some 30 states have exemptions for religious parents from medical neglect laws, even though children sometimes die due to such neglect.
  • A Minnesota state supreme court rejected punitive damages when a Christian Scientist mother allowed her son to die of untreated diabetes, saying this would risk intruding upon the “forbidden field” of religious freedom.
  • Judges have ruled that devout Sikh students could not be barred from carrying religiously ceremonial kirpan knives in schools, even though they are potentially dangerous and otherwise violate school safety rules.
  • The well known 1972 Wisconsin v. Yoder case gave a religious exemption to compulsory education laws by permitting Amish parents to remove children from school after age 14, thus giving (some say unconstitutionally) selective government support to a faith lifestyle while also showing preference for a potentially deficient agrarian education in a technological era.
  • The Religious Land Use and Institutionalized Persons Act (RLUIPA), a quasi-offspring of RFRA that bestows extreme liberty for religious landowners, effectively directs courts to treat land-use laws applied to religious entities as presumptively unconstitutional. This shifts the balance of power in residential neighborhoods to religious landowners at the expense of the residential quality of the neighborhood, making homeowners second-class citizens to their religious neighbors.
  • An appeals court in California gave a landlord an exemption from a fair housing claim, saying free exercise of religion by the landlord was a substantially greater interest than eradicating discrimination against unmarried couples in housing.

After examining HB 1180, AU concluded the following scenarios would be feasible under such a law in Colorado:

  • A religious employer could ask for an exemption from employment discrimination law and fire a woman who remarried after divorce or who was pregnant and unmarried.
  • A healthcare worker could seek approval to refuse furnishing certain physician-prescribed medications, such as contraceptives.
  • A mental health worker might claim state-required licensing violates her religious beliefs.
  • The owner of a business serving the general public could claim a religious freedom right to refuse service to customers his faith disapproves of, such as gays and lesbians, humanists, atheists, or even a member of a “contrary” faith.
  • Healthcare workers could cite religious beliefs as reason to refuse to give patients certain procedures such as blood transfusions, in vitro fertilization, vaccinations, or psychiatric care.

The list goes on, but suffice it to say the no-harm rule is noticeably inoperative in many instances where extreme religious freedom rules the day. As Hamilton points out, religious entities may have begun by striving to protect constitutional doctrines mandating equal treatment, but they now have gone for more: guarantees beyond equality and also the privilege to trump the law. She adds that “To the extent that the United States has sublimated the potential risks of religious entities, it has sold out its most vulnerable.”

Meant as a shield, not a sword

Such “extreme liberty” exemptions inevitably breach the wall separating church and state, preventing the state from defending the civil rights of citizens against religious assault. Prior to Burwell, RFRA was not generally seen as allowing active discrimination based on religion. The Secular Coalition for America reported last year that legislators at a hearing on RFRA emphasized the law was meant “to protect all, not favor some at others’ expense” and was intended to be a shield, not a sword. Justice Ginsburg addressed this in her Burwell dissent by noting: “No prior decision under RFRA allows a religion-based exemption when the accommodation would be harmful to others.”

In an amicus brief submitted for Burwell by the Freedom from Religion Foundation (FFRF), the organization argued that RFRA unconstitutionally elevates religious beliefs above the rights of citizens. When FFRF criticized the Burwell ruling in a New York Times ad, even the conservative Wall Street Journal gave them credit for correctly noting that Burwell was based not on the Constitution but on RFRA and for drawing a “logical conclusion” that Congress should repeal RFRA.

How have we arrived at the circumstances we now face? In the Supreme Court’s first-ever free exercise case, Reynolds v. United States in 1878, the Court articulated clearly that the absolute freedom of conscience does not extend to absolute freedom of conduct. An excerpt from the decision reads: “Can a man excuse his practices … because of his religious belief? [To] permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself.” As mentioned above, 112 years later the Court in Smith issued virtually the same caution.

Assuming religious good while ignoring religious harm

We are now another quarter century along and willingly courting the damage and dangers our legal history warned us of. Why? Hamilton attributes our predicament in large measure to two factors: 1) a naïve assumption that religious entities and their actions are invariably beneficent and therefore good for society, and 2) abandonment of no-harm principles in deference to religious belief.

“Every right is situated within a larger constitutional structure,” she writes. “Republican representative democracy—not to mention much theology and moral philosophy from John Locke to John Stuart Mill—rests on the assumption that no individual has the right to harm others. … When [we] divorce rights from their structural context, [we] treat rights as a pure libertarian would: without reference to the rights holders’ obligations to society.”

“Free exercise theories too often have focused on religious entities by themselves, as though their well-being or their liberty alone is an appropriate proxy for the general public good. This focus…is myopic and antidemocratic. … The widespread cultural presupposition that religion is inherently and always good for society is naïve and dangerous. … It is a simple fact that religious entities are not invariably beneficial.”

“The constitutionally relevant question is not what is best for any church—indeed that question is forbidden by the neutrality principle underlying the Establishment Clause. The proper question instead is whether the liberty accorded believers is consonant with the no-harm principle.”

The danger of abusing liberty

Hamilton goes on to note: “The Establishment Clause is testimony to the Founding generation’s rational fear of overweening, concentrated religious power and of the mischief that can be fostered by religious institutions, particularly when they are sovereign. It cannot be, as some argue, a rule solely intended to protect religious entities.”

Recalling the principles that were dominant among the Framers, it is clear that we are at risk of straying from the path they were on. For while they esteemed religious freedom, they did not take that esteem to the extreme of permitting it to injure others. They adhered to the no-harm rule.

What is the answer to these dangers of allowing, even endorsing, faith-based discrimination and other exemptions from generally applicable laws? Hamilton says we should return to classic pre-RFRA thinking, which is that if a law is neutral and applies to everyone equally, “religious freedom” does not automatically exempt one from it. Then, if and when there is a request for a religious exemption, one of the key questions to ask is who will be harmed by it. It should not just be assumed the exemption is justified or will be benign. Additionally, the process of evaluating exemption claims should be patient, with such claims thoroughly aired and fully debated.

Virginia-Statute-of-Religious-FreedomThomas Jefferson in his Virginia Statute for Religious Freedom said using religion to withhold another individual’s rights “is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right.” James Madison once observed: “Liberty may be endangered by the abuse of liberty.”

The extremes of religious liberty we are seeing under RFRA in its various forms are proving him right. If Colorado legislators value liberty in the full sense of the word, and especially if they respect the no-harm rule as it applies equally to all citizens, they will not go down the perilous RFRA path.

 

Religious exemptions: An experiment on our liberties — Part 2

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by Ken Burrows

In Part 1 on the subject of religious exemptions last month, we discussed why “religious freedom” and “freedom of conscience” are not absolutes to which all other principles in our pluralistic society must defer every time these freedoms are invoked to justify exemptions. We discussed why we need a separation between religion/conscience claims that affect only the individual claimant and those that go on to impermissibly harm others, concluding that freedom to practice your religion does not confer freedom to impose it on others, especially in light of our church-state separation principles.

We pointed out that today’s religious exemption demands arise in large measure from recent Supreme Court decisions related to requirements for contraceptive coverage in health plans and the constitutional protection of a right to same-sex marriage. These demands to be exempt are largely motivated by religious positions on those issues, with the alluded to “conscience” most often drawn from and equivalent to a religious faith holding on the issue. Indeed, Kim Davis, the noted 150905-kim-davis-banner-1557_c29e2a88cccfc48f99d34d1cbd382444.nbcnews-ux-2880-1000Kentucky County Clerk who refuses to issue same-sex marriage licenses with her name on them, says issuing such licenses would violate her conscience because “it is about marriage and God’s word.” Similarly, the Little Sisters of the Poor, a group of Catholic religious women who operate homes for the elderly poor, point to Church teaching to demand they be exempted from providing—or even allowing to be provided—contraceptive coverage to their employees, no matter what the employees’ own religious beliefs may be.

Because it is a key component of the ongoing conflict, we will now look more closely at the meaning of “conscience” as it applies to these exemptions, and whether such conscience is so clear and unchanging, so flawless and “spiritual,” that it should be given unquestioning sanction to truncate the rights and freedoms of others by permitting religious exemptions.

Religion is both selective and selected

There are, to begin with, two reasons specific to the unique character of religion that underscore why an untempered deference to religious conscience is open to question in a free society.

First of all, religion—unlike, for instance, race or gender or age—is a freely chosen attribute and therefore, while its private practice should be safeguarded, it should not enjoy unlimited protection if and when it conflicts with legal principles such as equal rights and equal protections that all citizens enjoy, regardless of which faith, if any, they practice. The voluntary and selective nature of religious belief, at a minimum, warrants great care in determining how much deference it is owed. This is not altered in any way by the conviction of some religious adherents that they have no choice, that their religious belief is mandated by God. Because that perceived mandate itself is a freely chosen belief.

Secondly, we should resist over-accommodation of religion’s demands vis-à-vis citizens’ rights in the public sphere simply because, while religion deals with things of the supernatural, the construct and creeds of religion are manmade. They are created by humans, they are diverse, they change over time, they are susceptible to human error, and they have too often contravened individual freedom. 

For churches, to err is human

Conservative religionists of the past, for instance, were known for equating women’s movements for suffrage, divorce reform, and married women’s property rights with being anti-religious and even atheistic, simply because these campaigns parted ways with traditional church orthodoxy. Religious conservatives even contended in the 1800s that for a woman to be given a voice that counted equally with a man’s in public decisions was to wage an assault on centuries of theological teaching. The sad fact is this description of equality being an assault on prevailing theology was true.

Continuing how prone to error moralists can be, consider religious leaders near the turn of the 18th century who were so annoyed at Enlightenment thinkers and others for embracing scientific advances that they argued against smallpox vaccination, saying this was a sin that interfered with God’s plan for an individual to die of the disease.

The Catholic Church has been a vocal and powerful opponent of both same-sex marriage and contraception. There are an estimated 67 million Catholics in the U.S., comprising roughly 20% of the population. This faith’s influence on laws and policies is unmistakable, and its adherents often align both their private morality and public priorities with Church teaching.

A close examination of this Church’s history, however, offers ample evidence of its susceptibility to error, and its changeability, and its penchant to violate freedoms—all of which vast numbers of the faithful may be unaware. How many know, for instance, that in spite of the “God-given” or “from time immemorial” adjectives it has often applied to marriage, the Catholic Church for its first millennium had no formal sacrament of marriage?

Looking far back in history, we have the highly revered St. Augustine, much of whose influence on Catholic Church teaching continues in the present. He professed that humans contract the disease of sin through the process of conception, which in turn led to the doctrine of original sin that endures in the Church today. He said man was so inherently corrupted he could not be trusted to govern himself at all, so submission to authority, including even that of the state, was therefore acceptable. Recall Augustine was essentially contemporaneous with Constantine’s establishment of Christianity as the official state religion in the early 4th century.

st__thomas_aquinas_icon_by_theophilia-d5t99rtAlmost a millennium later, another highly regarded Catholic theologian, Thomas Aquinas, said any sexual intercourse position where the man was not on top was a sin, and he evaluated the idea of contraception by saying incest was preferable to birth control because it left intact the possibility of fertilization.

In the realm of civic rights, Pope Gregory XVI (papacy from 1831 to 1846), writing in his papal bull of 1832 in reaction to growing intellectual sophistication of the times, said that liberty of conscience is madness and any efforts on behalf of freedom of the press, freedom of assembly, or even freedom of religion is heretical (one assumes by the last of these he meant freedom to choose a religion other than Catholicism).

Pope Pius IX (1846 to 1878) was hostile to any advance he deemed as encroaching on religious authority and sought to stifle modernizers by declaring the new doctrine of papal infallibility. He said it was “anathema” to accept human sciences if they opposed church doctrine. He issued his Syllabus of Errors in 1864, attacking, among many other things, democracy and freedom of speech.

Pope Leo XIII (1878 to 1903), annoyed by advances in science and individual freedoms, declared that “it is quite unlawful to demand, to defend, or to grant unconditional freedom of thought, of speech, of writing, or of religion.” Note that such declarations were being made decades after America established such freedoms as constitutional guarantees.

This is not to say such views persist in the 21st century, but rather to document how flawed and even dangerous religious teachings can be, especially when inserted into the lay world. This is also not to say individual believers should not be entitled to such religious convictions for themselves if they so choose, but rather to demonstrate how dubious it is to give such convictions the deference that empowers them to restrict other peoples’ rights and freedoms.

“Cafeteria conscience”?

A question of consistency also presents itself. Where churches may effusively esteem conscience on one hand, they’ve been known to freely, even uncharitably, dismiss it on another.

In the very issue of same-sex marriage, for example, a large number of conservative Christians said in a 2009 “Manhattan Declaration” that while immunity from religious coercion “is the cornerstone of an unconstrained conscience,” they insisted in the same document that it is the duty of law to recognize one-man-one-woman marriage as an “institution ordained by God.” But law is coercive. What does such a stance on marriage say about safeguarding the “unconstrained conscience” of others who believe differently about marriage?

Or consider end-of-life health care decisions. The U.S. Conference of Catholic Bishops document “Ethical and Religious Directives for Catholic Health Care Services” states that “the inherent dignity of the human person” and “the free and informed judgments” made by patients concerning use of life-sustaining procedures should always be respected. But it also states “A Catholic health care institution will . . . not honor an advance directive that is contrary to Catholic teaching.”

This means advance end-of-life instructions, DNR (do not resuscitate) orders, and directives in living wills—matters arrived at by the individual’s conscientious choice—can be dismissed by a Catholic institution if their stipulations are contrary to Church teaching, even if the patient is not a Catholic. Since about 1 in 6 patients in the U.S. are treated in Catholic-affiliated hospitals, many can find themselves caught up in conflicts between Catholic dogma and their own conscientiously chosen health care decisions, being bound by religious tenets they do not personally accept and made to suffer for it. Where is the respect for their conscience?

When Brittany Maynard, with the support of her family, made the choice to end her life with relatively greater comfort and dignity than her prognosis would otherwise have allowed, she certainly must have studied her conscience long and hard, with genuine sincerity, in making that choice. The official reaction of a number of conservative church leaders was to say that what she had done “is never right.” One did not hear anything at all from these critics about the sacredness of Brittany’s conscience, and it’s safe to assume they would have denied her the conscientious choice she made if they could have.

So the fact is that in this purportedly sacrosanct sphere of “freedom of conscience” that drives much of the religious exemptions movement, many churches and the faithful over whom they hold sway do not always practice what they preach. They follow what could be called a pattern of cafeteria conscience—deeming it inviolable when it coincides with their own beliefs, dismissible when it does not. And yet it is on this uncertain and inconsistent basis that the Kim Davises among us claim religious exemptions to obeying equal rights and equal protection laws, and the right to discriminate against others as a result.

Conscience . . . or conformance?

Because conscience conforming to church teaching is so pivotal to many religious exemption claims, it is, finally, necessary to point out that a church’s own conscience can be prone to confusion. Another major exemption battleground illustrates this well, the one dealing with contraceptive health coverage for employees. Some employers, for their stated religious reasons, want to withhold contraceptive coverage from employees, even when employees themselves do not share the “religious conscience” of the employer.

Houses of worship and other entities devoted strictly to faith activities are already exempt from having to provide such coverage. But what about religiously-affiliated institutions such as hospitals, colleges, and charities? These nonprofit groups have the option of asserting that paying for contraceptives violates their religious beliefs, at which point they can sign a document indicating so, and then other parties such as insurers agree to arrange for and pay for the services. The employer then has no active involvement in providing the contraceptives.

Even here, however, some of these employers (such as the Little Sisters of the Poor) contend their very signing of the religious conscience form makes them participants in providing contraception. Since these employers have been allowed to lodge their protest, follow their conviction, and remove themselves from providing contraception, this additional resistance seems more parsimonious than principled. It is clearly less about protecting conscience and more about seeking to withhold a benefit from others that does not conform to the employers’ own conscience.

And notably, since many of these organizations and institutions receive public funding in support of the services they provide, there emerges once more a concern about violating the principle of church-state separation.

A confused conscience

This sort of over-reaching imposition of religion onto others is reminiscent of Pope Pius XI’s (papacy from 1922 to 1939) argument that contraception is an offense against God and nature, and because he deemed it to be against the “natural law,” he said the Church’s prohibition should be binding on everyone, including non-Catholics. This led bishops at the time to mount campaigns to prevent Margaret Sanger from even talking about birth control.

What is rarely mentioned in today’s contraception exemption arguments is the fact the Catholic Church itself, beginning with commissions formed under the progressive and pastoral Pope John XXIII (1958 to 1963) and continuing under the more conservative Pope Paul VI (1963 to 1978), confronted its own confusion on the subject of contraception and came remarkably close to abandoning its long-standing prohibition. One commission of nearly 60, including church leaders, theologians, and carefully selected members of the Christian Family Movement, concluded change was needed. Indeed, when the 19 theologians on the commission voted, 12 said it was time for the Church to revise its stance. When a follow-up vote was taken, the margin was 15-4 in favor of change.

Stunned by this sentiment, the Vatican limited the final commission to 16, all of them bishops. But even that tactic designed to sustain orthodoxy failed. Nine of the 16 voted for change, three voted against change, and four abstained. Pope Paul was said to be torn on what to do. Then a conservative cardinal, Alfredo Ottaviani, cautioned him that any change would be an admission the Church had erred for centuries on the issue of contraception, which would undermine the power and prestige of the papal office. This more than anything else led Pope Paul to reject multiple majority votes favoring change, and he went on to maintain the Church’s contraception ban in his encyclical Humanae Vitae. But even as he did this, he said only four days after issuing the encyclical that it was “not a complete treatment” of the subject, and it is a matter to which “the Church could and perhaps should return with a fuller, more organic treatment.”

So we see that even within an institution often regarded as unchanging and inerrant in what it teaches, there exist ripples of dissent in the ranks and uncertainty in some of the highest echelons. Claimants to religious exemptions regarding contraception point to their conscience, as derived frequently from their church’s conscience (this often being Catholic), as the guidepost they must follow. But knowing the history of contraception in the Catholic Church, it’s fair to ask if the institution really knows what its own conscience is on this.

But to be clear once more, this is not to say believers can’t embrace these religious convictions for themselves. It is to say that the tenuousness and controversy attending “religious conscience” is all the more reason why that kind of conscience cannot be allowed to diminish the individual rights and liberties that people of divergent faiths, or no faith, are guaranteed by our secular Constitution and our principles of pluralism and equal treatment.

Founders had it right

To sum up, the mere fact that one voluntarily claims moral fidelity to institutions and teachings with demonstrable variability, flaws and inconsistencies is not an adequate justification to allow negatively impacting others who do not share that fidelity. 

There are multiple reasons why “religious freedom” and “freedom of conscience” claims should not confer any foregone license to let religion rule and grant the religious exemptions the claimants ask for. Such an easy deference puts our pluralistic principles in peril. It subverts equality. In contradicts our Founders’ intent and our history. It countenances error and harm to others. Perhaps most importantly, it invites the church to intrude upon the state, enabling it to override laws and policies that are the non-religious business of we the people. When this happens, it is not so much a high road to freedom of religion as it is a descent into religion over freedom, which would resurrect the very thing our Founders waged a revolution to be rid of.

James Madison wrote  a Detached Memorandum not long after completing his 1-james-madison-1751-1836-us-president-everettpresidency, in which he recalled a past effort to insert the name “Jesus Christ” into the preamble of the Virginia constitution. The effort was defeated. Madison, himself a somewhat religious man, said it would have implied a restriction of liberty to those
professing his religion only. He went on to say: “The better proof of reverence for that holy name would be not to profane it by making it a topic of legislative discussion, and particularly by making his religion the means of abridging the natural and equal rights of all men.”

That’s a prophetic observation to contemplate by those who would claim religious exemptions some 200 years later.

Religious exemptions: An experiment on our liberties- Part 1

by Ken Burrows

The Supreme Court’s 2014 decision exempting certain businesses from having to provide contraceptive health coverage (Burwell v. Hobby Lobby) followed by this year’s decision establishing same-sex marriage as a constitutional right
(Obergefell v. Hodges) have given rise to a wider movement demanding religiously based exemptions to
providing services and/or products to selected individuals and groups on an equal basis. These demands are frequently described as “religious freedom” or “freedom of conscience” issues.

In this two-part analysis, we’ll examine the concept of such exemptions in context of our history and principles and then look more specifically at the meaning of “religious conscience” as it applies to exemptions and has become the rallying cry for justifying them.

Marriage equality

Rowan County (Kentucky) Clerk Kim Davis has garnered extensive media attention for refusing to issue marriage licenses to same-sex couples, despite being ordered to by a U.S. District Judge, an order affirmed by an appeals court and one on which the U.S. Supreme Court declined to intervene. Davis nonetheless continued her refusal, citing her religious beliefs which, she said, hold same-sex marriage to be immoral.

“To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience,” she was quoted as saying. In a statement issued through her lawyers, she added: “It is a heaven or hell decision. It is about marriage and God’s word.”

She was ordered to jail at one point for refusing to fulfill her legal duties, then released on condition she not seek to obstruct the issuing of licenses by other staff in her office. She was allowed to continue refusing to issue licenses that bore her name, even though this was established policy in her county, and she continues to say the “unsigned” licenses being issued are invalid. In other words, at least verbally, she persists in trying to deny the guaranteed rights of same-sex couples in her jurisdiction. All the while enjoying a religious exemption for her discriminatory dereliction of duty as County Clerk.

Davis’ case is, of course, only the most prominent example of this mounting effort to invoke “freedom of religion” and “freedom of conscience” as justification to be allowed exemptions from adhering to equal rights/equal protection laws, effectively given permission to discriminate against others in religion’s name. In this it goes beyond being a personal freedom issue to becoming a church-state separation issue of considerable importance. A deeper examination shows why a “religious freedom” exemption claim is not as simple and straightforward as one might think.

Private faith. Public impact.

It’s useful to point out that the Davis-like exemption claims being made today, including similar claims by people in other areas serving the public, are in one important sense distinct from an individual seeking an exemption that affects only his or her own practice of religion. These latter types of requests may fall within “reasonable accommodation” provisions as outlined in federal and state RFRA (Religious Freedom Restoration Act) statute language and in related court rulings on same. Another example of this type of personal accommodation might be allowing a Quaker working at the post office to decline processing Selective Service draft forms due to his faith-based pacifist beliefs, provided there are others in the facility who can provide this same service equally. The point is that only the exemption claimant is impacted in these “private practice” scenarios.

Case law continues to evolve on such accommodations, which theoretically protect against forcing one to violate individual conscience, provided they do not create other unreasonable burdens elsewhere and provided no harm is intended against or done to others.

Accommodating discrimination

It’s on this latter proviso that Davis’ position falters. Because she is an agent of government demanding not only that her own religious belief be protected, but also that she be allowed to direct her religious discrimination against a specific group of citizens and deny them equal rights and equal protection that are guaranteed by law. In this she does aim to harm others. One must ask: Doesn’t this bring a troubling new dimension to the concept of “reasonable accommodation”? That is, isn’t this accommodating not only private belief but also unequal treatment?

However her case ultimately plays out, Davis has raised once again the larger issue of what it means to separate church and state, and more specifically how far an individual can go in using his or her own religious beliefs as justification to violate established law and/or withhold equal rights and equal protections from fellow citizens. So how much deference should be granted in civic matters to the religious freedom claims being raised with increasing frequency today?

 Founders’ views

It is appropriate to look to Founders such as Thomas Jefferson and James Madison for insight on resolving the kind of conflict Davis has triggered. There is ample evidence that Madison and Jefferson were staunch defenders of the individual’s right to privately practice whatever faith he or she chooses. In his oft-quoted Memorial and Remonstrance Against Religious Assessments, Madison said, “The
religion then of every man must be left to the conviction and conscience of every man.” Jefferson wrote in his Notes on the State of Virginia that rulers can have authority over natural rights “only as we have submitted to them. The rights of conscience we never submitted.”

But parallel with their advocacy of one’s freedom to practice religion of choice was an equally firm resolve to guard against any person, group or government imposing its favored religion onto others. Jefferson addressed this most forcefully in his Virginia Statute for Religious Freedom, a document that was revolutionary in its day, not only for America but also in the eyes of the world, for its decoupling of church and state. In it he said, “Our civil rights have no dependence on our religious opinions.” He further said withholding rights from an individual on the basis of religious preference “is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right.” He added that such a practice “tends only to corrupt the principles of that religion it is meant to encourage” and ultimately constitutes “a dangerous fallacy which at once destroys all religious liberty.”

In other words, using religion to discriminate eviscerates religious liberty. Obviously, it also lays waste to individual secular liberty as well.

Even Scalia agrees

In spite of the remarkable legacy of religious freedom Jefferson and Madison bequeathed to us, back in their day some conservative religionists tarred them as atheists and infidels for the steps they took to restrain religion’s excesses when it reaches into the body politic and impacts people of widely varying, or no, religious beliefs. By any measure, in matters of religious freedom these Founders were radicals, both in what they allowed and also what they limited. How might such “radical” views apply to a contemporary issue like a county clerk refusing same-sex marriage licenses?

Consider the words of a decided non-radical, Supreme Court Justice Antonin Scalia, who held forth in 2002 on the question of what public officials should do when their official obligations conflict with their religious conscience. Using the example of the death penalty, Scalia said if he were to conclude that the death penalty violates his own religious morals, he should no longer serve on the bench. He criticized Justice Harold Blackmun for announcing he could no longer morally support capital punishment and would therefore, going forward, vote to overturn all death sentences. Said Scalia: “[I]n my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws . . . He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own.”

If Davis had applied this thinking to her own situation, her principled choice would have been to resign an office whose required duties for her amount to what she believes are moral wrongs. This would preserve her own conscience while not violating the rights and consciences of others who believe differently.

There was also Scalia’s earlier opinion in the 1990 case Employment Division v. Smith, in which two Native American drug counselors contested their denial of unemployment benefits after being fired from their job for illegal use of peyote in what they said was a religious ritual. Although the Court’s ruling against plaintiffs was controversial and eventually led to a new statute clarifying what criteria might justify religious exemptions to laws, this case did establish the point that religious motivation does not automatically place individuals beyond the reach of a generally applicable law. The Court said religious exemptions cannot “in effect permit every citizen to become a law unto himself.” Scalia agreed, warning that allowing people to pick and choose which laws they would follow on the basis of religion “would be courting anarchy.”

Madison’s “peculiar exemptions”

But today the religious exemptions campaign proceeds apace. In June of this year a bill was introduced in the House of Representatives, misleadingly titled the First Amendment Defense Act (FADA). It essentially would prohibit government from penalizing discrimination undertaken in matters related to same-sex marriage if the discrimination occurs “on the basis that such a person believes or acts in accordance with a religious belief.” The text of the Act characterizes the conflict at stake as one “between same-sex marriage and religious liberty,” shying away from the more inconvenient fact that the conflict is between equal rights and religious liberty. In other words, a conflict between two cherished ideals of substantial importance.

But as James Madison wrote in his Memorial and Remonstrance challenging proposed religious assessments, “Equality ought to be the basis of every law.” He said the proposed assessments to pay, specifically, Christian teachers “violate equality by subjecting some to particular burdens [and] violate the same principle by granting to others peculiar exemptions.”

“Peculiar exemptions” that violate equality is what the FADA would grant. They are also what efforts like those of Kim Davis seek to have granted. In a conflict between equal rights and religious liberty, she (like the FADA sponsors) wants to be handed a win exclusively to her claimed “religious freedom,” giving her a green light to discriminate against fellow citizens in religion’s name. But as Madison went on to ask, rhetorically, in Remonstrance: Should any specific religion(s) “be endowed above all others with extraordinary privileges?”

Forces on the religious right have risen to Kim Davis’ defense, in effect saying that, indeed, her religion should be endowed above others with such special privileges. This “special privileges” point is not an exaggeration because even several mainstream churches are accepting of same-sex marriages and willing to perform them; yet Davis wants to use her own religious beliefs to deny even these other churchgoers—these adherents of other religions—their equal access to a marriage license. She clearly seeks an extraordinary privilege.

Which divine law? Whose interpretation?

A Wisconsin pastor who spoke in support of Davis’ stance said she is following God’s authority and proving that “divine law trumps human law.” But in a religiously pluralistic society, this immediately raises the obvious question: Which divine law trumps human law? Christian? Jewish? Muslim? Other? And whose interpretation of divine law applies, since these are wildly variable and no one can legitimately claim having a direct hotline to God?

It is precisely for these reasons—this diversity of religious conviction—that the Founders struggled so strenuously to keep religion and government apart. As Madison pointed out in his Remonstrance: “Who does not see that the same authority which can establish Christianity, in exclusion of all other religions, may establish with the same ease any particular sect of Christians, in exclusion of all other sects?” Or as Jefferson observed in his Notes on the State of Virginia: “Difference of opinion is advantageous in religion. What has been the effect of coercion? To make half the world fools, and the other half hypocrites. It does me no injury for my neighbor to say there are twenty gods, or no god.”

Where would it end?

Today we can pose our own Madison-like rhetorical questions: Should a Muslim who embraces a Saudi version of Islam and who works in a Department of Motor Vehicles office have the “privilege” of denying a driver’s license to a woman based on his religious belief? Should a member of the Creativity Movement “religion” (formerly World Church of the Creator) who works at a post office have the “privilege” of refusing to mail packages for Jews and African Americans because his religion sees them as lesser beings than Christians and Caucasians? If a Jehovah’s Witness is a CEO at a hospital, should she be able to claim the “privilege” of prohibiting blood transfusions to all patients, because her religion insists that God directs everyone to “abstain from blood”?

(Remember it would be unacceptable to pick and choose which religiously based special privilege to allow and which to deny, only on the basis of palatability, since all religions must be treated equally.)

One would hope virtually all rational thinking and fair minded people would answer “No” to the rhetorical questions just posed. They would likely say these discriminators should not be in these jobs if this is how they will carry out their duties. Which is why it’s reasonable to suggest that just as you choose what religion you wish to embrace, it makes sense to also select employment, business interests and other pursuits that do not put you in a position of having to, in your mind, choose between your personal faith and the protected rights of your neighbors. Because if and when those two do clash, there’s little honor and no fairness to be won in insisting that your faith-based special privilege supersedes all.

Many apparently do not see the quite similar problem in the analogous case of Kim Davis singling out same-sex couples as not being entitled to their rights, though her job pays her to recognize those rights. But if she has her privilege granted, what precedent does this set and where does it end?

Freedom from imposition

It becomes ever more apparent that our own history and our contemporary understandings of equal rights are not on Davis’ side when she invokes religious freedom as grounds for illegal discrimination. Rather the consensus lies with Jefferson and Madison, who said it is critical to guard against any religion’s attempts to dominate citizens as a whole or abridge their legal rights.

In short, “religious freedom” and “freedom of conscience” are not absolutes to which all other principles in our pluralistic society must defer every time these freedoms are invoked to justify exemptions. What is absolutely critical is to maintain a demarcation between religion/conscience claims that affect only the individual claimant and those that go on to impermissibly harm fellow citizens by truncating their guaranteed rights. Freedom to practice your religion does not confer freedom to impose it on others.

Certainly our system that sacralizes a panoply of individual rights and liberties—that of religion being one—demands this separation if it is to survive and not slip into either anarchy or a quasi-theocracy.

Now more than ever, particularly as the Obergefell v. Hodges ruling on same-sex marriage foments demands for giving special privilege to religion, we need to maintain the “wall of separation between church and state” that Jefferson called for in 1802 when writing to, yes, church leaders.

When someone like Kim Davis or any of her ideological colleagues and imitators point to their own chosen religion to claim a special privilege to deny or diminish the rights of others—and when we see not just religious extremists but also mainstream political figures defending such a posture—it also brings to mind what Madison said to his own political colleagues in his Memoria
l and Remonstrance
. Referring to the attempt to favor religion with special advantages, this Father of the Constitution warned: “It is proper to take alarm at this experiment on our liberties.”

It’s a warning that is newly applicable today.

Next month: A closer look at “conscience” as it is involved in claims for religious exemptions.

Religious Liberty from a Religious Perspective

Rev. Broadbent Portrait

by Rev. Dr. Benjamin J. Broadbent

Lead Minister of The First Congregational Church, United Church of Christ, of Colorado Springs

This speech was given at the 2015 Creating Community Breakfast.

It is a joy and honor to be here with all of you at Citizen’s Project’s 11th Annual Creating Community Breakfast. We’re here because we value inclusion, equality, justice, and respect for the dignity of all. In fact, we believe that these values can and should direct our future as a city, as a state, and as a nation.

We’re here because we believe deeply in religious liberty. That is, we believe in the freedom to practice religion according the dictates of our individual consciences and historic traditions. We also believe in freedom from coercion on the part of any setting of government to impose or favor the religious beliefs or practices of any person or group upon another person or group.

In Colorado Springs, Citizen’s Project has championed efforts to cherish and observe the separation of church and state. Citizen’s Project has promoted open and well-informed conversations about this important constitutional safeguard. In addition, Citizen’s Project has been a strong participant in statewide efforts to defeat RFRA-style legislation in Colorado.

For some of you, it may be easy to understand why a person who is not explicitly religious would support the separation of church and state and would oppose efforts to (quote) “restore religious freedom.” But it may not be so clear why a committed Christian and clergy person like myself would share those same values.

As a Christian pastor, it is laughable, if not sad, that Jesus’ ministry has been used to exclude and discriminate. Jesus called people to a freedom of inclusion, equality, justice, and profound respect for the dignity of all.

I owe the following insight to my friend and colleague, Matthew Myer-Boulton, President of Christian Theological Seminary in Indianapolis. In recent months, Matt has been on the front lines of the RFRA debate. He and many others have labored to point out that this is not a religion versus equality debate in our country. This is a discrimination-versus-equality debate with people of various religious commitments, and no religious commitments arguing for and against the right to discriminate.

In the Gospel According to Luke, in response to the command to “love your neighbor as yourself,” a lawyer asks Jesus, “And who is my neighbor?” It is a “gotcha” kind of question, meant to draw a circle around one group we are required to love and serve and creating another group we may supposedly exclude as outsiders.

But Jesus will have none of it. In his response – the Parable of the Good Samaritan – Jesus flips the question on its head as if to say, “Don’t waste your time asking the clannish question of who your neighbors is; instead, go and be an excellent neighbor, serving all with mercy and justice.”

I value the separation of church and state because my religious commitments as a follower of Jesus include the values of justice and mercy, equality and respect. Citizen’s Project is, for me, a project of the citizens of Colorado Springs that celebrates the diverse contributions of my neighbors who are Buddhist and Muslim, Atheist and Evangelical, Jewish and Hindu, Humanist and Mormon. Whatever religious views, even anti-religious views, we bring to bear upon our common life, we will not promote one over the other and will not tolerate the use of ideology to discriminate against any of our neighbors. That is our project as citizens of Colorado Springs; that is the work of the Citizen’s Project.

Citizens Project educates, empowers local churches to protect their tax-exempt status.

Every year, there is an effort to undermine IRS regulations regarding electioneering by tax-exempt organizations, called “Pulpit Freedom Sunday.” In response, this month Citizens Project sent letters to over 350 local churches to make them aware of conflicts that could potentially arise this election season and how to protect their IRS 501(c)3 status.

We are committed to being a resource to faith communities as they endeavor to engage in dialogue with church members about policy issues related to their faith while not jeopardizing their tax-exempt status. The letter highlighted guidelines of activities that faith communities must avoid and also activities that are permitted to be in compliance
with IRS regulations. Read the letter here…

Legal Precedent, Religious Freedom, and the Hobby Lobby Court Decision

By Anya Arndt

supreme courtReligious freedom in the United States will never look the same again; while the majority of Supreme Court justices believe that their ruling on the Burwell v. Hobby Lobby case will not be taken to extremes, history tells us otherwise. In fact, it was unexpected consequences of the ruling on the Citizens United case that partially allowed the Burwell v. Hobby Lobby ruling to turn out as it did. When Citizens United is boiled down to its fundamental principle that corporations have the same rights as individuals, it translates into the Supreme Court’s ruling on the side of Hobby Lobby as a corporation with religious beliefs. As I will explain, the Hobby Lobby ruling has provided fertile battle ground for those insisting that the right to discriminate is covered under religious freedom. Since corporations are now protected under the Religious Freedom Restoration Act, it will not be long before we see advocates of “freedom to discriminate” working to make it legal for businesses across the country to discriminate against customers and deprive employees of rights, as long as those can be founded in “sincerely held religious belief.”

The Burwell v. Hobby Lobby case can be simplified to a single question: whether or not Hobby Lobby, a corporation owned by individuals with particular religious beliefs, qualified for an exemption under the Religious Freedom Restoration Act (RFRA). RFRA, codified in 1993, exists to prevent the establishment of laws that substantially burden the free exercise of religion (as protected in the First Amendment).[1] In efforts to protect the exercise of religious freedom, the Supreme Court has often had to assign the nebulous standard of “sincerely held religious belief” to make rulings.[2] While the beliefs of the Green family concerning abortion in Burwell v. Hobby Lobby are not scientifically accurate, they are, arguably, sincerely held; had the Supreme Court decided that the Green family’s beliefs were not sincere, they could have rejected the case. But what is sincerely held religious belief in the context of the American justice system? Courts often look to things like longevity of belief and consistent adherence to the tenets of that belief to determine sincerity; in agreeing to hear the Hobby Lobby case, it was understood that the Supreme Court found the Green family’s beliefs to be sincere.[3] Since sincerity was already assumed, what the Supreme Court had to decide was whether or not complying with the legal mandate of the Affordable Care Act would impose a substantial burden on the owners of the business. If a law poses such a burden, the constitutionality of the law hangs on whether or not there is a compelling state interest to keep the law in place as is. This is all in accordance with what is known as the “Sherbert Test,” developed following the 1963 Supreme Court case of Sherbert v. Verner, which was reinstated, after being curtailed in the 80s, by RFRA.[4]

10775-hobby lobby for cms.800w.tnTo state the case simply, Hobby Lobby claimed that the fine it would incur, under the Affordable Care Act, for following its religious convictions to not provide all forms of birth control was substantial. Ultimately, the majority of the Supreme Court justices agreed, deciding that the government could not justify such an imposition on the faith of the corporation/owners of the corporation. Thus, the ruling determined that the law did indeed pose a substantial burden, and that the government should provide another option to for-profit organizations with sincerely held religious beliefs. Corporations are now protected under the Religious Freedom Restoration Act.

This ruling is cause for much concern; beyond the obvious implications for women’s health care, the ruling also sets a precedent. Because the legal system in the United States relies so heavily on precedent, the ruling in one case can affect the outcome of another seemingly unrelated case, and this is why the Hobby Lobby decision is so disturbing. For example, the majority opinion in Citizens United, a case about campaign finance, insisted that the ruling was only upholding the First Amendment, but, as mentioned above, the implications of that ruling meant that the Hobby Lobby case was heard and corporations are now able to hold religious beliefs equal to (and arguably more important than) those of citizens and corporation employees. The same is true of the recent Supreme Court ruling in Shelby County v. Holder, which gutted key aspects of the Voting Rights Act of 1965. The majority opinion in this case suggested that aspects of section four of the act were no longer necessary to protect voters from discrimination, and were therefore unconstitutional. Despite this opinion, within hours of the ruling, officials in states that were previously bound by regulations of the Voting Rights Act began pledging to enforce suppressive voter ID laws that would not have been cleared under the 1965 act. Like in the Citizens United and Shelby County cases, the majority opinion in the Hobby Lobby case rebukes the possibility that this ruling will set yet another dangerous precedent making room for discrimination, but history has shown that such an opinion is far too optimistic. In the dissenting opinion, Justice Ruth Bader Ginsburg decries the majority opinion with this exact concern: “The Court does not even begin to explain how one might go about ascertaining the religious scruples of a corporation where shares are sold to the public. No need to speculate on that, the Court says, for ‘it seems unlikely’ that large corporation ‘will often assert [Religious Freedom Restoration Act] RFRA claims.’”[5]

The possibility this precedent poses is a particular threat because there have been so many religious liberty cases recently in regards to providing services to people (and particularly couples) identifying as Lesbian, Gay, Bisexual, and Trans* (LGBT). Fortunately, many of these “freedom to discriminate” cases have already been shut down on the state level, but the Supreme Court’s decision could certainly invigorate those who have not yet brought their cases to court. Additionally, on the employment level, as President Obama appears to be growing closer to signing an executive order barring discrimination against people who are LGBT by companies doing government work, more and more organizations are demanding that a faith exemption be included in the order. The implications of the Hobby Lobby ruling can spell disaster for these matters in terms of LGBT equality. Because of the Hobby Lobby ruling, groups advocating for a religious exemption to LGBT inclusion practices have more ground on which to base their argument. On the other side, LGBT advocacy groups have become so critical of religious exemptions in anti-discrimination laws since the Supreme Court’s decision, that many have even withdrawn support from the current iteration of the Employment Non-Discrimination Act, currently being held up in the House of Representatives. “As currently drafted, ENDA contains a provision that allows any religious organization that qualifies to discriminate on the basis of religion — e.g., a Catholic group is permitted to only hire Catholic employees — to also continue discriminating against LGBT workers.”[6] Recognizing the danger of the precedent set by the Hobby Lobby ruling, many pro-equality groups are worried about giving any more ground to those who insist upon their religious freedom to discriminate.

Ruth Bader GinsburgThe reality of the Hobby Lobby case ruling is, as many political bloggers have pointed out, that corporations owned by people with religious convictions have more rights and freedoms than the individual employees of those corporations. The implications of this ruling could be numerous. For example: if corporation owners can deny their employees the right to health care on religious grounds, what is to prevent them from refusing services to particular customers on religious grounds? Or, if closely-held for profit companies can have religious beliefs, can publicly-traded companies hold religious beliefs? Furthermore, if corporations are protected under the first amendment, are they protected under the second amendment? Finally, there is the question of whose faith is covered, as Justice Ginsburg points out in the dissenting opinion: “Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by [this] decision.”[7] The list of questions goes on, and in time we will see the extent to which this landmark ruling will affect the daily lives of U.S. citizens. For now, however, it is safe to say that religious freedom, as we knew it, is gone in the United States.

References:

[1] Lutz, Zak. “Limits of Religious Freedom.” May 27,2013. Harvard Political Review. http://harvardpolitics.com/covers/religion-and-politics/limits-of-religious-freedom/

[2] Collins, Richard. “Religious Freedom and Obamacare.” Lecture, from UCCS, Colorado Springs, April 10, 2014.

[3] ACLU. “Know Your Rights: Freedom of Religion.” November 2012. https://www.aclu.org/files/assets/know_your_rights_–__religion_november_2012_0.pdf.

[4] Collins, Richard. Religious “Freedom and Obamacare.” Lecture, from UCCS, Colorado Springs, April 10, 2014.

[5] Allon, Janet. “10 Blistering Highlights from Justice Ruth Bader Ginsburg’s Hobby Lobby Dissent.” July 1, 2014. Alternet. http://www.alternet.org/civil-liberties/10-blistering-highlights-justice-ruth-bader-ginsburgs-hobby-lobby-dissent.

[6] Ford, Zack. “Following Hobby Lobby, Some LGBT Groups Abandon Workplace Nondiscrimination Bill.” July 8, 2014. ThinkProgress. http://thinkprogress.org/lgbt/2014/07/08/3457967/lgbt-groups-drop-enda/.

[7] Liebelson, Dana. “The 8 best lines from Ginsburg’s dissent on the Hobby Lobby contraception decision.” June 30, 2014. Mother Jones. http://www.motherjones.com/politics/2014/06/best-lines-hobby-lobby-decision.

Madison and Jefferson v. Scalia and Thomas on Church-State Separation

by Ken Burrows

The May 5th Supreme Court decision in Town of Greece v. Galloway concluded that the practice by the Greece, NY, town board of opening its meetings with predominantly Christian prayer does not violate the Establishment Clause of the Constitution. This despite the fact the practice causes a certain religious imposition on those citizens attending the town board meetings who see themselves as excluded or at least marginalized by being subjected to official governmental prayer, sectarian in nature, that effectively endorses a faith they do not themselves subscribe to.

Anthony_Kennedy_official_SCOTUS_portrait_cropJustice Anthony Kennedy in writing the Greece opinion insisted it “faithfully reflects the understanding of the Founding Fathers,” which one would assume refers to the Founders’ views on the role of religion vis-à-vis government—the key issue at stake in Greece. But is that claim of fidelity to the Founders as patently true as Kennedy would have us believe?

Today’s two Supreme Court justices most willing to accept church-state entanglement are Antonin Scalia and Clarence Thomas, both of whom concurred in the Greece opinion. They can consistently be found to have virtually no problem with church-state entanglements that tilt in favor of religion. The two Founders most opposed to such entanglements were James Madison and Thomas Jefferson, who incidentally were also the two chief drafters of the Constitution; the former is in fact often referred to as the Father of the Constitution.

If we compare the writings of Madison and Jefferson against the writings and statements of Scalia and Thomas, we find, at a minimum, that today’s justices fall short of the clarity Madison and Jefferson brought to their advocacy for church-state separation and indeed show a willingness to compromise on the very principles these Founders advocated.

It’s ironic because Scalia and Thomas lay claim to also being the two strongest “originalists” on today’s Supreme Court, with Scalia insisting historical inquiry is mandatory to understand the original meaning of the Constitution and what its drafters intended. It’s a reasonable enough position to hold. After all, given the roles Madison and Jefferson played in framing the Constitution, these Founders’ church-state views are, dare we say it, supremely relevant. Whether Scalia and Thomas are faithful to those views will be the subject of this writing

Madison

Madison’s views on the proper relationship between government and religion were most enduringly spelled out in his 1785 Memorial and Remonstrance Against Religious Assessments, a 15-point opposition to Patrick Henry’s proposal to use state funds in Virginia to pay teachers of the Christian religion. Here we find Madison making a number of statements of resounding clarity. For example:

“The religion then of every man must be left to the conviction and conscience of every man.”

“In matters of religion, no man’s right is abridged by the institution of Civil Society and Religion is wholly exempt from its cognizance.”

James Madison“Instead of holding forth an Asylum to the persecuted, it [Patrick Henry’s bill] is itself a signal of persecution. It degrades from the equal ranks of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority… the bill implies either that the civil magistrate is a competent judge of religious truths, or that he may employ religion as an engine of civil policy. The first is an arrogant pretension falsified by the contradictory opinions of rulers of all ages and throughout the world; the second an unhallowed perversion of the means of salvation.”

But his Remonstrance was by no means Madison’s only commentary on the subject. In a letter to Edward Livingston in 1822 he opened by saying, “I observe with particular pleasure the view you have taken of the immunity of Religion from civil jurisdiction… This has always been a favorite principle with me.  … in some parts of our Country there remains a strong bias towards the old error, that without some sort of alliance or coalition between Govt and Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded against. … Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion and Govt will both exist in greater purity, the less they are mixed together.”

In a post-presidency Detached Memorandum Madison pointed out inconsistencies he saw between government practice and the spirit of church-state separation embodied in the First Amendment. (For one thing, Madison opposed having government monies pay for military or congressional chaplains, calling it unconstitutional.) He refers to attempts that were made by some delegates in Virginia to insert the words “Jesus Christ” after “our Lord” in the preamble to Jefferson’s Statute for Religious Freedom. [Note: In these 18th and 19th century times, terms such as “Lord” referred primarily to God in a generic sense and not to any individual such as Christ.] Madison said such an insertion would have implied “a restriction of the liberty defined in the Bill to those professing his religion only,” and applying the name Jesus in such a context would profane it “by making it a topic of legal discussion, & particularly by making his religion the means of abridging the natural and equal rights of all men.”

Madison’s Memorandum went on to criticize the issuance of religious proclamations by government, saying that although they might be recommendations only, “they imply a religious agency… [and] seem to imply and certainly nourish the erroneous idea of a national religion.” A related problem he saw was that the practice tends to narrow the recommendation to the standard of the predominant sect “and naturally terminates in a conformity to the creed of the majority.” He concluded forcefully that “members of a Govt can in no sense be regarded as possessing an advisory trust from their Constituents in their religious capacities. They cannot…issue decrees or injunctions addressed to the faith or the Consciences of the people.”

Around 1832, Madison penned another Memorandum in which he called upon states that still had formal ties with religious bodies to emulate Virginia’s example of religious freedom through church-state separation. “Make the example of your Country as pure & compleat,” he wrote, “in what relates to the freedom of the mind and its allegiances to its maker, as in what belongs to the legitimate objects of political and civil institutions.” In other words, a pure and complete separation of religion from government.

Jefferson

For his part, Jefferson most famously expressed his church-state views in his Virginia Statute for Religious Freedom, first drafted in 1777 and passed by the General Assembly in 1786. The statute opens with the statement that “Almighty God hath created the mind free.” Only a few lines later Jefferson notes that even the “Holy author” of religion chose not to propagate faith by coercing the mind, and he goes on to castigate “the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions.”

Thomas JeffersonHis statute goes on to say “our civil rights have no dependence on our religious opinions” and for a civil magistrate to “intrude his powers into the field of opinion…is a dangerous fallacy, which at once destroys all religious liberty.”

In writing to Dr. Benjamin Rush, a co-signer of the Declaration of Independence, Jefferson said, “Religion is a subject on which I have been most scrupulously reserved. I have considered it a matter between every man and his Maker, in which no other, and far less the public, had a right to intermeddle.”

And, of course, there is the well known response Jefferson sent to the Danbury Baptists in 1802 after they’d expressed concern about the security of their own religious freedom. In this period Baptists were a minority faith and were frequently discriminated against and excluded as a result of collusions between government and majority religions. They wrote to Jefferson to ask that he do what he can as president to ensure their religion would be given fair and equal treatment. In his response Jefferson wrote: “Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with solemn reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”

Scalia and Thomas

Antonin_Scalia_official_SCOTUS_portrait_cropScalia’s insistence on “historical inquiry”—and his and Clarence Thomas’ corollary commitment to honoring the Founders’ original intents—have apparently missed much of what Madison and Jefferson had to say.

Compare the church-state positions of Madison and Jefferson against the Court’s Greece opinion, which tells citizens who see offense in being subjected to governmental prayer that they are free to leave the room, arrive late, or lodge a protest afterward. In short, the majority justices said if government wants to pray and even promote a specific faith, it can.

It’s worth noting as well that the plaintiffs in Greece were not asking the Court to ban town board prayers, but merely to ensure that such prayers are ecumenical and inclusive. This was actually a lesser standard of church-state separation than even Madison and Jefferson would be likely to have accepted, but still the Court said, in effect, sectarian governmental prayer is no problem. Live with it. This hardly qualifies as reflecting the Founders’ intent.

Justice ThomasOn the contrary, this is the kind of mindset Madison and Jefferson consistently opposed. Indeed, in many ways, it’s a mindset that Founders of many stripes fomented a revolution against. Delegates to the Constitutional Convention underscored this desire to separate church and state by going so far as to reject suggestions to bring prayer into their deliberations. The Greece town board’s public prayer habit thus turns history on its head, no matter Kennedy’s protestation to the contrary. It contradicts Madison’s and Jefferson’s positions, no matter that Scalia and Thomas agree with Kennedy that it is faithful to them.

In their separate concurring opinions in the Greece ruling, Scalia and Thomas move even further away from the clear separation of religion and government Madison and Jefferson called for by saying the Constitution is not violated by “subtle pressures” Greece citizens claimed to have felt with town board praying. The justices insisted it was only the imposing of religion “by force of law and threat of penalty” that the Founders objected to. A more careful read of what the Founders actually said finds their opposition to mingling government and religion to be far more encompassing and far less nuanced than that.

What else can it mean to assert there is no public right to intermeddle with an individual’s religion? What else does “a perfect separation between ecclesiastical and civil matters” mean?

The Founders’ Faith

It’s no secret that Madison and Jefferson in their personal lives practiced the independent thinking about religion that they brought to their public advocacy. While they were scrupulous in not attempting to foist their private faith convictions onto others by law or policy, understanding their personal religion aids understanding what they sought to achieve in something like the Constitution.

They were certainly not in the mold of today’s “religious right” with its constricted faith tenets and maneuverings for political influence, frequently on nonreligious issues. But they were just as certainly not atheists. They cherished their faith. They regularly made references to God, the Creator, the Holy Author, the Supreme Lawgiver. Both men were Deists, believers in a God who set things in motion and then did not intervene in the activities of humankind.

Jefferson believed Jesus to be a model teacher with wisdom worth sharing but did not believe in his divinity. He saw the Bible as holding some sound moral advice but also errors and superstitions, and he thought Christians as a group had by and large actually corrupted Jesus’ teachings. He dismissed the entire Old Testament and made his own “bible” by stripping out New Testament accounts of miracles and supernatural happenings. He was confident a society could be moral without being Christian and that human conscience and reason, rather than divine revelation, was the path to what he termed “true religion.” No wonder he once wrote: “Difference of opinion is advantageous in religion. … What has been the effect of coercion? To make one half the world fools and the other half hypocrites.” And “it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”

Madison was fairly reticent about his religious views. He grew up Episcopalian but never formally joined a church. He is thought to have been greatly affected, and offended, in watching his father enforce laws against dissenting preachers, especially the Baptists. He is known to have opposed anti-Catholic prejudices, which were extensive in his time; Catholics in fact, also referred to as papists, were often the only religious group formally prohibited from holding public office. Madison was seen as someone open-minded and sympathetic on religious questions. In his famed Remonstrance he spoke of “the duty which we owe to our Creator” but immediately said the manner of discharging it “can be directed only by reason and conviction.” He included the statement: “Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man.”

Though they advocated tirelessly for keeping government and religion apart, it is obvious neither Madison nor Jefferson was anti-religion. On the contrary, they viewed church-state separation as indispensable to protecting religious liberty, and especially protecting religious minorities, accommodating even nonbelievers. They were suspicious of any attempts to compromise on separation because doing so imperiled the religious freedom of anyone not in the faith or sect predominantly favored by government.

Scalia and Thomas vs. Madison and Jefferson

Compare these views and advocacies of Madison and Jefferson to Clarence Thomas’ astonishing contention, stated in past cases and stated again in his joint Greece concurrence with Scalia, that the Constitution restricts only Congress from establishing religion, but the individual states should be free to do so. Wrote the two justices: “The First Amendment was simply agnostic on the subject of state establishments; the decision to establish or disestablish religion was reserved to the States.”

Whatever linguistic parsing they have managed to twist out of the Constitution to draw this conclusion, there is no rational basis to see it as being consistent with what the Founders’ intent was.

Madison and Jefferson were also defenders of religious pluralism. In his autobiography, Jefferson looked back on the vote by Virginia delegates to not include specifying “Jesus Christ” as “the Holy Author” referred to in his Statute for Religious Freedom, and said this was “proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, The Christian and the Mahometan, the Hindoo, and Infidel of every denomination.”

And now once more compare this to a Scalia dissent in the 2005 McCreary County v. ACLU case dealing with Ten Commandments displays on government property. In his dissent, he said the Establishment Clause does not protect religious minorities or nonbelievers from majoritarian sentiment and said it is a “demonstrably false principle that the government cannot favor religion over irreligion.” In addressing the conflict between adherents of minority religions and nonbelievers, and the majority believing in the religious precepts in the Ten Commandments, Scalia said, “Our national tradition has resolved that conflict in favor of the majority,” and the Establishment Clause “permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.” (By contrast, Justice Sandra Day O’Connor, concurring with the majority, said, “We do not count heads before enforcing the First Amendment.”)

So according to Scalia, the Constitution gives a green light to “disregard” citizens who embrace faiths that majorities disapprove of. It must be asked: Not only does Scalia have a truncated, if not warped, grasp of the Founders’ history, but does he even understand the most basic meaning of religious freedom as the Founders envisioned it? Does it cross his mind that it was the genius of people like Madison and Jefferson that salvaged his own Catholicism from the “disregard” heap, thanks to their demand that government have no preferences or influence in matters of religion?

Consider one more case. In the 1992 Lee v. Weisman case, Daniel and Vivian Weisman protested prayers being said at their daughter’s graduation from Nathan Bishop Middle School in Providence, RI. They sued Principal Robert E. Lee and the school board. Justice Anthony Kennedy, writing for the majority in plaintiffs’ favor, applied the “coercion” test he had proposed in a previous case on a different church-state issue. He said students face subtle, coercive pressures to join in prayer and thus such prayers in context of a public school are not constitutional. Scalia dissented. Noting that President Bush had asked people attending his inauguration to bow their heads in prayer, he said the Weisman daughter and her family should be willing to do the same and “thank God for the blessings He has generously bestowed on them.”

In other words, Scalia’s view was that this family should abandon their own freely and conscientiously held faith and accept the majoritarian religion in its place. Exactly the kind of suppression of religious freedom that Madison and Jefferson fought fiercely against, and warned against it arising in the future whenever government and religion intermingle.

History matters

Constitutional originalists like Scalia and Thomas deride the concept of a Constitution whose meaning must evolve with the changing circumstances of history. Because, they say, this opens the door to finding rights and guarantees in the document that are not there, leading to judicial activism. They say this strays from the Founders’ original intents. (They are evidently untroubled by the practice of appending “so help me God” to the presidential oath even though the phrase is not prescribed in the Constitution, a document that was made 100% secular by the original intent they say they hold sacred.)

constitutionYet court rulings through the decades, many with the backing of such originalists, have arguably already strayed from the Founders’ intents on church-state matters—at least Madison’s and Jefferson’s intents—as more and more accommodations are made for allowing a level of religious imposition to occur under the guise of “religious freedom.” This is particularly so when religion and government intermingle instead of them being kept separate as Madison and Jefferson intended.

The Greece decision rested largely on the precedent case of Marsh v. Chambers, a 1983 decision that upheld the constitutionality of prayer led by chaplains in a state legislature. (But note that some legal analysts interpret Marsh to have okayed only nonsectarian prayer, whereas the majority in Greece specifically eschewed such a limitation.) One can plausibly maintain that the Greece ruling is in keeping with its precedent court opinions. What is far less tenable is to maintain that the reasoning in Greece is faithful to what Madison and Jefferson espoused.

In fact, when Greece is viewed in the context of its cited precedents, the question to be asked is whether the evolving law on church-state separation is on a wayward track, gradually straying from the principles the Founders handed down. Are we judicially “unlearning” our history, and could we risk repeating the history of religious favoritism, imposition, and strife the Founders labored so long and hard to do away with?

Scalia and Thomas aren’t helping us avoid that. It appears that for these self-described originalists, the revolutionary convictions of our Founders on separating religion and government were, well, just too revolutionary. It’s safe to say that if Madison and Jefferson were writing a majority Court opinion today on a church-state issue, Scalia and Thomas would be the ones filing dissents, with opinions that range from odd to contorted to chilling. Their views weaken Jefferson’s wall of separation and bring to mind Madison’s Remonstrance caution: It is proper to take alarm at these experiments on our liberties.

In recalling Justice William Brennan’s dissent in Marsh, one can all but hear echoes of Madison and Jefferson. He wrote: “Legislative prayer clearly violates the principles of neutrality and separation that are embedded within the Establishment Clause…. It intrudes on the right to conscience by forcing some legislators either to participate in a ‘prayer opportunity’ with which they are in basic disagreement, or to make their disagreement a matter of public comment by declining to participate. It forces all residents of the State to support a religious exercise that may be contrary to their own beliefs. It requires the State to commit itself on fundamental theological issues.”

That’s a perspective well in line with the views of Madison and Jefferson. Too bad Brennan isn’t still around to remind Scalia and Thomas what the true original intents of the Founders were.

We Are Not So Separate

A poem by Emma Brachtenbach

DSC_1895Last night, I slept upon the springtime, mountain ground and thought about the universe.

Under the ancient constellations I pondered the possibilities of sacredness and secular creation and my mind just wouldn’t stop turning.

Like how beautiful would it be if god was genderless and endlessly gendered all at once because then religion could be constructed as truly all encompassing. More than bodies and how we can compartmentalize human beings.

And what if the earth was our original mother: heart beat ringing beautifully every time a new soul slipped from the dark womb of the mother who made us into the light and people singing, creating concentric circles of care and nurturing.  The only tie is the cord reminding us where we come from and where we return.

What if science has it all wrong: the sun is a god who is born, thrives, and dies within the window of our day and sister moon watches over us earth children at night with the help of our cousin stars… We were all star dust once.

Or what if the true sanctity is just understanding how this universe remains in beautiful balance because that’s sacred too.

And the mountains that prophets stood on, spreading the word of their god, were their ancestors with ancient voices singing praises to the sun, and gods, and people, and animals, writing the sermon on the mount, genesis, enuma elish, the significance of the eight spoked wheel, sacred geometry in temples, and to step back and admire the galaxies in the smiles of sacred children.

We are not so separate.

And as I lie here pondering where I fit and where I come from and where I’ll go when I die, I remember that this is a privilege I was endowed with on the day I hit this planet running in search of answers and questions. How beautiful because sacred beings walk on feet. We are not so separate.