Religious exemptions: An experiment on our liberties — Part 2



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.


[1] Lutz, Zak. “Limits of Religious Freedom.” May 27,2013. Harvard Political Review.

[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.–__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.

[6] Ford, Zack. “Following Hobby Lobby, Some LGBT Groups Abandon Workplace Nondiscrimination Bill.” July 8, 2014. ThinkProgress.

[7] Liebelson, Dana. “The 8 best lines from Ginsburg’s dissent on the Hobby Lobby contraception decision.” June 30, 2014. Mother Jones.

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’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.


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.

Creating Community Breakfast Raises over $51,000

DSC_1912More than 500 community members gathered to create community and celebrate diversity at Citizens Project’s tenth annual Creating Community Breakfast.  The breakfast highlighted the work Citizens Project is doing in the Pikes Peak region to promote equal rights, diversity, and religious freedom through separation of church and state, and civic engagement.

This event raised over $51,000 in general operating support for Citizens Project’s many programs including: candidate survey voter guides, its monthly publication Citizens Project Online News, and the Citizens Project Activist Network, which currently serves over 1,500 subscribers. Corporate and in-kind sponsorship for the event was provided by Cascade Investment Group, Platinum Relations, and The Colorado Springs Independent.

The Creating Community Breakfast featured a diverse array of speakers including: Heather Zambrano, Kristy Milligan, Lionel Washington, Emma Brachtenbach, Sarah Musick, and Siri Everett, with featured musical performance by Russ Ware, Crystal Lardy, Ryan Flores, and Yemi Mobolade.

The Creating Community Breakfast celebrated the role Citizens Project has played in creating a community which values diversity, equality and religious freedom. Citizens Project has worked tirelessly to combat extremism and promote respect for diversity in the Pikes Peak region seen since its inception in 1992.