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.
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.
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?
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.