Sixteen Highly-Contested Words in Theory and in Practice
These first sixteen words of the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” provide the foundation for religious freedom in the United States. The history of legal decisions interpreting these clauses is far from consistent. Over time, judicial rulings have tended to alternate between broad interpretations and much more restrictive readings of the First Amendment. In this essay, I will offer some brief thoughts on how to interpret these two clauses and consider two issues that have been central to recent debates over religious liberty.
Interpreting the Religion Clauses
Political rights may appear absolute, but in practice government can and does restrict freedoms. The central question to debate is not “can government restrict freedom?” but “under what circumstances are such laws necessary?” When government policies seek to limit the freedom of any religious group, we need to ask if the restrictions are indeed the only means necessary to achieve an essential government purpose.
The Establishment Clause is designed to protect against the government supporting a particular religion. Judges and legal scholars agree that this forbids the United States from creating an officially-recognized, government-funded church, but what else this clause prohibits or permits is contested. Interpretations range widely from those who say it forbids any government money going to any religious organization to those who claim it allows almost anything short of the government sponsoring a church. My view is that this clause is best interpreted as limiting most direct government funding to religious institutions and organizations but permitting government policies that might result in aid to organizations (whether religious or secular), as long as the policies neither favor nor promote religion.
The other religion clause, the Free Exercise Clause, protects freedom of religious belief and practice. Interpretation of this clause gets more complicated, however, when laws or government activities make religious practices difficult or impossible. I support the legal test created in Sherbert v Verner and since abandoned. According to this test, laws that interfere with religious practices are only allowed if (1) the state can show it has a “compelling interest” for creating the law (the highest standard of scrutiny to justify the need for a law), and (2) the state cannot achieve its goal any other way without hindering religious observance.
The debate over the application of the religion clauses has created much controversy, especially in recent decades. Both clauses are vague and can create tension with each other. As Justice Ruth Bader Ginsburg explained, “While the two Clauses express complementary values, they often exert conflicting pressures.”
Restrictions on Religious Liberty: Some Current Examples
Let me focus the remainder of my essay on addressing two crucial aspects of the debate over religious liberty that have been in the spotlight in recent months: hiring rights and the need for religious exemptions.
Faith-based organizations provide a wide range of essential social and human services that help meet the needs of millions of the poorest and most vulnerable members of society. Consider a few examples. Catholic health organizations provided almost $100 billion in services in 2010. Catholic hospitals admitted 5.5 million patients and served another 100 million people as outpatients. In 2010, the Salvation Army cared for 30.2 million people, served almost 60 million meals, and provided basic social services to 17.5 million people. Organizations like these offer services out of a sense of religious calling and mission; they should have the freedom to decide matters of faith and doctrine for themselves.
Hiring Rights: I strongly support the right of faith-based organizations to consider religious beliefs and religiously-based behavior when hiring employees who are essential for key religious activities and for communicating the faith. Some religious organizations restrict hiring practices to those who agree to a statement of faith and/or behavioral expectations in order to preserve the group’s mission and identity, others choose to hire employees from many faith backgrounds. Religious organizations should be able to make these decisions without government interference. The synagogue need not hire a Baptist cantor; the Christian school has the right not to hire a Hindu teacher.
In its unanimous decision announced earlier this year, the Supreme Court upheld the right of religious organizations to hire ministers using religious criteria. Writing for the court, Chief Justice Roberts explained, “The Establishment Clause prevents the government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.” Although the Hosanna-Tabor decision left unanswered questions about the exact scope of positions that would fall under the term “minister” (a concern Justices Alito and Kagan rightly noted in their concurring opinion), the Court took a powerful stand interpreting the first amendment religion clauses as protecting religious hiring rights.
Religious exemptions: What about government actions that compel religious congregations or faith-based organizations to act contrary to their religious beliefs? Certain government regulations are necessary, and religious organizations should not receive a carte blanche to avoid them. But when mandatory government policies violate religious liberty, the legal test of strict scrutiny should apply.
In my view, the recently-announced health care regulations that will require religious institutions to provide their employees health insurance that covers abortion-inducing drugs, contraceptives, and sterilization is an unacceptable violation of religious liberty. The goal of providing access to preventative health care services is laudable, but such an expansive definition of the term threatens religious organizations’ religious freedom and rights of association. At a minimum, the Department of Health and Human Services should offer religious organizations an exemption from directly or indirectly paying for services or medications that violate their religious beliefs and doctrine.
Faith-based organizations provide billions of dollars in services to hundreds of millions of Americans, many of whom are poor and marginalized. These groups should have the freedom to practice their religious calling and help meet these important needs without undue government interference.
There are two aspects to the religious liberty debate. The first is whether this right adheres to the hierarchy or to the whole Church, which includes its members. Its later incarnation has the bishops fighting for the rights of conscience for all employers who are Catholic, whether or not their business has anything to do with the Church. This reduces the issue to the rights of the funding employer vs. the rights of the individual employee. If the employer wins this battle, it wins all of them and employee rights law is entirely void. That is a strange position for a Church founded by a Nazorean day laborer to take.
The second aspect is whether or not this really is about birth control or not. The bishops allege that certain methods of birth control induce abortion – which gives them an opening to talk about whether both birth control and abortion should be legal generally, so more than religious liberty is at stake here. Leaving that debate aside for now, the issue of whether certain drugs and devices are abortive is an attempt to have them treated in the same way as abortion as far as conscience objections to providing sevices and funding are concerned. Whether or not this claim is true becomes crucial to the debate.
Embryologists are reticient to identify when an embryo acquires a soul. Philosophers need not be so reticient and the results of their conclusions, if based on reason, can be useful in settling this question. The first task is to examine how to define the soul. The question of whether the soul is immortal is a question more for religion rather than ethics, however Classical Philosophy states that the lower obeys the higher – that the physical follows the spiritual. This allows us to look for physical markers and trust that the spiritual is reflected in them. We know that death happens when the energy that holds off entropy stops and the body begins to decay. That energy is marked by directed development guided by our DNA. That energy starts acting in the life of the individual at Gastrulation. Prior to that point, the genetics of the mother are in sole control of the development of the blastocyst and zygote. The paternal DNA have no say in human development until Gastrulation occurs and if the DNA of the parents is flawed or non-human, the zygote dies. Unless we wish to conclude that Heaven is full of such dead and demi-human souls, we can safely conclude that zygote and blastocyst continue under the life energy or soul of the egg, which is the soul of the mother. This being the case, preventing implantation by chemical or physical means is not abortion in the sense that abortion takes a life with a soul. (Arguments that ensoulment happens when the brain is developed enough for rational thought ignore the fact that neuroscience has shown that consciousness is a reflection of thought, not thought itself, so the ability to become conscious is irrelevant to the debate on ensoulment).
If birth control is not abortive, then the only objection to whether employees use birth control on their employer's dime is the sexual morality of the employees. Giving any employer, even a religious one, a say on such issues is a bridge too far and must be resisted, especially when it is generally female employees whose morality is being questioned.
There are two aspects to the religious liberty debate. The first is whether this right adheres to the hierarchy or to the whole Church, which includes its members. Its later incarnation has the bishops fighting for the rights of conscience for all employers who are Catholic, whether or not their business has anything to do with the Church. This reduces the issue to the rights of the funding employer vs. the rights of the individual employee. If the employer wins this battle, it wins all of them and employee rights law is entirely void. That is a strange position for a Church founded by a Nazorean day laborer to take.
The second aspect is whether or not this really is about birth control or not. The bishops allege that certain methods of birth control induce abortion – which gives them an opening to talk about whether both birth control and abortion should be legal generally, so more than religious liberty is at stake here. Leaving that debate aside for now, the issue of whether certain drugs and devices are abortive is an attempt to have them treated in the same way as abortion as far as conscience objections to providing sevices and funding are concerned. Whether or not this claim is true becomes crucial to the debate.
Embryologists are reticient to identify when an embryo acquires a soul. Philosophers need not be so reticient and the results of their conclusions, if based on reason, can be useful in settling this question. The first task is to examine how to define the soul. The question of whether the soul is immortal is a question more for religion rather than ethics, however Classical Philosophy states that the lower obeys the higher – that the physical follows the spiritual. This allows us to look for physical markers and trust that the spiritual is reflected in them. We know that death happens when the energy that holds off entropy stops and the body begins to decay. That energy is marked by directed development guided by our DNA. That energy starts acting in the life of the individual at Gastrulation. Prior to that point, the genetics of the mother are in sole control of the development of the blastocyst and zygote. The paternal DNA have no say in human development until Gastrulation occurs and if the DNA of the parents is flawed or non-human, the zygote dies. Unless we wish to conclude that Heaven is full of such dead and demi-human souls, we can safely conclude that zygote and blastocyst continue under the life energy or soul of the egg, which is the soul of the mother. This being the case, preventing implantation by chemical or physical means is not abortion in the sense that abortion takes a life with a soul. (Arguments that ensoulment happens when the brain is developed enough for rational thought ignore the fact that neuroscience has shown that consciousness is a reflection of thought, not thought itself, so the ability to become conscious is irrelevant to the debate on ensoulment).
If birth control is not abortive, then the only objection to whether employees use birth control on their employer's dime is the sexual morality of the employees. Giving any employer, even a religious one, a say on such issues is a bridge too far and must be resisted, especially when it is generally female employees whose morality is being questioned.
There are two aspects to the religious liberty debate. The first is whether this right adheres to the hierarchy or to the whole Church, which includes its members. Its later incarnation has the bishops fighting for the rights of conscience for all employers who are Catholic, whether or not their business has anything to do with the Church. This reduces the issue to the rights of the funding employer vs. the rights of the individual employee. If the employer wins this battle, it wins all of them and employee rights law is entirely void. That is a strange position for a Church founded by a Nazorean day laborer to take.
The second aspect is whether or not this really is about birth control or not. The bishops allege that certain methods of birth control induce abortion – which gives them an opening to talk about whether both birth control and abortion should be legal generally, so more than religious liberty is at stake here. Leaving that debate aside for now, the issue of whether certain drugs and devices are abortive is an attempt to have them treated in the same way as abortion as far as conscience objections to providing sevices and funding are concerned. Whether or not this claim is true becomes crucial to the debate.
Embryologists are reticient to identify when an embryo acquires a soul. Philosophers need not be so reticient and the results of their conclusions, if based on reason, can be useful in settling this question. The first task is to examine how to define the soul. The question of whether the soul is immortal is a question more for religion rather than ethics, however Classical Philosophy states that the lower obeys the higher – that the physical follows the spiritual. This allows us to look for physical markers and trust that the spiritual is reflected in them. We know that death happens when the energy that holds off entropy stops and the body begins to decay. That energy is marked by directed development guided by our DNA. That energy starts acting in the life of the individual at Gastrulation. Prior to that point, the genetics of the mother are in sole control of the development of the blastocyst and zygote. The paternal DNA have no say in human development until Gastrulation occurs and if the DNA of the parents is flawed or non-human, the zygote dies. Unless we wish to conclude that Heaven is full of such dead and demi-human souls, we can safely conclude that zygote and blastocyst continue under the life energy or soul of the egg, which is the soul of the mother. This being the case, preventing implantation by chemical or physical means is not abortion in the sense that abortion takes a life with a soul. (Arguments that ensoulment happens when the brain is developed enough for rational thought ignore the fact that neuroscience has shown that consciousness is a reflection of thought, not thought itself, so the ability to become conscious is irrelevant to the debate on ensoulment).
If birth control is not abortive, then the only objection to whether employees use birth control on their employer's dime is the sexual morality of the employees. Giving any employer, even a religious one, a say on such issues is a bridge too far and must be resisted, especially when it is generally female employees whose morality is being questioned.
While referencing the Salvation Army and Catholic health organizations you write, “Organizations like these offer services out of a sense of religious calling and mission; they should have the freedom to decide matters of faith and doctrine for themselves.” Taking this into consideration, I have a question with respect to your comments about religious exemption where you write, “Certain government regulations are necessary, and religious organizations should not receive a carte blanche to avoid them. But when mandatory government policies violate religious liberty, the legal test of strict scrutiny should apply.”
Given the high view of work and economic enterprise found in the Catholic tradition (e.g., “Economic Justice for All,” a 1984 letter written by the U.S. Conference of Catholic Bishops) and in the protestant tradition (e.g., among reformers like Luther and Calvin), how do we understand the rights of a construction company or a private law firm or an equipment manufacturer in terms of eligibility for religious exemptions? I think I understand at the level of principal why it is okay for World Vision or Olivet Nazarene University, if they so choose, to hire only Christians. The nature and purpose of those organizations would be undercut if their employees did not share a comprehensive view of life rooted in Christianity. Understandably, then, these organizations should be exempt from certain rules for hiring that would otherwise prohibit employer discrimination based on religious belief. Furthermore, and just as clearly, World Vision and Olivet should be exempt from being forced to do things that would violate their understanding of Christian morality, and if this principle is violated by a law, that law should only stand after being subjected to the test of strict scrutiny, as you argue.
On the contrary, the nature and purpose of a private law firm or construction company does not necessitate the same hiring exemptions as the prior mentioned organizations. The reason is because applicants for positions with these employers should be evaluated largely on their ability to render the service or produce the product at the center of the organization’s enterprise. But, on what principal should a construction company with a founder, CEO, or core group of strategic decision makers who are Christians, not also be protected against legally mandated activities (like paying for a particular medical service) contrary to their religious belief? Senator Blunt’s Amendment attempted make all businesses eligible for exemption from the HHS contraceptive mandate, and when I first heard about it I thought maybe it went too far, even though I was in full support of exempting Christian hospitals, social service organizations, universities, and schools. But, I have yet to be able to articulate why there is or should be a difference. Why shouldn’t the leaders or boards heading these businesses have the ability to resist legally mandated activities that violate their religious beliefs? Why should they not be permitted to promote an ethos within their businesses consistent with Christian moral imperatives that could otherwise be denied by mandates like the one promulgated by HHS?
While referencing the Salvation Army and Catholic health organizations you write, “Organizations like these offer services out of a sense of religious calling and mission; they should have the freedom to decide matters of faith and doctrine for themselves.” Taking this into consideration, I have a question with respect to your comments about religious exemption where you write, “Certain government regulations are necessary, and religious organizations should not receive a carte blanche to avoid them. But when mandatory government policies violate religious liberty, the legal test of strict scrutiny should apply.”
Given the high view of work and economic enterprise found in the Catholic tradition (e.g., “Economic Justice for All,” a 1984 letter written by the U.S. Conference of Catholic Bishops) and in the protestant tradition (e.g., among reformers like Luther and Calvin), how do we understand the rights of a construction company or a private law firm or an equipment manufacturer in terms of eligibility for religious exemptions? I think I understand at the level of principal why it is okay for World Vision or Olivet Nazarene University, if they so choose, to hire only Christians. The nature and purpose of those organizations would be undercut if their employees did not share a comprehensive view of life rooted in Christianity. Understandably, then, these organizations should be exempt from certain rules for hiring that would otherwise prohibit employer discrimination based on religious belief. Furthermore, and just as clearly, World Vision and Olivet should be exempt from being forced to do things that would violate their understanding of Christian morality, and if this principle is violated by a law, that law should only stand after being subjected to the test of strict scrutiny, as you argue.
On the contrary, the nature and purpose of a private law firm or construction company does not necessitate the same hiring exemptions as the prior mentioned organizations. The reason is because applicants for positions with these employers should be evaluated largely on their ability to render the service or produce the product at the center of the organization’s enterprise. But, on what principal should a construction company with a founder, CEO, or core group of strategic decision makers who are Christians, not also be protected against legally mandated activities (like paying for a particular medical service) contrary to their religious belief? Senator Blunt’s Amendment attempted make all businesses eligible for exemption from the HHS contraceptive mandate, and when I first heard about it I thought maybe it went too far, even though I was in full support of exempting Christian hospitals, social service organizations, universities, and schools. But, I have yet to be able to articulate why there is or should be a difference. Why shouldn’t the leaders or boards heading these businesses have the ability to resist legally mandated activities that violate their religious beliefs? Why should they not be permitted to promote an ethos within their businesses consistent with Christian moral imperatives that could otherwise be denied by mandates like the one promulgated by HHS?
While referencing the Salvation Army and Catholic health organizations you write, “Organizations like these offer services out of a sense of religious calling and mission; they should have the freedom to decide matters of faith and doctrine for themselves.” Taking this into consideration, I have a question with respect to your comments about religious exemption where you write, “Certain government regulations are necessary, and religious organizations should not receive a carte blanche to avoid them. But when mandatory government policies violate religious liberty, the legal test of strict scrutiny should apply.”
Given the high view of work and economic enterprise found in the Catholic tradition (e.g., “Economic Justice for All,” a 1984 letter written by the U.S. Conference of Catholic Bishops) and in the protestant tradition (e.g., among reformers like Luther and Calvin), how do we understand the rights of a construction company or a private law firm or an equipment manufacturer in terms of eligibility for religious exemptions? I think I understand at the level of principal why it is okay for World Vision or Olivet Nazarene University, if they so choose, to hire only Christians. The nature and purpose of those organizations would be undercut if their employees did not share a comprehensive view of life rooted in Christianity. Understandably, then, these organizations should be exempt from certain rules for hiring that would otherwise prohibit employer discrimination based on religious belief. Furthermore, and just as clearly, World Vision and Olivet should be exempt from being forced to do things that would violate their understanding of Christian morality, and if this principle is violated by a law, that law should only stand after being subjected to the test of strict scrutiny, as you argue.
On the contrary, the nature and purpose of a private law firm or construction company does not necessitate the same hiring exemptions as the prior mentioned organizations. The reason is because applicants for positions with these employers should be evaluated largely on their ability to render the service or produce the product at the center of the organization’s enterprise. But, on what principal should a construction company with a founder, CEO, or core group of strategic decision makers who are Christians, not also be protected against legally mandated activities (like paying for a particular medical service) contrary to their religious belief? Senator Blunt’s Amendment attempted make all businesses eligible for exemption from the HHS contraceptive mandate, and when I first heard about it I thought maybe it went too far, even though I was in full support of exempting Christian hospitals, social service organizations, universities, and schools. But, I have yet to be able to articulate why there is or should be a difference. Why shouldn’t the leaders or boards heading these businesses have the ability to resist legally mandated activities that violate their religious beliefs? Why should they not be permitted to promote an ethos within their businesses consistent with Christian moral imperatives that could otherwise be denied by mandates like the one promulgated by HHS?
Would you define “religion”? It seems to me one of the problems at the heart of all 1st Amendment debates (and religion and politics debates more broadly) is that the Constitution never defines religion and instead seems to assume religion to amount to a truncated Enlightenment view of Christianity, a view that reduces it to something much less than a comprehensive way of life that should be operative for its adherents in all spheres of life and should take many institutional forms. I am somewhat amazed that we (Americans) have gotten so much mileage out of protecting the free exercise of something and keeping something separate from the state all while taking it for granted that we know what we mean by “religion.” And I’m not referring to you or the other writers on this blog but I think I could confidently indict most Americans on this charge. Sometimes I think that what most people count as “religion” is merely those phenomena that appear similar to their perception of what Christianity is. And the more dissimilar a particular phenomenon is from Christianity, the less it is likely to be considered a religion. I guess we are still part of western civilization and we can’t seem to shake the shackles of our core so easily.
Would you define “religion”? It seems to me one of the problems at the heart of all 1st Amendment debates (and religion and politics debates more broadly) is that the Constitution never defines religion and instead seems to assume religion to amount to a truncated Enlightenment view of Christianity, a view that reduces it to something much less than a comprehensive way of life that should be operative for its adherents in all spheres of life and should take many institutional forms. I am somewhat amazed that we (Americans) have gotten so much mileage out of protecting the free exercise of something and keeping something separate from the state all while taking it for granted that we know what we mean by “religion.” And I’m not referring to you or the other writers on this blog but I think I could confidently indict most Americans on this charge. Sometimes I think that what most people count as “religion” is merely those phenomena that appear similar to their perception of what Christianity is. And the more dissimilar a particular phenomenon is from Christianity, the less it is likely to be considered a religion. I guess we are still part of western civilization and we can’t seem to shake the shackles of our core so easily.
Would you define “religion”? It seems to me one of the problems at the heart of all 1st Amendment debates (and religion and politics debates more broadly) is that the Constitution never defines religion and instead seems to assume religion to amount to a truncated Enlightenment view of Christianity, a view that reduces it to something much less than a comprehensive way of life that should be operative for its adherents in all spheres of life and should take many institutional forms. I am somewhat amazed that we (Americans) have gotten so much mileage out of protecting the free exercise of something and keeping something separate from the state all while taking it for granted that we know what we mean by “religion.” And I’m not referring to you or the other writers on this blog but I think I could confidently indict most Americans on this charge. Sometimes I think that what most people count as “religion” is merely those phenomena that appear similar to their perception of what Christianity is. And the more dissimilar a particular phenomenon is from Christianity, the less it is likely to be considered a religion. I guess we are still part of western civilization and we can’t seem to shake the shackles of our core so easily.
You raise an important question and one that is indeed at the heart of discussions of First Amendment freedoms. Indeed, we must think carefully and critically about what we mean by the term religion. I am glad that you raised this important issue. I would also add that we need to be careful that our discussions of religious freedom are consistent; that is, we should apply the same standards and expectations of religious freedom for all religions, not just those with which we are most comfortable.
The courts have to define religion and have done so throughout the history of First Amendment jurisprudence. Law professor Stephen Carter raises questions about the role of the courts defining religion and questions if we want judges deciding what is or is not religion. I agree with him that the practice has some inherent dangers, but I see no way around this. Judges must define religion in order to interpret and apply the Constitution, but we Christians should pay attention to the definitions to hold the Court to account.
Here is the definition of religion that the Supreme Court outlined in U.S. v. Seeger, a case that concerned the issue of religious exemptions for conscientious objection to military service:
"We have concluded that Congress, in using the expression "Supreme Being" rather than the designation "God," was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views. We believe that under this construction, the test of belief [380 U.S. 163, 166] "in a relation to a Supreme Being" is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Where such beliefs have parallel positions in the lives of their respective holders we cannot say that one is "in a relation to a Supreme Being" and the other is not."
I think the Court makes a helpful distinction here that religion includes both holding sincere beliefs and appears to be part of a person’s way of life. I personally see religion as something that includes beliefs. Identity, and practice.
You raise an important question and one that is indeed at the heart of discussions of First Amendment freedoms. Indeed, we must think carefully and critically about what we mean by the term religion. I am glad that you raised this important issue. I would also add that we need to be careful that our discussions of religious freedom are consistent; that is, we should apply the same standards and expectations of religious freedom for all religions, not just those with which we are most comfortable.
The courts have to define religion and have done so throughout the history of First Amendment jurisprudence. Law professor Stephen Carter raises questions about the role of the courts defining religion and questions if we want judges deciding what is or is not religion. I agree with him that the practice has some inherent dangers, but I see no way around this. Judges must define religion in order to interpret and apply the Constitution, but we Christians should pay attention to the definitions to hold the Court to account.
Here is the definition of religion that the Supreme Court outlined in U.S. v. Seeger, a case that concerned the issue of religious exemptions for conscientious objection to military service:
"We have concluded that Congress, in using the expression "Supreme Being" rather than the designation "God," was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views. We believe that under this construction, the test of belief [380 U.S. 163, 166] "in a relation to a Supreme Being" is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Where such beliefs have parallel positions in the lives of their respective holders we cannot say that one is "in a relation to a Supreme Being" and the other is not."
I think the Court makes a helpful distinction here that religion includes both holding sincere beliefs and appears to be part of a person’s way of life. I personally see religion as something that includes beliefs. Identity, and practice.
You raise an important question and one that is indeed at the heart of discussions of First Amendment freedoms. Indeed, we must think carefully and critically about what we mean by the term religion. I am glad that you raised this important issue. I would also add that we need to be careful that our discussions of religious freedom are consistent; that is, we should apply the same standards and expectations of religious freedom for all religions, not just those with which we are most comfortable.
The courts have to define religion and have done so throughout the history of First Amendment jurisprudence. Law professor Stephen Carter raises questions about the role of the courts defining religion and questions if we want judges deciding what is or is not religion. I agree with him that the practice has some inherent dangers, but I see no way around this. Judges must define religion in order to interpret and apply the Constitution, but we Christians should pay attention to the definitions to hold the Court to account.
Here is the definition of religion that the Supreme Court outlined in U.S. v. Seeger, a case that concerned the issue of religious exemptions for conscientious objection to military service:
"We have concluded that Congress, in using the expression "Supreme Being" rather than the designation "God," was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views. We believe that under this construction, the test of belief [380 U.S. 163, 166] "in a relation to a Supreme Being" is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Where such beliefs have parallel positions in the lives of their respective holders we cannot say that one is "in a relation to a Supreme Being" and the other is not."
I think the Court makes a helpful distinction here that religion includes both holding sincere beliefs and appears to be part of a person’s way of life. I personally see religion as something that includes beliefs. Identity, and practice.
Nathan's other post also raised some important questions. I'll offer a few thoughts on them.
In my view, religious organizations have protected first amendment rights as religious organizations. You raise important questions about rights of conscience, and I understand that religious believers (of many faiths) will find times when compliance with the law infringes on their religious beliefs. But the protections for religious organizations are particular to religious groups whose operations and work are connected to their religious calling and mission. Organizations that you mention, like World Relief and Olivet Nazarene, would meet my definition. But a secular college or relief organization, although doing valuable and important work, would not qualify for religious protection.
Nathan also asked me two specific questions: Why shouldn’t the leaders or boards heading these businesses have the ability to resist legally mandated activities that violate their religious beliefs? Why should they not be permitted to promote an ethos within their businesses consistent with Christian moral imperatives that could otherwise be denied by mandates like the one promulgated by HHS?
I am not a constitutional law expert, so I can only offer some suggestions or ideas. Perhaps other readers or contributors with more expertise can enter the conversation and help us out.
My understanding is that business leaders can (and often do) promote an ethos consistent with Christian imperatives; many companies have a corporate culture based on Christian faith (Chick-fil-A and ServiceMaster are two that immediately come to mind). Other private companies can operate based on principles from Islam, Judaism, or whatever religion or perspective they choose as long as such principles do not violate existing laws (e.g. child labor laws, minimum wage laws, anti-discrimination laws).
The biggest problem arises, as Nathan well notes, when legally mandated activities violate religious beliefs. If an individual is punished or cited under a law that inhibits his or her free exercise of religion, that person has legal standing in court to challenge the law. Under strict scrutiny, the state has to prove that the law is the only means necessary to achieve their goal. The current legal standard is not as high (the state needs a rational basis for implementing the law), and I believe that the court is too lax with this test. I do not think that non-religious entities have legal standing to make free exercise claims, but I am open to correction from someone who has more expertise than me.
Nathan's other post also raised some important questions. I'll offer a few thoughts on them.
In my view, religious organizations have protected first amendment rights as religious organizations. You raise important questions about rights of conscience, and I understand that religious believers (of many faiths) will find times when compliance with the law infringes on their religious beliefs. But the protections for religious organizations are particular to religious groups whose operations and work are connected to their religious calling and mission. Organizations that you mention, like World Relief and Olivet Nazarene, would meet my definition. But a secular college or relief organization, although doing valuable and important work, would not qualify for religious protection.
Nathan also asked me two specific questions: Why shouldn’t the leaders or boards heading these businesses have the ability to resist legally mandated activities that violate their religious beliefs? Why should they not be permitted to promote an ethos within their businesses consistent with Christian moral imperatives that could otherwise be denied by mandates like the one promulgated by HHS?
I am not a constitutional law expert, so I can only offer some suggestions or ideas. Perhaps other readers or contributors with more expertise can enter the conversation and help us out.
My understanding is that business leaders can (and often do) promote an ethos consistent with Christian imperatives; many companies have a corporate culture based on Christian faith (Chick-fil-A and ServiceMaster are two that immediately come to mind). Other private companies can operate based on principles from Islam, Judaism, or whatever religion or perspective they choose as long as such principles do not violate existing laws (e.g. child labor laws, minimum wage laws, anti-discrimination laws).
The biggest problem arises, as Nathan well notes, when legally mandated activities violate religious beliefs. If an individual is punished or cited under a law that inhibits his or her free exercise of religion, that person has legal standing in court to challenge the law. Under strict scrutiny, the state has to prove that the law is the only means necessary to achieve their goal. The current legal standard is not as high (the state needs a rational basis for implementing the law), and I believe that the court is too lax with this test. I do not think that non-religious entities have legal standing to make free exercise claims, but I am open to correction from someone who has more expertise than me.
Nathan's other post also raised some important questions. I'll offer a few thoughts on them.
In my view, religious organizations have protected first amendment rights as religious organizations. You raise important questions about rights of conscience, and I understand that religious believers (of many faiths) will find times when compliance with the law infringes on their religious beliefs. But the protections for religious organizations are particular to religious groups whose operations and work are connected to their religious calling and mission. Organizations that you mention, like World Relief and Olivet Nazarene, would meet my definition. But a secular college or relief organization, although doing valuable and important work, would not qualify for religious protection.
Nathan also asked me two specific questions: Why shouldn’t the leaders or boards heading these businesses have the ability to resist legally mandated activities that violate their religious beliefs? Why should they not be permitted to promote an ethos within their businesses consistent with Christian moral imperatives that could otherwise be denied by mandates like the one promulgated by HHS?
I am not a constitutional law expert, so I can only offer some suggestions or ideas. Perhaps other readers or contributors with more expertise can enter the conversation and help us out.
My understanding is that business leaders can (and often do) promote an ethos consistent with Christian imperatives; many companies have a corporate culture based on Christian faith (Chick-fil-A and ServiceMaster are two that immediately come to mind). Other private companies can operate based on principles from Islam, Judaism, or whatever religion or perspective they choose as long as such principles do not violate existing laws (e.g. child labor laws, minimum wage laws, anti-discrimination laws).
The biggest problem arises, as Nathan well notes, when legally mandated activities violate religious beliefs. If an individual is punished or cited under a law that inhibits his or her free exercise of religion, that person has legal standing in court to challenge the law. Under strict scrutiny, the state has to prove that the law is the only means necessary to achieve their goal. The current legal standard is not as high (the state needs a rational basis for implementing the law), and I believe that the court is too lax with this test. I do not think that non-religious entities have legal standing to make free exercise claims, but I am open to correction from someone who has more expertise than me.
Dr. Black,
Thank you for your very helpful responses to both my posts. I look forward to digging into U.S. v. Seeger. I have a few thoughts about the passage you cited. In that case the Court said, "We believe that under this construction, the test of belief [380 U.S. 163, 166] "in a relation to a Supreme Being" is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption." What I find interesting about this comment (of which I don't know the full context) is that it still uses "orthodox belief in God" as its standard for discerning what constitutes religion.
I should be direct about what I'm really getting at. The institutional separation of church and state is good for both institutions because a political community is composed of citizens in relation to government and is textured with many differentiated institutions existing within the common legal framework of the state. However, a community of faith has its own distinct nature, and its beliefs and practices are meant to shape that community’s entire identity. One should not have to be part of a community of faith to be a citizen and vice-versa (as the last discussion mentioning illegal immigrants in our churches highlighted). But the idea that some viewpoints or justifications for certain political positions are off-limits or at least more alarming because they are based on a Christian or Muslim or Jewish, etc. view of life seems arbitrary. I really don't see how so-called secular views of life that attempt to bracket off certain ultimate questions in order to advance particular positions should also not be deemed equally comprehensive and religious. This brings me back to the significance of defining religion.
Some times it seems that challenging common notions of religion can potentially open people to see it as a category that encompasses more than the historic world religions people typically think of, which I think would have a positive leveling effect. It’s not that every political debate needs to drill down to questions about the divine and where the world came from but at least the debates that more directly expose contrasting views about human nature, sexuality, dignity, etc. would not so easily devolve into charges by some against others that they are trying to impose their personal religion on the country as a whole. To be more concrete, the hope would be that debates like the one about the HHS mandate could become more intelligible. One wouldn’t so easily be able argue that the Catholic Bishops are merely attempting to impose their religion on a diverse nation by opposing this mandate. More people might recognize that for the Federal Government to make sweeping claims about what constitutes proper health care and then to force non-governmental organizations to actually promote a view of human sexuality and procreation contrary to their religious beliefs is also profoundly religious and impositional.
Dr. Black,
Thank you for your very helpful responses to both my posts. I look forward to digging into U.S. v. Seeger. I have a few thoughts about the passage you cited. In that case the Court said, "We believe that under this construction, the test of belief [380 U.S. 163, 166] "in a relation to a Supreme Being" is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption." What I find interesting about this comment (of which I don't know the full context) is that it still uses "orthodox belief in God" as its standard for discerning what constitutes religion.
I should be direct about what I'm really getting at. The institutional separation of church and state is good for both institutions because a political community is composed of citizens in relation to government and is textured with many differentiated institutions existing within the common legal framework of the state. However, a community of faith has its own distinct nature, and its beliefs and practices are meant to shape that community’s entire identity. One should not have to be part of a community of faith to be a citizen and vice-versa (as the last discussion mentioning illegal immigrants in our churches highlighted). But the idea that some viewpoints or justifications for certain political positions are off-limits or at least more alarming because they are based on a Christian or Muslim or Jewish, etc. view of life seems arbitrary. I really don't see how so-called secular views of life that attempt to bracket off certain ultimate questions in order to advance particular positions should also not be deemed equally comprehensive and religious. This brings me back to the significance of defining religion.
Some times it seems that challenging common notions of religion can potentially open people to see it as a category that encompasses more than the historic world religions people typically think of, which I think would have a positive leveling effect. It’s not that every political debate needs to drill down to questions about the divine and where the world came from but at least the debates that more directly expose contrasting views about human nature, sexuality, dignity, etc. would not so easily devolve into charges by some against others that they are trying to impose their personal religion on the country as a whole. To be more concrete, the hope would be that debates like the one about the HHS mandate could become more intelligible. One wouldn’t so easily be able argue that the Catholic Bishops are merely attempting to impose their religion on a diverse nation by opposing this mandate. More people might recognize that for the Federal Government to make sweeping claims about what constitutes proper health care and then to force non-governmental organizations to actually promote a view of human sexuality and procreation contrary to their religious beliefs is also profoundly religious and impositional.
Dr. Black,
Thank you for your very helpful responses to both my posts. I look forward to digging into U.S. v. Seeger. I have a few thoughts about the passage you cited. In that case the Court said, "We believe that under this construction, the test of belief [380 U.S. 163, 166] "in a relation to a Supreme Being" is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption." What I find interesting about this comment (of which I don't know the full context) is that it still uses "orthodox belief in God" as its standard for discerning what constitutes religion.
I should be direct about what I'm really getting at. The institutional separation of church and state is good for both institutions because a political community is composed of citizens in relation to government and is textured with many differentiated institutions existing within the common legal framework of the state. However, a community of faith has its own distinct nature, and its beliefs and practices are meant to shape that community’s entire identity. One should not have to be part of a community of faith to be a citizen and vice-versa (as the last discussion mentioning illegal immigrants in our churches highlighted). But the idea that some viewpoints or justifications for certain political positions are off-limits or at least more alarming because they are based on a Christian or Muslim or Jewish, etc. view of life seems arbitrary. I really don't see how so-called secular views of life that attempt to bracket off certain ultimate questions in order to advance particular positions should also not be deemed equally comprehensive and religious. This brings me back to the significance of defining religion.
Some times it seems that challenging common notions of religion can potentially open people to see it as a category that encompasses more than the historic world religions people typically think of, which I think would have a positive leveling effect. It’s not that every political debate needs to drill down to questions about the divine and where the world came from but at least the debates that more directly expose contrasting views about human nature, sexuality, dignity, etc. would not so easily devolve into charges by some against others that they are trying to impose their personal religion on the country as a whole. To be more concrete, the hope would be that debates like the one about the HHS mandate could become more intelligible. One wouldn’t so easily be able argue that the Catholic Bishops are merely attempting to impose their religion on a diverse nation by opposing this mandate. More people might recognize that for the Federal Government to make sweeping claims about what constitutes proper health care and then to force non-governmental organizations to actually promote a view of human sexuality and procreation contrary to their religious beliefs is also profoundly religious and impositional.
In the first comment in this string of comments, Michael Bindner offers some of his thoughts on this debate. Here are a few comments in response.
As I mention in part in another posting, religious liberty issues give freedoms both to individuals, in their own lives and practice, and to pervasively sectarian organizations, as religious entities that have both free exercise rights and rights of association. Individual church members have the freedom to accept or reject the teachings of their churches, but churches (like other religious organizations) have the right to choose their leaders and their organizational structure. Some churches, like the Roman Catholic church, are hierarchical in design. Others, like the Society of Friends are very non-hierarchical. Each organization has a right to decide its structure and operations.
In my view, the HHS contraception mandate is fundamentally a religious liberty issue. Many have re-framed the issue as a debate over contraception, and I think they have been very successful in doing so. But I think that re-framing is incorrect.
The issue at hand in the HHS debate is not: does an individual have a right to purchase and use contraception? The Supreme Court answered “yes” to that question more than half a century ago in Griswold v. Connecticut (for married couples) and Eisenstadt v. Baird (for everyone), and that precedent has been consistently upheld to this day. Any woman or man who wants to use contraception in the United States can do so. The Court interprets contraception to be included in a constitutional right to privacy.
The question raised in the recent debates is not if individuals may use contraception but instead: can the federal government require employers to provide health insurance that pays for contraception? The answer to this question is much less clear. The Obama Administration says yes; many Members of Congress say no. The public is divided in its thoughts on the matter. And the courts will soon get a chance to weigh in. The Supreme Court has set aside 3 days to hear oral arguments related to the larger question of the constitutionality of the insurance mandate (March 26-28, 2012), and many organizations (including, for full disclosure, the college where I teach) are filing legal actions challenging the specifics of the contraception regulations.
In the first comment in this string of comments, Michael Bindner offers some of his thoughts on this debate. Here are a few comments in response.
As I mention in part in another posting, religious liberty issues give freedoms both to individuals, in their own lives and practice, and to pervasively sectarian organizations, as religious entities that have both free exercise rights and rights of association. Individual church members have the freedom to accept or reject the teachings of their churches, but churches (like other religious organizations) have the right to choose their leaders and their organizational structure. Some churches, like the Roman Catholic church, are hierarchical in design. Others, like the Society of Friends are very non-hierarchical. Each organization has a right to decide its structure and operations.
In my view, the HHS contraception mandate is fundamentally a religious liberty issue. Many have re-framed the issue as a debate over contraception, and I think they have been very successful in doing so. But I think that re-framing is incorrect.
The issue at hand in the HHS debate is not: does an individual have a right to purchase and use contraception? The Supreme Court answered “yes” to that question more than half a century ago in Griswold v. Connecticut (for married couples) and Eisenstadt v. Baird (for everyone), and that precedent has been consistently upheld to this day. Any woman or man who wants to use contraception in the United States can do so. The Court interprets contraception to be included in a constitutional right to privacy.
The question raised in the recent debates is not if individuals may use contraception but instead: can the federal government require employers to provide health insurance that pays for contraception? The answer to this question is much less clear. The Obama Administration says yes; many Members of Congress say no. The public is divided in its thoughts on the matter. And the courts will soon get a chance to weigh in. The Supreme Court has set aside 3 days to hear oral arguments related to the larger question of the constitutionality of the insurance mandate (March 26-28, 2012), and many organizations (including, for full disclosure, the college where I teach) are filing legal actions challenging the specifics of the contraception regulations.
In the first comment in this string of comments, Michael Bindner offers some of his thoughts on this debate. Here are a few comments in response.
As I mention in part in another posting, religious liberty issues give freedoms both to individuals, in their own lives and practice, and to pervasively sectarian organizations, as religious entities that have both free exercise rights and rights of association. Individual church members have the freedom to accept or reject the teachings of their churches, but churches (like other religious organizations) have the right to choose their leaders and their organizational structure. Some churches, like the Roman Catholic church, are hierarchical in design. Others, like the Society of Friends are very non-hierarchical. Each organization has a right to decide its structure and operations.
In my view, the HHS contraception mandate is fundamentally a religious liberty issue. Many have re-framed the issue as a debate over contraception, and I think they have been very successful in doing so. But I think that re-framing is incorrect.
The issue at hand in the HHS debate is not: does an individual have a right to purchase and use contraception? The Supreme Court answered “yes” to that question more than half a century ago in Griswold v. Connecticut (for married couples) and Eisenstadt v. Baird (for everyone), and that precedent has been consistently upheld to this day. Any woman or man who wants to use contraception in the United States can do so. The Court interprets contraception to be included in a constitutional right to privacy.
The question raised in the recent debates is not if individuals may use contraception but instead: can the federal government require employers to provide health insurance that pays for contraception? The answer to this question is much less clear. The Obama Administration says yes; many Members of Congress say no. The public is divided in its thoughts on the matter. And the courts will soon get a chance to weigh in. The Supreme Court has set aside 3 days to hear oral arguments related to the larger question of the constitutionality of the insurance mandate (March 26-28, 2012), and many organizations (including, for full disclosure, the college where I teach) are filing legal actions challenging the specifics of the contraception regulations.