Religious Liberty, The Secular State, and a Third Way

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The United States is one of the oldest democracies in the world and prides itself on being among the founders of modern day Human Rights.  Yet, since before the signing of America’s constitution, ideological armies have dug their trenches and taken up arms on one side or the other of the debate over religion and its proper relationship to the United States Government.  The fight began before Madison ever drafted The Constitutional Bill of Rights. 

 

There are three sides in the discussion of separation of church and state. One side of the battle was led by James Madison author of Memorial and Remembrance Against Religious Assessments (1785), Thomas Jefferson author of The Virginia Act for Establishing Religious Freedom (1786), and George Mason author of The Virginia Declaration of Rights upon which, James Madison based The Bill of Rights.  According to their respective documents, these Founders of the U.S. believed the establishment of a single religion over all others’ by the state would endanger the religious rights of all.  

 

The other side of the battle was led by Patrick Henry, orator of the famous “Give Me Liberty or Give Me Death” Revolutionary War speech and a proponent of a post-Revolutionary War bill to establish Christian Religion in the state of Virginia (1784).  Henry believed in order to ensure religious freedom the church needed formal endorsement and special tax support for religious teachers from Virginia’s state government.[i] Henry was not alone.  John Adams and George Washington also upheld some forms of religious establishment within states during their presidencies.[ii]  

 

So, in the formative era of our nation, there were two sides in the debate surrounding religion and its relationship to the state.  One side stood solidly on the side of religious establishment while the other side stood firmly on the side of non-establishment.  Each side provoked the other to solidify their position and fight the battle in the context of legislative bodies.  Each side was led by significant founders of the United States.  Most significantly, no side fought against the idea of non-establishment of religion with the provision that individual religious rights and liberties would be enforced by the nation/state.  In fact, it seems that both sides were so entrenched in their battles against the other that they never clearly articulated a third way.

 

In today’s United States, there are more than two sides to the religion and state discourse.  Various factions have taken up the arguments of the above two camps.  They have used the fragmented ideas and opportune words of Madison, Jefferson, Mason, Henry and Washington to support their ends, thereby creating at least three camps fighting for particular interpretation of James Madison’s Establishment Clause in the First Amendment of The Bill of Rights; “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”[iii] 

 

I refer to these intellectual camps as 1) the Secular Nation argument; 2) the God and Country argument; and a newer line of discourse, the Accommodationist argument,” a hybrid of Madison, Jefferson, Mason, Washington and Henry.  This post-modern argument stands in favor of the non-establishment of a single religion over all, yet does not seek to form a secular state through the exclusion of religion altogether from public discourse.  Rather, the Accommodationist argument embraces the value of religion in civil society, by upholding the active federal enforcement of individual religious rights and liberties that nurture and protect a religiously plural United States of America.

 

I believe that the Accommodationist argument honors the intent and vision of the founders of the United States and the signers of our Constitution’s Bill of Rights, more so than the Secular Nation and God and Country arguments.  It is true; the two original sides disagreed regarding the need for the establishment of one single religion by the state.  Yet, from the beginning most founders of the U.S., including those mentioned in these reflections, held common values for individual religious rights and liberties at the core of their intent.  Plus, most valued the protection of rights for a plurality of religious sects.

 

 As a bonus, almost all of the founders of our nation justified their belief in the protection of individual rights based on an authority higher than the state itself; the spiritual authority of their creator God, often referred to as The Lord Almighty, who, they believed, gives the gift of natural rights to humankind.  In fact, Harvard Professor of Comparative Religion and Indian Studies, Dr. Diana Eck, remarked on the importance of religious faith’s role in the creation of America’s pluralistic democracy in a speech given at the MAAS International Conference on Religious Pluralism in Democratic Societies.  Dr. Eck explained, “It is significant that the founders and framers of the Constitution were, to be sure, people of faith. The likes of Jefferson and Madison actually argued their case for a secular Constitution on religious grounds. Our freedom is grounded in the God-given freedom of the mind to think and to choose.”[iv]  Thus, taken in concert, the historically common values of two opposing sides form the foundation for the current day Accommodationist Argument.

 

The Accommodationist argument upholds the following values:

  1. The individual has natural rights and liberties now enforceable through the Constitution, the Bill of Rights and the Fourteenth Amendment. 
  2. The Federal Government is therefore responsible to enforce these religious liberties and make possible the enactment of these religious rights. 
  3. Finally, to completely exclude religion from civil society is in effect to create a purely secular civil society.  This exclusion of religion from civil society does two things.  First, it forces the exclusion of the religious part of the individual from civil society.  Second, as a result it effectually places human beings in the highest seat of authority over our nation.  This was not the intent of the founders of the United States who did not exclude their own religious selves from the civil act of forming our union.

 

Recently, politicians and pundits have brought various issues of religious liberty and the separation of church and state to the fore with the controversy over contraception. True to form most arguments have sided on either the Secular Nation side or the God and Country side of the aisle. Early February 2012, the Obama administration announced its decision to require non-church faith-affiliated institutions, such as hospitals and universities to provide employees with health insurance that covers contraception. After backlash from the Catholic Bishops and an unusual alliance of conservative and progressive evangelicals, the administration reconsidered. Personally, I believe there is a third way and President Obama found it. The administration enacted an Accommodationist approach. By requiring insurance agencies to pay for the service directly, and not the institutions themselves, the administration preserved religious liberty and the disestablishment of religion.

Since the administration’s compromise, some have attempted to argue that no institution should have to provide health insurance that covers contraception. I strongly disagree with this over reach. The claim is made that such a requirement might require a religious employer in a secular institution to compromise his or her personal faith by providing insurance that covers contraception. At the heart of this argument is a mishandling of the concept of personhood and citizenship. The U.S. Constitution was crafted to protect the rights and liberties of individual citizens, not corporations. When an agent of a secular institution makes a payment or offers benefits to an employee, that transaction is made through the medium of the corporation. Corporations are not people. Corporations do not worship. Corporations do not have a conscience of their own without the direction of board members, whose positions are temporary. No agent of the corporation equals the corporation; not the manager, the executive, nor any member of the board. Thus transactions made in the name of secular corporations are not protected by the First Amendment of the Constitution.

 

Much more could be said, but I’ll stop here, for now. I look forward to this conversation.

 

[i] Joseph M. Dawson, “The Meaning Of Separation of Church and State In the First Amendment,” A Journal of Church And State, Vol. 1, No. 1, 38.

[ii] Judge Michael McConnell, “The Meador Lecture on Law and Religion” as reported by Elizabeth Katz.  See http://www.law.virginia.edu/home2002/html/news/2005_fall/mcconnell.htm.

[iii] The U.S. National Archives & Records Administration, “The Bill of Rights: A Transcription,”  http://www.archives.gov/national-archives-experience/charters/charters_downloads.html

[iv] Professor Dr. Diana L. Eck, “A New Religious America: Managing Religious Diversity in A Democracy: Challenges and Prospects for the 21st Century,” MAAS International Conference on Religious Pluralism in Democratic Societies (Kuala Lumpur, Malaysia, August 20-21 2002)

See http://usembassymalaysia.org.my/eck.html

The HHS Mandate Matters

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Our president recently decreed that American employers must subsidize the cost of certain healthcare products regardless of whether doing so would violate any religious convictions of the employer. (The mandate is part of the Patient Protection and Affordable Care Act commonly referred to as “Obamacare”). Churches are exempt for now, but religiously affiliated colleges, hospitals, and charities have been given one year to comply with the law or face fines of up to $100/day for each employee. A small Christian college with 400 employees that chooses to abide by the values of its faith would face annual fines of up to $14.6 million. Health and Human Services Secretary Kathleen Sebelius says such an arrangement “strikes the appropriate balance between respecting religious freedom and increasing access to preventative health services.”

The Obama administration believes the “appropriate balance” between the First Amendment right to the free exercise of religion and the non-existent right to subsidized contraception is to give religious organizations one year to plan how best to violate their consciences or pay crippling fines. 

Persecution is a regular occurrence for Christians around the world. At the time of this writing, Iranian pastor Youcef Nadarkhani has been imprisoned 885 days for refusing to recant his Christian faith. He faces execution at any moment. In Sudan, the government has enacted an ethnical cleansing policy barring “Southerners” (Christians) from citizenship. Chinese pastor Yi Ling who was released last month after 12 years in prison. Her crime? Working for an underground Christian magazine.

The HHS mandate is not religious persecution. Christians in America must remember that domestic skirmishes over Crèches and contraception pale in comparison to the war on Christianity being waged elsewhere. Yet incremental infringements on religious freedom in America do matter. We have seen the gradual marginalization of Christianity in the West and cases of religious persecution. Sweden criminalized criticism of homosexuality and jailed a pastor for preaching the biblical position on the issue. In Canada, a man was fined $9,000 for printing three scripture references regarding homosexuality in an ad in his local paper. 

In neither example are mere beliefs deemed unacceptable. For now, so long as so-called “hate speech” remains private people are free to believe whatever they want. The HHS mandate takes the United States one step closer towards such a system. It is reasonable to presume a nation that can force religious adherents to pay for things their faith compels them to avoid could criminalize the preaching of their religious tenets. The elimination of faith from the public square is impossible for Christians who have a mandate to spread the Good News. It is also contrary to foundational American principles.

Church-State relations have always been a messy business. In America, our founders recognized that the free and pluralistic society they envisioned would require constant attention to the tension between religious freedom and civil society. They provided a framework: there would be no establishment of a state religion nor would the state limit the free exercise of religion. We’ve been debating ever since.

The relevant principle inherent in the Constitution is that vibrant and active religious communities are good for society. The President may believe that religion should take a backseat to women’s rights (or golf, as evidence suggests) and many Americans agree. But many don’t. Within the Constitutional framework upon which we base our laws, the HHS mandate is clearly out of bounds. Whether a majority of Supreme Court justices find a path through the labyrinth of bad precedent is an open question. Something tells me we’ll soon see.  

 

 

 

Religion in Public Life–and in Election Campaigns

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Since over 40 percent of Americans attend religious services every week and over 90 percent profess belief in God, it is not surprising that religion enters into many public policy debates and election campaigns.  Americans are also near unanimous in professing a commitment to the separation of church and state, and they hold the religious freedom language of the First Amendment as nearly sacred.  Given the large role religion plays in most Americans’ lives, when combined with their commitment to religious freedom and the separation of church and state, it is not surprising that conflicts between the two have at times arisen.  But this need not be so.  There is no inherent conflict or even tension.

Most of the perceived conflicts or tensions arise from one of two sources.  One occurs when public office holders or candidates for public office relate their religious faith to the policy positions they favor.  Then they invariably are charged with violating church-state separation or advocating a theocratic regime (that is, imposing their religious beliefs onto all of society by force of law).  

 Rick Santorum, a Republican candidate for his party’s nomination this year, is the most recent example of this.  Santorum—a sincere, practicing Roman Catholic with conservative views—has argued that John F. Kennedy in 1960 inappropriately separated his Catholic faith from his actions as a candidate for President. Santorum’s campaign website proclaims that he has “fought for the preservation of the traditional American family.”  He has expressed the traditional Catholic opposition to artificial birth control, while insisting he does not favor forcing this position onto all by force of law. 

As a result a New York Times columnist labeled him a “small-town mullah” and charged he was “telling people how to run their lives.”  Another commentator declared, “What Santorum wants is a theocracy in which Catholic dogma is the rule of the land.”   

But such persons are confusing the separation of church and state with the separation of religious views and public policy.  Church and state are two formal organizations or institutions.  They indeed ought to be separate, with the state not attempting to take on the duties of an organized church and the organized church not attempting to act like the state. 

However, all of us—whether voters and citizens or candidates for public office and whether deeply religious or more secularly minded—are shaped in our thinking and policy positions by our beliefs, backgrounds, and life experiences.  For a deeply religious person such as Santorum that includes his experiences and beliefs as a Catholic.   And for a candidate for public office to explain how his or her faith—whether religiously-based or rooted in secular perspectives and experiences—is not only appropriate but also helpful to us as voters.

A second way in which a tension or conflict between church and state can potentially arise is when government directives require certain religious believers to act contrary to one or more of their faith-based beliefs.  History yields many examples.  A military draft may force a pacifist with religious beliefs against participation in war to choose between taking part in fighting and killing or imprisonment.  Seventh Day Adventists have faced the loss of unemployment benefits if they refuse to take a job that involved Saturday work.  And in a controversy that has filled newspapers, blogs, and the airwaves in recent weeks, faith-based organizations in the Catholic and some evangelical Protestant traditions have faced the possibility of heavy fines if they do not accede to an Obama administration mandate that they include birth control coverage in their health insurance plans for their employees.  (And “birth control coverage” is defined so as to include some abortifacients.)

There are two ways in which this type of threat to religious freedom can be met.  One is to do away with the mandate entirely: to repeal the military draft, allow all recipients of unemployment insurance to turn down proffered jobs, and allow all employers to exclude birth control in their health insurance policies.  But this can have negative consequences for the common good.  A nation’s military may not have the military personnel it needs to protect its people, unemployed workers may destroy the unemployment insurance program by turning down offered jobs, and abortion rates, women’s health, and dysfunctional families may increase as birth control is less readily available.  (This last consequence is, at the least, debatable, but let’s go along for now with the argument being made in favor of the birth control mandate.)

We as a nation, however, have usually handled religious objections to mandates that society as a whole has judged to be needed, not by doing away with the mandate, but in a second way: namely, creating an exemption for those with serious religiously-based objections to the mandated policy.  In that way no religious group imposes its will onto the nation as a whole; the nation as a whole does not force a religious group to act in violation of its religious conscience.  Thus an exemption from the military draft for religious pacifists has usually been included in draft laws.  In 1963 the Supreme Court declared that an unemployed Seventh Day Adventist who had turned down a job that involved Saturday work could not be denied unemployment benefits. 

How the birth control insurance mandate will be resolved is uncertain.  President Obama originally created a very narrow religious exemption, one that he has now broadened.  One can hope that we as a nation will follow our historic precedents that have created religious exemptions for persons and organizations in religious traditions that have long-standing, thought-out, faith-based objections to legally imposed mandates.  Thereby faith-based organizations—which are an important part of civil society and which government should respect and value—will have their religious freedom rights protected. 

And no one should allege a violation of church-state separation when a political leader or candidate for public office urges such an exemption or our government in fact does so.  Instead, we are then following historic precedence and acting in keeping with freedom of religious belief and action for all. 

                                                                                                Stephen V. Monsma

 

Sixteen Highly-Contested Words in Theory and in Practice

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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.

Preserving Disestablishment AND Free Exercise

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The federal treatment of religion under the First Amendment was a masterstroke in political history. The Amendment reflected hard lessons learned from 1500 years of established Christianity in Europe. In this nation there would be no legally established religion. This, in itself, was revolutionary.

 And yet the First Amendment avoided the dangers of a different kind of revolution, the one that took place in France at the same time. There, hostility to the Crown merged into hostility to the Church, and the revolution that took place became not just anti-royalist but anti-clerical. The State, at least for a time, set itself up over against the Church, as an enemy not just to established religion but to religion itself.

 The United States government disestablished religion without establishing cultural or legal hostility to religion. The legal part of that protection was handled by the “free exercise” clause. Congress would not be permitted to make laws prohibiting the free exercise of religion.  Courts later interpreted this clause to demand a very high burden of proof on the part of the State for any hindering of religious practice.

 The cultural part of that protection was much more subtle. It involved the broadly shared belief that religion offered benefits to the social order, such that the new nation would be much better off with vibrant religiosity than with widespread unbelief. The ingenious thing about the church/state arrangement arrived at, however, was the recognition that the best way to ensure the continued vitality of religious belief and its associated institutions was to disentangle religion from the state.  The best path to flourishing for both church and state was to make them both free, and to disconnect them from each other.

 That is the proper understanding of the separation of Church and State. That separation is primarily institutional, and refers to the rejection of the arrangements that had existed in the officially Christian states of an earlier epoch. It refers most directly to the activities of the State, rather than the Church. The State would not establish legal or political arrangements that privileged the Church, or any particular Church, as the normative, preferred, or official religion of the State. There would be no religious test for public office, no legally established or mandated religious belief or practice, and no taxation to support church entities. The Church (and particular churches) would have to rise or fall entirely based on member support and their own efforts. They would not be authorized, sponsored, funded, or otherwise propped up by the State.

 The First Amendment was a great idea. But its application has been complex enough to require the development of an entire legal specialization known as First Amendment Law. And today religious liberty/First Amendment fights seem to erupt daily. I am not a legal theorist. Therefore I will confine my contemporary comments to a few broad brush strokes.

 First, recognition of the constructive social role of religion and of the churches has led to various permissions for government funding (or funneling of tax dollars via individuals) for a wide range of social services provided by religious entities, most notably education and charity/relief/welfare services.  I once supported this funding stream because of its benefits for the common good, but I am now wondering whether it was ever a good idea. It has certainly introduced all kinds of vexing legal difficulties, such as the hiring policies of religious organizations whose hands touch tax dollars. In retrospect, those religious institutions that have avoided contact with federal money look exceptionally wise.  One might say that a stricter interpretation of the establishment clause on the part of the State, or a more rigid understanding of the Church’s independence on the part of the Church, would have been preferable and would have avoided many current problems.

 Second, recent developments raise questions about how religious free exercise rights relate to State efforts to advance its own vision of the common good. The fight over mandated contraceptive coverage is just the latest in a series of fights related to free exercise. My general take is that the burden of proof is a very high one, and it rests entirely with the State, to demonstrate why this or that exceptional case requires the overriding of religious liberty.

 I come back around again to strong support for the most robust workable version both of disestablishment and of free exercise. And by now it is clear that responsibility for guarding both principles rests with both the State and the Church.

 

 

 

 

 

 

 

Religious Freedom and Constitutional Democracy

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There is in American political life a strong tendency to see any social or political phenomena as rooted ultimately in individual choice.  States, churches, schools, families, all are said to be best understood by looking to the aims and goals of the persons who made agreements with each other to establish these entities.  The view of these organizations as essentially voluntarist in nature is one of the hallmarks of the classical liberal understanding of political and social life.

 

This liberal individualist approach has all sorts of consequences, but one particularly important consequence is how we understand rights.  In America, people generally understand rights to belong to individuals and not to entities larger than individuals: things like schools or businesses or non-profit organizations.  Rather, rights are attached to the people who establish these things, and not to the things themselves.

 

What does this mean for religious freedom?  First, in the liberal approach, there is strong temptation to reduce religious freedom to mere freedom of conscience for individuals.  While a guarantee of freedom of conscience is vital, this reduction is a problem because religions by definition reach beyond individual conscience.  Even the decision a person might take to keep his or her religious beliefs private is itself a religious decision.  And in fact, most of the ways that people exercise their religion is within communities or organizations.  These people are unlikely to say they have thereby departed from the “religious” to the “secular”—indeed it is their religion that has led them to act at all.

 

The narrowly individualist view of religious freedom thus misunderstands what religion is.  But the individualist position also misunderstands what organizations are.  An entity such as a school is not an “accident”—it does not appear ex nihilo, based on the contracting wills of consenting adults.  Rather, a school is a thing: it has certain tasks and responsibilities that derive neither from the wills of individuals nor the mandate of a state.  As such, it can and must make claims on us and on other institutions as it goes about its work; indeed, we must begin to see that it too has rights—and even religious rights.

 

When we bring together this larger view of organizations with the larger view of religion described above, several implications follow.  Chief among them is the general principle that the state must proceed with a presumption in favor of religious freedoms for institutions, even if such institutions receive state support.  That means that states must demonstrate a compelling interest if they seek to limit associational freedom in some way.  And crucially, that compelling interest cannot be premised on how “secular” are the organization’s activities.  Such approaches are based on the narrow individualist account of religion.  Rather, state actions with respect to these organizations are to be justified by reference to the state’s own task, that of ensuring just social and political relationships among individuals, communities, and organizations.

 

It might be helpful, therefore, to see state restraint with respect to the education of Amish children or contraception in Catholic schools not so much as exemptions from rules, but rather the details of what the rule actually looks like when applied to the religious landscape of American life.  The language of “exemption” can be troubling because it suggests that those who understand faith in non-liberal ways are merely to be tolerated by the rest of us.  And in a genuinely pluralist democracy, the very reasons citizens understand and accept law are themselves contested—and reasonably so.  It should be enough that we know that our neighbors accept the authority of law; we should not require that they accept it for the same reasons that we do.

 

Is this compatible with the liberal version of constitutional democracy as we have come to know it in America?  Perhaps not, and liberal proponents of that vision may be dismayed with the loss of the privileged position that their version of democracy has enjoyed.  They may take comfort, however, in the fact that all are similarly disestablished.  Genuine respect for pluralism demands that liberalism, Catholicism, nationalism, secularism all be denied pride of place, and that our polity be understood to embrace all who reside in a territory, regardless of race, religion, gender, and all the other distinctions that divide.   Pluralism is here to stay; the era of liberal antidisestablishmentarianism must come to an end.

Topic #3: Religious Freedom

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Please consider the following potential leading questions

 

#1: What is the scope, and what are the limits, if any, on “religious freedom” in the stipulation in the First Amendment to the U. S. Constitution that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof?”

 

#2: What meaning do you ascribe to the concept of “separation of Church and State?”  Is it significant that this phrase is not in the Constitution?

 

#3: Does your understanding of the First Amendment and the “separation of Church and State” allow for tax dollars to go the faith-based organizations that provide social services? If so, under what stipulations and requirements?  Especially, may faith-based organizations take the religious beliefs and the religiously-based behavior standards into account in hiring employees for positions for which they are receiving government funding?

 

#4: Should the executive or legislative branches of government be free to take actions that require religious congregations or faith-based educational, health, and social service agencies to act contrary to their religious  beliefs , and, if so, on what basis and under what circumstances? Consider, for example, legislation that prohibited the practice of polygamy among Mormons; and the recent debate over whether the executive branch of government can or should take action to require Catholic and other religiously-based educational, health, and social agencies to provide for contraception in the health plans provided for their employees.

 

#5. Can threats to the religious freedom of individuals and organizations better be met by carving out religious exemptions for them or by reducing the overall reach and intrusiveness of government?